Whatcott Decision: The implications extend far beyond one anti-gay crusader

Will the Supreme Court get human rights commissions out of policing speech?

By this time tomorrow, we should have a clearer sense of what you can and can’t say in this country without fear of being hauled before a human rights tribunal, as the Supreme Court of Canada is set to rule on the case of William Whatcott, a Saskatchewan man accused of hate-mongering through the use of anti-gay leaflets.

Whatcott is pretty much a walking affront to the liberal spirit—a born-again crusader whose pamphlets claim homosexuals are out to “socialize your children” to their lifestyle; that if gay people aren’t stopped, young people will “pay the price in disease, death, abuse and ultimately eternal judgment.”

He was found guilty under provincial human rights laws, and ordered to pay $17,500 to four people who lodged complaints against him. That decision was overturned, and by October 2011 the case had worked its way up to the highest court in the land.

He made the most of those 15 minutes, and they weren’t his first. But the social and legal implications of his case reach far beyond Whatcott’s personal desire to demonize gays and lesbians.

First, the social: Saskatchewan’s human rights law is similar to those in other provinces, so if the court declares the whole provision unconstitutional, that leaves the Criminal Code anti-hate provisions as the only bulwark against hate propaganda in the country. Would hate-mongers flourish in Canada?

Possibly. When human rights commissions were empowered to monitor speech, most hate-spinners vanished to the dark corners of the internet because it had become a whole lot easier to strong-arm them. Unlike criminal law, which requires proof of guilt beyond a reasonable doubt, human rights law functions on a balance of probabilities. What’s more, the whole human rights process puts the power of the state behind an individual who feels he’s been affronted based on race, sex, religion and sexual orientation.

Yet civil libertarians say it wasn’t worth the trade-off. They point to examples of complainants using the human rights process to prosecute speech they deemed offensive yet didn’t meet any legal definition of hatred. Maclean’s counted among the prominent defendants. So did publisher-cum-TV host Ezra Levant.

So there are big social questions tied up in this decision. How much offensive speech can we tolerate? How offensive are we willing to let it get? What’s the best response?

As for the legal ramifications, striking down the Saskatchewan law would not be easy for the court to do. It would require the judges to overturn or at least tweak their own 1991 decision, Taylor, which upheld anti-hate measures in the Canadian Human Rights Act. As Joe Brean points out in today’s National Post, current Chief Justice Beverly McLachlin never much liked the federal version of the law, which is about to be repealed. She showed even less regard for the Saskatchewan law during Whatcott’s hearing.

Yet this court has gained something of a reputation for punting. The judges could just as easily rule on Whatcott’s culpability, leaving the thorny issues that flow from it in laps of provincial legislatures or the lower courts.

If that happens, the speech wars will rage until some province or territory summons the will to fix its legislation. And what a prospect—wading into a political bog where minority rights, religion and free speech collide. You can bet there are a couple of premiers out there tonight hoping the Supremes are in the mood to engage in a touch of judicial activism—just this once.

Follow @ChasGillis on Twitter

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