Whatcott case leaves troubling concerns

  • March 14, 2013

The recent Supreme Court of Canada decision in the case of anti-gay advocate Bill Whatcott provided troubling answers to some questions concerning free speech but improved the language of a provincial human rights code and slightly raised the bar for future cases.

Whatcott has faced at least nine civil or human rights charges since 2001 for creating and distributing pamphlets that expressed his view that homosexual behaviour is sinful and stated his abhorrence at what he sees as a “gay-rights agenda” in Saskatoon public schools. When answering a complaint made to the Saskatchewan Human Rights Commission in 2002, his main defence was that he is entitled to express his opinions, which are based on religious beliefs. Thus the case, and its subsequent appeals, concerned freedom of religion as well as freedom of expression.

No one involved with the case (CCRL was an intervenor at the Supreme Court of Canada appeal) would claim that Whatcott’s pamphlets were suitable for a Sunday school or a rack at a community centre. The language was strong and the opinions were blunt. Nevertheless, in 2010 the Saskatchewan Court of Appeal found that, despite using crude and offensive language, the pamphlets that decried teaching schoolchildren about homosexuality were protected by the right to freedom of expression. The Saskatchewan Human Rights Commission appealed the decision and it was that appeal that ended up in the Supreme Court and resulted in the Feb. 27 ruling.

In its decision, the Court pleased free-speech advocates by striking down a portion of the human rights code that prohibited expression that “ridicules, belittles or otherwise affronts the dignity” of identifiable groups. But the Court then upheld the phrase “tends to expose to hatred,” wording which can have subjective meaning, and it left the right to hear free-speech cases with the province’s human rights commission.

In effect, the court upheld a system in which people can be prosecuted for hate speech without benefit of the rules of evidence, right to counsel and the presumption of innocence, rights found in a court of law when Criminal Code charges are laid. This means people remain vulnerable to complaints about religious expression, like the charges laid in 2005 against Calgary Bishop Fred Henry after he wrote a pastoral letter and newspaper column defending traditional marriage. Similar charges were levelled at Rev.

Stephen Boissoin, an Evangelical minister in Red Deer, and Fr. Alphonse DeValk, former editor of Catholic Insight, for criticizing same sexual behaviour in the context of what was still a proposal to legalize same-sex marriage.

But the news wasn’t all bad. The Court decision provides some welcome protection for religious beliefs expressed in “non-hateful” ways. It also acknowledged that passages from Scripture (and other holy books) would not normally be considered hate speech, upholding a 2006 decision involving the use of Bible passages in commentaries about homosexual conduct.

Clouding those positive outcomes, however, the ruling also made the rather startling claim that criticizing behaviour is essentially the same as criticizing a person because, said the Court, in some cases behaviour is integral to a group’s identity.

Christianity and most other religions teach to hate the sin, but love the sinner. For example, we recognize that our children can sin, but we do not love them less because of it. Likewise, society incarcerates convicted persons for their crimes, not out of hate for the individual.

The Court’s conflation of behaviour and individual puts it at odds with most religious teaching and is a troubling conclusion to come from our highest court. Additionally, the ruling states that truth is not always an acceptable defence if statements are delivered in a “hateful” way.

The Whatcott case was of particular interest to publishers, clergy and free-speech advocates who had concerns about whether their words could be interpreted as hate speech under human rights law. Some of those concerns were allayed, but there still remains a troubling element of subjectivity about how words are interpreted and a problematic method of processing complaints through provincial human rights commissions.

(McGarry is the executive director of the Catholic Civil Rights League of Canada.)

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