Saturday, 24 March 2012

Provincial Liquor Monopolies may be Unconstitutional

Section 6 of the Charter guarantees that Canadians and permanent residents of Canada can move to and take up residence in any Canadian province. It also guarantees that the same people can pursue the gaining of a livelihood in any Canadian province. Like so many of the other freedoms we enjoy, we take our mobility rights for granted.

Canadian liquor producers do not enjoy the same luxury. Even though the producers themselves can freely cross between provinces, their products cannot.


It takes a short history lesson to explain why. In 1928, as Canada’s prohibition era was coming to an end, the provinces wanted to control the importation of liquor across their own borders. However, they recognized that they lacked the constitutional authority to enact such legislation, so they requested that the federal parliament delegate that power to them. The result was that, in the same year, the federal parliament enacted legislation titled the Importation of Intoxicating Liquors Act.

The act makes it illegal to import liquor into a province unless it has been purchased by or on behalf of the Queen. And you could be fined or jailed if you don’t comply. In practice, this means that all liquor imported into any province in Canada is the government’s liquor. Effectively, this 1928 law creates the monopoly over liquor enjoyed by each province. It prohibits producers from selling their products directly to consumers in other provinces. And, as is the case with any monopoly, this arrangement prevents innovative marketing, limits consumer choice, and drives up the price.

When liquor is imported into a province, the local provincial authority places a tax on it. This tax is hidden in the purchase price. In 2007/2008, the Alberta Gaming and Liquor Commission collected some $678 million in fees. In the same period, B.C. collected $857 million. But not to be outdone, in 2006/2007, Ontario collected an astounding $1.28 billion. These considerable sums of money increase the cost of liquor for consumers at the point of retail.

Today, because of the way these fees are collected, very few consumers are aware they are even being taxed.

What is difficult to understand about these provincial monopolies is that section 121 of our Constitution Act, 1867, states that all articles of “growth, produce, or manufacture” must be “admitted free” into each province. Early on, our courts decided this prohibited customs duties only, but subsequent court decisions seem to indicate that this constitutional provision means inter-provincial trade should be free of government imposed impediments, like hidden taxes, and the threat of fines and jail. Although constitutional law can be confounding at times, it is surpassingly odd that collecting $1.28 billion in hidden taxes could be considered “admitted free”.

Another interesting facet is that the provincial monopolies over liquor appear to be houses built on sand. In 1928, when the provinces requested that the federal parliament pass the Importation of Intoxicating Liquors Act, they effectively admitted that they did not have the constitutional authority to pass this legislation themselves. Parliament complied, relying on its authority to regulate trade and commerce.


But it seems that no one at that time considered section 121 of the constitution. Or perhaps it was conveniently forgotten? While parliament has the constitutional authority to regulate trade and commerce, section 121 reads as though it must not interfere with inter-provincial free trade while doing so. Ultimately, if parliament does lack the authority to enact legislation that props up each province’s liquor monopoly, the constitutional legitimacy of those monopolies should be called into question.

A modern and fair-minded reading of section 121 of our constitution makes it seem like a guarantee of economic mobility. Just as Canadians and permanent residents can freely cross provincial borders, section 121 seems to mean that liquor producers should enjoy that same freedom for their products. Since 1928, that freedom has been denied them. And consumers are literally paying the price.

This piece first appeared in Troy Media in June 2011. 

Damned if you do, damned if you don't

Canadians have a common law right to defend themselves, their family, and their property. This includes using reasonable force to protect oneself from physical harm. But this right – surely a fundamental, natural right immune from government interference – is being eroded and is under attack.

Ian Thomson, a Port Colbourne, Ontario resident, defended his life with a handgun – only to be charged later with three Criminal Code offences. He goes on trial January 30th and 31st.


Thomson, a target shooter and former firearms instructor, was awakened to the sound of shouted profanity and breaking glass early one August morning. Three masked men had come onto his land with Molotov cocktails and were firebombing his home while he slept. The highly agitated and aggressive intruders ignited Thomson’s front porch and dog kennel. They appeared bent on murder.

Thomson responded by doing two things: he phoned emergency services, and he retrieved a legally registered and properly secured firearm. Thomson exited his burning home and discharged the firearm two or three times to drive off his attackers.

Twenty-two minutes after being contacted, the police arrived. In the interim, Thomson dowsed the fires that the masked intruders had ignited. He had clearly prevented his own murder, yet Crown attorneys charged him with careless use of a firearm, careless storage of a firearm, and pointing a firearm.

There are at least three reasons why these charges are morally indefensible.

First, Thomson had no other viable alternative courses of action. He could not have awaited police assistance inside a burning home. He could not have negotiated with the intruders. He could not have fled unarmed without exposing himself to a potentially lethal attack and permitting the continued destruction of his home. Thomson took the most reasonable course of action. And he conducted himself in a manner that injured no one and damaged nothing.

Second, the Criminal Code provisions under which Thomson was charged clearly state that no criminal act has been committed if someone uses, stores, or points a firearm with a “lawful excuse”. The Criminal Code does not define “lawful excuse”, leaving the courts to decide what qualifies on a case-by-case basis. Surely even the Crown Attorneys who charged Thomson recognize that “lawful excuse” must include preventing your own murder.

Third, there is no question or doubt that Canadians have the right to defend themselves from violent attack. Contrary to popular wisdom, the State does not andshould not have a monopoly on the use of force. When you have a reasonable apprehension that someone is about to cause physical harm to you, your family, or your property, you have legal authority to use as much physical force as reasonably required to repel the attacker.

What is considered reasonable can only be determined by the particular facts and circumstances you are facing. This includes the nature and seriousness of the attack, the relative size and strength of the attackers, the number of attackers, and when and where the attack is occurring. Further, a person undergoing an attack is not expected to measure with exactitude or nicety the power of his blows.


Now apply this to Ian Thomson. He was asleep at home alone. He was violently attacked by three masked men intent on burning his house down with him in it. He could have shot to kill, yet he chose a reasonable and morally acceptable course of action. He chose to deter and defend, and to cause no harm.

The Crown has dropped the careless use and pointing charges, but the fact that the charges were laid at all indicates that something has gone seriously awry. The charges effectively victimize Thomson. They imply that he should have remained idle while his life was threatened. This turns both common sense and our moral inclinations on their heads. Thomson was a victim, not a perpetrator. He suffered a violent attack only to face criminal sanction for defending himself. This shifts the moral blame to a victim who should not be expected to have done otherwise.

The Human Rights Industry Harms Those It Professes to Help

A recent Human Rights Panel decision from PEI demonstrates perfectly how the human rights industry harms those that it professes to protect.  You can read the decision here.

Alison McKinnon started a new job at the Inn on the Hill on September 20, 2010, and was fired less than a month later during her probationary period because her work was unsatisfactory.


On October 18, 2010, McKinnon let her employer know that was pregnant. Forty minutes after acknowledging the pregnancy, McKinnon was given two weeks’ notice. McKinnon refused the two additional weeks’ work and complained to the Human Rights Commission of PEI claiming that she had been discriminated against due to her pregnancy.

At first, these circumstances may seem to indicate discrimination, but there are two significant intervening facts. First, a week before October 18, McKinnon’s employer had discussed firing her with senior staff and decided that her employment was to be terminated. McKinnon’s pregnancy was not a relevant factor because the employer did not know about it. In fact, her employer planned to fire her on October 17, a day earlier, but found no convenient time to do so. Second, employment law recognizes that employers have the right to fire employees without cause or consequence during their probationary periods. This is because employers are particularly vulnerable when they hire new employees. New employees are less productive and tend to cost more.
The Human Rights Panel awarded McKinnon $15,206.00 of her former employer’s money even though it accepted that there was no intention to discriminate. Ignoring the law on probationary periods, the Panel held that new employees are in a vulnerable position and that McKinnon’s dismissal had a discriminatory effect on her.

The distinction between intention and effect is the key to understanding this decision. You can be found guilty of discrimination even if you didn’t do anything that was discriminatory. It seems as though everyone in the human rights industry thoughtlessly accepts this oddity along with the claim that human rights law is remedial and not intended to punish.

No one can honestly believe that a $15,206.00 fine levied against an individual is not punishment. According to the Merriam-Webster online dictionary, punishment is to impose a penalty for a fault, offense, or violation. When someone complains about you to a human rights commission, that commission assesses whether your actions amount to discrimination. If they do, the commission will order you to pay money to the one you discriminated against. This scenario perfectly satisfies the dictionary definition of punishment, and no amount of obfuscation can change that brute fact.

It is equally a farce that the human rights industry maintains that human rights law is remedial. Remedy implies that someone failed to satisfy their duty to you. And where there is no duty, there can be no remedy. If your neighbour’s tree falls on your property and damages your fence, the law permits you to recover sufficient damages from your neighbour to return your fence to its previous undamaged state. Remedy is granted because your neighbour failed in his duty to prevent his tree from causing you loss.


If human rights law were truly remedial and non-punitive, McKinnon’s complaint should have been dismissed.

Decisions like this make employers less willing to hire young female employees. If a new male employee proves unsatisfactory, he can be fired without a second thought. But if a new female employee proves unsatisfactory, employers better hope that she is not pregnant. Even though discriminatory hiring practices are illegal, decisions like this encourage employers to simply look passed the job applications of qualified females—or any applicant that might make a human rights complaint. If no one will ever know, employers will always choose to hire the employee that comes with less risk.

And that’s the core of the problem. Not only does the human rights industry ignore the common sense meaning of words, it subtly harms those that it professes to help. By giving McKinnon $15,206.00 of her former employer’s money, the PEI Human Rights Panel is encouraging employers to find subversive ways to avoid hiring young women.

This piece was originally published by Troy Media in February 2012.

Friday, 23 March 2012

What's the Purpose of a Constitution Anyway?

What is the purpose of our constitution? Among other things, our constitution is a special type of law. It is our supreme law. This means that it is the standard by which all our other laws are measured. It is organizational. It sets some of the rules for how our state is to function. But most importantly, our constitution limits the authority of government. It does this in at least two ways: first, by prohibiting the government from enacting laws that infringe individual freedoms without justification; and second, by preventing the government from passing laws over certain matters. In both of these instances, even though it is accomplished by different means, government authority is limited. This is one of the chief purposes of our constitution.

The Canadian Charter of Rights and Freedoms limits government authority. The Charter prevents both the provincial and federal governments from enacting “unconstitutional” laws. Section 2 of the Charter provides a good example. Section 2(b) prevents the government from enacting legislation that infringes upon the fundamental freedom of freedom of expression. If a court finds that a law infringes freedom of expression without sufficient justification, that law will be made powerless. In this way, the constitution protects individuals from both federal and provincial governments that might otherwise infringe on their freedom.

The Constitution Act, 1867, originally called the British North America Act, 1867, also limits government authority. Sections 91 and 92 of the Constitution Act, 1867, state whether the federal or provincial governments have the requisite authority to enact laws regarding health, education, banks, trade and commerce, etc. Sections 91 and 92 grant this legislative authority exclusively. This means, for example, that since the provinces have the direct authority to enact laws regarding healthcare under section 92(7), the federal government has no direct authority over healthcare. The constitution limits the federal government’s authority by prohibiting it from directly interfering with the authority of the provinces over healthcare.

It is easy to forget that one of the most important purposes of our constitution is to place limitations on government. Our constitution should protect the freedom of individuals from the intrusion of government on their lives. Our constitution is supposed to prevent overreaching governments from exercising more authority than they have been granted. All too often, Canadians seem to believe that the freedom we enjoy needs to be justified. Yet it is the opposite that is true. It is the government that needs to justify its intrusion in the lives of individuals.

Since it is government actions, not those of individuals, that need to be justified, each government act should be scrutinized in the light of our constitution. That includes both those that infringe individual freedoms and those that go beyond the authority granted to the government.

This appeared in the Canadian Constitution Foundation blog in June 2011.

The Rule of Law? What's That?

The preamble to Canada’s Constitution Act, 1982 reads:
Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law…The constitution then goes on to describe the limitations on our governments and the rights Canadians.
Both the “supremacy of God” and the “rule of law” have a rich storied past. Arguably, these two concepts together underpin the Western legal traditions of natural law and natural rights. But if you search for these terms using CanLII, you will find that the “rule of law” is cited with far greater frequency than the “supremacy of God”. So what is the rule of law?

In Common Sense, Thomas Paine quipped that “in America, the law is King”. This is a pithy and succinct explanation. Following Paine, the rule of law means that no individual is King, the law itself is the King.

British Law Lord, Tom Bingham, wrote in his 2010 book that rule of law means,

…all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered by the courts.In practical terms, what does Bingham’s explanation mean?

  • Governments are not above the law.
  • Governments do not have arbitrary discretionary powers.
  • Governments must respect the rights of individuals.
  • Individuals must have access to clearly written and unambiguous laws.
  • Individuals must be treated as equals by the law.
  • Individuals must be given fair opportunity to protect their rights.

This appeared in the Canadian Constitution Foundation's blog in July 2011.

So Far So Good... or maybe not.

The Canadian Charter of Rights and Freedoms is 30 years old in 2012.

In Canadian law, the “Charter” is the first 34 sections of the Constitution Act, 1982. Broadly speaking, the Charter is a bill of rights recognizing individual rights and limiting the authority of the federal and provincial governments.

For example, section 2 of the Charter guarantees that everyone has the fundamental freedoms of religion, expression, assembly, and association.

Section 7 contains another important rights guarantee. This section recognizes that everyone has a right to liberty constrained only by the demands of justice—presumably the liberty of criminals can be constrained.

There was good reason to be optimistic in 1982 when the Charter was new—various portions were drafted to protect individual freedoms by limiting government authority. But in the 30 years following, the courts in Canada have continually done the opposite. Instead of the Charter protecting individual freedoms from overreaching governments, it has been given a government-promoting interpretation that negatively impacts upon individual freedoms.

In an article prepared for the C2C Journal, Karen Selick and I outline four portions of the Charter that have been given this government-promoting interpretation. You can read the article online here.

Here is a brief outline of the article.
  • In the 1990 Canada v. Taylor decision, the Supreme Court of Canada (SCC) restricted the section 2(b) individual right to freedom of expression in order to preserve the hate speech provision in the Canadian Human Rights Act.
  • In the 1991 Lavigne v. Ontario Public Service Employees Union decision, the SCC held that the section 2(d) freedom of association does not prohibit the government from forcing individuals to associate.
  • In the 1988 R. v. Morgentaler decision, the SCC decided that the section 7 right to liberty grants individuals only a degree of autonomy when making decisions of fundamental personal importance, and that decisions of lesser significance could expect no constitutional protection.
  • In the 2003 R. v. Malmo-Levine decision, the SCC decided that the government is free punish individuals for actions that cause no one any harm, despite the section 7 guarantee of individual liberty.
For the full discussion on each of these issues, go to the C2C Journal’s website and read the entire article. I think you will be convinced that the first 30 years of the Charter’s existence have yielded mixed results.

This appeared in the Canadian Constitution Foundation's blog in February 2012.

Christians to the Lions: Christians cannot be discriminated against

In 2006, I attended a Behemoth concert at Toronto’s Opera House with two Christian friends.  If you are unfamiliar with Behemoth, they are a Polish death metal band that tends to sing about the evils of organized religion.  They also profess that they have the freedom to vociferously speak their minds.

Each of us was familiar with Behemoth and their opinions prior to going to the concert, so it came as no surprise when the band performed some of its most popular songs like “Christians to the Lions”.

Despite titles like this, my friends chose to attend the concert because they enjoyed the music and could easily ignore anything they found hurtful or offensive.

But about halfway through Behemoth’s set, it became very difficult to ignore the content of the band’s message.  In the silence between two songs, the band’s lead vocalist instructed the Christians in the audience to raise their hands.  A few poor souls did.  Then the lead vocalist instructed the rest of the audience to find a self-professed Christian and tell them “f*** you”.

I wish that I could somehow accurately convey how intimidating this must have been for those people that actually raised their hands.  Unless you’ve been to a metal concert, I don’t think that I can sufficiently explain it.  It is one of those things you have to experience for yourself.

Thankfully, my friends were not foolish enough to identify themselves as Christians.  The dimly lit venue was packed full of testosterone and beer fuelled concert-goers, and lead vocalist’s request could easily have resulted in violence. 

As unbelievable as it may seem, had this concert been in Alberta, the Alberta Human Rights Commission would have found that Behemoth’s instruction was not discriminatory.  Even though Behemoth singled out a religious group for public ridicule and contempt, because Christians are not a disadvantaged group, they are afforded no protection from discriminatory acts.

I previously wrote an Op-Ed on this issue that was published by the Vancouver Sun and Troy Media. You can read it on this blog here

I don't have the time right now, but I will soon write a blog about why I think that Christians should be interested in protecting Behemoth's right to express a strident anti-christian message.

Intolerance in Quebec, Part Deux.

In February of 2012, the Supreme Court of Canada (SCC) decided that the Province of Quebec can force all school children—whether in public, private, or home schooling—to take a course on "Ethics and Religious Culture" (ERC).

  • The SCC's decision can be read here.
  • A QB government video on the ERC course can be watched here.
  • I wrote a previous blog regarding the decision here.
Two Catholic parents in Quebec challenged the province's authority to force their children to study religion in school. Their argument was that the course implicitly taught that all religions were equally viable belief systems, and that this interfered with their religious duty to pass their faith on to their children. In the opinion of the parents, this interference violated their constitutional guarantee to freedom of religion contained in section 2(a) of the Charter.

There has been significant media interest in this case following the SCC's decision, but much of it has been flawed. The only legal analysis that can make sense of this issue is based upon individual autonomy and the constitutional right to be free from government intrusion.

One statist analysis has listed three reasons why QB should be prohibited from forcing all QB children to study the ERC course:

  1. The State has no business teaching religion;
  2. Religion is an should remain an intensely private matter; and
  3. The risk of producing ignorance would be mitigated by a program focusing primarily on ethics and tolerance without religion.
Each of these reasons is (seriously) flawed.

Regarding the first, if the author is making a descriptive argument, there is no constitutional separation of Church and State in Canada. The Queen remains both the head of State and the head of the Church of England. And it is not (yet) possible to initiate a constitutional challenge on a lack of separation between Church and State. As a result, there is currently no constitutional bar against the State teaching religion. If the author is making a normative argument, it does not map onto the issue: the ERC course is forced on all public, private, and home schools. The issue is much broader than what the QB government is permitted to teach in public schools.

Regarding the second, religion is not an intensely private matter and few religious people would agree that it should be (or remain) an intensely private matter. Since it is not a private matter, what would the State need to do to make it one? It would have to use coercive force to silence and marginalize religious folks. That would amount to tyranny and would undermine individual freedom.

Regarding the third, the State has no legitimate role in changing the minds of religious people. "Mitigating ignorance" is a recipe for disaster. The State would have to decide who is ignorant and on what grounds. It would then have to choose the means for alleviating that ignorance. Finally, it would have to take active steps to compel people to change their minds. Again, this would amount to tyranny and would undermine individual freedom.

I recently wrote an Op-Ed on this case. It can be read here. My analysis is not statist. It focuses on individual liberty and the right of all Canadians to live free from state interference. In my opinion, this is the only way to make sense of what is so wrong with the ERC course.

This appeared in the Canadian Constitution Foundation's blog in February 2012.  

Some Restraint Please! or Knowing Your Limits

On March 22, 2012, the Supreme Court of Canada (SCC) will hear the appeal of Moore v. BC Ministry of Education.  Among other things, this case will decide whether the BC Human Rights Tribunal has the authority to dictate what services the BC government provides.

Jeffrey Moore started grade school in 1991 and was soon diagnosed as dyslexic.  When he was in grade 3, his parents were advised that he would have a better educational outcome if he enrolled in a publicly funded program tailored for dyslexic children called “intensive remediation”.  But in 1994, the cash-strapped North Vancouver school district defunded the program in an effort to save money—just weeks after Jeffrey had been referred for help.  As a result, the Moore family paid approximately $100,000 over nine years for Jeffrey’s private education.

In 1999, Jeffrey’s father complained to the BC Human Rights Tribunal on Jeffrey’s behalf.  In its 2005 decision, the Tribunal decided that the BC Ministry of Education had discriminated against Jeffrey by failing to provide him with a “service customarily available to the public” under section 8 of the BC Human Rights Code.  This decision means that Jeffrey had a right to be provided a specialized and expensive education at taxpayer expense.

The BC Supreme Court and Court of Appeal have both subsequently decided that the Tribunal’s decision was in error—Jeffrey was not discriminated against.

In my opinion, the Tribunal’s decision was indeed mistaken because it confused equality of opportunity with equality of outcome, and it overstepped its authority by making a public policy decision.

Under the BC School Act, BC children are entitled to enrol in the educational program provided by the public school board where they live.  There is no guarantee of educational success—children are only entitled to an equal opportunity.  The Tribunal erred by confusing entitlement to an opportunity with entitlement to a particular outcome, and held that Jeffrey was therefore entitled to receive intensive remediation so that he would have the same educational outcomes as non-dyslexic students.

In 1990, the North Vancouver school district was in financial dire straits.  The financial crisis persisted for several years, resulting in large deficits despite on-going budget cuts.  On review, the district was found to have engaged in excessive spending during a period of public sector restraint.  In arriving at its decision, the Tribunal failed to appreciate that it lacks the expertise to make decisions regarding the government’s financial capacity to fund social programs—particularly in difficult economic times.

Further, the Tribunal overstepped its authority because the BC legislature never intended to bind itself through the BC Human Rights Code to having to provide highly specialized educational programs for disabled children without regard to cost.  In a similar case from 2004, the SCC held that a legislature is “free to target the social programs it wishes to fund as a matter of public policy”, so long as the program’s benefit is not conferred in a discriminatory manner.  Effectively, the Tribunal attempted to make a public policy decision regarding public school funding while lacking either the expertise or authority to do so.

So was Jeffrey treated differently than other children in BC?  He had access to all the same educational services as other children his age.  And even though Jeffrey faced difficult circumstances, no human rights tribunal should make public policy decisions binding both on the government and taxpayers without regard to cost.

Jeffrey, now in his twenties, has experienced a lot of success—he is a journeyman plumber.  In an April 21, 2009, interview with Katie Mercer in The Province, Jeffrey said that his chosen career “pays quite well and you can really get into it, and right off the bat. You're not paying off a student loan,” and that, “It's a pretty quick way to start making money for someone who wants to have a useful skill and a good income."  

The SSC would be wise to follow BC courts and constrain the authority of the BC Human Rights Tribunal to dictate public policy decisions.

This piece was published by the Vancouver Sun and Troy Media in March 2012.

Assuming makes a What out of You and Me?

In Hans Christian Andersen’s tale, “The Emperor’s New Clothes”, the Emperor was duped, his subjects were duped, and the only person willing to give an honest appraisal was a little child. “He isn’t wearing anything at all”, the child said. Sometimes it takes an outside opinion to fracture the edifice of familiar but unfounded patterns of thought.

This is precisely what a three-member panel of the Ontario Divisional Court has done in Pieters v. Peel Law Association.

The Peel Law Association manages a library and lounge in the Brampton Courthouse. Only lawyers, articling students, and law students are permitted to access the facility. Selwyn Pieters, a black Toronto lawyer, was asked by librarian Melissa Firth to provide identification demonstrating that he was a lawyer. Pieters felt offended, accused Firth of “racial profiling”, and complained to the Ontario Human Rights Commission, asking for $25,000 because his feelings were hurt.

Eric Whist, of the Human Rights Tribunal of Ontario, decided that Firth had discriminated against Pieters and awarded him $2,000 for injury to “dignity, feelings and self-respect”. In the decision, Whist held that Pieters had proved a prima facie case of discrimination and placed the onus on Firth to demonstrate that her actions were not motivated by race or colour. But Whist was too quick to find discrimination where there was none.

Since the 1985 Supreme Court of Canada (SCC) decision in Ont. Human Rights Comm. v. Simpsons-Sears, a prima facie case has meant “one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant’s favour, in the absence of an answer from the respondent.”

The resulting structure of a human rights complaint is simple. The complainant must convince the decision-maker that there is enough evidence to establish that he has suffered from a discriminatory act. After this, the respondent bears the onus of convincing the decision-maker that the impugned act was not discriminatory. But on a careful read, Simpson-Sears is ambiguous – it lacks precision – regarding what is required to convince a decision-maker of a prima facie case.

In the 2007 McGill University Health Centre decision, the SCC cautioned that “not every distinction is discriminatory”. Justice Abella reasoned that a complainant will not be successful merely because he belongs to a protected group and he was subjected to some act that negatively impacted him. There must be some link, or nexus, between membership in a protected group and the allegedly discriminatory act.

It is the nature of this link, or nexus, which was addressed by the court in Peiters v. Peel Law Association, specifically whether this nexus is one of correlation or causation. In its unanimous decision, the court held that a complainant must do more than identify himself as a member in a protected group and point to an act that negatively impacted upon him. A complainant must establish a causal link. In other words, correlation is insufficient to prove a prima facie case of discrimination.

This decision gives lawyers a precise and practical statement of the law – discrimination cannot be assumed, it must be proved. There must be “a causal link or nexus between the distinction that imposes a disadvantage and a prohibited ground”. Finding otherwise would effectively immunize individuals belonging to protected groups from any acts that negatively impact upon their interests.

If Pieters is right – and it surely is – there may be a good number of human rights decisions that are wrongly decided. The mere correlation of membership in a protected group and an allegedly discriminatory act should not be sufficient to establish a prima facie case.

This piece was originally published by Troy Media in March 2012.

Intolerant Quebec... Really?

In 2008, two concerned Catholic parents requested that their children be exempted from Quebec’s Ethics and Religious Culture (ERC) course – the Quebec government requires that all children in public, private, and home schooling take the course- because they felt it interfered with their ability to pass their faith on to their children.

The parents’ request was denied, so they took the matter to court arguing their right to freedom of religion was being violated.

On February 17th, the Supreme Court of Canada (SCC) decided that the Charter’s guarantee of freedom of religion does not prevent the Quebec government from forcing children to take the ERC course. This result was easily foreseeable. For the challenge to have succeeded, the parents needed to prove that the ERC course interfered with their ability to pass their faith to their children – something the parents consider a religious duty.

The SCC’s decision did not answer whether the ERC course might violate the freedom of religion of children or teachers, and it did not inquire whether other Charter rights might be violated. The only question addressed was whether the freedom of religion of the parents was violated. This is a significant short-coming.


The SCC has long held that the Charter guarantee of what is called “security of the person” encompasses personal autonomy – the right to control one’s physical and psychological integrity free from state interference. For example, this right is relevant when a parent risks having their child apprehended by child welfare authorities. And it should be relevant when a parent is compelled to educate a child in a manner contrary to his or her religious beliefs.

Imagine that you are a parent who has decided your child should get a private religious education. Even though private school can be expensive, your religious values are of fundamental personal importance, so you decide the expense is worth it. How would you react if the government forced your child to learn precisely that content which you were seeking to avoid by taking your child out of the public school system?

A similar argument can be made on behalf of irreligious parents. If your conscience compels you to shield your child from religious education, should the government be able to completely disregard your wishes?

John Stuart Mill in his famous work “On Liberty” warned that state education can be a contrivance for moulding people to be exactly like one another in a manner that pleases the predominant power in government. This moulding, if successful, establishes despotism over the mind of pupils. Quebec’s stated goal for the ERC course is to develop a society in which different religious values and beliefs can coexist. The chosen means of accomplishing this is to teach children that all religions are equally viable alternatives. And this is to mould students to accept a proposition explicitly rejected by many parents.

Displacing individual rights to achieve a state goal is hardly laudable. In fact, it’s the blueprint for the most atrocious violations of human rights. If parents can’t be trusted to make the right decision for their children, why can legislators be trusted?

These legislators have assumed that they are the elites who know what’s best. Their elitist attitude enables them to subjugate the wishes of individual parents and prioritize what they perceive as the interests of society. There are few more obvious examples of significant state interference with the psychological integrity of parents than the ERC course. Wasn’t the Charter adopted, in part, to prevent the majority from bullying and oppressing minorities through government power?

Education can be the perfect vehicle for an authoritarian state to indoctrinate its youth, and Quebec’s ERC course is precisely what Mill warned about. Quebec’s goals may seem innocuous to most of us, but the principle behind it is unsettling – the government knows best and has licence to mould upcoming generations into compliance. Compelling parents to do to their children that which they deeply oppose is immoral, even if other people perceive the state’s goals as wise and right. Parents should be the final arbiters of their children’s education.

This piece originally appeared in Troy Media in February of 2012.

Steroids Users are Smarter than You

On October 22, 2010, the Calgary police seized 21 different anabolic steroids with a street value of $50,000.00 from a South East Calgary address and arrested Jordan James Cutts for possession for the purpose of trafficking and benefiting from the proceeds of crime.

Anabolic steroids have been given a lot of attention by the media in recent years.  From athletes cheating to enhance their performance, to American politicians addressing a supposed epidemic of use among youth, to the entrance of steroids into common parlance, it is difficult to find anybody who lacks an opinion on steroid use. 

Steroid talk is ubiquitous in modern dialogue, and not all of it is negative.  You might find yourself saying that a car is “on steroids” when you admire its performance.  You might say the same thing about your new computer, stereo, or smart phone.  Steroids are good.  They mean faster, stronger, and more powerful. 

Yet “on steroids” is also synonymous with cheating.  You only need to ask a sports fan about Ben Johnson, Mark McGwire, or even Arnold Schwarzenegger.  Steroid users are those devious cheaters trying to gain an unfair advantage over their competitors.  They are sneaky, dishonourable, and not to be admired, at least, not openly.

In 2005, the American Congress spent 8 of 151 days in session debating the use of anabolic steroids in sports.  That’s more time devoted to steroid use than to national healthcare.  The importance of this debate was encapsulated by Joe Biden. “This is about values.  It’s about our culture.  It’s about who we define ourselves to be.”  Of course, the great concern was that young athletes would emulate the behaviour of their heroes.  This would cause an epidemic among youth.  It would wreck their health, their relationships, and ultimately, their character.  These young athletes would never learn the value of hard work, honesty, and integrity.  This could destroy an entire generation of young Americans.

Even more dire, “on steroids” can evoke images of illicit drug use, dingy locker rooms, and clandestine meetings.  Rightly or wrongly, it is widely assumed that steroids are addictive.  They produce “roid-rage”.  They grotesquely distort users’ bodies and minds, and destroy health, relationships, and family.  Ultimately, steroid users are treacherous, anti-social meat-heads, who are the intellectual companions of Neanderthals.

These connotations are a strange mix of the desirable, dishonourable, and the dangerous.  Yet for all the opinions held by the public, very little is known regarding who is using anabolic steroids.  And this might surprise you.

Nearly 3 million Americans have used anabolic steroids for non-medical purposes.  For the most part, these Americans are not na├»ve youth enamoured with steroid-using role models.  They are not athletes secretly using steroids in contravention of sporting rules.  And they are certainly not addicts making drug deals in dark alleys.  The average steroid user is a much less likely candidate. 

A study published in 2007 in the Journal of the International Society of Sports Nutrition found that the typical steroid user in America is a highly-educated, gainfully employed professional of approximately 30 years of age.  This typical steroid-user earns a higher-than-average income, is not involved in organized sport, and is motivated by the desire to improve health through physical activity and steroids.

This completely undercuts the popular ideas regarding steroid use.  Speaking generally, steroid users are not impressionable youth—they are young adults fully capable of making informed decisions about their own health.  Steroid users are not devious cheaters—they are not involved with organized sport and are not bound by the rules of any sporting body.  Steroid users are not less intelligent—they are professionals with more than average education.  And steroid users bear little resemblance to addicts—they are seeking to improve their health not feeding a habit.

If the Canadian experience is similar, it makes me wonder if I know any of Jordan James Cutts’s customers.  Maybe I see them at the gym.  Maybe I talk with them at the water cooler at work.  In any event, it seems that steroid users are among the best and brightest of our peers and the stereotypes are wrong.

More Thoughts on Earle and Deicide

I recently wrote an op-ed that was published by Troy Media and the Vancouver Sun. The gist of the piece was that Human Rights legislation only provides protection to some, and definitely not to all. In the article, I point out that Lorna Pardy is protected, but Quintin Johnson is not. Since op-eds are brief, I thought that I would make some further observations about the same two cases.
  • Both Pardy and Johnson should have lost their human rights cases. Freedom of expression, particularly artistic expression, should have been the winner. And no government official should be in the business of deciding what is artistic expression or determining the value of that expression.
  • Even if Pardy and Johnson had hurt feelings, neither one should be permitted to drag the party who hurt their feelings through a human rights process. Both Pardy and Johnson were trying to do a “shakedown”, in Ezra Levant’s sense of the term.
  • Both Pardy and Johnson should have demonstrated their freedom by walking away. Pardy could have walked away from Earle. If she had, her problem would have been solved. Johnson could easily have avoided Deicide’s music. Had he done so, he could not have been offended. 

Even though I may seem to come down hard on Deicide in the op-ed, I actually support their right to freely express the views that they do… and I would defend their artistic expression from detractors. Canadian society has already ceded too much power over speech to ill-equipped and ill-informed human rights bureaucrats. Even if Deicide is offensive, I support their right to freedom of expression because the freedom they enjoy is ultimately the same freedom that protects my own expression of contrary views.


This appeared in the Canadian Constitution Foundation's blog in July 2011.

Identity Matters

Comedian Guy Earle recently filed a petition at the Supreme Court in British Columbia to appeal a decision of the BC Human Rights Tribunal. The Tribunal held that Earle discriminated against Lorna Pardy during an open mic event for amateur stand-up comics. Pardy heckled Earle and he responded by making insulting comments regarding her sexual orientation. These comments resulted in the Tribunal ordering Earle to pay Pardy $15,000.00 for injury to her dignity, feelings, and self-respect.

In contrast, in 2003, the Alber
ta Human Rights Commission did not protect the dignity, feelings, or self-respect of Quintin Johnson.  Johnson, a Christian, had complained to the Commission regarding a song titled “Kill the Christian” by the death metal band Deicide.  The lyrics included “you are the one we despise”, “I will love watching you die”, and “kill the Christian”.  The Commission dismissed Johnson’s complaint on the grounds that Deicide did not have a wide enough listening audience or popular appeal, even though the band had sold nearly 500,000 albums in the US alone by that time.

So why is Earle’s artistic expression discriminatory while Deicide’s is not?  What makes Earle’s expression more harmful than Deicide’s?

It’s not the content of the expression.  Deicide is counselling the murder of Christians, while Earle only demeaned Pardy’s sexuality.  Earle may have hurt Pardy’s feelings, but Deicide’s lyrics may be vociferous enough to sustain an investigation under the Hate Propoganda section of the Criminal Code.

It’s not the context of the performances.  The song “Kill the Christian” can be purchased at nearly any popular music record store.  It is available online via iTunes, Amazon, and from a myriad of other online music retailers.  And because of the nature of recorded music, a listener can choose to hear the song over and over again.  Earle’s insults were purely transient.  After he uttered them, no one, including Pardy, could hear them again.

It’s not the size of the audience.  Deicide regularly tours the world, including Canada, and is free to perform music that advocates killing members of the Christian faith.  Yet when Earle stood on a stage and made one-time remarks about Pardy’s sexuality, she was awarded $15,000.00 of Earle’s money.  The complaint against Deicide was dismissed because the audience was deemed too small.  Yet Earle’s audience was much smaller.

Maybe it’s who the complaint was made about?  Deicide’s lyrics are written by the band’s vocalist, Glen Benton.  It would be an extreme understatement to say that Benton is a controversial figure in the music industry.  He has been labelled an animal abuser, a misogynist, and an anti-Christian Satanist.  Earle, on the other hand, is a law-abiding amateur stand-up comic who has an otherwise untarnished reputation.

Any clear-headed appraisal of these facts would find Deicide’s expression more harmful than Earle’s.  So if it’s not the content, the context, the audience, or the person who the complaint was made about, then what?

The lesson to be learned is that the law only protects certain people: the identity of the complainant matters.  Because Pardy is a lesbian, her feelings are protected by the law.  As a Christian, Johnson’s are not.

These cases are not anomalies.  This is the way that our human rights legislation works.  Individuals deemed to be part of “vulnerable” groups get protection, while others do not.  And it is difficult to understand how this is constitutional.  In 1999, the Supreme Court of Canada said that section 15(1) of the Charter will strike down laws that harm human dignity.

Comedian, Guy Earle, recently filed a petition at the Supreme Court in British Columbia to appeal a decision of the BC Human Rights Tribunal.  The Tribunal held that Earle discriminated against Lorna Pardy during an open mic event for amateur stand-up comics.  Pardy heckled Earle and he responded by making insulting comments regarding her sexual orientation.  These comments resulted in the Tribunal ordering Earle to pay Pardy $15,000.00 for injury to her dignity, feelings, and self-respect.

Human dignity within the meaning of [section 15(1)] does not relate to the status or position of an individual in society per se, but rather concerns the manner in which a person legitimately feels when confronted with a particular law.  Does the law treat him or her unfairly, taking into account all of the circumstances regarding the individuals affected and excluded by the law?

I wonder if Johnson feels unfairly treated knowing that the law protects Pardy’s feelings but not his?

Published in July 2011 by Troy Media and Vancouver Sun.