Whatcott v Saskatchewan (Human Rights Tribunal), 2010 SKCA 26 (25 February 2010)
The Court of Appeal for Saskatchewan has unanimously held that four flyers, which contained anti-gay sentiments, were not so extreme as to violate that prohibition on hate speech under The Saskatchewan Human Rights Code ('Code'). In arriving at this decision, the court emphasised the importance of protecting the right to freedom of expression, which is protected by the Code, the Canadian Charter of Rights (Charter) and the common law.
Under the name Christian Truth Activists, William Whatcott distributed four flyers (two of which were identical) to various homes in 2001 and 2002. The flyers were headed 'Keep Homosexuality out of Saskatoon's Public Schools!', 'Sodomites in our Public Schools' and 'Saskatchewan's largest gay magazine allows ads for men seeking boys!' Four persons who received these flyers complained to the Saskatchewan Human Rights Commission ('Commission') alleging that the flyers promote hatred against individuals based on their sexual orientation.
The Commission upheld these complaints, finding that the flyers violated s 14(1)(b) of the Code, which prohibits any publication or display:
that exposes 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.
This prohibition is limited by s 14(2), which provides that 'nothing in subsection (1) restricts the right to freedom of expression under the law upon any subject'.
Whatcott appealed the Commission's decision to the Court of Queen's Bench. The Queen's Bench considered whether the Commission erred in concluding that the flyers contravened s 14(1)(b), and whether s14(1)(b) of the Code contravened Whatcott's freedom of religion pursuant to s 2 of the Charter. Section 2 of the Charter protects freedom of conscience and religion as well as freedom of thought, belief, opinion and expression.
The Queen's Bench dismissed the appeal, having found that the flyers make 'clear references to homosexuals as paedophiles or molesters of children', thereby 'expos[ing] the homosexual community to hatred in the extreme sense', and that s 14(1)(b) imposed a justifiable limit on religious speech under s 2 of the Charter. Whatcott appealed this decision on the basis that the flyers did not violate s 14(1)(b) of the Code and, alternatively, that the flyers were directed toward sexual behaviour, not sexual orientation, and were therefore not unlawful.
The Court of Appeal for Saskatchewan upheld the appeal on the basis that the flyers did not violate s 14(1)(b) of the Code.
The court held that s 14(2) should not be interpreted literally, but does require the limitation in s 14(1)(b) to be balanced with the protection of freedom of expression. To do this, Hunter J held that s 14(1)(b) requires an objective examination of the publication, taking into account the context of the publication and the circumstances in which it was presented.
Justice Smith expanded on Hunter J's discussion of context. Justice Smith agreed that it is first necessary to consider the abstract meaning of the words complained of in the context of the flyer and the principles and aims of the Code, considered as a whole. However, Smith J held that it is also necessary to consider the broader context of historical disadvantage and vulnerability of the target group (being primarily gay men), and the historical and political context in which the expression was made.
The Court held that context is particularly important when balancing freedom of expression and the right to protection against discrimination on the basis of sexual orientation because of the underlying issues of morality, which is an acceptable topic for public debate. Justice Smith held that questions of sexual morality are intricately involved in public policy and therefore 'lie near the heart of speech worthy of protection'.
The court held that the flyers did not meet the test for breaching s 14(1)(b) described in Canadian (Human Rights Commission) v Taylor  3 SCR 892, which requires the words complained of to objectively express feelings of 'an ardent and extreme nature' and 'unusually deep-felt emotions of detestation, calumny and vilification'. The Court reached this view in the context of one flyer being too ambiguous to 'expose or tend to expose homosexuals to hatred' and two of the flyers comprising part of an ongoing debate about teaching about homosexuality in public schools. While one of the flyers contained a number of offensive phrases that did not contribute to this debate, Hunter J held that 'one phrase does not change the overall effect of the flyer'.
The Court of Appeal did not consider it necessary to consider in detail Whatcott's ground of appeal based on a distinction between sexual conduct and sexual orientation because the court found that the flyers did not violate the Code in any event. Nevertheless, the Court noted that this distinction must 'ring hollow' because it is the intolerance of sexual conduct that marginalises those with same-sex sexual orientation. However, the Court held that the distinction between the activity and the individual was relevant when considering the broader context of the flyers, which involved comment on questions of sexual morality and public policy.
Relevance to the Victorian Charter
This case may assist the interpretation of the Racial and Religious Tolerance Act 2001 (Vic) in light of the Charter, particularly s 15, which protects freedom of expression. Section 15 explicitly states that the right to freedom of expression may be subject to lawful restrictions reasonably necessary to respect the rights and reputation of others, or for the protection of national security, public order, public health or public morality.
The emphasis on the context of the expression is also instructive. The importance of context has been raised in federal jurisprudence on racial hatred provisions. Specifically, in McLeod v Power (2003) 173 FLR 31, a Caucasian prison officer complained that an Aboriginal woman called him a 'fucking white piece of shit' and said 'fuck you whites, you're all fucking shit'. Federal Magistrate Brown considered that it would be 'drawing a long bow' to find that 'whites' are a group protected by the Racial Discrimination Act 1975 (Cth), given the historical and cultural dominance of white people within Australia and the fact that they are not in any sense an oppressed group.
The decision is available at www.canlii.org/en/sk/skca/doc/2010/2010skca26/2010skca26.html.
Melanie Schleiger is a lawyer with Lander & Rogers and a Board member of the Human Rights Law Resource Centre