Case Summary and Outcome

The Supreme Court of Canada held that two flyers published and distributed to homes in Saskatchewan, Canada, by William (Bill) Whatcott—which depicted homosexuals as inferior, untrustworthy, sex addicts, carriers of disease, child abusers and predators, who would proselytize children and cause their premature deaths—exposed homosexuals to detestation and vilification, and promoted discrimination, thereby constituting hate speech contrary to s. 14(1)(b) of The Saskatchewan Human Rights Code.  The Court held that two other flyers—which reproduced and displayed potentially offensive commentary regarding a “Classifieds” ad seeking boys/men—could not reasonably be found to have exposed homosexuals to detestation and vilification, and therefore did not constitute hate speech.  The flyers in question had been received by four individuals, who then filed complaints with the Saskatchewan Human Rights Commission.  The Commission brought their complaints before the Saskatchewan Human Rights Tribunal, which held that each flyer constituted hate speech contrary to s. 14(1)(b), and therefore prohibited further distribution of the flyers, and ordered Mr. Whatcott to pay a total of $17,500 in damages to the four complainants.  The Tribunal’s decision was initially upheld on appeal to the Saskatchewan Court of Queen’s Bench but was then overturned on further appeal to the Saskatchewan Court of Appeal.  When the Commission appealed the Court of Appeal’s decision to the Supreme Court of Canada, Mr. Whatcott argued that s. 14(1)(b) unconstitutionally limited his right to freedom of expression enshrined in s. 2(b) of the Canadian Charter of Rights and Freedoms.  The Supreme Court agreed with Mr. Whatcott’s argument, in part, holding that s. 14(1)(b)’s prohibition of expression that ridicules, belittles, or otherwise affronts the dignity of any person or class of persons, on the basis of a prohibited ground, was an unconstitutional limit on the right to freedom of expression and should, accordingly, be struck down.  However, the Court also held that the prohibition in s. 14(1)(b) of expression that exposes or tends to expose to hatred any person or class of persons, on the basis of a prohibited ground, is constitutional as a reasonable and demonstrably justified limit on the right to freedom of expression.  In doing so, the Court affirmed that freedom of expression is not absolute in Canadian law, and prohibitions on hate speech are justified in order to reduce the harmful effects and social costs of discrimination.

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Facts

William (Bill) Whatcott published and distributed several types of flyers, under the name Christian Truth Activists, to homes in Saskatoon and Regina, Saskatchewan, Canada, in 2001 and 2002.  Each of the flyers related to homosexuality.

The first flyer —Flyer D— was titled “Keep Homosexuality out of Saskatoon’s Public Schools!”  It claimed, among other things,  that children in grades three and four “are more interested in playing Barbie & Ken rather than learning how wonderful it is for two men to sodomize each other”; that teachers in Ontario are “more interested in sexual politics of a perverted type, rather than preparing children to do well when they are older”; that “homosexuals want to share their filth and propaganda with Saskatchewan’s children”; that a “sensitivity class” in Boston had “degenerated into a filthy session where gay and lesbian teachers used dirty language to describe lesbian sex and sodomy to their teenage audience”; and that “[o]ur 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.”  [Appendix B]

The second flyer —Flyer E— titled “Sodomites in our Public Schools”, contained similar statements, including:  “homosexual sex is about risky & addictive behaviour!”; “[s]odomites are 430 times more likely to acquire Aids & 3 times more likely to sexually abuse children!”; “[i]f Saskatchewan’s sodomites have their way, your school board will be celebrating buggery too!”; “[t]he Bible is clear that homosexuality is an abomination”; and “[o]ur acceptance of homosexuality and our toleration of its promotion in our school system will lead to the early death and morbidity of many children.”  [Appendix B]

The last two flyers —Flyers F and G— which were identical, displayed a copy of a “Classifieds” section of a magazine, which contained an ad by a man “searching for boys/men for penpals, friendship, exchanging video, pics, magazines & anything more. . . . age . . . is not so relevant.”  [Appendix B]  Above the copy of the “Classifieds” section, the flyer displayed several handwritten statements, including:  “Saskatchewan’s largest gay magazine allows ads for men seeking boys!”; and “‘If you cause one of these little ones to stumble it would be better that a millstone was tied around your neck and you were cast into the sea’ Jesus Christ.”  [Appendix B]

After Mr. Whatcott distributed the flyers, four individuals who received them filed complaints with the Saskatchewan Human Rights Commission (the “Commission”).  Each complaint was directed at a single flyer, but collectively, the complaints alleged that all four flyers promoted hatred contrary to s. 14 of The Saskatchewan Human Rights Code (the Code), which provided at the relevant time:

14(1)   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:

. . .

(b)      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.

(2)       Nothing in subsection (1) restricts the right to freedom of expression under the law upon any subject.

The four complaints were heard together by the Saskatchewan Human Rights Tribunal (the “Tribunal”).  The Commission acted on behalf of the complainants before the Tribunal and during all subsequent proceedings.  The Tribunal ruled in favour of the complainants, concluding with “no hesitation” [para. 179] that each of the flyers exposed or tended to expose homosexuals to hatred, and ridiculed, belittled or otherwise affronted their dignity on the basis of their sexual orientation, contrary to s. 14(1)(b) of the Code.  It further concluded that, although s. 14(1)(b) limited Mr. Whatcott’s right to freedom of expression as enshrined in s. 2(b) of the Canadian Charter of Rights and Freedoms (the “Charter”), it was a reasonable, and therefore constitutional, limitation.  Consequently, the Tribunal ordered Mr. Whatcott to cease distributing the flyers, or any similar materials promoting hatred against individuals because of their sexual orientation, and to pay a total of $17,500 CAD in damages to the four complainants.

Mr. Whatcott appealed the Tribunal’s decision to the Saskatchewan Court of Queen’s Bench, but his appeal was dismissed, with the court concluding that the Tribunal’s decision was correct, largely on the basis that the flyers equated homosexuals with pedophiles and child abusers.

Mr. Whatcott then appealed to the Saskatchewan Court of Appeal, which unanimously allowed his appeal, and overturned the decisions of the Tribunal and Court of Queen’s Bench.  Concurring judgments were written by Justices Smith and Hunter, with Justice Sherstobitoff concurring in both.  Justice Hunter held that the Tribunal and the Court of Queen’s Bench erred by failing to properly take the moral context of the flyers into account, failing to properly account for freedom of expression, and by focusing on specific phrases from the flyers, rather than assessing the content and context of each flyer as a whole.  Both Justices Smith and Hunter held that the flyers contributed to public debate regarding sexual morality and public policy and, when evaluated objectively as a whole, could not be considered hate speech.

Following the Court of Appeal’s decision, the Commission sought leave to appeal to the Supreme Court of Canada.  The Court granted the Commission’s application for leave to appeal on October 28, 2010, and the appeal was heard on October 12, 2011.

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Decision Overview

Justice Rothstein wrote the judgment for the Supreme Court of Canada, which was unanimously adopted by it.  The Court had to decide whether Mr. Whatcott’s flyers —which included derogatory and discriminatory comments about homosexual people— constituted hate speech contrary to s. 14(1)(b) of the Code, and whether s. 14(1)(b) unconstitutionally limited Mr. Whatcott’s right to freedom of expression enshrined in s. 2(b) of the Charter or was constitutional pursuant to s. 1 of the Charter, which provides that all rights and freedoms set out in the Charter are subject to “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”  [Appendix A]

Justice Rothstein began by reviewing the definition of “hatred” articulated by the Court in its previous decisions in R. v. Keegstra, [1990] 3 S.C.R. 697 and Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892.  In the latter, the Court had held that the term “hatred” “refers to unusually strong and deep-felt emotions of detestation, calumny and vilification.”  [para. 24]  Interveners in Whatcott criticized that definition on grounds of subjectivity and overbreadth, including that it leads to arbitrary and inconsistent results, is too vague and inherently subjective to ever be applied objectively, captures more expression than intended or necessary, and has a chilling effect on public debate.

In response to these criticisms, Justice Rothstein held that the definition of “hatred” articulated in Taylor continues to provide a workable approach to interpreting the word “hatred” as it is used in prohibitions of hate speech, such as in s. 14(1)(b).  However, to further reduce the risk of subjective applications of such legislative restrictions, Justice Rothstein articulated “three principles” for courts and tribunals to follow.

First, Justice Rothstein directed courts and tribunals to apply hate speech prohibitions objectively.  The question to be asked, according to the Court, was whether a reasonable person, aware of the context and circumstances surrounding the expression, would view it as exposing the protected group to hatred.

Second, Justice Rothstein held that the reference in the Taylor definition to “calumny” was unnecessary, given that expression can constitute hate speech even if it does not use the device of inflammatory falsehoods and misrepresentations to persuade and galvanize its audience.  Accordingly, courts and tribunals must interpret the legislative term “hatred” as being restricted to extreme manifestations of the emotion described by the words “detestation” and “vilification”.  Representations that expose a target group to detestation tend to inspire enmity and extreme ill-will against them, which goes beyond mere disdain or dislike.  Representations vilifying a person or group will seek to abuse, denigrate or delegitimize them, to render them lawless, dangerous, unworthy or unacceptable in the eyes of the audience.  Expression exposing vulnerable groups to detestation and vilification goes far beyond merely discrediting, humiliating or offending the victims, the Court highlighted.  Thus, restricting “hatred” to detestation and vilification filters out expression which, while repugnant and offensive, does not incite the level of abhorrence, delegitimization, and rejection that risks causing discrimination or other harmful effects.

Third, Justice Rothstein directed courts and tribunals to focus their analyses on the effect of the expression at issue, with the key question being:  is the expression likely to expose the targeted person or group to hatred by others?  For the Court, the repugnancy of the ideas being expressed is not, in itself, sufficient to justify restricting the expression.  The prohibition of hate speech is not designed to censor ideas or to compel anyone to think correctly.  Similarly, it is irrelevant whether the author of the expression intended to incite hatred or discriminatory treatment, or other harmful conduct towards the protected group.  The key is to determine the likely effect of the expression on its audience, keeping in mind the legislative objectives to reduce or eliminate discrimination.  Overt advocacy of discriminatory treatment is neither necessary nor sufficient to establish that expression exposes a protected group to hatred.  However, it can be an important factor in assessing the context of the expression and its likely effects.

Justice Rothstein then turned to assess the constitutionality of s. 14(1)(b) of the Code.  The Commission conceded that the statutory prohibition against hate speech set out in that section of the Code limited Mr. Whatcott’s freedom of expression as laid out in s. 2(b) of the Charter.  The remaining question for the Court, therefore, was whether s. 14(1)(b) could be upheld as a reasonable and demonstrably justified limit on Mr. Whatcott’s freedom of expression pursuant to s. 1 of the Charter.

To answer that question, Justice Rothstein applied the test articulated in R. v. Oakes, [1986] 1 S.C.R. 103 for determining whether limitations on Charter rights and freedoms are constitutional pursuant to s. 1 of the Charter.  Framed in the context of s. 14(1)(b) of the Code, the test was:

• Is the objective of s. 14(1)(b) pressing and substantial enough to warrant overriding the constitutional guarantee of freedom of expression?
• Is s. 14(1)(b) proportionate to its objective? This required a showing of three things:
• A rational connection between s. 14(1)(b) and its objective;
• The chosen means minimally impair freedom of expression; and
• Proportionality between the salutary and deleterious effects of s. 14(1)(b).

Justice Rothstein also emphasized that, in applying the Oakes test, the Court had to adopt “a contextual and purposive approach” [para. 65], and balance the “fundamental values underlying freedom of expression” [para. 66] —namely, individual self-fulfillment, finding the truth through the open exchange of ideas, and the political discourse fundamental to democracy—with competing Charter rights and other values essential to a free and democratic society— namely, a commitment to equality and respect for group identity and the inherent dignity owed to all human beings.

For the first step of the Oakes test, Justice Rothstein easily concluded that the objective of s. 14(1)(b) —reducing the harmful effects and social costs of discrimination by tackling certain causes of discriminatory activity (i.e., hate speech, which vilifies and marginalizes individuals, thereby making it easier to justify discriminatory treatment)— is pressing and substantial.  In support, he referred to the atrocities committed during the Second World War and thereafter in Yugoslavia, Cambodia, Rwanda, Darfur, and Uganda as examples of the harm that can result from the dissemination of messages of hate.

For the rational connection step of the Oakes test, Justice Rothstein held that the expression captured under legislation restricting hate speech must rise to a level beyond merely impugning individuals:  it must seek to marginalize the group by affecting its social status and acceptance in the eyes of the majority.  A prohibition of hate speech will only be rationally connected to the objective of reducing discrimination if its ambit is limited to expression publicly directed at a protected group, or at an individual on the basis that he or she is a member of that group.  “[P]rotecting the emotions of an individual group member is not rationally connected to the overall purpose of reducing discrimination,” he wrote.  [para. 82]  Justice Rothstein concluded that elements of s. 14(1)(b) suggest it was rationally connected to its objective: the prohibition on hate speech only extended to public communications, and it did not preclude hate speech against an individual on the basis of his or her uniquely personal characteristics.

However, at the urging of some interveners, Justice Rothstein took issue with the fact that s. 14(1)(b), in addition to prohibiting expression that exposes or likely exposes a target group to “hatred,” also prohibited any publication that “ridicules, belittles or otherwise affronts the dignity of any person or class of persons on the basis of a prohibited ground.”  [para. 85]  In his view, expression that “ridicules, belittles or otherwise affronts the dignity of” a person, or class of persons, on the basis of a prohibited ground ordinarily does not rise to the level of “hatred”.  [para. 89]  In fact, “[m]uch speech which is self-evidently constitutionally protected involves some measure of ridicule, belittlement or an affront to dignity grounded in characteristics like race, religion and so forth.”  [para. 89]  Accordingly, Justice Rothstein concluded that the words “ridicules, belittles or otherwise affronts the dignity of,” in s. 14(1)(b), were not rationally connected to the legislative purpose of addressing systemic discrimination of protected groups, and therefore unconstitutionally limited Mr. Whatcott’s right to freedom of expression.  The Court therefore “formally str[uck] out those words from s. 14(1)(b) of the Code.”  [para. 94]

The remainder of s. 14(1)(b), which prohibited expression “that exposes or tends to expose to hatred any person or class of persons on the basis of a prohibited ground,” was, in Justice Rothstein’s view, rationally connected to the objective of eliminating discrimination and the other harmful effects of hatred.

Turning to the minimal impairment stage of the Oakes test, Justice Rothstein noted at the outset that this part of the test would be satisfied if the legislature’s chosen way of dealing with a particular problem is one within a range of reasonably supportable alternatives.  Those parties challenging the constitutionality of s. 14(1)(b) suggested two alternatives to the prohibition of hate speech.  One alternative was placing trust in the marketplace of ideas to arrive at the appropriate balancing of competing rights and conflicting views.  The other was leaving the regulation of hate speech to the criminal law.

For the first alternative, Justice Rothstein concluded that Parliament’s preference for regulating hate speech through legislation, rather than trusting it to the hands of the marketplace of ideas, was reasonable given that hate speech contributes little to, and can, in fact, impede, the quest for truth, the promotion of individual self-development, and the protection and fostering of a vibrant democracy where the participation of all individuals is accepted and encouraged.

For the second alternative, Justice Rothstein accepted that human rights legislation such as the one in the Code provided more accessible and inexpensive access to justice for disadvantaged and disenfranchised victims than criminal law.  Moreover, the Court held that criminal law regulates only the most extreme forms of hate speech, and the imposition of remedial measures through human rights legislation, rather than punitive sanctions through criminal law, may be less intrusive on the constitutional values protected by freedom of expression.  Thus, Justice Rothstein concluded that criminal law was “not such a superior approach as to render [s. 14(1)(b)] unreasonable.”  [para. 106]

He then turned to consider whether s. 14(1)(b) was overbroad, in the sense that it prohibited more expression than necessary to satisfy its objective, thereby failing to minimally impair Mr. Whatcott’s right to freedom of expression.  He held that, in addition to not being rationally connected to s. 14(1)(b)’s objective, the words “ridicules, belittles or otherwise affronts the dignity of” should be struck from s. 14(1)(b) because they were unconstitutionally overbroad.  Prohibiting any representation which “ridicules, belittles or otherwise affronts the dignity of” protected groups could capture a great deal of expression which, while offensive to most people, falls short of exposing its target group to the extreme detestation and vilification that risks provoking discriminatory activities against the group.  In contrast, he considered that the remaining prohibition on expression “that exposes or tends to expose to hatred any person or class of persons on the basis of a prohibited ground” was not overbroad because it tries to distinguish between, on the one hand, healthy and heated debate on controversial topics of political and social reform, and, on the other hand, impassioned rhetoric that seeks to incite hatred as a means to effect reform.

Mr. Whatcott argued, however, that his flyers fell within the “core” of protected expression because they related to “the discovery of truth and sexual politics” and contributed to “a social policy debate about whether homosexuality should be discussed as part of the public school curriculum or at university conferences.”  [para. 115]  In his view, restricting his expression on such matters rendered s. 14(1)(b) unconstitutionally overbroad.

Justice Rothstein rejected Mr. Whatcott’s arguments. He agreed with some interveners that history demonstrates that some of the most damaging hate rhetoric can be characterized as “moral”, “political” or “public policy” discourse.   Thus, finding that certain expression is “political”  does not close off an enquiry into whether the expression constitutes hate speech.  Moreover, he noted that s. 14(1)(b) protects “almost the entirety of political discourse as a vital part of freedom of expression,” only prohibiting “an extreme and marginal type of expression which contributes little to the values underlying freedom of expression and whose restriction is therefore easier to justify.”  [para. 120]

Mr. Whatcott then argued that his flyers were critical of same-sex behaviour, as distinct from sexual orientation, and therefore did not contravene s. 14(1)(b) of the Code.  That is, Mr. Whatcott argued that if s. 14(1)(b) restricted criticisms of the behaviour of others, it was overbroad and unconstitutional.  Although Justice Rothstein agreed that “sexual orientation and sexual behaviour can be differentiated for certain purposes,” [para. 122] he pointed out that hate speech is sometimes directed toward behaviour in an effort to mask the true target —the vulnerable group— such as where the expression denigrates certain sexual conduct only when it is carried out by same-sex partners, or where the behaviour is integral to and inseparable from the identity of the group.  Accordingly, he held that s. 14(1)(b) was not overbroad for prohibiting such expression.

Next, Justice Rothstein addressed claims that s. 14(1)(b) was overbroad because it (1) did not require intent by the publisher; (2) did not require proof of harm; and (3) did not provide for any defences.

Regarding intent, Justice Rothstein held that s. 14(1)(b) reasonably focused on the effects of hate speech, rather than intent, given that “systemic discrimination is more widespread than intentional discrimination.”  [para. 126]

Regarding proof of harm, he held that definitive evidence of harm is not required given both the difficulty of establishing a precise causal link between an expressive statement and societal harm, and the particularly insidious nature of hate speech.  Instead, the legislature of Saskatchewan was entitled to a “reasonable apprehension of societal harm as a result of hate speech.”  [para. 135]

Regarding the lack of defences, Justice Rothstein acknowledged that the Code did not provide a defence of truth despite the quest for truth being both an important part of self-fulfillment and an essential component of the marketplace of ideas, which is, itself, central to a strong democracy.  However, he concluded that truth need not be a defence for s. 14(1)(b) to be minimally impairing because truthful statements can be interlaced with harmful ones or otherwise presented in a manner that would meet the definition of hate speech.  Moreover, Justice Rothstein concluded that, contrary to the arguments of some interveners, s. 14(1)(b) need not provide a defence where speech is made in good faith and on the basis of a speaker’s religious beliefs, because such a defence would gut s. 14(1)(b) of effectiveness.

Finally, in response to an argument by Mr. Whatcott that human rights commissions should not over-analyze speech to the point that only “articulate elites” can participate in debates about morality and public education without fear of prosecution, Justice Rothstein pointed out that the definition of “hatred” “does not require that the expression be scholarly, rational, objective or inoffensive”, and “does not differentiate between the literate and illiterate, eloquent or inarticulate.”  [para. 144]

For these reasons, the Court concluded that s. 14(1)(b) of the Code satisfied the minimal impairment step of the Oakes test because the prohibition set out therein was “one of the reasonable alternatives that could have been selected by the legislature”, and therefore impaired freedom of expression “no more than reasonably necessary, having regard to the practical difficulties and conflicting tensions that must be taken into account”.  [para. 146]

Justice Rothstein then turned to consider the final element of the Oakes test:  whether the importance of the legislative objective of s. 14(1)(b) outweighed the deleterious effects of the provision in limiting freedom of expression.  In his view, the benefits of suppressing hate speech and its harmful effects outweighed the detrimental effect of restricting expression which, “by its nature, does little to promote the values underlying freedom of expression.”  [para. 148]

In fact, Justice Rothstein considered that s. 14(1)(b) “minimal[ly] infringe[d]” Mr. Whatcott’s right to freedom of expression, given that “the process under the legislation can provide guidance to individuals like Mr. Whatcott, so that they can continue expressing their views in a way that avoids falling within the narrow scope of expression captured by the statutory prohibition.”  [para. 148]  In response to arguments that a tribunal or court requiring a defendant to pay compensation to the victims of hate speech has a detrimental, chilling effect on expression that outweighs the benefits of the prohibition, Justice Rothstein held that compensatory awards should be rare and therefore do not outweigh the benefits of s. 14(1)(b).

Thus, ultimately, Justice Rothstein concluded that s. 14(1)(b) of the Code (aside from the language “ridicules, belittles or otherwise affronts the dignity of”) satisfied all elements of the Oakes test, and was therefore constitutional as a reasonable and demonstrably justified limit on the right to freedom of expression enshrined by s. 2(b) of the Charter.

He then turned to apply s. 14(1)(b) to the facts of the case to determine whether, as the Tribunal concluded, Mr. Whatcott’s flyers constituted hate speech.

Justice Rothstein began by identifying three errors in the Court of Appeal’s decision.  First, the Court of Appeal erred by essentially holding that Mr. Whatcott’s flyers could not constitute hate speech because they contributed to an ongoing debate on sexual morality and public policy.  That the rights of a vulnerable group are a matter of ongoing discussion cannot justify greater exposure by that group to hatred and its effects.  Second, the Court of Appeal erred by holding that the flyers as a whole could not constitute hate speech if only particular words and phrases in the flyers might be considered to meet the definition.  As Justice Rothstein explained, “a dissertation on public policy issues will not necessarily cleanse passages within [it] that would otherwise contravene a hate speech prohibition”.  [para. 174]  Third, the Court of Appeal erred in finding that Mr. Whatcott’s flyers targeted sexual activities, rather than sexual orientation.  The flyers only targeted sexual activity when carried out by homosexuals.  Thus, in substance, the flyers targeted persons of a certain sexual orientation.

Turning to the Tribunal’s decision, Justice Rothstein held that it was reasonable for the Tribunal to have concluded that Flyers D and E constituted hate speech.  In his view, passages of Flyers D and E exhibited many of the “hallmarks” of hatred.  For example, the flyers portrayed homosexuals as a menace that could threaten the safety and well-being of others, made reference to respected sources (in this case the Bible) to lend credibility to negative generalizations, and used vilifying and derogatory representations to create a tone of hatred.  They attempted to delegitimize homosexuals by referring to them as filthy and dirty sex addicts and carriers of disease, and by comparing them to pedophiles, a traditionally reviled group in society.  The message a reasonable person would take from the flyers, the Court argued, was that homosexuals, by virtue of their sexual orientation, are inferior, untrustworthy, child abusers and predators, who would proselytize children and cause their premature deaths.  Thus, Flyers D and E objectively exposed homosexuals to detestation and vilification.

Moreover, Flyers D and E expressly called for discriminatory treatment of those of same-sex orientation.  Mr. Whatcott therefore combined expression exposing homosexuals to hatred with expression promoting their discriminatory treatment.  Accordingly, in Justice Rothstein’s view, it was not unreasonable for the Tribunal to conclude that this expression was more likely than not to expose homosexuals to hatred, contrary to s. 14(1)(b).

Justice Rothstein, therefore, held that the Court of Appeal’s decision, at least in respect of Flyers D and E, should be overturned, and the Tribunal’s decision as to Flyers D and E should be reinstated.

Turning to Flyers F and G, which, as mentioned, were identical, Justice Rothstein held that it could not reasonably be found that those flyers contained expression that a reasonable person, aware of the relevant context and circumstances, would find as exposing or likely to expose, persons of same-sex orientation to detestation and vilification.  In his view, reproducing the “Classifieds” section of a magazine together with a comment as to how a particular ad therein could be interpreted, while potentially offensive, did not manifest hatred.

In addition, Justice Rothstein held that human rights tribunals and courts should exercise care in dealing with arguments to the effect that disseminating foundational religious writings violates the Code.  Thus, the Bible passage quoted in Flyers F and G, in and of itself, could not be taken as inspiring detestation and vilification of homosexuals.  While using the Bible as a credible authority for a hateful proposition has been considered a hallmark of hatred, “it would only be unusual circumstances and context that could transform a simple reading or publication of a religion’s holy text into what could objectively be viewed as hate speech.”  [para. 199]  For these reasons, Justice Rothstein concluded that Flyers F and G, while potentially offensive, were “lawful contributions to the public debate on the morality of homosexuality.”  [para. 200]  Therefore, he held that the Court of Appeal’s decision regarding Flyers F and G should be upheld.

Finally, on the question of remedy, Justice Rothstein held that the Tribunal’s award of compensation to two of the complainants (i.e., the complainants who received and filed complaints regarding Flyers D and E) should be reinstated, together with the order prohibiting Mr. Whatcott from further distribution of Flyers D and E.

 

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