SUPREME COURT HUMAN RIGHTS CASE - Update Oct 13, 2011.
On October 12, 2011, 7 judges of the Supreme Court of Canada listened to arguments and submissions on behalf of parties involved in a long running case of national importance which originated out of Saskatchewan. The Unitarian Congregation of Saskatoon (UCS) and the CUC have both been involved in this legal case as intervenors on behalf of the Saskatchewan Human Rights Commission. The Supreme Court has reserved its decision on this case. The UCS and CUC have been represented by pro bono legal counsel Arif Chowdury of the law firm Fasken Martineau DuMoulin LLP in Calgary to whom we are most grateful.
The case goes back to 2001-2002 when Mr. William Whatcott a known advocate of homophobia and member of the Christian Truth Activists took it upon himself to distribute leaflets/flyers to homes in Saskatoon and Regina, including the UCS building in Saskatoon. The flyers contained homophobic material stating that homosexuals are pedophiles among other remarks. Four persons who received flyers filed complaints alleging the material in the flyers “promotes hatred against individuals because of their sexual orientation” in violation of s.14(1)(b) of the Saskatchewan Human Rights Code. A Tribunal was appointed to hear the case and concluded that the flyers contravened the Code and s.14(1)(b) essentially as hate material. Mr. Whatcott appealed to the Saskatchewan Court of Queen’s Bench. Mr. Whatcott argued that he was exercising his freedom of expression and freedom of religion in distributing the flyer material. He also argued that if the material did in fact exhibit hate, that it was directed towards sexual behavior and not sexual orientation as only sexual orientation is a protected ground.
The QB Court upheld the findings of the Human Rights Tribunal and a further appeal was filed to the Saskatchewan Court of Appeal. The SKCA overturned the Human Rights Tribunal finding and determined that the flyers did not violate s.14 of the Code. The decision made references to the material in the flyers not being directed at sexual orientation but behavior, as well as the argument that the freedom of expression to make such statements should be protected. The case was then appealed by the Saskatchewan Human Rights Commission to the Supreme Court of Canada. The UCS and CUC filed intervenor applicatons at this stage asking the SCC to allow us to become parties to the proceedings in order to file argument or facta on behalf of the Human Rights Commission. Intervenor status was granted and the full case was heard on October 12, 2011. The Court reserved their decision and we will wait to hear what they have to say on the many issues of great importance to all Canadians that are involved in this case.
Why intervene? The UCS and CUC were approached by the Saskatchewan Human Rights Commission and asked if we would consider applying to intervene in this case. The UCS had received the flyers in their mailbox as had many congregants. We found the material to be vile and the spreading of hateful lies regarding gays and lesbians, folks who were our family members, friends, and fellow Unitarians. We were also cognizant of the Unitarian values and principles such as the truth not being told until many voices are heard, and protecting the importance of debate, protest and expression in many forms, including religious freedom. We did not expect or even hope that we would all agree on where the line should be drawn with respect to any restrictions that might be placed upon expression or the exercise of religious freedom. We did know that we are a tolerant congregation and eager to engage in dialogue and respectful debate within the context of our covenant of right relations. Much discussion took place on where the UCS and CUC would stand in this debate involving complex and difficult issues. The case concerns among other issues: the constitutionality of s.14 of the Saskatchewan Human Rights Code which has wording very similar to the Canadian Human Rights Code and many other Provincial Codes regarding the protection of sexual orientation, the debate about reasonable limits to religious expression, the tolerance of prejudicial and repugnant expression within the larger plurality of ideas and when expression amounts to hate, the promotion of free and responsible debate about important moral and ethical issues as well as the consequences connected to the responsible exercise of expressing one’s opinions and beliefs.
It was with much caution in taking on such difficult issues as well as enthusiasm to participate in such an important debate, that we began to craft our factum or written argument – only 10 pages in length pursuant to the restrictions imposed on intervenors. We talked about where lines in society are drawn and then re-drawn and that the SCC could pronounce on more than the legality of s.14 of the Code, on more than the issue that one’s sexual orientation includes one’s sexual behavior and whether hateful lies could be protected under the guise of religious freedom. How tolerant should our natural sense of tolerance be, and how outraged should our natural sense of outrage and protection of our loved one’s identity be? Easy answers were not forthcoming. The committee involved in the intervenor application worked hard to learn, discuss, and debate within a respectful and civil context – it is too bad Mr. Whatcott could not have done the same. Our very able and affable counsel assisted tremendously and we want to thank Arif for his diligence, dedication and patience throughout this process.
The SCC may decide that s.14 of the Code is too broad as the Canadian Civil Liberties Association has argued in this case, and strike down the provision as a violation of the Charter. Protecting the vulnerable in our society should always be a priority and it is easy to suggest that everyone is capable of defending themselves against repugnant, hurtful and toxic verbal attacks. However, as we are aware, it is always important to stand up for those who cannot or for their own reasons choose not to stand up, for the protection of their own rights and freedoms. As members of a collective we must support and speak for those most vulnerable in order to allow those who choose to remain silent to still feel secure. When I think of young people who are struggling with finding their identity and place in our complex world – should they be faced with Mr. Whatcott’s tirade and told to defend themselves as this is what society has in store for them. I think of the epidemic of suicide, bullying and depression and it moves me to take a stand as the UCS and CUC have done in this case.
The Court may decide to take on the difficult task of drawing a line and pronouncing on what constitutes hate speech in a more general context for our current times, or they may not be so bold and leave that boiling pot alone. We will wait and see. One thing we did discuss amongst our committee who dealt with this application was that freedoms must be protected but also balanced in our society. The following quote from Isaiah Berlin was recited, “Freedom for the Pike is death for the Minnow.” Freedom is not only for the rich, powerful, strong, and vocal. We place reasonable limits on the freedoms of Pikes in our society so that Minnows may also be given a chance to exercise their freedoms as well. The liberty of some must depend upon the restraint of others. In order for all of us to have the freedoms we value and cherish, the ability of those who would seek to limit those freedoms must be reasonably restricted. It is easier said than done of course. The UCS and the CUC should be proud of their participation in this case and it is worth praising the efforts of those who have contributed in this social action journey.
If you are interested in reading the UCS and CUC factum you can receive an electronic copy from the UCS Office. We will provide a further update when we receive the decision from the Supreme Court of Canada.
Sean Sass,
Unitarian Congregation of Saskatoon
