Supreme Court mulls line between gay rights, religious freedom

Ottawa, Canada - A critical case that pits freedom of religion and expression against the right of homosexuals not to be discriminated against will come before Canada's top court on Wednesday.

William Whatcott, a man who engaged in same-sex activities before finding religion and joining the Christian Truth Activists, was ordered by the Saskatchewan Human Rights Commission to pay $17,500 to four individuals who were offended by a pair of pamphlets he distributed in 2001 and 2002 in Regina and Saskatoon.

One flyer expressed his opposition to teaching children about homosexuality in public schools, while the other attacked homosexual behaviour, drawing on a personal ad in a gay magazine that appeared to promote pedophilia.

Whatcott appealed the decision and won, but in a bid to have the original decision reinstated, the commission will argue Wednesday that there are limits to freedom of expression.

"As Canadians, we understand that there is a justifiable and narrow limit on the freedom of expression when it has the potential to harm others in the community," David Arnot, chief commissioner with the Saskatchewan Human Rights Commission, said Wednesday.

"In the case of public speech, where expression has the real potential to escalate and expose a target group to hate, we have a responsibility to act."

Arnot said he will argue that Whatcott's words and behaviour "crossed the line between critical speech and hateful speech" and that his case would "speak to the power of words to maim and the need for protection from the most extreme, hate-filled and destructive forms of public speech."

Noting the commission has prosecuted just five cases in 32 years, Arnot said it's a rarely used tool reserved for only the most serious of cases.

"We feel strongly that this is one of those cases," he added.

"The Supreme Court of Canada has the opportunity to set the stage for public discussion and discourse in the next decade or longer with this case."

Not only will the top court be asked to strike a balance between free expression and the right to be free from discrimination, it will also be asked to decide whether the flyers constitute hate propaganda in the same way criticism of one's race or religion might.

As court documents suggest, Whatcott will argue that it is possible to "love the sinner, hate the sin" and that his flyers attacked the actions of homosexuals, not homosexuals themselves.

"It's irrational to think there isn't a distinction between the person and the behaviour," his lawyer Thomas Schuck told Postmedia News.

"We really object to the characterization of the Christian message of discouraging same-sex sexual conduct as being hate."

Schuck said his client believes same-sex conduct is "harmful" and he has even filed evidence to show homosexuals have a lower life expectancy and a myriad of health problems as a result of their lifestyle. He suggested the pamphlets were truthful and meant to be educational.

"It's more out of love and concern for others than hate," he said.

"I don't think we're infringing on anybody's rights by attempting to open a debate on what is a healthy lifestyle."

He believes the outcome of this case could have an impact on others from the marriage commissioner whose conscience didn't allow him to marry a gay couple, to the bed and breakfast owner who objected to renting a room to a same-sex couple.

"If there's no accommodation for Christian people, it's going to lead to a lot of religious discrimination," Schuck said.

The case has attracted significant interest across the country and some 25 different groups have been granted intervener status in court, including a smattering of provincial and national human rights commissions, Christian and Jewish groups, Egale Canada and the Women's Legal Education and Action Fund.

It also comes as both Parliament and the Federal Court look at loosening hate laws in the name of free speech.

Alberta Conservative MP Brian Storseth has tabled a private member's bill that seeks to repeal Section 13 of the federal human rights code that bans hate speech over the Internet.

He argues provisions already exist within the Criminal Code to deal with the sort of material that could truly harm an identifiable group or individual.

It should be noted that the Criminal Code requires proof beyond a reasonable doubt, while human rights cases fall under civil law which requires a lower burden of proof based on a balance of probabilities.

A 2008 report prepared for the Canadian Human Rights Commission concluded the section should be removed. The following year, a member of the human rights tribunal said it violated the charter which led to a Federal Court review to be held before the end of the year.

Schuck said he would present the 2008 report as part of his evidence.