The Supreme Court will hear the most significant test of Canada’s hate laws in decades on Wednesday in a case that will decide which is more valuable – freedom of speech and religion or the right to protection from hate.
Government lawyers fighting to keep hate laws in place will be up against an onslaught of intervenors who insist that the price is free speech and religious freedom.
The court’s decision is expected to hinge on whether hate can ever be defined in such a way that it doesn’t destroy legitimate opinion in the process.
At the centre of the case is a 43-year-old, anti-gay proselytizer, William Whatcott, who once worked as a gay prostitute. By prosecuting him under its anti-hate provision in 2002, the Saskatchewan Human Rights Commission effectively silenced Mr. Whatcott’s crusade against homosexuality.
Aided by a cast of intervenors who have reluctantly espoused his right to speak his mind, Mr. Whatcott hopes to shoot down the Saskatchewan provision along with similar protections in every province.
“I’d like to see them cease to exist,” he said in an interview. “That may be a little ambitious, but if just their ability to censor free speech is taken away from them, I see that as a small step in the fight for freedom of speech and conscience.”
In a complicating twist, a slow-paced federal process to fill two vacancies on the court means that only seven judges will sit on the case. A similarly depleted bench upheld the hate provision by a 4-3 margin when it was last tested at the highest court in a 1990 case involving white supremacist John Ross Taylor.
The only judge who remains from that case, Chief Justice Beverley McLachlin, argued strongly in dissent that defining hate is an inexact art that threatens free speech. Since the Ross decision, public and media clamouring to reopen the question has steadily increased.
In written briefs to the court, the Saskatchewan government and the SHRC argue that the lives of gays and lesbians are devalued by expressions of hate for their lifestyles and sexual conduct. They maintain that permitting minorities to be held up to contempt enhances the likelihood of violent confrontations.
They will also argue that the anti-hate provision has been narrowed and honed since 1990 to respond to critics such as Chief Justice McLachlin, and thus should now pass muster.
But civil libertarians and press organizations contend that hate provisions can all too easily stifle legitimate criticism and opinion.
In a written brief, the group Canadian Journalists for Free Expression points out that simply publicizing details of the Whatcott case could expose a news organization to the threat of a human-rights prosecution.
“Everybody can point to speech they find offensive,” Canadian Civil Liberties Association lawyer Andrew Lokan said in an interview. “But human-rights tribunals and judges have found it notoriously difficult to say what does and doesn't cross the line when dealing with subjective concepts such as “hatred,” “ridicule,” “belittle” and “dignity.”
Mr. Lokan said democratic debate is endangered when the law attempts to place limitations on polemical expression. “Allowing the Whatcotts of the world to hand out their flyers, then countering them with all the reasons why they're wrong, is a much better approach in a free and democratic society,” he said.
Mr. Whatcott ran afoul of the commission after he dropped thousands of pamphlets in Saskatoon denouncing the increasing acceptance of gay lifestyles. He was prosecuted and fined $17,500 by the commission. However, the Saskatchewan Court of Appeal later reversed the finding.
The pamphleteering was the latest stage in a persistent campaign in which Mr. Whatcott has barged to the head of a gay pride parade, waylaid staff at a Planned Parenthood clinic to accuse them of being “baby killers,” and campaigned to be Edmonton’s mayor on a platform of fundamentalist Christian values.
In his campaign literature, Mr. Whatcott described himself as “Your pro-life, pro-family, pro-father, pro-gun alternative.”
He also told the press that he almost died at the age of 18: “Christ saved me from a life of drug and sexual addiction,” he said. “I am very grateful to be alive and to have the opportunity to save my Lord in the political arena.”
In the interview, Mr. Whatcott said his battle against the SHRC has cost him his career as a nurse, his home, many of his friends and hundreds of thousands of dollars in legal fees. “I’ve invested my entire life in this,” he said. “I guess if you are going to do something well in life, you have to focus on it. It just happens that my life path put me into this issue.”