Judicial suppression of the rule of law

The Interim
By Rory Leishman

In a classic, 20th century, treatise entitled The Road to Serfdom, Friedrich Hayek observed that the hallmark of a free country is the subordination of ruling authority to the fundamental principles of the rule of law. He explained: “Stripped of all technicalities, this means that government in all its actions is bound by rules fixed and announced beforehand -- rules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances and to plan one’s individual affairs on the basis of this knowledge.”

By this standard, Canada is no longer a free country. The problem is due to Canada’s federal and provincial human rights commissars. In a spate of recent rulings, they have wilfully abandoned fixed legal rules in favour of completely arbitrary and contradictory rulings.

Consider, to begin with, the decision of the Canadian Human Rights Tribunal (CHRT) in Warman v. Beaumont on October 26, 2007. The adjudicator, Athanasios Hadjis, found that Jessica Beaumont, a 21-year-old retail clerk in Calgary, had expressed hatred and contempt for blacks, Jews and homosexuals in violation of section 13 of the Canadian Human Rights Act. For these offences, he ordered her to pay a $1,500 fine as well as $3,000 in compensation to the complainant, Richard Warman.

Less than a year later on September 2, Hadjis, handed down a ruling for the CHRT in Warman v. Lemire. As in the case of Beaumont, Hadjis found that Marc Lemire had expressed hatred and contempt for homosexuals in violation of section 13 of the Human Rights Act. However, instead of censoring and fining Lemire as he had Beaumont, Hadjis let him off on the ground that section 13 violates the guarantee of freedom of expression in section 2 of the Canadian Charter of Rights and Freedoms to an extent that cannot be justified in a free and democratic society.

What, then, is it? Are the censorship powers conferred upon the Canadian Human Rights Tribunal in section 13 valid as Hadjis decided in Beaumont or invalid as he declared in Lemire? No one can no. There is no certainty that the unprecedented ruling by Hadjis in Lemire will be followed by any other human rights tribunal or upheld by the courts.

For Rev. Stephen Boissoin, this is a matter of more than academic interest. He is the author of a controversial letter to the editor “Homosexual Agenda Wicked” which was published in the Red Deer Advocate and on the website of Concerned Christians Canada, an organization headed by Craig Chandler. Acting on a complaint by Rob Wells, a homosexual activist in Edmonton, the Canadian Human Rights Commission held that in republishing Boissoin’s letter, Chandler had expressed hatred and contempt for homosexuals in violation of section 13.

Ezra Levant, Canada’s premier human-rights lawyer, was outraged by this attack on freedom of expression. He courageously defied the Commission by republishing Boissoin’s letter on his own website.

Wells then filed a complaint against Levant. But did the Commission follow the Chandler precedent? No. After subjecting Levant to an extensive investigation and tens of thousands of dollars in legal costs, the Commission concluded in a complete reversal on November 17 that he had a legal right to republish Boissoin’s letter.

Meanwhile, the Commission has also dropped vexatious and costly complaints filed by Wells against Fr. Alphonse de Valk of Catholic Insight Magazine and Ron Gray of the Christian Heritage Party for expressing their Christian convictions on the sinfulness of homosexual sexual relations. Boissoin is not so fortunate: He is currently appealing a ruling by the Alberta Human Rights Tribunal that he expressed hatred for homosexuals in his letter.

Parliament and the provincial legislatures are responsible for this oppression. Beginning in the 1980s, they enacted Canada’s perverse human-rights provisions. It’s up to them, not the courts, to quash these oppressive laws.

At a Conservative policy convention in Winnipeg last November, every Conservative MP, including Justice Minister Rob Nicholson, voted to repeal section 13. The Harper Conservatives should promptly follow through on this commitment in Parliament. In this way, Canadians could at least get to know prior to the next election who among our MPs supports the revival of freedom under law in Canada.