Freedom of religion, speech in hands of Supreme Court
On Oct. 12, the case of Saskatchewan Human Rights Commission v. William Whatcott was heard by the Supreme Court of Canada.
The case stems from events in 2001 and 2002 when Whatcott, a former member of the editorial advisory board of The Interim (1998-1999), as a part of the Christian Truth Activists, distributed flyers against homosexual acts to homes in Regina and Saskatoon. The pamphlets also included statements by Whatcott, a former street kid who engaged in homosexual prostitution to pay for drugs before converting to Christianity, regarding sexual morality, the teaching of homosexuality to school children, and a local homosexualist magazine.
Several recipients of the flyers filed complaints with the Saskatchewan Human Rights Commission (SHRC) against Whatcott and the Saskatchewan Human Rights Tribunal found him to have contravened Section 14 (1)(b) of the Saskatchewan Human Rights Code, which prohibits speech 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.” On May 2, 2005, the Tribunal ordered Whatcott to pay $17,500 to the four complainants and ordered him to refrain from further distributing the same or similar flyers.
On Dec. 11, 2007, the Saskatchewan Court of Queen’s Bench upheld the Tribunal’s decision, but on Feb. 25, 2010, the Saskatchewan Court of Appeal overturned the Tribunal’s ruling and the Court of Queen’s Bench decision upholding it. According background provided by the Evangelical Fellowship of Canada (EFC), the Court of Appeal “felt that the error of the Tribunal and the lower court where that statements of the flyers were not analyzed in context of the scheme of the Code and the Canadian Charter of Rights and Freedoms jurisprudence, and the context in which the statements were published.” Furthermore, “the Court ruled that the flyers did not violate s. 14(1)(b) of the Code and that the appeal should be allowed.”
The SHRC applied for leave to appeal to the Supreme Court of Canada on April 23, 2010 and in October of that year, the SCOC granted the appeal.
Whatcott, 43, denies his criticism of homosexual acts is hate. He is represented by lawyers Thomas Schuck of Weyburn, Sask., and John Carpay of Calgary. In a factum submitted to the Court, they state, “objectively, none of the flyers were distributed to engender hate. The materials express the opinions of Whatcott and his church in the ongoing debate as to the place that same-sex sexual behaviour has in our society and, in particular, in our schools and universities.”
They also argue that neither human rights commissions nor the courts “should take a definitive position upon what sexual activity is reasonable or unreasonable,” because “our law must allow some diversity of viewpoints as to what sexual matters are moral or immoral.”
On Oct. 12, a four-hour hearing included 21 interveners that included religious organization, civil liberties groups, and homosexualist organizations in a case that will have implications for free speech and religious freedom in Canada.
Schuck said, “everybody has the right to engage in debate,” noting Whatcott was using deliberately provocative but truthful language to get people`s attention. Noting that the flyers featured medical facts and republished ads from a gay magazine in which homosexuals were soliciting sex from minors, Schuck said, “everything my client has written is true.”
According to LifeSiteNews.com, lawyers for the gay rights group EGALE argued that behaviour is inextricably tied to sexual orientation and therefore any criticism of homosexual activities is a condemnation of gays and lesbians which might promote hatred against them.
Don Hutchinson, legal counsel for the EFC, an intervener, told LifeSiteNews that he was “really thrown off” when counsel for the SHRC said that reading certain Biblical passages from St. Paul would constitute hate speech.
Indeed, concerns about attacks on religious expression is what motivated the EFC to intervene. Hutchinson argued, “Evangelical leaders and pastors and members of congregations around the country are feeling that their expression of a religious position on public debate matters seems increasingly unwelcome.”
According to the EFC’s website, “the organization is intervening out of concern that if the Court rules that one cannot act in a non-harmful way in public discourse based on one’s foundational religious beliefs then one does not actually have religious freedom, but only freedom to believe.” In a video on the EFC website, Hutchinson said the key to this case “is that religious freedom is something that is not just held within the person but that we are able to express and share it with other believers and with other people who might not share our beliefs.” He told LifeSiteNews, that if the SCOC ruled the wrong way, it could result in “a virtual open season on anyone communicating a religiously informed position on any matter of public policy.”
Hutchinson said that the criminal code provisions on hatred, which are limited to intent to incite harm, are sufficient limitations on freedom of speech in Canada, whereas the subjective limits of the human rights commissions are a threat to freedom of religion and public policy debate.
The Catholic Civil Rights League was also an intervener in the case. It was represented by Ryan Dalziel of Bull, Hausser and Tupper LLP in Vancouver, who argued that Section 14 is “unintelligible” because it includes a subsection that claims its prohibition on promoting hatred does not restrict freedom of expression, “when it plainly does.”
Also intervening on behalf of Whatcott was the Faith and Freedom Alliance, the Christian Legal Fellowship, the Association for Reformed Political Action Canada, the Canadian Constitution Foundation, the Canadian Civil Liberties Association, and Canadian Journalists for Free Expression. Intervening in favour of the SHRT was EGALE, the Canadian Bar Association, Canadian Human Rights Commission, several provincial and territorial human rights commissions, the Canadian Jewish Congress, League for Human Rights of B’nai Brith Canada, African Canadian Legal Council, and the Women’s Legal Education and Action Fund.
The Supreme Court is not expected to issue its decision until mid-2012.