THE ROLE OF HUMAN RIGHTS COMMISSIONS

Saskatchewan Human Rights Commission v. Whatcott raises important questions regarding the limits of freedom of expression, the scope of freedom of religion and equality rights, and the role of human rights commissions in regulating the exercise and enjoyment of these rights.

In an age of pluralism, multiculturalism, and rapid technological connection, there is perhaps no greater challenge for a liberal and democratic society than balancing freedom of expression and religious freedom with the important objectives of promoting equality and dignity.

In 2002, William Whatcott, a member of an organization called “Christian Truth Activists”, published and distributed flyers containing various statements expressing opposition against “the homosexual lifestyle” to residents of Regina and Saskatoon.The first flyer, titled “Keep Homosexuality out of Saskatoon’s Public Schools!”, protested the Saskatoon Public School Board’s recommendation that information on homosexuality be included in their curriculum and school libraries, and stated, inter alia: “Our children will pay the price in disease, death, abuse and ultimately eternal judgment if we do not say no to the sodomite desire to socialize your children into accepting something that is clearly wrong.” The second flyer, titled “Sodomites in our Public Schools”, included the statements “Break the Silence! Born Gay? No Way! Homosexual Sex is about risky & addictive behaviour!” and “Break the Silence! Sodomites are 430 times more likely to acquire Aids [sic] & 3 times more likely to sexually abuse children!”

LGBT individuals filed complaints with the Saskatchewan Human Rights Commission. In 2003, the Saskatchewan Human Rights Tribunal conducted a hearing to determine whether Whatcott had violated s. 14(1)(b) of the Saskatchewan Human Rights Code, which provides: “No person shall publish or display, or cause or permit to be published or displayed, on any lands or premises or in a newspaper, through a television or radio broadcasting station or any other broadcasting device, or in any printed matter or publication or by means of any other medium that the person owns, controls, distributes or sells, any representation, including any notice, sign, symbol, emblem, article, statement or other representation [...] 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.”

The Tribunal released its decision on May 2, 2005, holding that the impugned flyers can objectively be viewed as exposing homosexuals to hatred and ridicule. Whatcott was ordered to pay a total fine of $17,500.

On appeal to the Court of Queen’s Bench, Kovach J. held that the Tribunal’s decision was correct and upheld the finding that s. 14(1)(b) of the Code had been breached. Kovach J. relied on the decisions of the Court of Appeal in Owens v. Saskatchewan (Human Rights Commission) and Saskatchewan (Human Rights Commission) v. Bell to interpret the prohibition in s. 14(1)(b) of the Code as extending only to communications of the sort that involve “extreme feelings and strong emotions of detestation, calumny and vilification”. This, in turn, was based on a decision of the Supreme Court of Canada in Canada (Human Rights Commission) v. Taylor, which considered s. 13(1) of the Canadian Human Rights Act. In addition to upholding the Tribunal’s decision on the merits, Kovach J. also dismissed Whatcott’s constitutional challenge to s. 14(1)(b), based on the authority of Taylor and Owens.

The Saskatchewan Court of Appeal subsequently reversed that decision. Writing for the majority, Hunter J.A. held that the flyers, when “properly considered”, did not offend s. 14(1)(b) of the Code. She held that, when the language in the publications must be examined objectively, having regard to the context and the circumstances in which it is presented and that care must be taken to balance the limitation to freedom of expression. She found that two of the flyers were “part of an ongoing debate about teaching about homosexuality in public schools”. While acknowledging that “some of the words and phrases used by Whatcott are crude and harsh”, she held that “to use the derogatory form of a word is not by itself hatred.” With respect to the other two flyers, the impugned statements therein were found to be ambiguous and did not directly refer to homosexuals, and therefore could not be held to expose them to hatred.

Although the majority did not directly address the constitutional challenge, Smith J.A. held in concurring reasons that Owens, Bell, and Taylor had definitively decided these issues. He also held that an important part of the context that had to be assessed in applying s. 14(1)(b) is “the fact that it is the activity, rather than the individuals themselves, to which the polemic in the impugned flyers is directed”. In his view, “where, on an objective interpretation, the impugned expression is essentially directed to disapprobation of same-sex sexual conduct in a context of comment on issues of public policy or sexual morality, its limitation is not justifiable in a free and democratic society.”

The SCC granted leave to appeal and stated constitutional questions as to whether s. 14(1)(b) of the Code breached ss. 2(a) or 2(b) of the Canadian Charter of Rights and Freedoms, and if so, whether such breaches could be justified under s. 1 thereof. Intervener status was also granted to a large number of institutions and organizations (including the Canadian Bar Association) because of the important legal and policy issues involved.

On October 12, 2011, the Supreme Court of Canada heard the appeal. As can be expected from the foregoing, the arguments before the SCC were spirited and passionate. The justices asked pointed questions of counsel that demonstrated the difficulties of the issues they were grappling with and underscored the importance of the case in setting the parameters for the exercise of freedom of speech and freedom of religion in Canadian society. Although McLachlin C.J. – the only member of the Court who also sat (and dissented) in Taylor – has built a reputation as a consensus-builder, it seems unlikely that the decision here will be unanimous.

While the SCC may try to pronounce definitively on the constitutional questions, it is doubtful that theirs will be the last word on these issues. As the media coverage in this case highlights, the public is engaged and the debate about the balancing of rights in a free society will no doubt continue in other forums. Whether one supports Whatcott or not, his case forces us to grapple with the tensions and difficult questions associated with fostering a connected, pluralistic, and multicultural community.

About the Author

Paul Jonathan Saguil practises litigation at Stockwoods LLP. He is a member of the OBA Equality Committee and SOGIC. He was also co-counsel to one of the interveners, Canadian Journalists for Free Expression, before the SCC. The views expressed in this article are his own.