The instantaneous spread of hateful material through the internet has made it all the more vital that hate-mongers be restrained, the Supreme Court of Canada was told this morning.
Launching oral arguments at a landmark appeal pitting free speech against anti-hate protections, Saskatchewan Human Rights Commission lawyer Grant Scharfstein urged the Court not to leave minorities even more vulnerable than they already are.
"There has been a sea change in technology that allows it to be disseminated at the push of a button," Mr. Scharfstein said.
He said that even the Bible may contain passages that would qualify as hate literature. They key is whether material has the effect of causing harm to a minority.
"The Human Rights Commission would be in the position of reviewing the scriptures," Mr. Justice Louis Lebel said.
At the centre of the case is a 43-year-old, anti-gay proselytizer – William Whatcott – who distributed thousands of flyers in Saskatoon harshly criticizing gay relationships and lifestyles.
Mr. Scharfstein also said that the the pamphlets that are the core of the case villify gays and hold them up to ridicule for being "Sodomites" who spread filth and disease.
"I would say it is as hateful as saying 'nigger' to a black person," Mr. Scharfstein said.
He said that it is entirely possible for people to raise pointed questions about such sensitive issues as gay lifestyles or Jewish circumcision, however, their arguments cannot be stated in a way that promotes hate.
Chief Justice Beverley McLachlin repeatedly interjected to probe how offensive material can be censored without destroying an individual's right to free expression.
She said that human rights provisions are so convoluted and wordy that they can chill legitimate argument.
"It seems to me that an ordinary Lutheran pastor should be able to look at the Act and, without needing a Supreme Court scholar, be able to know whether he can say this or that."
Mr. Scharfstein conceded that there the definition of hatred in human rights legislation could be streamlined and simplified to make it more precise and understandable.
The case represents the most important free speech battle since 1990, when the Court upheld a similar human rights code anti-hate provision by a 4-3 margin.
Government lawyers fighting to retain the anti-hate provision are up against an onslaught of intervenors who insist that the price of using a vague term to combat hate crime 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.
By prosecuting Mr. Whatcott under its anti-hate provision in 2002, the Saskatchewan Human Rights Commission effectively silenced Mr. Whatcott's relentless 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 shortly before the appeal commenced. "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 just seven judges will sit on the case.
The only judge who remains from the 1990 case is Chief Justice McLachlin, who argued strongly in dissent that defining hate is an inexact art that threatens free speech.
She challenged Mr. Scharfstein repeatedly this morning on the arbitrariness of adjudicators parsing a pamphlet or article looking for offensive words or phrases that could render the material unacceptable.
Mr. Scharfstein argued that the lives of gays and lesbians are devalued by expressions of hate for their lifestyles and sexual conduct.
Mr. Whatcott ran afoul of the Commission after he dropped thousands 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 bumptious 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."
Mr. Whatcott 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."