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Supreme Court Whatcott decision disappoints some

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The Supreme Court of Canada's decision about Christian activist William Whatcott has upset some free speech advocates.The Supreme Court of Canada's decision about Christian activist William Whatcott has upset some free speech advocates.
By Deborah Gyapong
Canadian Catholic News

The Feb. 27 Whatcott decision by the Supreme Court of Canada (SCOC) has disappointed some religious-freedom and free-speech advocates.

SCOC upheld two of the findings of the Saskatchewan Human Rights Tribunal against William Whatcott, a Christian activist who faced complaints about four pamphlets he distributed criticizing homosexual behaviour. It found they "equated" homosexuality with pedophilia, and described homosexual sex practices as "filthy."

"Freedom of religious speech and the freedom to teach or share religious beliefs are unlimited, except by the discrete and narrow requirement that this not be conveyed through hate speech," wrote Justice Marshall Rothstein on behalf of the six justices who decided the case.

Rothstein said two of the flyers exhibited the "hallmarks" of hatred that had been identified in previous case law.

"The expression portrays the targeted group as a menace that could threaten the safety and well-being of others, makes reference to respected sources (in this case the Bible) to lend credibility to negative generalizations, and uses vilifying and derogatory representations to create a tone of hatred."

SCOC reinstated $7,500 of the original $17,500 in penalties Whatcott had been ordered to pay the complainants.

"Typically people look to the courts to protect their fundamental freedoms," said lawyer Tom Schuck, a Saskatchewan Catholic Civil Rights League (CCRL) member who represented Whatcott. "What we have to do is look to the legislature. The Saskatchewan government can repeal this law."

Constitutional lawyer Iain Benson, who also argued for Whatcott, said the decision does "not recognize that 'hatred' is too vague a term if it is disconnected from incitement to cause imminent violence or physical harm."

"There is a real need for new thinking on the terms that it uses: 'discrimination' and 'vulnerable groups,' where what is really at issue is not 'attacks on the vulnerable' but strong feelings about what is and what isn't permissible sexual conduct," said Benson. "The court seems unable to make these distinctions with any convincing logic."

Though the court struck down a portion of the code by striking out part of the section that refers to expression that "ridicules, belittles, or otherwise affronts the dignity" of identifiable groups, it left in place the "troublesome" words "tends to expose to hatred," said CCRL executive director Joanne McGarry.

It also leaves in place a system where people can be prosecuted for hate speech without the rules of evidence, right to counsel, and presumption of innocence found in a real court of law, McGarry said.

This means people continue to be vulnerable to complaints about religious expression like those faced by Calgary Bishop Fred Henry for a 2005 pastoral letter and newspaper column defending traditional marriage.

"The league will continue to stand for the principle that if there is any intrusion on charter-protected freedoms, it 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," said CCRL president Phil Horgan.

He said the code is likely to continue to be used to prosecute people who argue for Christian morality.

"It's not much help to publishers or clergy wondering, 'Can I say this?' or 'Can I say that?'" McGarry said, noting the whole category of hate speech "is subjective."

"I find it troubling that statements that are true or based on fact are not considered a defence," McGarry added.

The Evangelical Fellowship of Canada (EFC), another intervener, welcomed the decision's positive aspects.

"It's actually a pretty decent decision," said Don Hutchinson, the EFC's vice president and general legal counsel. "Most important, the court has clearly stated that the Bible and biblical positions on public policy issues are legitimate for public conversation and discourse."

"In doing so, the court has essentially said that the biblical principle of sharing the truth in love is acceptable," he said. "But sharing in a way that vilifies or would cause detestation towards an identifiable group would be considered hatred."

"Justice Rothstein has done a favour for civility in public discourse," he said, noting that he gave several examples of how Whatcott might have made his case differently.

"Genuine comments on sexual activity are not likely to fall into the purview of a prohibition against hate," Rothstein wrote.

"If Mr. Whatcott's message was that those who engage in sexual practices not leading to procreation should not be hired as teachers or that such practices should not be discussed as part of the school curriculum, his expression would not implicate an identifiable group."

"The other thing they have done very clearly in striking down part of Section 14(b) is to say "hurt feelings or personal offence are not enough," Hutchinson said.

Also on the positive side, both CCRL and EFC see a silver lining in the decision's respect for precedent and how that could affect decisions on prostitution laws or on euthanasia that are wending their way through the courts.

Schuck said Whatcott is "very disappointed" as well as concerned that if he speaks out again the Human Rights Commission could impose a permanent ban on his speaking on these issues at all.

"I am concerned about him and what's going to happen to him," said Schuck. "He feels he has the responsibility to preach God's Word in the most effective way possible."

CCRL and EFC were among more than two dozen interveners on both sides in the case that pitted freedom of expression and freedom of religion against equality rights of disadvantaged groups to be protected from language that vilifies and marginalizes them.

Last Updated on Monday, 04 March 2013 09:13  

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