Case law examples
Human rights case law is constantly evolving, based on cases that come before the courts and human rights tribunals. The following examples are Alberta cases.
Lund v. Boissoin, 2012 ABCA 300 (Alberta Court of Appeal, October 17, 2012)
Stephen Boissoin wrote a letter to the editor of the Red Deer Advocate with derogatory references to individuals who are gay ("the homosexual machine," etc). The Red Deer Advocate published the letter entitled "Homosexual Agenda Wicked." Dr. Darren Lund saw the article in the newspaper and filed a human rights complaint, stating that the letter contravened section 3 of the Human Rights, Citizenship and Multiculturalism Act, which is now named the Alberta Human Rights Act (the Act).
The complaint was ultimately heard by a human rights tribunal that held there was discrimination pursuant to the Act. A lower court overturned the tribunal's ruling and quashed the finding of discrimination. Dr. Lund appealed the lower court's decision to the Alberta Court of Appeal. The Alberta Court of Appeal dismissed the appeal, holding:
- A contravention of section 3 does not require a demonstrated link to other discrimination under the Act: The letter must be read in context, and in context the wording of the letter does not meet the extreme standard of hatred set out in the decision of the Supreme Court of Canada in Canada (Human Rights Commission) v. Taylor,  3 SCR 892, 75 DLR (4th) 577. The approach must be from the "perspective of a reasonable reader" who is aware of the context and circumstances of the letter's publication.
- Section 3(2) is not a balancing section, but rather a complete exemption for opinions, but only for that expression that can be properly characterized as opinion.
- The provisions dealing with publications are very unclear given that the legislature intended to expand these particular provisions in 1996.
Johnson v. Music World Ltd. (2003), 46 C.H.R.R. D/319, Alberta Human Rights Panel
Mr. Johnson found a CD at a store in Red Deer. On the CD were two songs called "Kill the Christian" and "Kill All the White People." Mr. Johnson bought the CD and went home to listen to the lyrics. He complained to an Alberta human rights panel that the retailers had been discriminatory, under the statements section, by producing and displaying the CD for sale. He alleged the songs discriminated against Christians and white people.
The Alberta human rights panel* found that the retailers were the correct respondents to the human rights complaint because they had caused the CD to be displayed for sale.
To determine if the retailers had breached the statements section, the Alberta human rights panel reviewed the factors set out in Re: Kane and found that:
- the content and tone appeared to be discriminatory;
- there was little vulnerability of the target group (whites and Christians);
- the music did not reinforce existing stereotypes;
- the messages did not appeal to well-publicized issues;
- the medium to convey the message was suspect, lacked credibility and had a small circulation;
- the context of the publication was not presented as a debate or authoritative analysis;
- an extremely limited audience who were seeking certain messages would be the only purchasers of the music;
- one of the recording artists made it widely known that he does not expect to be taken seriously; and
- the medium used would not be seen as credible by the target group.
The panel found that although the content and tone appeared to be discriminatory, the other factors resulted in a finding that there had not been discrimination under the statements section of the Human Rights, Citizenship and Multiculturalism Act, now named the Alberta Human Rights Act.
Kane v. Papez (2003), 43 C.H.R.R. D/120, Alberta Human Rights Panel
The complainants argued that the respondents published and distributed pamphlets that were derogatory and discriminatory to Jews and Asians, and alleged that the respondents discriminated or intended to discriminate on the basis of race and religious beliefs. The respondent's publications frequently referred to others as "Nazis." The respondents argued that they were publishing evidence of corrupt practices and injustices suffered by themselves and their families, that they were exposing the truth, and that they did not intend to discriminate or offend the complainants.
The human rights panel found that the respondents contravened the Act. The pamphlet constituted "a notice, sign, symbol, emblem or other representation" within the meaning of the the Individual's Rights Protection Act, a precursor of the Alberta Human Rights Act. The panel characterized the pamphlets as "an anthology of accusations, criticisms, insults and denunciations reflecting the respondents' personal views, unsupported by reasonable grounds." The symbols used by the respondents, such as swastikas, elicited strong emotional responses from many who viewed them, and the tone used by the respondents in their publications was menacing and threatening. The language used in the pamphlets reflected hatred and contempt of Jews and Asians. A limitation on the respondent's right to freedom of expression was warranted to promote protection against discrimination. Regarding the respondent's argument that they did not intend to discriminate, the panel stated: "A critical feature of human rights law is that it is the impact upon targeted groups and not intention that is determinative of discrimination."
Re: Kane (2001), 94 Alta.L.R. (3d) 87, Alberta Court of Queen's Bench
On October 31, 1997 an article was published in the Alberta Report that discussed a negotiation between a Canadian builder, Fred Schickedanz, and an American promoter, Benson Flanzbaum.
The Jewish Defense League of Canada and its executive director, Harvey Kane, filed a complaint that the article contravened section 3 of the Human Rights, Citizenship and Multiculturalism Act, which is now named the Alberta Human Rights Act.
The Chief Commissioner for the Alberta Human Rights and Citizenship Commission appointed a panel, which adjourned to apply to the Court of Queen's Bench for its opinion on certain questions in the case.
In the process of answering those questions, the Court of Queen's Bench defined certain terms and outlined the elements necessary to analyze section 3 of the Act. For a full discussion of the findings in this case please see Detailed discussion of section 3 of the Alberta Human Rights Act.
The Court affirmed that there is a two-part test that courts and human rights use when analyzing section 3:
Step 1: First, the decision maker analyzes all of the evidence to determine whether the statement in question indicates discrimination or an intention to discriminate, or is likely to expose a person or class of persons to hatred or contempt.
Step 2: If the answer is "yes," the decision maker does further analysis to ensure that the decision they have made in step one properly balances the right to freedom of expression with the objective of eliminating discrimination. The decision maker will consider the:
nature of the statement, given the facts of the case;
nature and context of the expression;
degree of protection this type of expression is afforded; and
sections of the Canadian Charter of Rights and Freedoms that may come into play, such as the sections about equality rights, aboriginal rights, multicultural rights, sexual equality and freedom of religion.
The Court of Queen's Bench found that section 3(2) on freedom of expression is not an absolute or automatic defence to making a statement that is discriminatory or likely to expose a person to hatred or contempt. In other words, authors cannot justify discriminatory or hateful statements by merely arguing that the statements are a freely expressed opinion. However, this section does provide direction to courts and human rights tribunals to balance the two competing objectives of freedom of expression and the elimination of discrimination using the two-step test described above.
Kane v. Church of Jesus Christ Christian-Aryan Nations (1992), 18 C.H.R.R. D/1268, Alberta Board of Inquiry
The Church of Jesus Christ Christian-Aryan Nations held an Aryan Fest at a farm near Provost, Alberta in 1990. Mr. Kane made a human rights complaint in the area of statements, alleging discrimination based on:
- a sign reading "KKK White Power" at the gate of the farm property;
- the display of a Nazi flag with the swastika on the side of a barn; and
- the burning of a 30-foot-high cross in a field, which the public and media witnessed from a road running next to the property.
The Alberta Board of Inquiry (the precursor of human rights panels) concluded that the context in which the signs and symbols were displayed was "a celebration of intolerance" in a violent atmosphere. It looked at the freedom of expression section of the Individual's Rights Protection Act (a precursor to the AHR Act) and found that stopping discrimination was a sufficiently pressing goal to override the freedom of expression of the people displaying the statements.
*Effective October 1, 2009, human rights panels are called human rights tribunals.
Revised: December 20, 2012