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Whatcott case changes definition of hate speech in Saskatchewan

By KJ Mullins     Feb 27, 2013 in World
Freedom of speech and religion helped found North America. When those freedoms impede on others though in a hateful matter can a person hide behind religion?
William Whatcott, an anti-LGBT pamphleteer, lost during a hate crime case ruled today in Supreme Court resulting in a new legal definition of hatred for Canada.
William Whatcott distributed flyers that called homosexuals sodomites and accused them of being pedophiles. Today the Crown ruled that those flyers crossed into the line of hate speech and violated Saskatchewan’s Human Rights Code. Whatcott was ordered to pay damages of about $7,500.
The flyers in question were distributed in 2000 and 2001 in Regina and Saskatoon. Four people filed complaints at the time against Whatcott at the human rights commission saying that he was promoting hatred against homosexuals. He was fined $17,500 and banned from distributing flyers, a decision that he appealed.
Whatcott had won his appeal in 2010 over the flyers in Saskatchewan. The Saskatchewan commission appealed the ruling that Whatcott didn't breach hate speech laws. Today's ruling overturned the 2010 ruling.
Two of Whatcott's flyers the Edmonton Examiner reported "combine many of the hallmarks of hatred identified in case law," wrote Justice Marshall Rothstein.
"The expression portrays the targeted group as a menace that could threaten the safety and well-being of others, makes reference to respected sources (in this case the Bible) to lend credibility to the negative generalizations, and uses vilifying and derogatory representations to create a tone of hatred."
The Supreme Court ruled that the language that defines hate literature in the Saskatchewan charter that states "ridicules, belittles or otherwise affronts the dignity of any person" is unconstitutional.
That ruling has some in Canada, like The Canadian Constitution Foundation, warning that free speech could be facing a hit.
Others like The United Church of Canada is welcoming the ruling.
"Freedom of religion is not absolute," said Moderator of The United Church of Canada, the Right Rev. Gary Paterson in a press release. "It does not include the right to engage in religiously motivated hate speech, and it does not extend to conduct that harms or interferes with the rights of others."
While the church believes that everyone in Canada has the right to debate what they believe they should be mindful of hateful expression.
"Hate speech encourages derision, hostility, and abuse of already vulnerable persons, causing them pain, indignity, and loss of self-worth," says Paterson. "It encourages others to share in a hateful and discriminatory point of view, which damages Canadian society and threatens social stability."
The Centre for Israel and Jewish Affairs also is in favor of today's ruling making the following statement:
"The Jewish community of Canada understands all too well the corrosive impact of hate speech on vulnerable minorities, such as the LGBT community, who are fully entitled to protection. We hope that today's decision will help to clarify Canada's hate speech provisions which, due to their inherent ambiguity, have been prone to abuse.
Canada's hate speech protections need significant overhaul in terms of both content and process to ensure a proper balance between freedom of speech and protection from hate. This can be accomplished either through reform of the relevant civil procedures or through their repeal coupled with a more robust application of the Criminal Code provisions covering hate speech.
If the Criminal Code is to be relied upon, federal and provincial justice ministers should determine uniform guidelines and training programs for prosecutors and police to ensure that combating hate speech is made a priority. Furthermore, each province should establish its own Hate Crime Team, as has been done in British Columbia, and embark on an education campaign to ensure that Canadians understand what constitutes hate speech.
In the coming weeks, The Centre for Israel and Jewish Affairs will be communicating this position to the RCMP and Attorneys General across the country to ensure that police and prosecutors are afforded all the necessary tools and training to effectively offer protection to those groups targeted by hate speech in Canada."
The Evangelical Fellowship of Canada also released a statement via email in favor of the rewording of the hate speech portion of the Saskatchewan Human Rights Code:
“The SCC seized this opportunity to clarify and narrow the understanding of ‘hate speech’ as set out in its 1990 decision in the Taylor case,” explains Don Hutchinson, Vice-President and General Legal Counsel with The Evangelical Fellowship of Canada, an intervener in the case. “In doing so the court affirmed that Supreme Court of Canada precedent, even a 4-3 split from 20 years ago, remains binding law in Canada. This is vital to the stability of Canadian law.”
“To clarify the objective understanding of hate speech, the court struck out terms used in the hate speech provision in the Saskatchewan Human Rights Code (Code) that concerned something more akin to hurt feelings. The standard is clearer, from the legal perspective, that speech may only be deemed hateful when assessed to be so objectively from the perspective of a reasonable person, with full consideration of the circumstances, and when the expression is likely to expose a person to detestation and vilification on the basis of prohibited grounds of discrimination that are attributable to an identifiable group in the speech at issue. The test essentially begins to boil down to publicly stating that a whole group of people should be marginalized from participating as members of Canadian society.”
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