Supreme Court ruled against Bill Whatcott.
The long legal odyssey of William Whatcott that began with the distribution of four flyers on homosexuality in 2001 and 2002, ended in the Supreme Court on Feb. 27, with the Supreme Court handing a mixed result for advocates of freedom of speech.
After Whatcott distributed his flyers more than a decade, four individuals filed hate speech complaints against him with the Saskatchewan Human Rights Commission and the province’s human rights tribunal rule against him, fining him more than $17,000. While a lower court upheld the Tribunal’s decision, the Saskatchewan Court of Appeal found that its ruling against Whatcott violated his free expression rights. The SHRC appealed the decision to the Supreme Court of Canada in a case heard in October 2011. In February a unanimous decision written by Stephen Harper appointee Justice Marshall Rothstein struck down the sections of provincial human rights law that prohibit ridicule, belittling, or other affronts to dignity of any individual or class of people, saying it was not a reasonable limit of freedom of expression or freedom of religion. However, the 6-0 decision also said any speech that “exposes or tends to expose to hatred” any person or class of people on the basis of prohibited grounds such as sex or race, and including sexual orientation, can be proscribed.
As such, the Supreme Court ruled that two of Whatcott’s flyers were constitutionally protected speech, but that two were not. It reduced his fine from $17,500 to $7,000. But the Supreme Court also ordered Whatcott to pay all of the Saskatchewan Human Rights Commission’s legal costs bringing the case to the highest court of the land.
Religious and free speech advocates were mixed in their reaction to Saskatchewan Human Rights Commission v. William Whatcott.
Sun News host Ezra Levant, who was himself at the center of a complaint as publisher of The Western Standard in recent years, said the decision “ends a five year trend in Canadian courts and Canadian legislatures toward more freedom of speech.” Levant said the decision violated Section 2 of the Charter of Rights to freedoms of religion, conscience, speech, and expression. He said the justices over-rode these rights.
The Catholic Civil Rights League also took issue with the decision. Executive director Joanne McGarry praised the removal of the belittling and ridiculing sections, but was concerned the phrase “tends to expose to hatred” remained in place. She said the ruling means those who express religious views on morality issues could still face human rights commission complaints.
McGarry also said publishers and religious leaders are still left wondering “Can I say that” as the concept of hate speech “is subjective.”
Chris Schafer, executive director of the Canadian Constitution Foundation, said that the “Supreme Court missed an excellent opportunity to rein in the power of various human rights commissions and tribunals to censor the expression of unpopular beliefs and opinions.”
REAL Women vice president Gwen Landolt says that the Supreme Court regularly sides with homosexuals over people of religious faith.
Gwen Landolt, national vice-president of REAL Women of Canada, went even further, calling the ruling “very depressing” and “bad news.” She told LifeSiteNews that the Court claims it is “not really infringing on freedom of religion and freedom of speech and freedom of opinion” when that is precisely what they have done. Landolt said the decision is a “warning sign” that Christians cannot speak freely about sexual morality in public debates.
But other pro-life and pro-family lawyers are more sanguine.
In a statement, Don Hutchinson, vice president and general legal counsel with the Evangelical Fellowship of Canada, applauded the clarification of hate speech by striking down provisions in the Saskatchewan Human Rights Code “that concerned something more akin to hurt feelings” by removing the belittling and ridiculing standards of hate. Hutchinson said, “the standard is clearer, from the legal perspective, that speech may only be deemed hateful when assessed to be so objectively from the perspective of a reasonable person, with full consideration of the circumstances, and when the expression is likely to expose a person to detestation and vilification on the basis of prohibited grounds of discrimination that are attributable to an identifiable group.” Hutchinson explained, “The test essentially begins to boil down to publicly stating that a whole group of people should be marginalized from participating as members of Canadian society.”
Hutchinson said that the ruling was “clear that Bible passages, biblical beliefs and the principles derived from those beliefs can be legally and reasonably advanced in in public discourse.”
Former MP Tom Wappel, legal and political advisor to Campaign Life Coalition, prepared an analysis of the decision for CLC, and noted that it largely affirmed past standards of hate speech, removed the troublesome belittling and ridiculing provisions, and repeatedly noted that legislatures determine the parameters of human rights legislation and that they may amend particular criteria as they see fit. Wappel noted, in particular, that “three specific objections to the legislation raised by intervenors, dealing with lack of certain defenses, because intent is not required, proof of harm is not required, and the truth of the statements is not a defense,” upheld the existing law. Wappel said that while truthful statements should be protected, he “can understand” how truthful statements “interlaced” with harmful and misleading statements might lead to hate and not be protected.
Phil Horgan, president of the Catholic Civil Rights League said there is a problem with the lack of defense for those brought before human rights tribunals that are typically afforded accused criminals. “The League will continue to stand for the principle that any intrusion on Charter-protected freedoms,” he told the Catholic Register, “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.”
Wappel said the decision “tightened up the definition of ‘hatred’” and “confin(ed) it to ‘extreme’ cases” and that if the public found these limits too egregious, the decision allows legislatures to amend the law.
John Carpay, a lawyer and president of the Justice Centre for Constitutional Freedoms, helped represent Whatcott, along with lawyer Tom Schuck, wrote in the National Post that “in a free society, citizens make up their own minds about what is true or false, right or wrong, loving or hateful. Free citizens don’t let politicians, bureaucrats and judges make these decisions on their behalf.” He urged Canadians to lobby their elected provincial representatives to have all restrictions on freedom of speech removed from human rights laws.
On March 15, Whatcott announced he asked the Supreme Court of Canada to reconsider its Feb. 27 ruling that found two of his flyers expressed hatred toward homosexuals. Lawyer Tom Schuck said in a press release: “The basis for the request for the rehearing was the conclusion of the Court that Whatcott had called homosexuals pedophiles in the pamphlets found to be hateful.” Whatcott maintains he did not call all homosexuals pedophiles, but rather noted on one of his pamphlets he stated homosexuals are “three times more likely to sexually abuse children.” Schuck said misinterpreting Whatcott’s labeling homosexuals as pedophiles was “the most significant evidence of hate speech” but that such a label “would clearly be untrue.” Schuck said, “It is hoped that the Court would acknowledge the error and allow re-argument on only the content of the pamphlets.”
