Mr. Kane and the Jewish Defence League of Canada filed a complaint with the Human Rights Commission against the publication Alberta Report. The complaint concerned an article that was alleged to have anti-Semitic content. Section 2 of Alberta’ s Human Rights, Citizenship and Multiculturalism Act prohibits statements that are found to discriminate against persons, or are likely to expose them to “hatred or contempt”, on the basis of race, religion, sex and other personal characteristics.
Before dealing with the complaint, the Alberta Human Rights Panel made a Special Case Application to the Court, posing several legal questions. The questions concerned the scope of s. 2 of the Act, including whether it applied to statements that were “opinion” and the balancing between the prohibition of hateful statements and the protection accorded to “freedom of expression”.
In his decision on the Special Case, Alberta Queen’s Bench Justice John Rooke made several important findings. He held that there is no need to define what constitutes “an opinion” in the Act and that the fact a statement may reflect a personal opinion is irrelevant to whether the statement contravenes s. 2 of the Act. Justice Rooke further held that the media enjoys no special protection when it publishes third party statements. Such statement can constitute hateful or discriminatory speech. In so finding, he accepted LEAF’s arguments and dismissed arguments by Alberta Report and The Calgary Herald that would have seriously diluted the effectiveness of s. 2.
Although Justice Rooke recognized the importance of freedom of expression, he noted that this freedom is not absolute. He ruled that the Human Rights Panel must consider other principles as well, such as equality, freedom of religion and multiculturalism. His findings in this regard reflected LEAF’s argument that s. 2 of the Act should be interpreted in a manner consistent with the Charter.
The Alberta Human Rights Panel ultimately followed the principles enunciated by Justice Rooke.
One of the key legal issues was whether a section on Alberta’s human rights legislation provided an “unqualified and categorical” defence for expression of opinion. LEAF argued against such an interpretation.
The panel agreed and held that the media has no special protection if they publish third party statements that are hateful or discriminatory.