The case of the Saskatchewan Human Rights Commission vs. William Whatcott is examining whether the constitutional guarantee of religious freedom can be trumped by equality rights in decisions handed down by human rights commissions. The decision, expected in six to nine months, has the potential of determining whether freedom of religion can be reduced to freedom of worship and belief, leaving religions unable to express religious beliefs in schools or in the public square without the threat of government sanctions.

Whatcott, a former street kid who engaged in homosexual activity and prostituted himself for drugs before converting to Christianity, has vigourously protested against homosexual activism and sexual activity. He distributed flyers that brought complaints of hatred to the Saskatchewan Human Rights Commission. The material was deemed hateful by the commission under Section 14 of the Saskatchewan Human Rights Act, but that decision was overturned in February 2010 by the Saskatchewan Court of Appeal.

Section 14 prohibits expression that “exposes or tends to expose to hatred, ridicules, belittles or otherwise affronts the dignity (of an identifiable group).”

Thomas Schuck, a Saskatchewan lawyer and Catholic Civil Rights League member who has represented Whatcott pro-bono, told the Supreme Court that it is difficult to see how the civil remedies imposed by human rights commissions are not penal even if the complainants receive the fines not the government. The four complainants were awarded roughly $5,000 each by the Saskatchewan commission.

“If 100 people had complained of hurt feelings, the fine would have been a half a million,” he said.

Two of Whatcott’s pamphlet’s copied ads from Saskatchewan’s largest gay newspaper about men seeking boys, and added a Bible verse and some commentary.

“Objectively, it’s true they do run ads for men seeking boys,” Schuck told the court.

The pamphlets signaled Whatcott’s desire to protect children, something the police and the rights' commission should have been concerned about as well, Schuck said.

“Instead of protecting children they targeted the whistleblower,” he said.

Though one of the “hallmarks of hate” is expression that vilifies a group as corrupting children, Schuck said the pamphlets target the ads and the newspaper and do not infer all homosexuals are guilty of corrupting children. 

“Whatcott deserves a commendation,” he said. “It’s not Whatcott’s fault if these ads cause people not to like gay people. All he’s doing is shedding a light on it for the world to see.”

The other pamphlets criticized pro-homosexual material to be taught in schools. They included descriptions of homosexual sex as “filthy” and causing death.

Whatcott does not believe same-sex activity should be legal, Schuck said. 

“Everybody has the right to engage in debate,” he said, noting Whatcott was using harsh words to get parents’ attention.

“Everything my client has written is true,” Schuck said. Medical evidence shows that men who engage in same-sex activity have a life expectancy of 20 years less than those who don’t, he said.

Schuck said the rights commission sees nothing wrong with same-sex activity, but he added that  “The (commission) must embrace and tolerate diversity. It doesn’t just represent gay Canadians,” he said.  

There is still a place for fire-and-brimstone sermons in Canada, he said. He also said rights commissions have a largely political agenda and warned that if sexual orientation means behaviour and becomes an absolute right, it is the end of religious freedom in Canada.

Benson acknowledged some might find Whatcott’s terminology too rough for polite dinner party conversation, but at the base of the debate is whether gays and lesbians have the right not to have their sexual conduct criticized. He compared this to criticizing a person’s religious beliefs. If you reject religious beliefs that are core to that person’s identity, are you then rejecting that person, too?

Arguing for the Saskatchewan commission, Grant Scharfstein said that in Canada post-Charter “the promotion of equality has to be a core value,” and expression that fuels discrimination and hatred “has a low value.”

Scharfstein said that Whatcott’s flyers convey a message that lesbians and gays are not worthy, they don’t belong in society and they cause disease and corrupt the young. He compared Whatcott’s use of the word “sodomite” to the word “nigger.”

That led Justice Louis LeBel to question whether public readings of the Bible would have to be sanitized.

Scharfstein urged the court to “take seriously the concerns of minority groups” on the effects of hate speech.

The focus of human rights commissions is the end harm, not the intent of the speaker or even whether the speech is truthful. The code is meant to provide a civil remedy that aims to repair the damage done by the hateful or discriminatory speech, not to punish the offender through the criminal justice system, Scharfstein said.

Cynthia Peterson, speaking for EGALE Canada Inc., a gay rights organization, argued that homophobic speech is given a “high degree of tolerance” that racist and other kinds of hate speech do not have.

The United Church of Canada, B’nai Brith and the Canadian Jewish Congress also intervened on behalf of the human rights commissions. A group representing aboriginal Canadians and one representing African Canadians submitted written briefs but did not appear.

Governments were represented by the Alberta Human Rights Commission, the Alberta government’s Attorney General, the Ontario Human Rights Commission and the Canadian Human Rights Commission. They all sent lawyers to advance arguments in favour of leaving in place the present structure.

Intervening on the other side were the Catholic Civil Rights League, the Evangelical Fellowship of Canada, the Canadian Civil Liberties Association, the Canadian Constitution Foundation, the Christian Legal Fellowship and Canadian Journalists for Free Expression.