Sign up for our E-mail updates

E-mail
PrintSend to Friend

Politicians allow hurt feelings to trump basic rights

Another court win for freedom of expression

John Carpay
Calgary Herald, March 5, 2010

«Whatcott v. Saskatchewan Human Rights Tribunal» «CCF Publications» «Court of Appeal Judgement» «Press Releases» «CCF Factum» «Related Audio»

 

Last week the Saskatchewan Court of Appeal ruled that William Whatcott will not have to pay $17,500 to four gay complainants whose feelings were hurt by polemical flyers he distributed in 2001 and 2002. Whatcott opposed the introduction of homosexuality into Saskatoon's public school curriculum. The court reproduced Whatcott's flyers in its decision (available at www.CanadianConstitutionFoundation.ca),noting that his language would be considered by many as "crude, offensive, and pejorative."

In overturning the damages awarded by the Saskatchewan human rights tribunal, the appellate court held that "the manner in which children in the public school system are to be exposed to messages about different forms of sexuality and sexual identity is inherently controversial. It must always be open to public debate. That debate will sometimes be polemical and impolite."

The court ruled that while sexual practices are an intimate and central aspect of an individual's identity, citizens do have a right, on moral and religious grounds, to "disapprove of same-sex sexual practices without disapproving of gays and lesbians themselves."

The court felt constrained by precedent not to strike down as unconstitutional the section of the Saskatchewan Human Rights Code which bans any statement which "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 age, race, religion, sexual orientation and other grounds. Instead, it merely held that Whatcott did not violate the code, because his offensive flyers did not meet the high bar for "hatred" set previously by the Supreme Court of Canada.

Restrictions on free speech in "human rights" legislation frequently generate conflict between gays and social conservatives. But these conflicts are merely one example of endless possibilities.

Write a letter to the editor calling for more frequent driver's testing for seniors and you may be charged with exposing people to hatred or contempt on the basis of age. Express your opinion about integrating fundamentalist Muslims into Canadian society, or limiting immigration from certain countries, and your comments might be found "hateful" on the basis of religion or place of origin.

Canada's federal and provincial politicians keep laws on the books which force courts to determine the legality of speech by using the problematic standard set out by the Supreme Court of Canada in 1990 in Taylor vs. Canada (Human Rights Commission). The majority of the court in Taylor ruled that to be valid under the charter, laws can only restrict speech involving "feelings of an ardent and extreme nature," and "strong emotions of detestation, calumny and vilification." With this test in place, the majority declared confidently, "there is little danger that subjective opinion as to offensiveness will supplant the proper meaning" of laws restricting free speech. But it turns out that Justice Beverley McLachlin's dissent in Taylor was correct: there was -- and is -- a lot of danger.

Maclean's magazine was prosecuted for running excerpts of Mark Steyn's book America Alone, and social conservatives like Whatcott are prosecuted for expressing their views on marriage and sexuality. Even though Whatcott was ultimately cleared of all charges, the spectacle of his eight-year ordeal is bound to have a chilling effect on others wanting to participate in public debate.

The Taylor test might sound like a clear standard until one considers that extremism, like beauty, is in the eye of the beholder. Merely 41 years ago, sodomy was a Criminal Code offence and gay marriage would have been viewed as "extreme" by almost everyone. Today, gay marriage is legal, and the idea of criminalizing sodomy would be viewed as "extreme" by most Canadians. A court's determination of what is "extreme" is bound to be arbitrary and subjective.

If the case of Warman vs. Lemire, now before the Federal Court, eventually ends up in the Supreme Court of Canada, the court will have a chance to revisit and (one hopes) overrule its Taylor decision, striking down once and for all the so-called "human rights codes" that violate freedom of expression.

Meanwhile, nothing stops our federal and provincial politicians from repealing bad laws.

As long as these laws stay on the books, courts will continue to be asked to balance the constitutional rights of religious freedom and freedom of expression with a new "human right" to be free from hurt feelings.

Calgary Lawyer John Carpay is executive director of the Canadian Constitution Foundation, which intervened before the Saskatchewan Court of Appeal in Whatcott vs. Saskatchewan Human Rights Tribunal

© Copyright (c) The Calgary Herald