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Canadian Supreme Court: Anti-gay flyers violated hate speech law

Wednesday, February 27, 2013
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OTTAWA, Ontario — Canada’s highest court on Wednesday upheld provisions against hate speech in the Saskatchewan Human Rights Code in a case of an anti-gay preacher who distributed homophobic flyers in the province.

But the court also narrowed the definition of hate speech by striking down some language in the province’s human rights code that it said were unconstitutional.

In the unanimous ruling by a six-judge panel, the court found that anti-gay activist Bill Whatcott violated the province’s human rights rules when he distributed flyers in 2001 and 2002 denouncing homosexuals, using words such as “filth,” “propaganda” and “sodomy” to describe same-sex relationships.

The Saskatchewan Human Rights Code prohibits publishing or broadcasting anything 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.”

In its ruling, the high court struck down part of that code, (“…ridicules, belittles or otherwise affronts the dignity”), finding that those words are not rationally connected to the objective of protecting people from hate speech.

But the court left in place the ban on speech that exposes, or tends to expose, persons or groups to hatred.

Whatcott had won an earlier appeal of his conviction in the provincial court.

Two of Whatcott’s flyers were titled “Keep homosexuality out of Saskatoon’s public schools” and “Sodomites in our public schools.” Tow other flyers included copies of classified ads with Whatcott’s handwritten stating the ads were for “men seeking boys.”

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Four people had filed complaints with the commission over the flyers.

In its decision, the court found the first two flyers did constitute hate speech and reaffirmed the Saskatchewan tribunal’s finding, including $7,500 in fines against Whatcott.

The court said that the offending passages portrayed homosexuals “as a menace that threatens the safety and well being of others,” and used “vilifying and derogatory representations to create a tone of hatred.” The court said the flyers also “expressly call for discriminatory treatment of those of same sex orientation.”

“It was not unreasonable for the tribunal to conclude that this expression was more likely than not to expose homosexuals to hatred,” the court said.

But the court also upheld an appeal court’s decision on the second two flyers, ruling against the human rights commission.

In that decision, the court found that it was unreasonable to find that the second two flyers “contain expression that a reasonable person … would find as exposing or likely to expose persons of same-sex orientation to detestation and vilification.”

Legal watchers noted that this was the first time the high court had examined the Saskatchewan law.

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