Time for Redford to Keep Her Promise on Section 3

My latest Calgary Herald column looks at last week's ruling (PDF) from the Alberta Court of Appeal in the Stephen Boissoin case, and why it should compel the Redford government to action:

As the Alberta legislature commences its fall sitting today, there will be much focus on how the actions of the government are to be reconciled with the promises made by Premier Alison Redford.
Ideally, there would be no conflict. As we’ve seen in practice, unfortunately, that’s not always the case.
Let’s not forget that Redford has been premier for over a year now, and the campaign of 2012 was not her first foray into the realm of promise making. Albertans may recall, for example, broken or compromised promises on such matters as fixed election dates and an inquiry into the intimidation of Alberta physicians.
There is another promise made by Redford that has not been kept and which deserves the government’s attention, as an authority no less than the Alberta Court of Appeal made clear last week.
While seeking the PC leadership, Redford was unequivocal about the need to protect freedom of expression by repealing Section 3 of Alberta’s human rights legislation.  Upon assuming office, however, the justice minister was merely ordered to “assess the appropriateness of amending or repealing Section 3 of the Alberta Human Rights Act.”   If Redford had questions about the “appropriateness” of repealing Section 3, one wonders why she would have made such a clear promise.
However, it is safe to say that the inappropriateness that exists in this area applies to the law itself, not those who believe it needs to be changed.
Section 3 of the act reads: “No person shall publish, issue or display or cause to be published, issued or displayed before the public any statement, publication, notice, sign, symbol, emblem or other representation that . . . is likely to expose a person or a class of persons to hatred or contempt.”   Subsection 2 then informs us that “nothing in this section shall be deemed to interfere with the free expression of opinion on any subject.”
In lieu of any concrete government action, the courts have had a chance to weigh in on the matter following an appeal and counter appeal of an atrocious decision from a panel of the Alberta Human Rights Commission. In 2002, the Red Deer Advocate ran a letter to the editor from a pastor named Stephen Boissoin, in which he rants about the “militant homosexual agenda” that is pushing “damaging pro-homosexual literature and guidance in the public school system.”
University of Calgary professor Darren Lund filed a complaint with the Human Rights Commission, and in 2007, a panel found that Boissoin’s letter was in violation of Section 3. He was fined $5,000 and was eternally barred from making “disparaging remarks” about homosexuals.
A Court of Queen’s Bench judge overturned that decision in 2009, leading to an appeal. Last week, the ruling came down from the Alberta Court of Appeal. The three justices unanimously upheld Boissoin’s freedom of expression, and raised concerns about the legislation and the way it was used to convict him.
The justices state that “Boissoin and others have the freedom to think . . . that homosexuality is sinful and morally wrong . . . (and) they have the right to express that thought to others.” As to the legislation itself, the ruling examines the paradoxes presented by subsection 2, and notes “the words ‘nothing in this section’ cannot be interpreted reasonably as sometimes permitting interference with the free expression of opinion.”
In other words, we need to differentiate between expression of opinion and publication of words that would amount to discrimination, such as a sign reading “whites only.”   The court warns that this “lack of clarity” will “cast a chill” on freedom of expression, and as such, Albertans are “entitled to certainty when it comes to exercise of their fundamental rights.”
Had Redford kept her promise, we might now have that certainty. Despite the damage done by the status quo, it’s not too late to make it right.

Previous writings on this matter here, here, here, here, here, and here.