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article imageCanada's top court weighs hate speech vs. free speech

By Andrew Reeves     Oct 13, 2011 in Politics
Ottawa - The Supreme Court of Canada is hearing a critical case that weighs the protections of free speech against protection from hate mongering. The outcome of this trial will have lasting implications for how provinces define both concepts in future.
The Supreme Court of Canada is being asked to draw the line between what constitutes free speech and what crosses the faint line into hate mongering. The case against William Whatcott, an unabashedly anti-homosexual Lutheran proselytizer in Saskatchewan, will have lasting implications about where Canadians and Canadian courts should draw the line between protecting what citizens say, and protecting those who could be offended.
In 2005, Whatcott was found to be in violation of the Saskatchewan Human Rights Commission (SHRC) for distributing flyers in several Saskatchewan towns in 2001 and 2002 that spoke negatively of homosexuals. The CBC claims that "Whatcott's flyers used words like 'filth,' 'propaganda' and 'sodomy' to describe gay relationships and the discussion of equality."
An SHRC hearing found Whatcott guilty after four people who had received the pamphlets complained. He was ordered to pay $17,500 in damages, although he managed to convince a Saskatchewan Appeals Court that he was simply exercising his right to free speech and religion, as he based many of his claims against homosexuality in the Bible.
Whatcott maintains that he "opposes sexual behaviour, not sexuality," and that any "ruling against him would be contravening his right to freedom of religion," writes the CBC.
At issue now is whether what Mr. Whatcott said and did should be considered against the law. In essence, should free speech trump the anti-hate protection provided by the state?
Mr. Whatcott’s lawyer, Thomas Schuck, is presenting his client not only as a man acting within his Charter rights, but as someone conducting important public outreach in "protecting youth from gay sexual practices," according to the Globe and Mail.
“Human-rights commissions should be protecting children; not going after whistle blowers,” Mr. Schuck said in the Globe. “If anything, Mr. Whatcott deserves commendation for putting this out in public.”
Not everyone is prepared to see Mr. Whatcott's actions as those of a tireless public crusader for keeping children safe. Cynthia Petersen, a lawyer representing Egale Canada, a gay and lesbian rights advocacy group, is concerned about the precedent that could be set when the rights of minority groups are tiered below generic free speech provisions.
“Egale is very concerned...because we fought for a long time to have sexual orientation included in Human Rights legislation," Petersen told Xtra!, Canada's Gay and Lesbian Newspaper. "And we are now included in every jurisdiction in Canada, so those statutes have to be interpreted in a way that protect all of the vulnerable groups equally."
Hate speech that falls short of inciting violence seems to be where freedom of speech proponents draw the line. In a passionate defense of free speech, Margaret Wente in the Globe and Mail argues that "hate-speech laws are a double-edged sword. And the sword we use against those who offend us might some day be turned back on us," which speaks to the very subjectivity of what constitutes hate speech in the first place.
"If we’re determined to ban speech that’s truly hateful," Wente asks, "then why not start with the Bible and the Koran? Our holy books are laced with homophobia, intolerance, anti-Semitism, ethnic cleansing and wife-beating.
"It’s astonishing that we allow our children to be exposed to them," she adds.
Some will no doubt be offended by Wente's assertions about religious texts. But is this hate speech? Or is she free to say this in an open and democratic society?
While sunlight may be the best disinfectant, whatever ruling the Supreme Court hands down when it reaches a decision will do little to clear up the muddy waters of free speech in Canada. But our communal understanding of the issue is likely better for the discourse.
More about Supreme court of canada, Hate speech, Free speech
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