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Top court upholds key part of Sask. anti-hate law

Part of rights code section whittled down in case of anti-gay flyers

CBC News Posted: Feb 27, 2013 10:30 AM ET Last Updated: Feb 27, 2013 2:59 PM ET

The Supreme Court of Canada has upheld key provisions against hate speech in the Saskatchewan Human Rights Code, but struck down some of the code's wording in a case prompted by flyers handed out by a religious anti-gay activist, Bill Whatcott.The court found that most of the pertinent section of the code is constitutional. Although the legislation infringes the rights to free expression and free religion, the court is allowing most of it as reasonable limits.Reached at his home in Weyburn, Sask., Whatcott expressed disappointment but also defiance.

• DECISION: Saskatchewan (Human Rights Commission) v. Whatcott
• RELATED: When is it hate speech? 7 significant Canadian cases

"It's dreadful," he said of the decision. "It's a dark day for Canada."Whatcott said he refuses to pay the $7,500 in damages as directed by the high court. He also says the ruling means the Supreme Court can impose its morals on the rest of the country and limit free speech.

'It's a dark day for Canada.'—anti-gay activist William Whatcott

He also said he'll likely be violating Saskatchewan's human rights code for the rest of his life, because he will not stop preaching against homosexuality.David Arnot, chief commissioner of the Saskatchewan Human Rights Commission, hailed the ruling, saying it goes to the heart of what it means to be a Canadian.
"It basically says under no circumstances should hate speech be tolerated," Arnot said.A Saskatoon man who was one of the complainants in the case says he's pleased, too.

'It basically says under no circumstances should hate speech be tolerated.'—Saskatchewan Human Rights Commission chief commissioner David Arnot

After reading about the Whatcott pamphlets in church, James Komar said he had little choice but to speak out."If I don't stand up for myself why should I expect other people to stand up for me," he said.

Part of code struck down

The court struck down the part of the legislation that includes speech that "ridicules, belittles or otherwise affronts the dignity of any person or class of persons on the basis of a prohibited ground." It found those words are not rationally connected to the objective of protecting people from hate speech.
The court left in place the ban on speech that exposes, or tends to expose, persons or groups to hatred.
The Saskatchewan Human Rights Commission had appealed a court decision that overturned its original ruling against William Whatcott, who published and distributed four anti-gay flyers in towns and cities in Saskatchewan in 2001 and 2002. Four people filed complaints with the commission over the flyers.
Whatcott's flyers used words like "filth," "propaganda" and "sodomy" to describe gay relationships and the discussion of equality.Saskatchewan law 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."

Two of four flyers hate speech

The first two sets of flyers were titled "Keep homosexuality out of Saskatoon's public schools" and "Sodomites in our public schools."The other two were photocopies of classified ads with Whatcott's handwritten comments on them stating the ads were for "men seeking boys."The Supreme Court found the first two flyers did constitute hate speech and reinstated the Saskatchewan tribunal's finding, including $7,500 in damages against Whatcott that were to be paid to complainants.The court upheld an appeal court's decision on the second two flyers, ruling against the human rights commission. It found that it was unreasonable to find 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.""These flyers are potentially offensive but lawful contributions to the public debate on the morality of homosexuality," Justice Marshall Rothstein wrote in the decision.This was the first time the Supreme Court examined the Saskatchewan law.The Supreme Court of Canada's decision was unanimous.The decision was made by a six-judge panel because one justice retired and wasn't eligible to take part in it. Two other justices are new appointments and weren't eligible because they didn't hear the arguments in the case.