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Effort to halt enforcement of Alberta's GSA protection law tossed out by Medicine Hat judge

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Alberta Court of Queen's Bench in Medicine Hat. Photo: Lynne Ayers/Flickr

An effort by the so-called Justice Centre for Constitutional Freedoms (JCCF) to get a court injunction to halt enforcement of the Alberta law that prevents schools from informing parents when students join gay-straight alliances fell short in a written ruling of the Alberta Court of Queen's Bench in Medicine Hat yesterday.

While the Calgary-based JCCF acting on behalf of a group of 26 religious schools and a few parents of students that attend them awaits a ruling on its challenge of the constitutionality of the law, Madam Justice Johnna C. Kubik not only tossed its effort to get an injunction against application of the law but awarded costs to Government of Alberta.

In her ruling, which was distributed this morning on Twitter by the court, Justice Kubik didn't seem to be particularly moved by the incendiary claims made by the group that gay-straight alliances in Alberta schools are "ideological sexual clubs" that attempt to convert innocent students to a gay lifestyle and encourage children to keep secrets about their activities from their parents.

Instead, she concluded that stopping application of the law preventing schools from informing parents if their children join a peer group intended to create a safe space for LGBTQ+ students "would be considerably more harmful than temporarily limiting a parent's right to know and make decisions about their child's involvement in a GSA."

In her ruling, Justice Kubik dismissed the argument by the litigation group associated with social conservative causes that Alberta's 2017 Act to Support Gay-Straight Alliances, school clubs mandated in a 2015 Progressive Conservative law, infringed on the religious freedom of the parents and schools it represented.

In this regard, she wrote, "I am satisfied there is no serious constitutional issue to be tried. GSAs are voluntary student organizations. Children are not required to participate in them. The Act in no way restricts the right of parents or schools to continue to impart their religious and moral values to their children."

In addition, she dismissed the idea there was any urgency to seek injunctive relief. The provisions of the NDP act "do not change the substance of what has been authorized by the law for the past three years," Justice Kubik concluded in a reference to the original PC GSA law.

Evidence produced by the applicants that sexually explicit materials were used by GSAs was not supported by the testimony, Justice Kubik's ruling said. "There is no evidence that any of these materials were ever promoted by the respondent or GSAs generally, or that the materials ever came into the hands of any students through a GSA. There is no evidence that there is a risk to the material being disseminated to students in GSAs."

On the issue of the supposedly ideological nature of GSAs, Justice Kubik called affidavits submitted by parents "largely hearsay" that could not be shown to be attributable to participation in a GSA or lack of notification to parents.

She dismissed evidence tendered by JCCF affidavits from two sympathetic doctors in the United States, noting that the evidence of one was "in direct contradiction with the recommended and accepted diagnostic and treatment standards as established by the American Psychiatric Association and the American Academy of Pediatrics" and furthermore that "the underlying factual premise of his opinion is not proven."

Of the other physician's evidence, her ruling indicated, it suggested the psychiatrist was not really providing objective opinions for the purpose of assisting the court, and that her characterization of activism and political correctness "fails to recognize the legal reality of Alberta and Canada." Justice Kubik therefore rejected that evidence that GSAs cause harm entirely.

Justice Kubik also dismissed the applicants' claims that continued funding and accreditation of their schools were at risk because of the provisions of the Act. The government argued, she noted, that complying with the act by attesting they will obey its provisions for the formation of GSAs in their schools is only "a demonstration that the schools recognize the coexistent rights of others."

Moreover, she wrote, summarizing the government's arguments, "there is no immediate risk of losing funding or accreditation as the Act itself provides multiple steps for dealing with non-compliance, including investigations, inquiries and the imposition of policies consistent with the Act."

"There is no evidence which demonstrates a real, concrete and unavoidable risk that the schools will lose accreditation or funding," Justice Kubik concluded. As a result, she ruled, "there is no reason to take prohibitive steps to prevent defunding or de-accreditation."

In media reports, Education Minister David Eggen quickly hailed the ruling as a victory "for justice and equality in the province of Alberta." In the afternoon, he tweeted: "I want Alberta's youth to know that our government stands with you and we will continue to stand up for the rights of LGBTQ youth."

As for the United Conservative Party led by Jason Kenney, well known for his social conservative views, all that was heard from them was … crickets.

JCCF President John Carpay, a Calgary lawyer, is a former Reform Party and Wildrose Party candidate. The organization has represented a long list of social conservative clients over the years.

Could a rude tweet about a ruling distributed by a court be found in contempt?

I was mildly surprised to learn yesterday that the Alberta Court of Queen's Bench has a Twitter account and is distributing its rulings via social media.

On one hand, this is a positive step, bringing rulings directly to citizens and cutting out media interpretation that omits facts and may offer inaccurate or misleading interpretations of why a court has reached a decision.

On the other, though, the potential both for reflexive attacks on the courts for decisions and judges' comments by unsophisticated commentators is now much greater, suggesting social media users could find themselves in conflict with the courts.

Face it, Twitter is designed to be anti-social media. It's perfect for the sharp riposte, the disrespectful return, the quarrelsome countercheque, or the churlish reply. It provides a mechanism, at the click of an onscreen button, for unwitting or thoughtless commentators to find themselves in contempt of court.

The average social media troll may not realize it, but that's a potentially very serious matter. I would suggest the court needs at the very least to publish guidelines and advisories for those who wish to comment negatively online on the decisions of the court, and perhaps to apply a little leniency to dopey citizens who may not fully appreciate the great powers of the judiciary.

I'm not sure that either the courts or the typical Twitter troll really understands what they could be letting themselves in for as a result of this development.

This post also appears on David Climenhaga's blog, AlbertaPolitics.ca.

Photo: Lynne Ayers/Flickr

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