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Guest post by Laura Johnston. Laura is a radical feminist activist and law student.
There’s been a lot of media coverage of the Saskatchewan Human Rights Commission v. William Whatcott case heard in the Supreme Court of Canada this week. Much of this coverage has construed the case as one that pits freedom of expression or freedom of religion against the equality rights of lesbian and gay people (example). Not only is this a pretty gross mischaracterization of the case, but it’s also a very generous portrayal of what Whatcott did.
So, what did Whatcott do? He distributed four different pamphlets to people’s homes across Saskatoon and Regina. The pamphlets contained homophobic propaganda. Four people complained to the Human Rights Commission of Saskatchewan, who set up a tribunal to hear the complaint. The tribunal found that all four flyers exposed homosexuals to hatred and ridicule, in violation of the Saskatchewan Human Rights Code. The tribunal ordered Whatcott to stop distributing these flyers or any similar material which promoted hatred against individuals based on sexual orientation and he had to pay fines to the complainants.
I want to point out here that Whatcott has not been charged with a crime, was not convicted of a crime, and is not defending himself against any kind of criminal proceeding. He is not and never was facing jail time. Although there are criminal code provisions criminalizing hate speech, the state never charged Whatcott criminally. Yet the CBC reported that Whatcott was “charged with promoting hate” and, “was found guilty by Saskatchewan Human Rights Tribunal” and an editorial in the National Post suggests “human rights laws is verging on criminalizing Christianity”. It’s very important to differentiate criminal proceedings, in which someone is defending themselves against the full power and resources of the Canadian state and what’s happening to Whatcott – that is, a few fellow citizens complained about the pamphlets. Although he is still entitled to procedural protection (and as you’ll see, he’s received it) this is a civil proceeding under provincial human rights legislation, not a criminal charge.
I struggled to decide whether or not to reproduce the contents of the pamphlets for this blog post. On the one hand, I do not want to give this homophobic propaganda any more air time than it has already received. But, when I realized the media were reporting the contents of the pamphlet as simply critical of school boards’ decisions to include awareness of homosexual issues in school curriculum, I decided to include the actual language from two of the pamphlets below, so people can get a sense of what we’re really talking about here. Skip the italicized section if you don’t want to read the contents of the pamphlets.
“Keep Homosexuality out of Saskatoon’s Public Schools!
It has come to the attention of the Christian Truth Activists that a committee on “Gay, Lesbian, Bisexual and Transgendered issues,” set up by the Saskatoon Public School Board had recommended that information on homosexuality be included in their curriculum and school libraries. The elementary school teacher’s union in Ontario voted this year in favour of this for grades 3 and 4, even though children at this age are more interested in playing Barbie & Ken rather than learning how wonderful it is for two men to sodomize each other. Children in Ontario perform poorly in terms of academics, however, their teachers seem more interested in sexual politics of a perverted type, rather than preparing children to do well when they are older. Now the homosexuals want to share their filth and propaganda with Saskatchewan’s children. They did it in Boston, under the guise of “Safe Schools” and their little sensitivity class degenerated into a filthy session where gay and lesbian teachers used dirty language to describe lesbian sex and sodomy to their teenage audience.
Christian Truth Activists believes that Sodomites and lesbians can be redeemed if they repent and ask Jesus Christ to come into their lives as Lord and Saviour. The Church of Jesus Christ is blessed with many ex-Sodomites and other types of sex addicts who have been able to break free of their sexual bondage and develop wholesome and healthy relationships. We also believe that for sodomites and lesbians who want to remain in their lifestyle and proselytize vulnerable young people that civil law should discriminate against them. In 1968 it was illegal to engage in homosexual acts, now it is almost becoming illegal to question any of their sick desires. 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.
Sincerely: Bill Whatcott, Christian Truth Activists”
Another pamphlet is entitled “Sodomites in our Public Schools“, with handwritten statements on either side of a photograph of gay men that say:
“Break the Silence! Born Gay? No Way! Homosexual Sex is about risky & addictive behaviour!” and
“Break the Silence! Sodomites are 430 times more likely to acquire Aids & 3 times more likely to sexually abuse children!”
The text includes phrases like:
“We should be holding conferences on how to reinstate Canada’s sodomy laws! Not on how guys like this can be better accepted as your children’s teachers. The Toronto Public School Board marches every year in this parade. If Saskatchewan’s sodomites have their way, your school board will be celebrating buggery too!”
“Don’t kid your selves; homosexuality is going to be taught to your children and it won’t be the media stereotypes of two monogamous men holding hands.”
“The Bible is clear that homosexuality is an abomination.”
“Our acceptance of homosexuality and our toleration of its promotion in our school system will lead to the early death and morbidity of many children.”
Whatcott appealed the tribunal’s decision to the Saskatchewan Court of Queen’s Bench. That court upheld the tribunal’s decision that the pamphlets were hate speech. Whatcott again appealed to the Saskatchewan Court of Appeal, which overturned the tribunal’s decision and said the pamphlets were not hate speech.
The Saskatchewan Court of Appeal uses some bad reasoning in this judgement. The Court reviews case law and concludes the legal test they should use to assess the pamphlets is this: would a reasonable person on a reading of the plain wording of the flyer in its entirety conclude that the effect of the flyer exposes or tends to expose homosexuals to hatred? Surprisingly, the Court says no, but they aren’t too clear about how they reached that conclusion.
The Court seems to do two contradictory things – first they pick individual words and phrases out of the pamphlet and say that they aren’t enough to be considered hateful. For instance, the Court says, “some of the words and phrases taken in isolation are demeaning,” but goes on to say that it is, “doubtful if any of the words and phrases isolated by the Tribunal or the Queen’s Bench judge would, standing alone, meet the test set out…for hatred”.
They also pick out individual words as ambiguous. Apparently, “boy” is an ambiguous word that doesn’t necessarily mean….boy. Whatcott wrote on one of the pamphlets, “Saskatchewan’s largest gay magazine allows ads for men seeking boys!” and “If you cause one of these little ones to stumble it would be better that a millstone was tied around your neck and you were cast into the sea.” The Court of Appeal chastises the tribunal and Queen’s Bench judge for drawing the inference that Whatcott was referring to boys as children. They say “[t]his conclusion is problematic because the word “boy” is open to a number of interpretations.” I think it’s pretty clear that “boy” means male child, especially in the context of Whatcott’s claims that gay men are more likely to sexually abuse children.
Then the court turns around and says that the tribunal was wrong to isolate words and phrases out of context. The tribunal listed several examples of words and phrases that they relied on to conclude that the materials can objectively be viewed as exposing homosexuals to hatred: “[t]his list of the above words and phrases were taken out of the context of the sentences or paragraphs in which they were stated in the flyer.” So…the homophobic words and phrases were taken out of the context of…a pamphlet with homophobic words and phrases?
The court concludes that, “when examined in the context of a debate about the actions of the Saskatoon School Board, the entire flyer would not be seen by a reasonable person as communicating the level of emotion required to expose persons on the basis of their sexual orientation to a level of hatred…”
Well, reasonable people? What do you think?
I put this judgement in the category of “judges doing what they want and calling it law”. Clearly the judges didn’t want to find the pamphlets to be hate speech. The question I have for the Court after reading the judgement is this – if this isn’t hate speech, what is? The legislature didn’t put a section prohibiting hate speech in the Human Rights Code for fun. So clearly there is some speech that a Court must consider hate speech – what would that be? Or is the reason the court didn’t consider this hate speech because it was directed at lesbian and gay people? I wonder if the pamphlet was directed at members of a religious group that has experienced substantial oppression or members of a particular group of persons of colour whether the Court would have found that hate speech.
The Saskatchewan Human Rights Tribunal has appealed the Saskatchewan Court of Appeal’s decision, which is why the issue is now before the Supreme Court of Canada. Whatcott has several layers of argument. He first argues that flyers do not exhibit hate in violation of the Saskatchewan Human Rights Code. Alternatively, he argued that if the materials do exhibit hate, it is directed towards sexual behaviour, not gay and lesbian people. He further argues that if the court finds that hate directed towards sexual behaviour is within the meaning of hate directed towards people based on sexual orientation, the prohibition is overbroad and should be found unconstitutional to the extent that it conflicts with the sections of the Code and the sections the Charter of Rights and Freedoms that guarantee freedom of religion and freedom of expression.
His claim that he was targeting sexual behaviour, rather than people, is an empty one. First of all, he didn’t restrain himself in his pamphlets to saying things like, “dating a person of the same sex is immoral” or “gay sex is wrong”. He referred to gay men as “sodomites” and compared them to pedophiles. He described homosexuals as “filthy” and said they were “perverted” and had “sick desires”. Clearly, he did not write the pamphlets in a way that only criticized behaviour.
Secondly, the distinction between homosexual sex and homosexuals is hollow in this context. As counsel for the intervener, Egale Canada, pointed out in her submissions, for a long time, Canada’s immigration laws prohibited immigration of people who engaged in homosexual acts, and people who didn’t have full citizenship who were found to have engaged in homosexual acts were deported. That law was clearly anti-homosexual.
The distinction between a behaviour and a person is particularly trite coming from a person who practices a religion. If we condemned Christian people for building or attending churches, holding religious services, baptizing people, holding funerals in accordance with their religious traditions and praying, could we say we weren’t being anti-Christian, because it’s only Christian behaviour that we’re opposed to? Many social or biological identities that we have involve behaviour and to express hatred towards the behaviour of a particular group is to express hatred to that group.
A common opinion expressed by media and interveners in the courts goes roughly like this: “I don’t like what Whatcott said, but he has a right to say it because all speech must be allowed to be expressed.” I was particularly disappointed to see the Canadian Civil Liberties Association (CCLA) putting the time and resources in to file an application to intervene in support of Whatcott. Their counsel stated in their factum, “[n]either those who believe homosexuality is sinful, nor those who promote acceptance and tolerance on LGBT issues, can be permitted a monopoly in this debate…. In a robust democracy, we must have a high degree of tolerance for debates about moral issues, even when expressed in polemical terms…” I just want to take a moment to thank CCLA for characterizing the attitudes one could hold about homosexuality as ranging from “sinful” to “tolerance” – as if homosexuality was a rather unfortunate, dysfunctional aspect of humanity that could only be tolerated at best, never preferred or celebrated.
The thing is, there are many examples of Canadian law prohibiting hate speech besides Human Rights Codes. The interveners, the Women’s Legal Education and Action Fund (LEAF) point out in their factum that free speech is limited by the Broadcasting Act (which prohibits programming that tends to or is likely to expose identifiable groups to hatred); the Canada Post Corporation Act (which denies mail privileges if there are reasonable grounds to believe a hate propaganda offence is being committed; the Customs Tariff (which prohibits the importation of hate propaganda); the BC Security Services Regulation (which prohibits a licensee from publishing or using as an insignia material that promotes hatred)….they go on.
There is no such thing as an absolute right to free speech in Canada. There are countless ways that free speech is limited, from competition legislation that prevents corporations from engaging in particular types of marketing, to public school teachers being limited to a curriculum, to regulation of nutritional claims on food products. Nobody has the right to say whatever they want whenever they want. Hate speech is one example of a type of speech we limit in Canada, and for very good reason. Hate speech causes real damage to real people and to our society as a whole. There are countless examples in history of hate speech contributing to violence towards oppressed groups of people, including harassment, assault, torture, rape, murder and genocide.
LEAF points out in their factum that human rights provisions prohibiting hate speech are the only remedial course of action in law to address anti-woman propaganda and as such, are critical to women’s equality. They canvas some recent examples of cases involving hate propaganda directed at women that included portraying lesbians as predators intending to lure and abuse children, portraying Black women as oversexed, diseased, animal-like and stupid, portraying Aboriginal women as degraded and dispensable “squaws” and most recently, woman hating messages displayed through posters and emails leading to the Waterloo university women’s centre being closed. The prohibition of hate speech is a feminist issue.
There is no benefit to protecting hate speech. It is a moot point to argue that Whatcott has a right to express his opinion that homosexual content shouldn’t be included in school curriculum based on his Christian values. Of course he does – that’s not what this case is about. As counsel for the Saskatchewan Human Rights Commission stated in his introduction at the Supreme Court of Canada on Wednesday,
“The Saskatchewan Human Rights Commission is not saying that [Whatcott] cannot hold the beliefs and opinions he holds. We are not saying that he cannot express and disseminate those views and beliefs and opinions publically. What we are saying is that he cannot do it in a way that is hateful.”
There is a big different between expressing this opinion (which is part of democratic discussion) and likening lesbian and gay people to “filthy”, “perverted” pedophiles and claiming that your children will be abused and die if exposed to them (which is hate speech). The Supreme Court of Canada has ruled that one of the fundamental concepts included in democracy is respect for minorities. Hate speech contributes nothing to democracy, it contributes to the denigration of minorities and other oppressed groups. Hate speech should be prohibited in a democratic society that values the equality of its members.
Everything I referred to in this piece is available to the public, so you can check it out yourself if you want to find out more about this case:
Supreme Court of Canada, webcast footage (you can watch the lawyers make their arguments to the Court)