The principle of free speech is a prickly one and fraught with conflicting rights.
When does "free speech" become an assault on someone else’s rights and freedoms and, if it ever does, does that mean there are limits to free speech? If the answer is yes to that, who imposes those limits? Government? The law? The law can’t cover every eventuality or circumstance. It is, by necessity, broad and subject to interpretation, which is why we have courts and judges. Extra-judicial entities like human rights commissions that can, and do, deal with non-criminal infringements of rights, must themselves tread that fine indistinct line between one set of rights and another set. Such is democracy; messy and convoluted and inconvenient, but the best system we got. Of course there are those, mainly on the right, who decry human rights commissions as "kangaroo courts" and non-democratic.
The latest foray into this minefield involves a Saskatchewan "Christian activist" by the name of Bill Whatcott. Mr. Whatcott distributes graphic anti-gay pamphlets (referring to gay men as sodomites and pedophiles who spread filth and disease and urged people to ensure homosexuals be barred from teaching children) by stuffing them into mail boxes of private residences, slipping them under apartment suite doors, and posting them on various public surfaces. He has frequently been in trouble with the police in Saskatoon, Regina, Ottawa, Edmonton and other major Canadian cities. He has been arrested six times in Saskatchewan, but never convicted of any charge. He has also been arrested once in the United States and 20 times in Ontario. He is also an anti-abortion activist who has been successfully prosecuted twice for violating the ‘bubble zone’ around abortion clinics in Toronto. He has also distributed anti-Muslim literature depicting the Prophet Muhammad as a "violent man" and portraying images of a beheaded Indonesian girl. Whatcott is, what could most charitably be called, "a man of strong opinions."
Whatcott spent his formative years in a variety of foster homes in Ontario and claims he was physically and mentally abused. By the age of 14 he was on the streets and became addicted to "huffing" glue and turned to prostitution and theft to support his habit. At age 18, he found God and began, with the assistance of a group home he was then in, to turn his life around, eventually becoming a nurse and moving to Regina. It was while living in Regina he began his "crusade" against abortion and homosexuality, seeking to make both illegal again.
In 2005, he was fined $17,500 by the Saskatchewan Human Rights Tribunal for distributing material deemed to be hateful. He is, as of this writing, arguing that case before the Supreme Court of Canada. He was also fined $15,000.00 and suspended for forty-five days by the Saskatchewan Association of Licensed Practical Nurses (SALPN) for allegedly intimidating patients and staff outside a Regina Planned Parenthood office and clinic by picketing and referring to its workers as "murderers, abortionists and disseminators of AIDS."
Whatcott sued SALPN claiming, since he was off duty and made no reference to his professional status, he was well within his rights of free speech as a private citizen in protesting the clinic. The judge upheld the fine. The Saskatchewan Court of Appeal overturned the ruling by the trial judge, and on May 29, 2008, the Supreme Court endorsed the Court of Appeal’s view that his off duty activities were protected by the right of free speech and could not be used to suspend his nursing license.
On February 25, 2010, the Saskatchewan Court of Appeal also overturned the Saskatchewan Human Rights Tribunal ruling against him and dismissed the $17,500 fine.
The Saskatchewan Human Rights Commission appealed to the Supreme Court of Canada, which has decided to hear the case. At the time of writing, this is where we now sit. Interestingly, the day before appearing before the Supreme Court, Whatcott and an associate were distributing anti-gay flyers in the Centretown district, Ottawa’s gay village, but was not charged and, after speaking with police he continued to distribute the flyers.
Predictably, various conservative commentators have come out in support of Whatcott and every one of them cite "freedom of speech" and/or "freedom of religion" concerns. One of the common threads in their commentary is that hate laws, which they decry anyway, should not be used to protect "hurt feelings" at the expense of free speech.
Well, you know...I agree with that. Thing is, this is not about "hurt feelings" any more than 1930’s anti-Semitic writings were about "hurting" Jewish feelings or sensibilities. If the Germany of the 1920s and 1930s had gone through all the rigmarole we do over conflicting rights, maybe history would have turned out differently. It certainly would have for European Jewry. To trivialize concerns about such material as being about "hurt feelings" does a disservice to the debate. It’s dismissive.
Ezra Levant - himself no stranger to what he calls the "kangaroo courts" of human rights tribunals and so perhaps a tad biased here - wrote in an October 16 Calgary Sun column that Saskatchewan’s Section 14 is,
...[A] massive, vague and subjective limit on free speech. And it limits Whatcott’s freedom of religion, too.
What mature society makes it illegal to "affront" someone’s "dignity"? That’s how kindergarten teachers treat their children. But this law applies to adults. This law makes it illegal to ‘likely’ cause someone to feel the emotion of hatred.
He goes on to write,
If that’s all it took to wipe out the human emotion of hate - a natural emotion that is part of a normal personality - then we could just pass the Love Each Other Act and be done with it. But people don’t work that way.
No, they don’t...which is why we have laws in place to protect this group from that group’s "natural emotions". It’s natural to want the cool things my neighbour has, but it’s illegal for me to go in and take them. It’s natural for me to want to haul off and punch someone in the face who’s pissed me off, and give him either a fat lip or a bloody nose or both, but it’s illegal for me to do that. It’s natural for me to want to experience the adrenaline rush of driving my car at a high speed, but it’s illegal to do so. Writing inaccurate, inflammatory and hateful prose, and then distributing to those who may not wish to read it, should likewise be illegal.
This is not about disallowing the Whatcott’s of the world their right to express their opinion, even if such opinion is founded on misinformation or simply their own bigotry. That can be dealt with by countering the arguments with reason and facts. As those opposed to "special rights" for the GLBTQ community, ranging from the inclusion of sexual orientation as a protected characteristic in human rights acts right on up to equal marriage, have always been fond of pointing out, rights need to be balanced by responsibility. I couldn’t agree more; they should. Whatcott has a responsibility to get his facts straight, so to speak, and not engage in ad hominem attacks against an entire population or outright lies about that population to support his opinion.
The key to whether or not material is hate is whether material has the effect of causing harm to a minority. Saskatchewan Human Rights Commission lawyer Grant Scharfstein has said in this case, "I would say [the material contained in the pamphlets] is as hateful as saying [the N word] to a black person."
Sharfstein also stated it is entirely possible for people to raise pointed questions about such sensitive issues as gay lifestyles or Jewish circumcision, for instance, without their arguments being stated in a way that promotes hate.
Chief Justice Beverley McLachlin repeatedly interjected that offensive material can be censored without destroying an individual’s right to free expression. She said that human rights provisions are so convoluted and wordy that they can chill legitimate argument. The Court’s decision is expected to hinge on whether ‘hate’ can ever be defined in such a way that it doesn’t destroy legitimate opinion in the process.
This is a valid concern and one that is at the forefront of every case that has come up in recent years. As mentioned above, the issue of freedom from hate literature/speech versus freedom of expression is a minefield of conflicting rights.
I have a right to live openly and freely as a gay man and to consentually love or have sex with whomever I please. Whatcott has the right to believe that is immoral. Fine. He even has the right to promulgate his beliefs, but those of us who think he is a nutbar (probably he huffed a little too much glue back in the day, who knows?) have the right to counter his arguments.
It all gets a bit tedious, however, constantly having to counter these whackjobs, especially when we are confined in our attempts to do so. How does one counter the material he goes around stuffing into people’s mailboxes, for instance? By stuffing our own material in people’s mailboxes? Not only does that infringe on individuals’ rights to the enjoyment of their home and their privacy, it has the counter effect of promoting his views. However, silence in the face of the sheer volume of material being spewed out is not an option either.