Canadian Supreme Court rules against free speech
The meaning of the Whatcott decision
Rory Leishman
With the unanimous ruling in the case of Bill Whatcott on Wednesday, the Supreme Court of Canada has stepped up its attack on freedom of speech and freedom of religion as never before. For faithful Christians, the implications are clear: Like Whatcott, they, too, could end up in jail as a prisoner of conscience for upholding the plain teachings of Sacred Scripture on the sinfulness of sexual intercourse outside of marriage between a man and a woman.
Granted, defenders of the Court will deny the allegation. They will insist that well-meaning Christians have no reason to fear because Justice Marshall Rothstein has stipulated in his reasons for judgment in Whatcott that the guarantees of freedom of speech and freedom of religion in section 2 of the Canadian Charter of Rights and Freedoms restrict legislative prohibitions of hate speech to only extreme forms of hateful expression “which a reasonable person, aware of the context and circumstances, would view … as likely to expose a person to detestation and vilification on the basis of a prohibited ground of discrimination.”
While that might sound reassuring, consider how the Court has applied this supposedly “objective test” for prohibited hate speech to two flyers marked D and E which Whatcott distributed in Saskatoon and Regina respectively entitled “Keep Homosexuality out of Saskatoon’s Public Schools!” and “Sodomites in our Public Schools.” In marked contrast to the Saskatchewan Court of Appeal which found nothing in either of these flyers that constitutes hate speech within the meaning of the Saskatchewan Human Rights Code, Rothstein denounced Whatcott’s assertion that “Homosexual sex is about risky & addictive behaviour!” as an example of “hate-inspiring representations” of homosexuals.
Rothstein added: “The flyers also seek to vilify those of same-sex orientation by portraying them as child abusers or predators. Examples of this in Flyers D and E would include: ‘Our children will pay the price in disease, death, abuse …’; ‘Sodomites are 430 times more likely to acquire Aids & 3 times more likely to sexually abuse children!’; and ‘Our acceptance of homosexuality and our toleration (sic) of its promotion in our school system will lead to the early death and morbidity of many children’.”
Rothstein likewise characterized Whatcott as stating in his flyers “that homosexual conduct should not be discussed in schools because homosexuals are pedophiles.” That charge is false. In no way does Whatcott claim that all homosexuals are child abusers, predators or pedophiles. As clearly stated in his flyers, he maintains only that sodomites — meaning homosexuals — are three times more likely to sexually abuse children and that the promotion of homosexuality in the public schools is liable to persuade some children to engage in homosexual sexual behaviour that fosters early death and morbidity.
Moreover, Whatcott maintains that these statements are demonstratbly true. But that is of no account to Rothstein. He holds that truth is not a defence against committing hate speech. In Rothstein’s words: “To the extent that truthful statements are used in a manner or context that exposes a vulnerable group to hatred, their use risks the same potential harmful effects on the vulnerable groups that false statements can provoke.”
Whatcott insists that he harbours no hatred for homosexuals, but wants only to save and assure them, as stated in his Saskatoon flyer, that: “Sodomites and lesbians can be redeemed if they repent and ask Jesus Christ to come into their lives as Lord and Saviour.”
However, Whatcott’s motivations were also of no account to the Court. In a warning shot to faithful Christians, Rothstein made a point in his ruling of endorsing the opinion expressed in dissent by Madam Justice L’Heureux-Dubé of the Supreme Court of Canada in Trinity Western, 2001: “I am dismayed that at various points in the history of this case the argument has been made that one can separate condemnation of the ‘sexual sin’ of ‘homosexual behaviour’ from intolerance of those with homosexual or bisexual orientations. This position alleges that one can love the sinner, but condemn the sin. … The status/conduct or identity/practice distinction for homosexuals and bisexuals should be soundly rejected.”
In conformity with this view, Rothstein concluded: “Whether or not Mr. Whatcott intended his expression to incite hatred against homosexuals, in my view it was reasonable for the (Saskatchewan Human Rights) Tribunal to hold that, by equating homosexuals with carriers of disease, sex addicts, pedophiles and predators who would proselytize vulnerable children and cause their premature death, Flyers D and E would objectively be seen as exposing homosexuals to detestation and vilification.
What about the idea that citizens in a democracy should be able to engage in a free and vigorous debate of controversial ideas like the nature of homosexuality with full confidence that the truth will eventually prevail in the marketplace of ideas? Rothstein flatly disagrees. He maintains: “Hate speech can … distort or limit the robust and free exchange of ideas by its tendency to silence the voice of its target group.”
Is that right? Is there any evidence that Whatcott’s flyers have silenced homosexual activists in Saskatoon, Regina or anywhere else? None whatsoever. The idea is preposterous.
However, there is no provision in the hate-speech section of the Saskatchewan Human Rights Code for “proof of harm.” And that’s just fine with Rothstein. On behalf of his Supreme Court colleagues, he argued with respect to hate speech: “The difficulty of establishing causality and the seriousness of the harm to vulnerable groups justifies the imposition of preventive measures that do not require proof of actual harm.”
Rothstein likewise held that it matters not that Whatcott might have been expressing his honestly held religious belief. In Rothstein’s view, “Allowing the dissemination of hate speech to be excused by a sincerely held belief would … gut the prohibition of effectiveness.”
In short, with this Whatcott ruling, the Supreme Court of Canada has held that nothwithstanding the ostensible guarantees of freedom of expression and freedom of religion in the Charter, a Canadian can be found guilty of violating the prohibition on hate speech in a human rights code by making a statement even if (a) the statement is true; (b) the speaker did not intend to express hatred; (c) the speaker was expressing his or her honestly held religious conviction; and (d), there is no proof that the statement has caused any harm.
Under these circumstances, no one could ever by convicted in a Canadian criminal court. But the most basic rules of evidence do not apply in the kangaroo courts run by Canada’s human rights tribunals. They now have approval from the Supreme Court of Canada to go on flouting the fundamental principles of due process of law for the protection of the innocent.
Meanwhile, Whatcott has vowed that he will not obey the order of the Supreme Court of Canada to pay $7,500 in damages to two homosexual complainants who were offended by his flyers. If, as seems certain, Whatcott stands by this determination, he will probably be charged with contempt of court and consigned to jail as a Christian prisoner of conscience.
The same fate awaits all other Canadians — Christians and non-Christians alike — who offend against the canons of political correctness that the Supreme Court of Canada finds embedded in Canada’s freedom-stifling human rights codes. To avert this danger on the federal level, the House of Commons has approved a bill to rescind the prohibition on hate speech in the Canadian Human Rights Code. The legislatures of Saskatchewan, Alberta, British Columbia and the Northwest Territories should follow suit.
Better yet, Parliament and all the provincial legislatures should legislatively abolish all of the coercive powers exercised by their arbitrary human rights tribunals. In the light of the Whatcott ruling, it’s now more than ever evident that Canadians cannot count upon the Supreme Court of Canada to prevent these oppressive agencies from trampling upon the basic rights and fundamental freedoms that are supposedly guaranteed in the Charter.
Rory Leishman is the national affairs columnist for The Interim and author of Against Judicial Activism: The Decline of Freedom and Democracy in Canada (2006).
