Supreme Court says Saskatchewan activist’s anti-gay flyers violated hate law

The Supreme Court of Canada has handed an anti-homosexual crusader and Saskatchewan's Human Rights Commission partial victories in a decision with implications on how hate-speech laws are applied.

The high court found William Whatcott violated Saskatchewan's Human Rights Code in two of four flyers he stuffed into Regina and Saskatoon mailboxes a more than decade ago, The Canadian Press reports.

But the court also struck down some language in the code as unconstitutional because it does not meet the test of being a reasonable limit on Charter rights to freedom of religion and expression as can be justified in a free and democratic society.

"A prohibition of any representation that 'ridicules, belittles or otherwise affronts the dignity of' any person or class of persons on the basis of a prohibited ground is not a reasonable limit on freedom of religion," the Supreme Court, in a 6-0 ruling, said in its decision.

[ Related: Top court strikes down part of Sask. hate speech prohibition ]

"Those words are constitutionally invalid and are severed from the statutory provision in accordance with these reasons.

"The remaining prohibition of any representation 'that exposes or tends to expose to hatred' any person or class of persons on the basis of a prohibited ground is a reasonable limit and demonstrably justified in a free and democratic society."

Whatcott, a Christian fundamentalist who says he doesn't hate gays, just what they do, was hauled before the Saskatchewan Human Rights Commission after complaints about a series of pamphlets he distributed in 2000 and 2001, CP reported.

The commission ruled the four crudely produced pamphlets violated Saskatchewan's Human Rights Code and in 2005 it ordered him to pay four complainants a total of $17,500.

But the commission's ruling was overturned by the Saskatchewan Court of Appeal, which prompted the commission to take the case to the Supreme Court.

Whatcott had tried to argue that his "hate the sin, not the sinner" approach meant his anti-gay leaflets did not constitute hate speech within the meaning of the provincial code, but the high court didn't buy that.

"Courts have recognized a strong connection between sexual orientation and sexual conduct and where the conduct targeted by speech is a crucial aspect of the identity of a vulnerable group, attacks on this conduct stand as proxy for attacks on the group itself," the court said in its decision, written by Justice Marshall Rothstein.

"If expression targeting certain sexual behaviour is framed in such a way as to expose persons of an identifiable sexual orientation to what is objectively viewed as detestation and vilification, it cannot be said that such speech only targets the behaviour. It quite clearly targets the vulnerable group."

The court found the commission's conclusion that two flyers violated the code was reasonable.

"Passages of these flyers combine many of the hallmarks of hatred identified in the case law," the court found. "The expression portrays the targeted group as a menace that threatens the safety and well‑being of others, makes reference to respected sources in an effort to lend credibility to the negative generalizations, and uses vilifying and derogatory representations to create a tone of hatred.

"The flyers also expressly call for discriminatory treatment of those of same‑sex orientation. It was not unreasonable for the tribunal to conclude that this expression was more likely than not to expose homosexuals to hatred."

But two other flyers, while nasty, did not meet the legal test for hate speech.

"It cannot reasonably be found that those flyers contain expression that a reasonable person, aware of the relevant context and circumstances, would find as exposing or likely to expose persons of same‑sex orientation to detestation and vilification. The expression, while offensive, does not demonstrate the hatred required by the prohibition."

The Supreme Court also reduced the compensation awards related to the latter two flyers, leaving Whatcott to pay a total of $7,500, plus the costs for all the legal proceedings.

The case attracted a raft of intervenors, ranging from other provinces' human rights commissions to churches, free-speech advocates and First Nations.

"It reaffirms the case law as we have understood it for the last 25 years," Mark Freiman of the Canadian Jewish Congress, told CP after the ruling. "It reaffirms that there is a very high standard in order for communication to qualify as hatred."

[ Related: Centre for Israel and Jewish Affairs responds to ruling on Whatcott case ]

But the Centre for Israel and Jewish Affairs said Canada's hate-speech laws still need updating.

"Canada's hate speech protections need significant overhaul in terms of both content and process to ensure a proper balance between freedom of speech and protection from hate," centre chair David Koschitzky said in a statement reported by CP.

"The Jewish community of Canada understands all too well the corrosive impact of hate speech on vulnerable minorities."

The Moderator of the United Church of Canada, which intervened in the case, welcomed the court's ruling.

"Freedom of religion is not absolute," the Right Rev. Gary Paterson said in a statement. "It does not include the right to engage in religiously motivated hate speech, and it does not extend to conduct that harms or interferes with the rights of others."

As for Whatcott, the ruling won't change anything.

“I stated at the very beginning and I won’t change my mind," he told the Saskatchewan Star Phoenix before the decision came down.

"I’ll put out flyers until I’m either in a hospital bed or in jail. I don’t believe that the Supreme Court has the right to censor this kind of speech. If they do, they’re wrong."

[ Related: United Church says limits to freedom of religion are reasonable ]

The Star-Phoenix reported Whatcott has continued his crusade against homosexuality and abortion in Saskatchewan and Alberta. Late last year, the University of Saskatchewan issued a safety advisory after receiving complaints about a man handing out anti-gay leaflets on campus that contained Whatcott's contact information.

Whatcott, a nurse by profession who admits to prostituting himself with men as a young drug addict, has made this his life's work and it's drawn international attention.

The National Post noted Whatcott was the subject of a segment on Jon Stewart's Daily Show, where the satirical news program mocked Canada, "our gay neighbour to the north," for persecuting him.