Saskatchewan Human Rights Commission v. William Whatcott, et al. (2010), currently before the SCC

Before being born again, Bill Whatcott had it rough: by 14 he was living on the streets, selling himself to older men to survive, sniffing glue to get by. His religious rebirth transformed him into an outspoken member of the Christian Truth Activists.

The religious teachings he chooses to preach in this new life do not have broad appeal (there’s never a mention of, “In every thing give thanks” or “Judge not, that ye be not judged”  with proselytizers these days, which is a shame.)

For the past two decades, Whatcott has been protesting vigorously against what he perceives to be the dangers of homosexual activity (and abortion). Along the way, he has been getting intimately acquainted with our justice system.

He is now appearing before the Supreme Court of Canada to answer questions about some very controversial flyers he stuffed into the mailboxes of unsuspecting Saskatchewanites in ’01/’02, and continues to stuff the mailboxes of Canadians across the nation.

The SCC will decide if the flyers exposed gay people to hatred contrary to s. 14(1)(b) of the province’s Human Rights Code (the Code) and will likely rule on whether the section itself is overbroad, inappropriately limiting freedom of expression.



Whatcott exists in the outer-limits of the town of tolerance for religious expression in Canada. His opinions are offensive to many Canadians; his name comes up often on CanLii, and yes – all the results pertain to him, I checked. Because this is such an important case, and because it deserves close scrutiny, it comes in two parts. This part is the background to the Court of Appeal’s decision. The next section will take us there and beyond.


Skip this Section if You Live in Sask. and got a Flyer (Otherwise: read on)

In 2002, Saskatchewan’s Human Rights Tribunal slapped Whatcott with a $17,500 fine for distributing  “hundred of thousands” of flyers, which it ruled exposed people to hatred on the grounds of their sexual orientation.

The flyers express ideas better suited to reproduction than description (for instance in Flyer E, “Sodomites in our Public Schools”):

“If Saskatchewan’s sodomites have their way, your school board will be celebrating buggery too!”


“Our acceptance of homosexuality and our toleration of its promotion in our school system will lead to the early death and morbidity of many children”

In some legal circles, this kind of talk is euphemistically called an “unpopular opinion.” Whatcott has many unpopular opinions, and he admits he is an unpopular person, but he doesn’t care about popularity: he cares about illegalizing sodomy (and abortion) in Canada, because he considers the practices to be contrary to his religion and degrading for the nation as a whole.

Other flyers (F and G) feature a reprint of a page from the classifieds section of Saskatchewan’s largest gay magazine, Perceptions, accompanied by handwritten notes, which alleged the language used indicates the magazine encourages pederasty.

Reproductions of the four flyers can be found right before the endnotes of the Court of Appeal’s decision. Go review them and judge for yourself. They’re not as graphic as some of Whatcott’s other work, but they were physically delivered to the mailboxes of hundreds of thousands of residents of Regina and Saskatoon.

They are the focus of this case – the Court of Appeal unanimously found that they do not expose homosexuals to hatred; therefore, these flyers were not held to be prohibited publications and should not have been censored by the Saskatchewan Human Rights Tribunal.


The Charging Legislation.: s. 14(1)(b) of Saskatchewan’s Human Rights Code (the Code).

Four people took it upon themselves to lodge complaints against Whatcott under Saskatchewan’s Human Rights legislation. The Code states:

14(1) No person shall publish or display, or cause or permit to be published or displayed, on any lands or premises or in a newspaper, through a television or radio broadcasting station or any other broadcasting device, or in any printed matter or publication or by means of any other medium that the person owns, controls, distributes or sells, any representation, including any notice, sign, symbol, emblem, article, statement or other representation: …

(a) tending or likely to tend to deprive, abridge or otherwise restrict the           enjoyment by any person or class of persons, on the basis of a prohibited           ground, of any right to which that person or class of persons is entitled under law; or

(b) 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. {Relevant prohibited ground: “sexual orientation” s. 2(1)((m.01)(vi)}

(2) Nothing in subsection (1) restricts the right to freedom of expression under the law upon any subject.


The Human Rights Tribunal Hears the Case

In 2005, the tribunal (chaired by Anil K. Pandila) heard the story of the beleaguered people of Saskatchewan’s metropolises opening their mailboxes to find the “Born Gay? No Way!” etc. literature.

Whatcott testified on his own behalf during the initial proceedings. Of the four complainants, two gave direct testimony, and two were represented only in the Agreed Statement of Facts.

That seem a bit like the human rights equivalent of “phoning it in”, and is unfortunate because it makes the Tribunal look a slightly less impressive in a due-process sort of way. Considering the gravitas of the rights at play here (expression, religion, equality) you would think this would be mentioned— it isn’t, so let’s leave it for now.

In addition to the complainants’ testimonies, the Commission called Gens Hellquist, a gay community leader and expert witness qualified to testify about homophobia and discrimination towards homosexuals. He gave evidence that this was “just another example of hate directed at the homosexual community.” He observed that the flyers portrayed gay men as sodomites and pedophiles who should not be allowed around children. He noted that he had received numerous phone calls from concerned citizens in Regina, Swift Current and Saskatoon, and that people had come to his office in tears after reading the flyers.

Whatcott called Rev. Irwin Pudrycki, an ordained minister of the Lutheran Church of Canada. He testified that while the church did not promote a position of hatred toward the homosexual community, it disapproved of homosexual sexual activity, and urged homosexuals to seek redemption from their sins. He testified that gay people should be discriminated against in certain sectors of employment based on their orientation. He felt that Whatcott was exposing a societal injustice— acceptance of homosexuality— and commended him for drawing attention to the “issue” of gay teachers in public schools.

Whatcott sourced his statistics (“Sodomites are 430 times more likely to acquire Aids [sic] and 3 times more likely to sexually abuse children!”) to a book entitled, “Homosexuality and the Politics of Truth” by Dr. Jeffery Satinover. The author is an American psychoanalyst, who believes that homosexuality can sometimes be “cured” through treatment. Armed with his religion and his research, Whatcott testified he believed his flyers to be “legal, truthful and helpful.”

He argues that the flyers were not hateful. In the alternative, any hatred expressed in the flyers is directed at the so-called sin (homosexual sex) and not the sinner (the homosexual). If this distinction seems a tad thin to you, you’re not alone. Does the law protect the attributes or activities that qualify a person for protection from overt expressions of detestation on that ground in first place, or does the Code just protect the person?

While most physical expressions of human sexuality are natural and normal and legal, some are generally frowned upon and others are illegal. Whatcott argues that he should be free to demonstrate against sexual conduct he disapproves of, especially regarding issues of Canada’s public policy regarding children and their education.


The Tribunal’s Ruling

The Tribunal was not at all impressed with Whatcott’s defence, finding that for some flyers he had “no hesitation in concluding that the material contained therein can objectively be viewed as exposing homosexuals to hatred and ridicule.”[emphasis added].

He relied on Owens v. Saskatchewan (Human Rights Commission) (Owens 2007), which was subsequently overturned (Owens 2010), to find that Whatcott’s intentions in distributing the material were irrelevant in the analysis. Looking at specific sentences within each of the four flyers, the Chair ruled that they exposed homosexuals to hatred and ridicule based on the prohibited ground of sexual orientation.

With respect to the validity of s.14(1)(b) (and whether or not human rights tribunals generally may deem published material “hate speech” – ban the expression and fine the expressor), the Tribunal adopted the Saskatchewan Court of Appeal’s application in Saskatchewan (Human Rights Commission) v Bell (1994) (Bell) of the free-speech stalwart Canada (Human Rights) v Taylor(1999) (Taylor).

In Taylor, a white supremacist challenged the capacity of s. 13(1) of the Canadian Human Rights Act (a provisions similar to s. 14(1)(b) of the Code) to silence his speech. The SCC held that controlling hate speech was within the purview of human rights legislation— the restrictive laws did violate s. 2(b) of the Charter, but were saved by s. 1.

The impugned speech had to rise to the level of “unusually strong and deep-felt emotions of detestation, calumny and vilification” in order to evade Constitutional scrutiny. In the case of Bell, a motorcycle store was selling stickers featuring racist caricatures stamped with the “not allowed” sign of a red circle with a cross through it.  In deciding whether the stickers were prohibited publications, the SKCA held that it was bound by Taylor and that s. 14(1) of the Code was a reasonable limit on the freedom of expression.

In Owens (2007), s 14(1)(b) in particular was held to be a reasonable limit on the right of freedom of expression and on the freedom of religion. It seemed obvious to the Tribunal that this material – these four flyers – caused enough injury on the self-respect of the complainants that one was awarded $2,500 and three others were awarded $5000 each. The person who got 50% of the other awards filed his complaint before amendments to the Code doubled the damages available, and all four were all given half the maximum amount provided for in the legislation.

Whatcott did not want to pay $17,500 and, most likely especially did not want to pay $5000 each to the two people who did not attend the proceeding to testify directly about the affront to their dignity.


Saskatchewan Court of Queen’s Bench Reluctantly Upholds the Decision (2007)

Whatcott appealed the Tribunal’s decision to the SKQB on the grounds of freedom of religion and freedom of expression, and further argued that the tribunal erred in its interpretation of the Code.

One party intervened – the Attorney General for Saskatchewan, who argued vigorously that s. 14(1)(b) was constitutionally valid and socially useful.

Kovach FJ noted that the particular sub-section of s.14 hadn’t been mentioned by the trier of fact at the Tribunal, but reasoned that it must be sub-section (b). He established that the standard of review of the Tribunal’s decision was correctness and accorded the original ruling no deference.

Two issues were addressed:

1)  Did the Tribunal err in law by concluding the flyers conveyed hatred or otherwise contravened s. 14(1)(b) of the Code?

2)  Does s. 14(1)(b) of the Code contravene the appellant’s freedom of religion pursuant to s. 2(a) of The Charter of Rights and Freedoms (the “Charter”)?

He found that the decision in Owens (2002) was authority for the proposition that s. 14(1)(b) was a reasonable limit on speech in situations where the “ridicule” “belittlement” or “affront to dignity” met the standard in Taylor of “deep felt emotions of detestation, calumny and vilification.”

The four flyers were summarized and judged as prohibited publications, on the grounds that they had improperly characterized homosexuals as pedophiles and molesters of children.

Kovach FJ also relied on Owens (2002) for the authority that s. 14(1)(b) passed constitutional scrutiny and decided that while it may encroach on the rights to freedom of religion, it was a reasonable limit on that right.  Whatcott appealed the decision, attracting new interveners, including the Canadian Constitution Foundation and the Canadian Civil Liberties Association, supporters of his escalating legal battle with a direct interest in its outcome.

Now, Whatcott’s battle had come to mean something more than a dispute between private parties – poised to become the new test for hate speech law, it could be the defining judgement on the topic of the past two decades.

To learn more, you’ll have to check back soon for Part II, entitled: SKCA Says, Gay Teachers in Public Schools? Debatable…

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