OTTAWA—In an important decision that upheld the main anti-hate provisions in Saskatchewan’s human rights law, Canada’s top court ruled vitriolic anti-gay speech in flyers distributed by a Christian activist is not protected by the Charter.
In doing so, the Supreme Court of Canada unanimously struck down a small part of the province’s human rights code as an infringement on free speech and religion. It removed vague wording that prohibited the distribution of material that “ridicules, belittles or otherwise affronts the dignity” of people on the basis of their sexual orientation.
However, the high court, including Chief Beverly McLachlin, gave broad endorsement to the law’s equality protections for a vulnerable minority against the spreading of “hatred.”
Justice Marshall Rothstein, writing for the 6-0 panel, found two of four flyers handed out by William Whatcott in 2001 and 2002 in Regina and Saskatoon crossed the line into “harmful” discourse, but two did not.
On that basis the court trimmed an original order against Whatcott to compensate the complainants from $17,500 to $7,500.
The ruling was denounced by the man at the center, William Whatcott of Weyburn, Sask., as rubbish.
Whatcott said the ruling criminalizes a large part of Christian speech on homosexuality and morality. Unapologetic, he suggested he may put out another flyer on expressing that viewpoint and it will be written in what he calls his usual blunt and forthright manner.
Whatcott spent several years in Toronto about 15 years ago, when he led anti-abortion demonstrations in front of Jarvis Collegiate and ran as a fringe candidate in the 1999 provincial election.
The court said two of Whatcott’s hand-delivered leaflets had “hallmarks” of hatred, targeting gays as a menace that could threaten the safety and well-being of others, referring to respected sources like the Bible to lend credibility, and using “vilifying and derogatory representations to create a tone of hatred.”
“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,” wrote Rothstein.
The court said the law’s purpose is to “prevent discrimination by curtailing certain types of public expression” but it is tailored, and does not ban private expression of views.
While acknowledging it is a limit on free speech and expressions of religious belief, the court said it struck “an appropriate balance” with other Charter values, namely “a commitment to equality and respect for group identity and the inherent dignity owed to all human beings.”
The decision was hailed by advocates of equality rights for gays and lesbians and other vulnerable minority groups, as well as by those who believe it sent a strong signal that Canadian law — whether human rights acts or criminal codes — can be used to counter hateful speech and propaganda likely to cause harm.
“The court wisely held that connecting speech to morality or public debate doesn’t immunize it from restrictions on hate speech,” said Robert Leckey, president of Egale Canada, the advocacy group for gay and lesbian rights that had intervened in the case.
B’nai Brith lawyer Marvin Kurz said the ruling targets only speech that is “the worst of the worst.”
“It doesn’t matter whether I’m offended by what Mr. Whatcott says,” said Kurz. “The question is whether there’s going to be harm.”
Ontario’s human rights code does not have the exact same ban on hateful publications or flyers that Saskatchewan had. Kurz said Wednesday’s ruling nevertheless counters a backlash that had been growing against the use of human rights laws and solidifies overall efforts to fight harmful speech, whether it be anti-gay or anti-Semitic.
Kurz added the court did not establish a hierarchy of rights, or conclude that equality rights should trump freedom of religion and free speech.
“What it says is religion isn’t the only right, and religion cannot be used as a cloak for illegal activity; religion cannot be used as a cloak for hate.”
The Evangelical Fellowship of Canada, which intervened in support of Whatcott’s right to state his religious views freely without limit by the state, offered a muted reaction in a written statement noting that at least the high court made clearer what it does not consider hate speech.
The ruling is in line with a trio of decisions in 1990 (Keegstra, Taylor and Andrews) that saw the Supreme Court of Canada uphold various Canadian Criminal Code and human rights code prohibitions against hate speech.
Toronto Star
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