OTTAWA, February 27, 2013 – The Catholic Civil Rights League provides comments on today’s Supreme Court of Canada (SCC) decision in the free speech case between William Whatcott and the Saskatchewan Human Rights Commission. The court allowed the Commission’s appeal in part, and restored two of four fines against Mr. Whatcott, plus awarded costs to the Commission.
The Court held that a minor revision to the law, by a deletion of eight words, would allow the underlying statute to be maintained. The Court further ruled that such hate speech provisions were an acceptable legislative approach to dealing with the issue of hate speech. While the actual provisions in the Saskatchewan legislation infringed on protections of freedom of speech and freedom of conscience and religion, the Court found that the provisions, as amended, were reasonably and demonstrably justified, using section 1 of the Charter.
However, the Court, while upholding a previous 4-3 decision of the Supreme Court from 1990 in Taylor, clarified what would constitute hate. The Court ruled that only an objective analysis could be used, that material would only be treated as “hatred” in cases restricted to extreme manifestations of the emotion described by the words “detestation” and “vilification”, and finally that the measurement of any such application of hate would require an analysis on the effect of the expression at issue, namely whether it is likely to expose the targeted person or group to hatred by others. In the words of the court: “In light of these three directives, the term “hatred” contained in a legislative hate speech prohibition should be applied objectively to determine whether a reasonable person, aware of the context and circumstances, would view the expression as likely to expose a person or persons to detestation and vilification on the basis of a prohibited ground of discrimination.”
Mr. Whatcott, formerly of Regina and now of Weyburn, SK was fined $17,500 in 2002 by the Saskatchewan Human Rights Commission (HRC) under Section 14 for distributing a series of pamphlets objecting to what he judged to be homosexual values being taught to children in Saskatoon Public schools. As a result of today’s ruling, the penalty is upheld for two of the pamphlets but dismissed for two others. The fines have been upheld for pamphlets which used strong language to complain about the adoption of same-sex friendly curricula by the Saskatoon school system, while complaints based on advertisements for intergenerational sex partners were allowed.
The Catholic Civil Rights League was an intervenor in the case, represented by Ryan Dalziel of Bull, Housser and Tupper LLP in Vancouver. Mr. Whatcott’s lawyer, Thomas A. Schuck of Saskatchewan, is a member of the League. The appeal was heard October 12, 2011.
“Once again the court has struggled with the difficult problem of balancing the right to freedom of expression with the goal of preventing discrimination against identifiable groups,” said League President Philip Horgan. “The SCC upheld its previous jurisprudence on such hate speech provisions, and has provided clarification which should limit such applications to the most severe cases.”
While the League favoured a remedy to strike out the Saskatchewan provision as being vague and incoherent, the Supreme Court has trimmed the current language, and maintained the legislative effort to address such concerns.
In a preliminary review of the decision, the League finds some positive elements to the decision, but has concerns on the impact of the judgment going forward.
First, the Supreme Court went to great lengths in a heavily contested area of the law to uphold its previous ruling in its 1990 decision in Taylor. The Court has re-asserted the importance of stare decisis, or the value of precedent, which will be of particular importance when future appeals are brought to the SCC on prostitution and assisted suicide in the current timeframe. We find some measure of confidence that the Supreme Court will not be easily moved from previous pronouncements merely based on new appeals several years removed from earlier decisions.
Secondly, the Supreme Court has specifically recognized that reference to biblical provisions, or other holy texts, in the normal course should not be treated as hate speech, a provision that the Saskatchewan Court of Appeal addressed in Owens in 2006, in which the League intervened, and which the Supreme Court has today re-affirmed.
In affirming the Saskatchewan legislation, albeit with modifications, the League remains concerned that complaints of hate speech will continue to be advanced, and will require individuals to defend themselves from such allegations, even in cases where such statements may be based on religiously supported beliefs. The Supreme Court has found that only speech causing “hatred” – not speech causing ridicule or offence – will be amenable to a human rights sanction. The League remains concerned that the maintenance of such provisions, without the available procedural elements available in the criminal law, will continue to pose problems, and serve as a chilling effect on free speech.
Prosecutions in the Whatcott case, and other cases, have created a climate where newspaper publishers and clergy, for example, couldn’t always be sure that their words about moral issues would not lead to filings with a human rights commission.
Of particular concern is that the Court has adopted the suggestion that detestation of homosexual behaviour or activity can be equated to hatred of homosexual persons, such that criticism of behaviour can constitute hate speech of an identifiable minority.
This invites a troubling problem, over the distinction long recognized in law and morality between sin and sinner according to the League. “A key teaching of Christianity is to hate the sin, but love the sinner. For example, we recognize that our children can sin, but we do not love them less. We address their sinful activity through some sort of discipline of such behaviour”, noted Mr. Horgan.
“Likewise, as a society, we incarcerate convicted persons for their crimes, not out of hate for the individual. The criminal justice system is based on the application of justice to the accused, even though we deplore the crime.”
But with Whatcott, the SCC has stated that criticism of behaviour(s) can be treated as potentially hateful speech against the minority. Will criticism of activities at gay pride parades be treated similarly? Will criticism of certain homosexual sexual activities be now conflated as an example of hate speech of an individual or minority? This conflation of behaviour with the person or group, is a proposition at odds with most religious teachings, and of concern coming from our highest court.
Background on Section 14
Section 14 of the Saskatchewan Code states:
14 (1) No person shall publish or display, or cause or permit to be published or displayed, on any lands or premises or in a newspaper, through a television or radio broadcasting station or any other broadcasting device, or in any printed matter or publication or by means of any other medium that the person owns, controls, distributes or sells, any representation, including any notice, sign, symbol, emblem, article, statement or other representation:
(a) tending or likely to tend to deprive, abridge or otherwise restrict the enjoyment by any person or class of persons, on the basis of a prohibited ground, of any right to which that person or class of persons is entitled under law; or
(b) that exposes or tends to expose to hatred, ridicules, belittles or otherwise affronts the dignity of any person or class of persons on the basis of a prohibited ground.
14(2) Nothing in subsection (1) restricts the right to freedom of expression under the law upon any subject.
The League’s argument tried to bring focus of the legal debate to the provisions of this section, which we submitted was vague, subject to imprecise application (here attacking religiously based speech against homosexual activity) and internally incoherent. This provision, as with others across Canada, is unhelpful for average persons to understand, and unworkable in application, as the Saskatchewan provision itself prohibited anything that would contravene Charter rights to freedom of expression in subsection 2.
In today’s ruling, the court stated subsection (b) must be amended to remove “ridicules, belittles or otherwise affronts the dignity of” while the prohibition on exposing or tending to expose to hatred will remain.
The Supreme Court’s ruling may not solve the League’s concerns. In its effort to maintain the underlying provision, by excising eight words, the Court allows a provision which is acknowledged to restrain speech or religious freedoms, in circumstances where the words of the following section expressly intend to disallow. The Court has effectively invited a new interpretation of section 14 (2), where it reads “Nothing in subsection (1) restricts the right to freedom of expression…” The new interpretation can only be understood to mean “Sometimes subsection (1) restricts the right to freedom of expression…”
The problem of individuals having to face such applications when engaging in public debate is shown by the process faced by Mr. Whatcott. The original human rights tribunal ordered Whatcott to pay $17,500 in compensation to four people who had complained his flyers exposed them to hatred. A Queen’s Bench judge upheld the ruling. In 2010, the Saskatchewan Court of Appeal found that while the pamphlets attacking teaching schoolchildren about homosexuality used crude and offensive language, they were protected by the right to freedom of expression.
Such hate speech provisions have been used in the prosecution of others, including Bishop Fred Henry of Calgary, Rev. Stephen Boissoin, an Evangelical minister in Red Deer, and Father Alphone DeValk, former editor of Catholic Insight, for criticizing same sex behaviour. Mr. Whatcott has faced at least nine human rights tribunal or court charges for his pamphleteering.
About CCRL
Catholic Civil Rights League (www.ccrl.ca) assists in creating conditions within which Catholic teachings can be better understood, cooperates with other organizations in defending civil rights in Canada, and opposes defamation and discrimination against Catholics on the basis of their beliefs. CCRL was founded in 1985 as an independent lay organization and has chapters across Canada. The Catholic Civil Rights League is a Canadian non-profit organization entirely supported by the generosity of its members.
For further information:
Joanne McGarry, Executive Director, 416-466-8244; joanne.mcgarry@ccrl.ca