Whatcott Decision: The implications extend far beyond one anti-gay crusader

Will the Supreme Court get human rights commissions out of policing speech?

by Charlie Gillis

By this time tomorrow, we should have a clearer sense of what you can and can’t say in this country without fear of being hauled before a human rights tribunal, as the Supreme Court of Canada is set to rule on the case of William Whatcott, a Saskatchewan man accused of hate-mongering through the use of anti-gay leaflets.

Whatcott is pretty much a walking affront to the liberal spirit—a born-again crusader whose pamphlets claim homosexuals are out to “socialize your children” to their lifestyle; that if gay people aren’t stopped, young people will “pay the price in disease, death, abuse and ultimately eternal judgment.”

He was found guilty under provincial human rights laws, and ordered to pay $17,500 to four people who lodged complaints against him. That decision was overturned, and by October 2011 the case had worked its way up to the highest court in the land.

He made the most of those 15 minutes, and they weren’t his first. But the social and legal implications of his case reach far beyond Whatcott’s personal desire to demonize gays and lesbians.

First, the social: Saskatchewan’s human rights law is similar to those in other provinces, so if the court declares the whole provision unconstitutional, that leaves the Criminal Code anti-hate provisions as the only bulwark against hate propaganda in the country. Would hate-mongers flourish in Canada?

Possibly. When human rights commissions were empowered to monitor speech, most hate-spinners vanished to the dark corners of the internet because it had become a whole lot easier to strong-arm them. Unlike criminal law, which requires proof of guilt beyond a reasonable doubt, human rights law functions on a balance of probabilities. What’s more, the whole human rights process puts the power of the state behind an individual who feels he’s been affronted based on race, sex, religion and sexual orientation.

Yet civil libertarians say it wasn’t worth the trade-off. They point to examples of complainants using the human rights process to prosecute speech they deemed offensive yet didn’t meet any legal definition of hatred. Maclean’s counted among the prominent defendants. So did publisher-cum-TV host Ezra Levant.

So there are big social questions tied up in this decision. How much offensive speech can we tolerate? How offensive are we willing to let it get? What’s the best response?

As for the legal ramifications, striking down the Saskatchewan law would not be easy for the court to do. It would require the judges to overturn or at least tweak their own 1991 decision, Taylor, which upheld anti-hate measures in the Canadian Human Rights Act. As Joe Brean points out in today’s National Post, current Chief Justice Beverly McLachlin never much liked the federal version of the law, which is about to be repealed. She showed even less regard for the Saskatchewan law during Whatcott’s hearing.

Yet this court has gained something of a reputation for punting. The judges could just as easily rule on Whatcott’s culpability, leaving the thorny issues that flow from it in laps of provincial legislatures or the lower courts.

If that happens, the speech wars will rage until some province or territory summons the will to fix its legislation. And what a prospect—wading into a political bog where minority rights, religion and free speech collide. You can bet there are a couple of premiers out there tonight hoping the Supremes are in the mood to engage in a touch of judicial activism—just this once.

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Whatcott Decision: The implications extend far beyond one anti-gay crusader

  1. Cons are soooo busy trying to be like the US… in spite of the fact we can see the mess they’ve created….

    • Because the constitutionally protected freedom expression introduced by Pierre Trudeau in the Charter of Rights and Freedoms is an un-Canadian conservative idea?

      • Doesn’t give you the right to threaten people, lie about or insult them, or force your religion on them.

        Freedom of speech is not absolute in ANY country.

        • If you were familiar with Canadian jurisprudence you would realize that in fact Canadians do have the right to express their religious views. For the court to side with the Province here would be a repudiation of a half century of jurisprudence.

          • I think everyone in the country knows we have freedom of religion.

            We also have freedom FROM religion.

          • What does that mean? Forcing someone to not talk by force of law?

            In fact the jurisprudence in Canada is about the right to express religious beliefs in public. Similar is the right to protest, the right to express disagreement with policy or social conventions. The fact that there are people who disagree, sometimes strongly, doesn’t take away that right.

            This predates the Charter.

          • We have freedom from religion. That means religion doesn’t get to interfere with the laws, or force itself on unbelievers.

          • So what’s your point, Whallcott isn’t accused of forcing his views on people, if you don’t like them, you ignore them.

  2. Worth noting that the main report on the Federal human rights commission found that 100% of cases the Federal Human Rights Commission tried would also have been found guilty in criminal court. The criminal/civil distinction just isn’t relevant. And if these “civil libertarians”t he author refers to are angry about
    the power of the state behindt he tribunals, wait till they’re in
    criminal court and facing actual jail.

    Furthermore the following sentence was self-evident.

    They point to examples of complainants using the human rights process to
    prosecute speech they deemed offensive yet didn’t meet any legal
    definition of hatred.

    Macleans and Steyn WON. Ezra was never charged. they aren’t examples of a system running amok, they’re examples of the system working.

    • “the main report on the Federal human rights commission found that 100% of cases the Federal Human Rights Commission”

      That’s a dubious assertion and, in any event, criminal liability is up to a real court not the Canadian human rights commission”.
      In any event, if speech is criminal hate speech, prosecute it under the criminal code which affords the accused the presumption of innocence (i.e., the crown has to prove guilt beyond not a reasonable doubt, not on a balance of probabilities), procedural protections against political prosecutions (prosecutions must be approved by the attorney general, indigent accused may be entitled to legal aid), and affords obvious defenses not available in the human rights context (notably truth). If you believe that 100% of the prosecutions under the Canadian human rights code could have been successfully prosecuted criminally, then we don’t need the human rights code, prosecute them criminally.
      Yeah, that’s what I thought..

      • Hey genius, don’t tell me, tell Richrd Moon. Who wrote said report, and might actually know a thing or two about the situation.

        For what it’s worth I don’t like Crim penalties because I don’t want to see morons like Whatcott in jail for the crap they spew, I just want a tiny civil penalty and a stern “don’t do that anymore”. And despite your clear genius-level appreciation ofhwo the law works, because the cost and hassle of being charged criminally is far far worse than a tribunal.

        “yeah, that’s what i thought.”

        • Richard Moon did not say that the people found guilty under the Canadian Human Rights Code would also have been convicted under the criminal code hate speech provisions. To suggest otherwise shows you haven’t read his report. Indeed, in his report he acknowledged that abolishing section of the Canadian Human Rights code (which he recommended) and relying on the criminal code may make it harder to secure convictions, given the greater procedural protections afforded in criminal courts (and the availability of the defenses, I mentioned above).

          • It has been a while since i read it, and certainly he did call for overall changes to the system, but I don’t recall him saying that CHRC cases were improper and wouldn’t meet the higher standard, and that in fact he leaned the opposite way.

          • He didn’t say they were improper, be because under the existing law, they were legal. The fact that he suggested that section 13 be repealed, however, speaks for itself. He didn’t comment at all on whether prior hate speech cases could have been successfully prosecuted under the code (and I reread it this morning to confirm that), but he did suggest that proceeding under the criminal procedures would not be unduly onerous in clear cut hate speech cases.

      • show me please where truth would be an adequate defence to hate speech? Better yet, go read the case that shows why it can’t.

        • Paragraph 319(3)(a) of the criminal code of Canada. Google it. Note, subsection 319(3) affords people accused of criminal hate speech a number of other defenses as well, none of which are available to accused in human rights complaints. Which is why prosecuting hate speech using human rights codes is both easier and far more dangerous to freedom of expression.

          • see though the interim decision in the Zundel case about how it really works, though (I can’t link to it right now because it says Zundelsite will harm computers and can’t find another copy). Really they are pretending that all kinds of people are saying true things and getting in trouble at human right’s cases when this simply isn’t the case.

          • No, most people who end up in front of tribunals are probably lying scum, but it’s worrying that truth isn’t a defence. It’s equally worrisome that human rights convictions don’t have an intent requirement, like criminal provisions. In short, they lack the whole panoply of procedural against the power of the state that we normally require as a matter of fundamental justice (and as a matter of constitutional law

          • Try Canlii for criminal cases

      • Hear, hear! But then where are all the the little people with an ax to grind go?!?

      • Because lawyers is free and all.

    • how can you say ‘a system working’ if you have to defend yourself at great expense (how does $100K grab you) on your own nickle and not being able to recoup if you win?? And the accusers, not paying a penny in case of a loss and have no fear of being even lambasted for frivolous cases? To me that’s a system running amok alright. If the regular rule of law don’t apply (presumed innocence until proven guilty beyond a reasonable doubt) that’s a very broken system that needs no fixing, but needs to be disposed of in a hurry.

      • You can defend yourself at a tribunal for far less than Ezra claims or that Maclean’s spent. The figure you spout is virtually unheard of at the tribunal level. And there are many instances where even if you win you don’t get your costs back – investigations by the privacy commissioner or even the police, for instance. there are many instances where we need a public complaint system for the public good.

        Where have you heard people with frivolous cases can’t have costs awarded against them? The opposite is true and has happened, although historically usually they just don’t get their cases heard.

        And “guilty beyond a reasonable doubt” is only the test for criminal cases, because they involve much harsher penalties. furthermore, you must have missed the point where it was pointed out all the Federal convictions would also have met criminal standards.

        It may sound like I am being mean and dismissive here but really you just don’t understand the system – and that’s EXACTLY the way the hate speech advocates want it.

        • To have a tribunal declare that you can’t express your belief s in public is as extreme as taking away your right to conduct yourself from day to day as you see fit. The second is taken away from you if you are imprisoned, a result of a process that follows constitutional due process protections. The first deserves the same protections.
          You do know of the case where a police officer followed a trail of blood into a residence and arrested the person they found there for murder. The supreme court ruled that any evidence gathered without a warrant was inadmissible. Guilt is not the issue. It is whether the government had the right to even initiate the process.
          To suggest that these folks would have been found guilty so that justifies the illegal ignoring of due process is absurd. The government has the right to do these things only under certain conditions. We will find out what those conditions are.

        • Sure, you can defend yourself for free. But anyone with two nickles to rub together is going to hire a lawyer to protect themselves from the potentially significant fines and social stigma of being found guilty of human rights violations. To suggest those are not harsh penalties in mind-boggling. That’s precisely why such complaints have to be held to the reasonable doubt standard of proof (and as an aside, a Canadian Human Rights Tribunal reached precisely that conclusion last year (or maybe it was 2011) in dismissing a complaint on constitutional grounds.

  3. I haven’t read the court of appeal decision for a long time, but as i recall the constitutionality of the hate speech stuff didn’t come up nearly as much as whether Whatcott’s crap was extreme enough to be caught by it (talk about a seriously high bar!) Did they say they were bound by Taylor and that was that, and now it’s live again because it’s the SCC? Can someone with knowledge of the hearing speak to how much it came up?

  4. In a country where the media, government and corporations are largely censored by HRC’s, Hurray for people like Whatcott!

  5. The court has released its judgment and with a change to the wording the hate speech provisions have survived.

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