Hate Speech on Trial in Canada
If you lived in certain parts of Edmonton, Regina, Saskatoon, Toronto over the past decade, there’s a chance you’ve encountered or at least heard about flyers distributed by Bill Whatcott. These fliers are typically peppered with photos of naked or half-naked gay men kissing (or in at least one instance, engaging in oral sex), with face photos of political opponents or “villains” placed strategically to cover genitalia or buttocks. Some of the photos are from Pride events, putting Whatcott in a class with “Porno” Peter LaBarbera, but with a dash of Martin “poo porn” Ssempa thrown in. And perhaps the comparison is more appropriate than it first seems: LaBarbera has defended attempts in Uganda to make homosexuality punishable by death, while Ssempa has used exactly this kind of sentiment to whip up the nation’s population to support the Anti-Homosexuality Bill.
In Edmonton, Whatcott borrowed a tactic from cigarette packaging, and distributed a flyer that attempted to portray homosexuality as a public health emergency that needed stamping out, complete with graphic photos of anal warts (from whence his nickname on my blog derives). A 2009 flyer included a rendition of “Kill the Homosexuals,” a rewrite of a song entitled “Kill the Christians” by Decide on their album, Off the Cross — which was, ironically but appropriately, also the subject of a 2003 human rights complaint.
The 2001 – 2002 flyers that Whatcott is on trial for attempt to conflate homosexuality with pedophilia, and are peppered with incendiary invectives. The Saskatchewan Human Rights Commission initially ruled against Whatcott for the flyers, but the Saskatchewan Court of Appeal overturned it. The Supreme Court of Canada heard the case this week, including testimony from what is believed to be the largest number of legal intervenors in any court case in Canadian history.
“Our children will pay the price in disease, death, abuse and ultimately eternal judgment if we do not say no to the sodomite desire to socialize your children into accepting something that is clearly wrong,” said one flyer. In another, he photocopied a classified ad: “I’m 28, 160#, searching for boys/men for penpals, friendship, exchanging video, pics, magazines & anything more. Your age, look & nationality is not so relevant.” Above it, he wrote, quoting the Bible, “If you cause one of these little ones to stumble, it would be better that a millstone was tied around your neck and you were cast into the sea.” — National Post, describing the flyers at the centre of the trial.
Bill “anal warts” Whatcott has a colourful history, and has become a cause célèbre who is so extreme that even far right figures have rushed to disassociate themselves from him — although you might not know it, with the recent portrayal of him as a free speech champion. In 2007, Whatcott ran for mayor of Edmonton, and garnered votes that numbered in the 40s. In 2001, he held a “Heterosexual Pride Parade” (which amounted to an anti-gay demonstration) in Regina, and the following year his application to hold a similar event was denied. His stories about his history have been somewhat inconsistent, claiming at one time to have been a former sex worker, and now saying he’d only engaged in gay sex to pay off a drug debt. Either way, he claims to have experienced conversion in 1989, and has been militantly anti-gay ever since (and anti-abortion, ant-Islam and anti- a bunch of other things — but there’s a special place in his heart for anti-gay rhetoric).
Whatcott’s trial is being framed as a battle between gay rights and religious freedom, which sort of assumes that the two are incompatible, and that faith may be an acceptable reason to use overly hateful language to characterize entire groups of people. Some of the airplay given the almost religious ideal of freedom of speech forgets the fact that we already do criminalize some forms of speech, like libel, perjury, incitement, copyright infringement and harassment.
Fox News North Sun Media has kicked the all-speech ideation up a notch in their usual aggressive “man up and grow a spine” kind of way, with Ezra Levant -inspired hypermasculine spin about “the right not to be offended,” “censorship tribunals” and — sob, sob — “hurt feelings,” as if that’s all that the debate was about… that if gay men object to being called “sodomites” and “child molesters” (the language that the mainstream press has seized upon as the centre of the debate), then they should “just get over it.”
“Human-rights commissions should be protecting children; not going after whistleblowers. If anything, Mr. Whatcott deserves commendation for putting this out in public.” — Whatcott’s lawyer, Thomas Schuck.
Hateful speech is never free. While an individual comment, or poster, or ad, or flier may be free speech, the weight of cumulative aggressions and microaggressions serve to demonize communities, alienate them, and discourage them from participating in society. As it becomes more common, accumulated hatefulness makes it seem acceptable or (to some) even necessary to act on that, and by knowing this, entire communities are terrorized in a way by each new onslaught.
And yet there is a danger in criminalizing speech. The same groups that hate is already designed to silence and intimidate into hiding could very easily become the same groups that society seeks to silence first, when given the tool of speech legislation.
“Allowing the Whatcotts of the world to hand out their flyers, then countering them with all the reasons why they’re wrong, is a much better approach in a free and democratic society.” — Canadian Civil Liberties Association lawyer Andrew Lokan.
Ideally, hateful speech should be answered, and called out. Hateful speech must be answered. It must be responded to. Freedom of speech is not simply a question of saying or publishing anything and everything that one might wish to say. It comes with a responsibility to answer to these things, and call them out as attitudes that need to change. The problem is that it typically isn’t answered to by the majority, and if sufficient inequality or disparate antipathy exists, the minority may either feel too disenfranchised to respond, or the channels that they need to respond in aren’t interested in giving them the opportunity. Witness the recent Charles McVety attack on transsexuals and transgender people.
The public responded when the National Post published McVety’s transphobic ad. But since then, his transphobia has been broadcast widely and loudly — perhaps even with tacit approval — by the loudest “free speech champions” in Canada, as though it’s a virtue to repeat it unchallenged. After the Post apologized, the Toronto Sun deliberately ran the ad, unabashedly calling it a principled defense of Charles McVety’s freedom of speech. But then, Sun Media has been itching for a hate speech complaint, and I guess someone has to protect underdog McVety from the stifling hordes of overwhelmingly vocal trannies so he can get a word in edgewise. Poor Charles McVety.
That ad is now airing in video form on SunTV, in regular rotation. Nobody’s challenging it… including the free speech champions at Sun Media. Sun has also chosen not to give any column inches to outside viewpoints opposing McVety. Boosting that kind of signal without criticism is at best an irresponsible application of the principle of free speech that the Sun claims to ideate, or at worst a failure. Ironically, Sun Media has become the exception that proves the rule.
So when does something go from being hateful speech to being “hate speech?” Whatcott’s flyers evade the first hurdle (incitement), because they don’t actually specifically call for violence against or murder of gay men. The Protocols of the Elders of Zion didn’t actually call for genocide of Jews either, but generated so many false allegations, myths and sensationalism that violence became an entirely logical and predictable outcome. So does the level of Whatcott’s hostility — when introduced to a society where there is already potentially explosive attitudes exist — lead to a strong likelihood of serious consequence? Does it lead a population of people who share a characteristic to become terrorized? How do you prove that harm is likely to happen because of the vitriol a piece of speech has injected into the ongoing social discussion? It becomes subjective at best, which is where the tribunal and court system come in, to weigh the speech in full context. Which is why it’s probably impossible to create a quintessential hate speech law. But without a speech law and a process of responsibly challenging hateful speech, the potential to terrorize communities or facilitate violence against them still exists. It’s a riddle worthy of Solomon.
But there’s something more at play.
“However, I believe critics of human-rights commissions and tribunals are manipulating information and activities around rights cases and freedom of expression to further a new agenda. This agenda posits that rights commissions and tribunals, and the attendant vigilance over all the rights and freedoms Canadians now enjoy, no longer serve a useful purpose. In this way, the debate over freedom of expression has been used as a wedge to undermine and distort our human-rights system.” — Chief Commissioner of the Canadian Human Rights Commission, Jennifer Lynch.
If any other identifiable group were conflated with child molestation, it would be pretty readily recognized as hateful, if not hate speech. There is a double-standard when it comes to LGBT people. Part of this stems from the idea that objecting to homosexuality, transsexuality and such isn’t really hate if there’s a religious reason to object. That if you litter a city with “anal warts” fliers, it’s not going to inspire anyone to do violence, and even if they did, the victim was “asking for it,” because of their “lifestyle.”
Whatcott’s legal team is navigating this double-standard by arguing that he hasn’t targeted a specific population, only a “behaviour,” as if gay sex and homosexuality are easily divisible. Indeed, Whatcott is even portraying his crusade as an act of love. Creating a legal separation between characteristic and behaviour could potentially create a dangerous legal precedent which erases legal protections for LGBT people completely, by creating an escape clause: “I didn’t fire him because he’s gay — I fired him because my faith requires that I object to the fact that he is currently engaging in sex with a man.”
“This is what this argument about morality – we love the gays but we hate the gay behaviour – is all about. What it does effectively as well as legally is denigrate that group to having second-class status, because their rights are not being fully protected, just as if we still separated pregnancy from being female.” — Kathleen Mahoney (Women’s Legal Education and Action Fund), quoted by Xtra.
So are the Whatcott flyers prosecutable hate speech? Given other publications that have come from Whatcott, I’d be inclined to agree with the label of hate. I also believe that speech-based laws should be applied only sparingly. Human Rights Commissions in Canada have sometimes failed that test, and that is certainly fuelling the debate happening this week.
CBC outlines seven important cases that outline the application of hate speech laws in Canada. Among them are an Alberta teacher who was charged in 1984 because he had been teaching students in an Eckville school that the Holocaust never happened. To those, I would add three other cases.
- Ezra Levant was prosecuted by the Canada Human Rights Commission (CHRC) in 2006 for publishing the infamous Jyllands-Posten cartoons (which portrayed the Islamic prophet Mohammad — and by extension, all Islam — as a terrorist) in the now-defunct Western Standard. The CHRC ultimately dismissed the case, but Levant had to absorb his expenses. Levant has since crusaded to have all human rights commissions completely abolished.
- Mark Steyn and Maclean’s Magazine faced the Ontario Human Rights Commission (OHRC) for an article raising fears about a demographic winter, to construct a panic about a perceived global takeover by Islam. The OHRC ultimately refused to proceed with the case, but the proceedings had negative consequences for Steyn’s career at the time.
- In 2002, an anti-gay letter from Rev. Stephen Boissoin resulted in an inquiry by the Alberta Human Rights and Citizenship Commission, which determined the letter to be hate speech. This was overturned by the court system in 2009, but by then the case internationally sparked an ongoing panic meme that human rights commissions and tribunals — and the concept of human rights itself — were an outright threat to (and somehow sought to criminalize) Christianity.
Much of the current anti-HRC sentiment derives from these three cases, which are being portrayed as eponymously representative of any and all hate speech cases — and then, in turn, conflated with all human rights proceedings. While I respect the reasons for the Boissoin inquiry, all three instances were seriously flawed, and demonstrated areas where the laws needed clarification.
The exact legal wording in question in Whatcott’s trial (from Saskatchewan human rights legislation) is about speech that “exposes or tends to expose to hatred, ridicules, belittles, or otherwise affronts the dignity [of an identifiable group].” While there have only been 5 hate speech-related cases that reached prosecution in the history of the Saskatchewan tribunal, this language is certainly broad, and it’s not hard to see how it could be used in an imbalanced way. Something is broken.
Incidentally, I mentioned the 2003 human rights complaint surrounding the song “Kill the Christians” by Decide. The Alberta Human Rights and Citizenship Commission in fact dismissed the complaint, citing “very little vulnerability of the target group… the expressions do not reinforce existing stereotypes, nor do the messages appeal to well-publicized issues.” To some, this is a double-standard. To others, it’s an acknowledgement that the lyrics would not be likely to actually terrorize Christians, since this attitude does not typically occur in society, nor would it likely incite actual violence against them. But in the end, that is essentially a best guess, based on context.
Judges have reserved their decision and will be issuing a written ruling at a later date. Meanwhile, Member of Parliament Brian Storseth has also introduced a Private Member’s Bill (“Protecting Freedom!” Such a nice name…) that seeks to delete the hate speech section of the Canada Human Rights Act, and it could be debated in Parliament before the end of the year.
Whatcott, meanwhile, has been using the opportunity to distribute more anti-gay fliers in Ottawa. In it, he adds trans people to his hate repertoire, commenting “Born a dude, is a dude. Not a credible parent.” Silly Bill: why go to all the trouble of printing fliers and distributing them door to door, when you can pay the Toronto Sun to print and distribute them for you?
(Crossposted to The Bilerico Project)