Not everyone is happy with the unanimous decision of Supreme Court of Canada
The Supreme Court of Canada has ruled against Saskatchewan anti-gay crusader William Whatcott and the flyers he distributed denouncing homosexuals more than a decade ago.
In a unanimous 6-0 decision Wednesday, the court found that two of the four flyers distributed by William Whatcott violated Saskatchewan’s Human Rights Code.
Those flyers referred to gay men as sodomites and pedophiles.
But the court struck down some language in the provincial code, clearing Whatcott of any wrongdoing in connection with two other flyers.
Whatcott produced and distributed leaflets in 2000 and 2001 that contained inflammatory statements about gay men, prompting complaints to the Saskatchewan Human Rights Commission.
A tribunal ruled that Whatcott violated the province’s human rights code _ but that finding was overturned by the Saskatchewan Court of Appeal.
The commission appealed to the Supreme Court, arguing that Whatcott’s flyers essentially asserted that gays and lesbians are less than human, exposing them to discrimination.
The high court agreed with respect to two of the flyers, saying they constituted hate-speech under the code.
“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.
Saskatchewan Human Rights Commission chief David Arnot applauded the ruling and thanked the complainants for coming forward “with courage in what was absolutely a sea of hatred to stand up for their rights.”
“It is necessary to sanction hate speech in our society and the court has been very, very clear,” Arnot said.
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However, in its ruling on Wednesday, the Supreme Court struck down a portion of the Saskatchewan charter.
It found that language in the code which defines hate literature as something that “ridicules, belittles or otherwise affronts the dignity of any person” is unconstitutional.
The ruling could have implications for other provinces with similar language in their human rights codes.
Arnot dismissed the ruling as minor, noting that the phraseology rejected by the court hasn’t been applied in Saskatchewan in nearly two decades.
The tribunal originally ordered Whatcott to pay the four complainants a total of $17,500.
The Supreme Court of Canada decision means he will have to pay one complainant $2,500 and another $5,000.
Brad Fraser, a prominent Canadian playwright and gay activist, says that even those who believe in free speech must recognize the necessity of limits.
“I believe passionately in free speech but I also think the minority must be protected from the possible tyranny of the majority who may be painting issues with a brush that is dipped in lies and unreasonable hatred,” he said.
“I support the decision of the court.”
At least three groups that intervened in the case expressed hope that the decision will help to clarify the hate speech laws.
“The Supreme Court of Canada seized this opportunity to clarify and narrow the understanding of ‘hate speech’ as set out in its 1990 decision in the Taylor case,” said Don Hutchinson, general legal counsel with The Evangelical Fellowship of Canada.
Hutchinson says the decision touched on different aspects of freedom of religion and concluded that the Bible could not be considered as hate speech.
“The court is clear that Bible passages, biblical beliefs and the principles derived from those beliefs can be legally and reasonably advanced in in public discourse,” he said. “Most helpful, the court offered some examples of means by which Mr. Whatcott could have advanced his beliefs without violating the Code.”
“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.”
The Canadian Constitution Foundation denounced the ruling, saying the decision was “about as bad as it can get” and noting that restriction on speech was largely upheld and Whatcott was convicted.
“I expected a divided decision with lots of conflicting reasons giving by the judges. I find it disturbing that it is unanimous,” said staff lawyer Derek James-From.
“I wanted the clear statement from the court that freedom of expression is of such importance that it outweighs the state’s goals of fighting discrimination.”
John Carpay, president of the Justice Centre for Constitutional Freedoms, was also disappointed with the decision, even though he disagreed with Whatcott’s opinions.
“I think (Whatcott) was dead wrong,” Carpay told CJWW radio in Saskatoon.
“(But) I think the way to counter his speech is by fellow citizens explaining why it’s wrong and repudiating it, rather than running to big brother government and launching a state prosecution.”
With files from Terry Pedwell and the THE CANADIAN PRESS.