Supreme Court of Canada anti-gay ‘hate speech’ case could be decisive for religious freedom
Image via WikipediaOTTAWA, October 13, 2011 - A case argued before the Supreme Court yesterday, if decided the wrong way, could result in “a virtual open season on anyone communicating a religiously informed position on any matter of public policy,” according to Don Hutchinson, general legal counsel for the Evangelical Fellowship of Canada, which intervened in the case - Saskatchewan Human Rights Commission (SHRC) v. William Whatcott.
The four-hour-long hearing had a record 21 interveners arguing both sides of a sharply divided stance on free and religious speech vs. hate speech and its interpretation by human rights commissions and tribunals.
Image via Wikipedia Hutchinson presented second to last and thus took in all the previous argumentation noting several startling positions.
Saskatchewan human rights commission considers reading from Paul in Bible on TV could be hate speech
The SHRC brought Whatcott before the Saskatchewan Human Rights Tribunal in 2006 over his practice of distributing flyers about the dangers of abortion and homosexuality. The flyer at issue was penned in objection to a classified ad in a homosexual newspaper that sought “boys/men for pen pals, friendship, exchanging video, pics.” It also criticized the promotion of homosexuality in Saskatoon public schools and the University of Saskatchewan.
The Tribunal found that Whatcott had violated section 14(1)(b) of the province’s human rights code, which prohibits speech that “expos
Image via Wikipediaes or tends to expose to hatred, ridicules, belittles or otherwise affronts the dignity of any person or class of persons on the basis of a prohibited ground.” He was ordered to pay a $17,500 fine and to cease publicly spreading his beliefs about homosexuality.
The Tribunal decision was upheld in 2007 by the Saskatchewan Court of Queen’s Bench, but it was overturned in 2010 by the Saskatchewan Court of Appeal.
Hutchinson said that he was “really thrown off” when counsel for Saskatchewan human rights commission, the body charged with assessing what constitutes hate speech under the provincial act, said that reading certain of the writings of Paul from the Scriptures on television would be hate speech.
Key to the debate, noted Hutchinson, is the concept of loving the sinner and hating the sin.
Lawyers for the homosexual activist group EGALE argued that if a person is gay then their behaviour is inextricably tied to their sexual orien
tation. “That argument was countered later in the day,” said Hutchinson, “noting that if a person is heterosexual that doesn’t give them free reign to engage in any form of heterosexual sexual activity that they choose.
Image via Wikipedia” Additionally, he said, “If a person has pedophilia or bestiality tendencies, it doesn’t leave them free in our nation to act out those sexual orientations.”
For his part, Hutchinson argued “Evangelical leaders and pastors and members of congregations around the country are feeling that their expression of religious position on public debate matters seems increasingly unwelcome.”
“Human rights codes make for an overbroad reach and a chilling effect on freedom of expression because human rights codes don’t allow the defense of truth and the sincerity of belief, they focus on the subjective feeling of offense or affront to dignity of the person who feels offended,” he told LSN. “For the average Canadian, that has to hire a lawyer and then be subject to multiple appeals and fines or both, this seems more worthy of an ideological driven society than a free and democratic society.”
According to Hutchinson, best case scenario would be for the court to say that the criminal code provisions on hatred, which are limited to intent to incite harm, are sufficient for the limitations for free speech in Canada and that the ones in the human rights codes which are subjective and have cau
sed a host of restrictions on free religious speech should be set aside.
In the worst case, “if the court concludes that these types of provisions are fine and that there are no changes required in regard to their interpretation then it would be a virtual open season on anyone communicating a religiously informed position on any matter of public policy.” He added: “Before you say something you best load up and put some money in the bank because you’re going to have to hire a lawyer to deal with the human rights complaint that is coming.”
“Let’s leave genuine public discourse to the public square and promotion of hatred to conviction under the criminal code,” he said.
A decision in the case is expected within 6-9 months.
Watch the full proceeding online here.
