A case currently before the Supreme Court of Canada will decide the future of human rights commissions (HRCs) in the country. It could be the most significant ruling on hate speech in more than 20 years.
The case will not affect the definitions of hate speech in the Canadian Criminal Code — which trumps any human rights code, but has a much higher burden of proof — which will continue to criminalize speech that incites genocide or leads to violence against an identifiable group. But if the court decides to remove hate speech from the purview of HRCs — which it could potentially do — it could make it a lot easier for bigots to spew venom at gay men and lesbians.
The Supreme Court is deliberating in the case of Bill Whatcott, a fundamentalist Christian who was originally convicted by the Saskatchewan Human Rights Commission in 2002 of violating hate speech provisions of the province’s human rights code. Whatcott had been distributing homophobic literature that claimed the existence of a homosexual conspiracy to corrupt young people in Saskatchewan schools.
“Our children will pay the price in disease, death, abuse and ultimately eternal judgment if we do not say no to the sodomite desire to socialize your children into accepting something that is clearly wrong,” stated one flyer.
Whatcott appealed the commission ruling to Saskatchewan courts, arguing, in part, that he was attacking homosexual behaviour and not homosexuals themselves. He lost his initial appeal, but the Saskatchewan Court of Appeal overturned his conviction last year, leading the HRC to appeal to the Supreme Court.
The Whatcott case has attracted a record 21 intervenors, with anti-gay religious groups like the Evangelical Fellowship of Canada and the Catholic Civil Rights League and free speech advocates like the Canadian Civil Liberties Association and Canadian Journalists for Free Expression supporting Whatcott and groups representing minority communities like gay and lesbian lobby group Egale Canada, the African Canadian Legal Clinic and the Centre for Israel and Jewish Affairs (formerly the Canadian Jewish Congress) supporting the HRC.
In its presentation to the court, Egale argued that endorsing the appeals court’s acceptance of Whatcott’s defence of loving the sinner and hating the sin would lead to gay men and lesbians being unfairly singled out for discrimination.
“It validates a restrictive interpretation of the phrase ‘sexual orientation,’ based on a fallacious distinction between orientation and conduct,” stated Egale in its factum to the Supreme Court. “The Court of Appeal’s reasoning establishes a dangerous precedent that would limit the scope of protection afforded to [gay men and lesbians].”
Egale argues that if individuals or organizations are allowed to attack gay men and lesbians on the basis of their behaviour, the protection afforded to sexual minorities would be virtually non-existent, especially when compared to the protection afforded to racial or religious minorities.
But Don Hutchinson, the vice-president of the Evangelical Fellowship of Canada, says that the ability to separate criticism of conduct and behaviour from identity is crucial to Canada’s multicultural society.
“It’s very difficult to draft a law that keeps out the speech you don’t like, but allows for the sort of free-wheeling debate we need.“
“This is not a personal attack on the personhood of gay and lesbian individuals. There’s a clear distinction between a personhood and their behaviour. That’s found in the scriptures. My identity as an evangelical Christian compels my behaviour in a number of ways, such as sharing my faith with others. Some people are critical of that behaviour. I have to both accept and recognize that criticism, not see it as a personal attack.”
Egale also took issue with the Saskatchewan Court of Appeal’s suggestion that homosexuality might be less deserving of protection than religious or racial minorities citing the Supreme Court’s ruling in the Taylor case 21 years ago. That case — concerning a telephone hotline message that conveyed an anti-Semitic message — decided that human rights laws on hate speech were a reasonable limit on Charter rights protecting free speech.
“The only way to distinguish Taylor at this step of the analysis is for this Court to declare that promoting a tolerant society which respects the equality and dignity of [gay men and lesbians] is not as pressing and substantial a legislative concern as promoting racial and religious equality and harmony,” states the Egale factum.
Sunil Gurmukh, the lawyer representing the African-Canadian Legal Clinic before the court, agrees with Egale that making a distinction between conduct and identity means homosexuality could be singled out as a legitimate ground for attacks in ways that racial or religious groups could not be. He says such a ruling would rank gay men and lesbians below other minority groups when it comes to protection.
“We stand with the LGBT community on this,” says Gurmukh. “A hierarchy of prohibited grounds is constitutionally prohibited.”
Gurmukh also says that a ruling that strikes down the ability of HRCs to regulate speech would have an impact far beyond the gay community.
“Look at the signal that would be sent. The speech of hate-mongers would be given prominence. What’s missing from the debate is the chilling effect that would have on the members of vulnerable communities. There are other associated harms to individuals who are part of vulnerable communities. It’s been linked to depression and even suicide. Consider the plight of the African-Canadian community. It’s three percent of the Canadian population, but it was the target of almost 40 percent of hate crimes.”
Gurmukh also claims that permitting hate speech under human rights codes could potentially lead to much greater violence. “Most troubling is the potential for genocide. The genocide in Rwanda has been linked to hate speech.”
But Paul Saguil, the lawyer representing Canadian Journalists for Free Expression, says he doubts the result of removing hate speech from human rights codes would be anywhere near as dire.
“I don’t think it’ll open the floodgates and that we’ll see a lot of troubling speech. There’s still the Criminal Code and that’s not an issue at all. There’ll still be defamation laws. And the Saskatchewan legislature can probably go back to the drawing board.”
The Canadian Civil Liberties Association, which is also supporting Whatcott’s position, says that the approach advocated by Gurmukh would be disastrous for free speech in Canada. Cara Zwibel, the director of the Association’s Fundamental Freedoms Program, says that while Whatcott’s homophobia may be deplorable, his defence shouldn’t be dismissed.
“His fliers mention curricula that might be brought into schools. And the fliers reproduced a page from a gay magazine with ads from men seeking boys. Should this type of personal advertising be allowed and what sort of discussion should we have in our schools? I wouldn’t call this straightforward.
“Whatcott also makes an argument that his opinions are grounded in his religious beliefs, which are protected. It’s very difficult to draft a law that keeps out the speech you don’t like, but allows for the sort of free-wheeling debate we need. Do we want to give the government the free pen to decide?”
Hutchinson says his preferred result would be that the Supreme Court remove questions of free speech from the jurisdiction of human rights commissions entirely.
“The more hoped-for decision is that human rights commissions are actually intended to deal with discrimination and accommodation in services and housing.”
The Supreme Court is not expected to release a ruling until the spring. That ruling could range anywhere from upholding the status quo or requiring the Saskatchewan government to rewrite its human rights legislation, to removing free speech from the jurisdiction of human rights commissions.
