Supreme Court of Canada to help clarify what constitutes hate speech

William Whatcott protesting abortion in Calgary in 2009.

The Supreme Court of Canada is being asked to draw the line between what constitutes free speech and what crosses the faint line into hate mongering. The case against William Whatcott, an unabashedly anti-homosexual Lutheran proselytizer in Saskatchewan, will have lasting implications about where Canadians and Canadian courts should draw the line between protecting what citizens say, and protecting those who could be offended.

In 2005, Whatcott was found to be in violation of the Saskatchewan Human Rights Commission (SHRC) for distributing flyers in several Saskatchewan towns in 2001 and 2002 that spoke negatively of homosexuals. The CBC claims that “Whatcott’s flyers used words like ‘filth,’ ‘propaganda’ and ‘sodomy’ to describe gay relationships and the discussion of equality.”

An SHRC hearing found Whatcott guilty after four people who had received the pamphlets complained. He was ordered to pay $17,500 in damages, although he managed to convince a Saskatchewan Appeals Court that he was simply exercising his right to free speech and religion, as he based many of his claims against homosexuality in the Bible.

Whatcott maintains that he “opposes sexual behaviour, not sexuality,” and that any “ruling against him would be contravening his right to freedom of religion,” writes the CBC.

At issue now is whether what Mr. Whatcott said and did should be considered against the law. In essence, should free speech trump the anti-hate protection provided by the state?

Mr. Whatcott’s lawyer, Thomas Schuck, is presenting his client not only as a man acting within his Charter rights, but as someone conducting important public outreach in “protecting youth from gay sexual practices,” according to the Globe and Mail. “Human-rights commissions should be protecting children; not going after whistle blowers,” Mr. Schuck said in the Globe. “If anything, Mr. Whatcott deserves commendation for putting this out in public.”

Not everyone is prepared to see Mr. Whatcott’s actions as those of a tireless public crusader for keeping children safe. Cynthia Petersen, a lawyer representing Egale Canada, a gay and lesbian rights advocacy group, is concerned about the precedent that could be set when the rights of minority groups are tiered below generic free speech provisions.

“Egale is very concerned…because we fought for a long time to have sexual orientation included in Human Rights legislation,” Petersen told Xtra!, Canada’s Gay and Lesbian Newspaper. “And we are now included in every jurisdiction in Canada, so those statutes have to be interpreted in a way that protect all of the vulnerable groups equally.”

Hate speech that falls short of inciting violence seems to be where freedom of speech proponents draw the line. In a passionate defense of free speech, Margaret Wente in the Globe and Mail argues that “hate-speech laws are a double-edged sword. And the sword we use against those who offend us might some day be turned back on us,” which speaks to the very subjectivity of what constitutes hate speech in the first place.

It goes without saying that what I find hateful may not be to another individual, and vice versa. But attempting to come up with a court-mandated template that we will fruitlessly attempt to apply to other cases that are sure to arise in future seem to me like a waste of time.

Perhaps the issue of what constitutes hate speech is something that can only be determined on a case-by-case basis, given the differences that context can play in determining intent and guilt. Having read Shakedown by Ezra Levant this summer, I was amazed at how many cases are brought before Human Rights Commissions across Canada that seem frivolous, to put it politely – down right idiotic, if I’m not censoring myself.

Some of the cases outlined in Shakedown – like the McDonald’s employee who didn’t want to wash her hands often enough for hygienic purposes and filed a human rights claim against her employer for making her…and won – do not deserve the time we devote to reviewing them. And the case brought against Levant for publishing the Danish cartoon depicting the prophet Mohammed in the journal he was publishing at the time was worth having only to better understand how difficult a thing free speech is to comprehend.

Levant should not have been tried in Alberta for a human rights violation – a frank look at the context would have determined he was within his rights to free speech, and an open, unbiased look at the intent would have found nothing malicious on his part. This was simply a journalist doing their job.

But a hate-filled, small-town Pastor who – according to Xtra!  is not gay but participated in gay sex acts in his youth in order, I kid you not, to pay off a drug dealer he owed money to – simply wants to spread his tired form of discrimination and hate – what right does he have to generalize and speak so hatefully of people he has never met?

Yet the reverse is also true – what right do we have to stop him from speaking his mind in pamphlet form? Is this as slippery a slope as it seems?

Wente has an interesting point to make on this in the Globe:

“If we’re determined to ban speech that’s truly hateful,” Wente asks, “then why not start with the Bible and the Koran? Our holy books are laced with homophobia, intolerance, anti-Semitism, ethnic cleansing and wife-beating.

“It’s astonishing that we allow our children to be exposed to them,” she adds.

Some will no doubt be offended by Wente’s assertions about religious texts. But is this hate speech? Or is she free to say this in an open and democratic society?

While sunlight may be the best disinfectant, whatever ruling the Supreme Court hands down when it reaches a decision will do little to clear up the muddy waters of free speech in Canada.

But our communal understanding of the issue is likely better for the discourse.

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A version of this article first appeared on Digital Journal. Published 10/13/2011.