Wednesday, January 26, 2005

Brockie Decision Still Misunderstood

I don’t know why some people, especially journalists, don’t seem to understand the decision in the Scott Brockie decision. Perhaps by overstating the result they feel they can make a stronger case for religious oppression in Canada; who knows?

Here is the relevant part of what the National Post said in an editorial on “religious freedom” on January 26, 2005:

But past cases suggest that gay rights are now taken to trump every other freedom. It was less than five years ago, recall, that the Ontario Human Rights Tribunal ruled that printer Scott Brockie had violated the provincial human rights code by refusing on religious grounds to make stationary and letterheads for the Toronto Lesbian and Gay Archives. Mr. Brockie's appeal to the Ontario Superior Court of Justice failed; he was ordered to pay $5,000 in damages to the archives' former president and forbidden to refuse to print similar materials in the future.

This is a terrible review of what Scott Brockie did and did not win on appeal. Mr. Brockie was ordered by the Human Rights Commission to print not just the letterhead but also “any other materials” that group or other similar gay rights groups brought to his printing business. He appealed this to the Ontario Divisional Court and, WON on the over breadth of the remedy. Sure, he still had to pay $5,000 and eventually had to pay costs (an outrage that since he had given a black eye to the OHRC on the remedy point) but he was clearly successful on a major aspect of the appeal - - namely that he could refuse to print ANY materials that were not simply “ordinary business materials” and that he could show offended the core of his religious beliefs.

True, he had to print the business cards and letterhead but given the dangerous scope of the original OHRC decision (making him into a virtual tool of what was described as the “Provincial policy” of “advancing the visibility of gays and lesbians”) he won a significant part of what he was seeking. The National Post editorial, like the writing of many who have commented on this decision since it came down, fails to note this.

So lets please have an end of the “Scott Brockie lost his appeal” school of analysis! It doesn’t do justice to the important victory Scott Brockie won before the Ontario Courts.

A detailed analysis of the Brockie decision of the Ontario Divisional Court may be found on the Centre's Lex View site at: [Lex View 38 , Lex View 51 ).

Iain Benson ©