Anti-gay flyers violated Saskatchewan human rights code: Supreme Court

OTTAWA – The Supreme Court of Canada has handed down its ruling in a long awaited freedom of expression case.

The case pitted the Saskatchewan Human Rights Commission against anti-gay crusader Bill Whatcott. 

In a 6-0 decision, the high court allowed part of the commissions’ appeal, finding two flyers distributed by Whatcott in 2001 and 2002 violated the province’s human rights code for promoting hatred against an identifiable group. 

The flyers depicted gay men as sodomites and pedophiles. 

“The tribunal’s conclusions with respect to (the two flyers) were reasonable,” Justice Marshall Rothstein wrote on behalf of the court. 

“Passages of (the flyers) combine many of the hallmarks of hatred identified in the case law.” 

The vilifying and derogatory representations used in the flyers created a “tone” of hatred against homosexuals, said Rothstein. 

“It delegitimizes homosexuals by referring to them as filthy or dirty sex addicts and by comparing them to pedophiles, a traditionally reviled group in society,” he wrote. 

Whatcott expressed his disappointment in the outcome. 

“As far as I’m concerned, we tried to have a more robust democracy and a more robust freedom of speech. Unfortunately, the Supreme Court justices are of a far different world view then ourselves and they certainly ruled against us,” said Whatcott. 

“There is a God who is far greater then these justices and there is a court in the end and I guess certainly I’ll be looking at that perspective, that as a Christian there is more than this life.” 

David Arnot, chief commissioner of Saskatchewan’s Human Rights Commission, is pleased with the decision. 

“The court has sided with our position that Mr. Whatcott’s words and behavior did indeed cross the line between critical and hateful speech,” said Arnot. 

“The Court has upheld the principle that there is a justifiable and narrow limit on the freedom of expression when it has the potential to escalate, spark violence and incite harm towards others.” 

“When it comes to speech, we are free to be critical, controversial and even careless but we cannot be hateful.” 

A human rights tribunal originally found Whatcott had distributed hate literature and was order to pay the four complainants a total of $17,500, but that decision was overturned by Saskatchewan’s Court of Appeal. 

Whatcott will have to pay one complainant $5,000 and a second one $2,500. 

The Supreme Court found two other flyers distributed by Whatcott did not violate the code. 

In making that finding, the court found part of Saskatchewan’s Human Rights Code violated the Canadian Charter of Rights and Freedom. 

Rothstein found “a probation of any representation that ‘ridicules, belittles or otherwise affronts the dignity of’ any person or class of persons on the basis of a prohibited ground is not a reasonable limit on freedom of religion.” 

“Those words are constitutionally invalid and are severed from the statutory provision.” 

Severing those words from the code could have implications for provinces that have similar wording in their human rights code. 

Arnot said removing the words from Saskatchewan’s code is a technicality and the commission has not applied those words since the Saskatchewan Court of Appeal ruled them unconstitutional 19 years ago. 

At least two groups that intervened in the case expressed hope that the decision will help to clarify Canada’s hate speech laws. 

“It reaffirms the case law as we have understood it for the last 25 years,” said Mark Freiman of the Canadian Jewish Congress. 

“It reaffirms that there is a very high standard in order for communication to qualify as hatred.” 

But another group, the Centre for Israel and Jewish Affairs, said hate-speech provisions still need to be updated to reduce or eliminate abuse. 

“Canada’s hate speech protections need significant overhaul in terms of both content and process to ensure a proper balance between freedom of speech and protection from hate,” centre chair David Koschitzky said in a statement. 

“The Jewish community of Canada understands all too well the corrosive impact of hate speech on vulnerable minorities.” 

 As for Whatcott, he believes he did nothing wrong and will continue distributing flyers. 

“I think I did a good thing, I wouldn’t do anything different. I wouldn’t change a word in those flyers.” 

With files from The Canadian Press  

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