On Feb. 27 the Court upheld some significant parts of a Saskatchewan Human Rights Tribunal ruling against Whatcott, a Christian activist who faced complaints concerning four pamphlets he distributed criticizing homosexual behaviour. The Court upheld the Tribunal’s ruling that Whatcott's pamphlets equated homosexuality with pedophilia, and described homosexual sex practices as “filthy.”
In upholding the general principle of freedom of religious speech and the freedom to teach or share religious beliefs, the Court ruled those rights are unlimited "except by the discrete and narrow requirement that this not be conveyed through hate speech,” wrote Justice Marshall Rothstein on behalf of the six justices.
Rothstein said two of the flyers exhibited the “hallmarks” of hatred that had been identified in previous case law. He said the pamphlets portrayed "the targeted group as a menace that could threaten the safety and well-being of others, makes reference to respected sources (in this case the Bible) to lend credibility to negative generalizations, and uses vilifying and derogatory representations to create a tone of hatred.”
The SCOC reinstated $7,500 of the original $17,500 in penalties Whatcott had been ordered to pay the complainants.
Constitutional lawyer Iain Benson, who argued for Whatcott, said the decision does “not recognize that hatred is too vague a term if it is disconnected from incitement to cause imminent violence or physical harm.”
“There is a real need for new thinking on the terms that it uses — ‘discrimination’ and ‘vulnerable groups’ — where what is really at issue is not ‘attacks on the vulnerable’ but strong feelings about what is and what isn't permissible sexual conduct,” said Benson. “The court seems unable to make these distinctions with any convincing logic.”
Although the Court struck down a portion of the code — striking out part of a section that refers to expression that “ridicules, belittles or otherwise affronts the dignity” of identifiable groups — it left in place the “troublesome” phrase “tends to expose to hatred,” said CCRL executive director Joanne McGarry.
The ruling also leaves in place a system where people can be prosecuted for hate speech without benefit of the rules of evidence, right to counsel and the presumption of innocence found in a real court of law, McGarry said. This means people continue to be vulnerable to complaints about religious expression like those faced by Calgary Bishop Fred Henry for a 2005 pastoral letter and newspaper column defending traditional marriage.
“The League will continue to stand for the principle that any intrusion on Charter-protected freedoms should be left at the criminal level, which has its own internal processes before a charge can be laid, and a standard of proof of an intention to provoke hatred as part of the charge,” said CCRL president Phil Horgan. He said the code is likely to continue to be used to prosecute people who argue for Christian morality.
“It’s not much help to publishers or clergy wondering ‘Can I say this?’ or “Can I say that?” McGarry said, noting the whole category of hate speech “is subjective.”
“I find it troubling that statements that are true or based on fact are not considered a defence,” McGarry added.
But the Evangelical Fellowship of Canada (EFC), another intervener, welcomed the decision’s positive aspects.
“It’s actually a pretty decent decision,” said the EFC’s vice president and general legal counsel Don Hutchinson. “Most importantly the Court has clearly stated that the Bible and biblical positions on public policy issues are legitimate for public conservation and discourse.”
“In doing so, the court has essentially said that the biblical principle of sharing the truth in love is acceptable,” he said. “But sharing in a way that vilifies or would cause detestation towards an identifiable group would be considered hatred.”
“Justice Rothstein has done a favour for civility in public discourse,” he said, noting that he gave several examples of how Whatcott might have made his case differently.
“Genuine comments on sexual activity are not likely to fall into the purview of a prohibition against hate,” Rothstein wrote. “If Mr. Whatcott’s message was that those who engage in sexual practices not leading to procreation should not be hired as teachers or that such practices should not be discussed as part of the school curriculum, his expression would not implicate an identifiable group.”
“The other thing they have done very clearly in striking down part of Section 14(b) is to say “hurt feelings or personal offence are not enough,” Hutchinson said.
Also on the positive side, both CCRL and the EFC see a silver lining in the decision’s respect for precedent and how that could affect decisions on Canada’s prostitution laws or on euthanasia that are wending their way through the courts.
Tom Schuck, a Saskatchewan Catholic Civil Rights League (CCRL) member who represented Whatcott, said Whatcott is “very disappointed” as well as concerned that if he speaks out again the Human Rights Commission could impose a permanent ban on his speaking on these issues.
“I am concerned about him and what’s going to happen to him,” said Schuck. “He feels he has the responsibility to preach God’s Word in the most effective way possible.”
The CCRL and EFC were among more than two dozen interveners on both sides in the case that pitted freedom of expression and freedom of religion against equality rights of disadvantaged groups to be protected from language that vilifies and marginalizes them.