Convivium:What was at issue in the William Whatcott case, and why did it take so long to make its way through the legal process? It seems to have been an awful lot of trouble for four flyers?
Don Hutchinson: From the time the initial complaint was filed until the decision [on February 27, 2013] was 12 years.
C: Twelve years for four pamphlets?
DH:Essentially four pieces of paper photocopied on one side.
C: That's three years per sheet of paper. That seems like an awful lot of work. Was this really such a complex issue that it took 12 years and so much legal/ bureaucratic effort to deal with the complaints about Mr. Whatcott? Is there not a better way to deal with these things?
DH: Under the Canadian Constitution, there has been a division of powers since 1867 that puts all civil rights—so, human rights—as provincial jurisdiction except where there is an explicit, identified area of federal jurisdiction. The result is that we have a patchwork of human rights legislation across the country.
The question of discrimination moving into the category of hate speech is one that was explored very seriously in the 1980s and resulted in a section on hate speech being added to the Canadian Human Rights Act, which covers only federal jurisdictional issues. Then a few of the provincial jurisdictions added it as well.
The Supreme Court of Canada heard three cases dealing with white supremacists and anti-Semites in the late 1980s and issued decisions in 1990. The key one was the Taylor case, where the court defined what non-criminal hate speech was for the purposes of human rights legislation.
The definition in that ruling was very convoluted, very difficult to understand, and came into play with the complaint against William Whatcott. What happened was that the Whatcott case made its way to the Supreme Court of Canada because a human rights tribunal determined that Whatcott had violated the hate speech provisions of the Saskatchewan Human Rights Code.
Unfortunately, human rights tribunals are notorious for having members adjudicating who are not legally trained. They also don't follow the same rules as a courtroom. That decision was appealed to the Court of Queen's Bench, where it was determined that Whatcott did not violate those provisions. It went to the Court of Appeal, where there was a split decision determining again that Whatcott did not violate the provisions. The Saskatchewan Human Rights Commission appealed the decision to the Supreme Court of Canada.
C: Does Whatcott firmly reinforce the decision in Taylor and other cases, or does it open up another avenue for people to find themselves enmeshed in these kinds of complaints?
DH: There are two key factors in what the Supreme Court has done. They sent the message, which they have been sending over the last decade, that earlier decisions of the court will not be easily overturned.
C: And that's a good thing, right?
DH: That is a good thing. It provides stability in Canadian law. It will come into play, for example, in the Bedford case from Ontario dealing with prostitution laws, where there was a 1990 case affirming two of the three sections of the Criminal Code that were challenged in Bedford. It will also come into play in the Carter case in British Columbia dealing with assisted suicide. The Supreme Court made a decision in the Sue Rodriguez case in 1993, saying that Criminal Code prohibitions [on euthanasia and assisted suicide] are constitutional. So the issue of precedent is very important to the stability of law. The second issue that came into play in Whatcott was clarifying what that precedent meant. It has been astounding to me how many of the media reports have voiced a message as if this is the first time that Canada has had a decision from the court on hate speech laws. What's really happened is that the court has narrowed the non-criminal hate speech provisions to make it harder to find somebody guilty of hate speech, and the court has actually clarified the objective process by which other tribunals and courts are supposed to determine whether or not speech is hate speech.
C:This is its treatment of terms such as ‘tending to' and other vague and open-ended language in the Saskatchewan code….
DH: The court has taken hate speech out of the jurisdiction of ‘you said something awful that hurt my feelings' and into the jurisdiction of ‘your statement would cause society generally to detest a group of people with which I as an individual am associated.' It narrows it to vilifying a group of people so that others would not want them to participate within Canadian society in a way that might be reasonably presumed to impact the individual in a discriminatory way. In Mr. Whatcott's situation, the two pamphlets that were found to be in violation of the Human Rights Code compared homosexuals with pedophiles in such a way as to suggest that all homosexuals are pedophiles. The two pamphlets that were found not to infringe the code identified older male homosexuals advertising in a gay magazine for underage sexual partners, and there were Bible verses. The court found the Bible verses themselves could not constitute hate speech. The other language [in those two pamphlets] did not create that identification of a group in a way that it would be vilified in society but was rather pointing out factual information.
C: There are two things I find confusing. One is the court's apparent conflation of behaviour and identity—the sinner and sin dichotomy—so you can qualify as hate speech simply talking about certain behaviours but not attacking the person as an individual. The second is protection of Scriptural references, per se, when earlier court decisions have said religious freedom is a matter of individual belief, not associational or corporate or authoritative. It's what you hold in your heart to be true. In light of those earlier cases, how can I as an individual not be free to say something, yet be protected on the basis of religious freedom because I have quoted Scripture?
DH: Section 1 of the Charter says that reasonable limitations can be placed on the rights guaranteed in the Charter provided those limits are justified in a free and democratic society. The individual's religious beliefs are still at the heart of what the individual's actions would be, and the question of group identity is not with the religious beliefs but with the speech that might be categorized as hate speech. So, with our religious beliefs, we are entitled by law, we have the right, to engage in the public square in a robust fashion. The difficulty with this case, as with many of these cases that make it through the system, is that it is the individual who has pushed the issue to the extreme who establishes the fact pattern that's being considered by the courts. I'm a motorcyclist, and one of the biggest problems we have in the motorcycling community is the guy on the sportbike who goes 140 kilometres an hour zipping through traffic in a 50 kilometre an hour zone. It makes all motorcyclists look bad. And when a Christian engages in a way that is really an extreme expression that is not what we normally accept of anybody in civil public discourse, then it causes society to look at all Christians in a negative way.
C:But at the pure level of speech, you could say sodomy is a filthy act, and then go a step further and make a general statement about homosexuals engaging in sodomy. Have you now committed an act of hate speech if you express that in public? You've talked about a behaviour, and you've talked about a group, and you've made the behaviour part of the identity of the group. If so, that seems a significant shift.
DH: The court could have been clearer in the section where they talk about the distinction between identity and behaviour. Part of the difficulty is the fact pattern. Mr. Whatcott didn't take the step that you've suggested. He chose to describe homosexuals as ‘sodomites,' which is, in these times, inflammatory language in describing a group of people; and then he noted there is a high tendency for ‘sodomites' to also be pedophiles. So he gave the court opportunity to conflate homosexuals with pedophiles, not just sodomy with homosexuals. Pedophiles are reviled in our culture. The acts pedophiles commit are crimes in our culture. And that is where the court drew the line on detestable language and vilification of an identifiable group of people. To step back a pace, the difficulty with the Court's decision in those sections that deal with identity and behaviour is that there is some ambiguity in the language as to whether I might be able to say that a person who is engaging in sinful behaviour is a sinner and then add the appropriate behaviour to the appropriate relationship as a sinner. The court did leave space for those who hold religious beliefs similar to mine to be able to say I believe quite freely that there are a significant number of sins identified in the Bible, every human being on the planet is guilty of sin, and it's only through our faith in Christ that we can experience forgiveness for those sins and experience salvation. The difficulty comes if we pick one particular category of sinners and paint them out to be somehow deserving of being marginalized or removed from society.
C: So have we gained something in terms of religious freedom or are we at best neutral?
DH:Well, I'm a realist and I realize this decision is going to inform Canadian law for a significant time to come. I have two options: I can decry the weaknesses of the decision, essentially spitting into the wind, or I can assess the decision and figure out how it can be best used for the community that I serve. Instead of focusing on its weaknesses and crying into the wind until another issue comes up that draws the attention of the media, I choose to serve the Christian community by exploring the decision and interpreting it in a way that will be helpful in describing reasonable guidelines for continued religious free speech. The pastor who stands in the pulpit should be able to speak freely about marriage and the Church with a certainty that speaking for marriage is not going to result in being convicted of hate speech. As Christians, our primary responsibility is to worship God, and we do that together in a community. But an integral part of worshipping God is speaking about Him in front of others and engaging in expressions of love toward our neighbour and seeking justice and mercy and respecting life. To engage in the public square in that way, we also have to have reasonable information and an understanding of this decision to be the people who can stand up for the principles we believe in without fear.
C: You're taking a very pragmatic and principled approach that says ‘this is the way it is; govern yourselves accordingly.' But I've talked to some people who say this is just another step on a long road, and it won't be long before the protections around scriptural references, for example, are themselves under attack; that it won't be long before restrictions on passing out pamphlets will be restrictions on what you can say from the pulpit or in a worship service. Do you share that concern? Do you see it as realistic?
DH: We cannot prevent attack. What we can do is be proactive about maintaining the pluralist nature of our democratic nation. Canada is envied by countries around the world and by people who are facing persecution, and sometimes put to death, because they oppose the majority in the State—whether it's a religious majority or a political majority. In Canada, we have a pluralism that is attracting many of those people because they can live their lives freely.
I don't think we should focus on the particular differences that we find between the religious community and gays and lesbians because we've found a point of contention. Christ, after all, calls us to love our neighbours and our neighbours are not limited in any way. We can engage in a loving way in ongoing public policy debate that surrounds these issues without being hateful, and I believe also without fear, as long as we continue to keep the public square open for all voices, including our own.
C: There's a law professor in Manitoba, Donn Short, who has written a paper arguing for the ‘queering'—his word—of Canadian schools. He says religious freedoms that interfere with the process of ‘queering'—again, his word—our schools should be overridden. There is no place in his view for religious beliefs that stand in the way of ‘queering' the Canadian educational system. How should Christians, or any people of religious faith, respond to his ideas?
DH: The first thing we need to do is search our own hearts. As Preston Manning has noted, Jesus says that we should be wise as serpents and harmless as doves [Matthew 10:6b], not vicious as snakes and stupid as pigeons. We have to ask ourselves whether we can engage wisely and respectfully, and if we cannot, then let's get ourselves into that place where we can; let's work with people who are prepared to engage in that way. Then we can enter the public square and stand up for the fundamental religious freedom that's guaranteed to us under the Charter with an understanding that parents who choose a religious education for their children have done so for a reason. We live in a nation where, depending on which province you're in, there's funding available for a religious education; otherwise it's a private religious education. The elements of that education are really about the ability to graduate and function within our society with an understanding of different perspectives, though not necessarily agreeing with different perspectives.
I encourage parents and educators and people in religious communities where there's disagreement with a type of education being given to their children to continue to stand and engage. If we decide not to stand and engage, we're harming our children. We need to engage on behalf of our children. Too many parents have abandoned their children to the education system and are not participating in their education. We can't be so busy making a dollar that we fail to care for the next generation. In my heart, I could not claim to love Christ if I don't also love my family and my children and engage on their behalf. To be too tired for family is to be giving too much energy to work.
C: If we conduct that engagement from a place of anger that isn't righteous anger, but is simply an acting out toward someone else, we really do put our faith and our safety as Christians, as people of any religious faith, at risk, don't we?
DH: When I think of the example of Jesus, we might read through the Gospels again and see who His strongest words are reserved for. His strongest words are reserved for people in His own religious community who were putting burdens on others that they weren't prepared to carry themselves and who were, in fact, perverting what even the house of worship was about by turning it into a house of sales. We need to ask ourselves ‘who did Jesus hang out with?' Jesus hung out with prostitutes and sinners. That's what we read in the Scriptures. And those prostitutes… where were the other people who were involved [with them] in fornication and adultery, both of which are crimes in the Old Testament punishable by stoning? But Jesus didn't stone the woman caught in adultery. He encouraged her to go her way and sin no more. We have to step out of the Old Testament and step into the New Testament.
We have to open ourselves to how we love our neighbours and engage with those who perhaps don't share our beliefs. We have to engage with them as if they are lost, because we in the Church are actually quite good at engaging with the lost, instead of chastising them for backsliding.