The Cardus Daily

‘There’s also another line of authority in Canada’

Peter Stockland  |  March 5, 2013  |  Justice, Legacy, Media, Politics, Religion

(The Cardus Daily’s Peter Stockland spoke to Toronto lawyer Phil Horgan, national president of the Catholic Civil Rights League, about two events last week that brought freedom of speech to the forefront of public debate. This is an edited transcript.)

Cardus: The Supreme Court’s decision last week in the William Whatcott case is seen as both a setback for religious freedom and a major victory for those who favour tough laws against hate speech. As an intervener in the case, how does the Catholic Civil Rights League see it?

Phil Horgan: It is a real concern that we’ve seen a slagging of religious freedom coming from the Supreme Court in the last five years. Go back to what was said by the court on the same sex marriage reference. It said: “We’re going to jealously guard claims of religious freedom.”

But the cases that have come out (since then) start to raise eyebrows about just how jealously the court is, in fact, guarding religious freedom.

The Whatcott case has a troubling history. The (Saskatchewan Human Rights Commission) tribunal and the Court of Queen’s Bench thought that the pamphlets (Whatcott distributed) were all hateful. Then three judges of the (Saskatchewan) Court of Appeal, applying the same (legal) test, said they weren’t. Now the Supreme Court of Canada, applying an even more modified test has said two of the four pamphlets weren’t hateful and two or them were. How is this anything more than eye of the beholder stuff?

Cardus: What elements concern you most?

Phil Horgan: Where I get very nervous are the provisions of the decision in which Mr. Justice Rothstein takes the minority position of Madame Justice L’Heureux Dubé from the Trinity Western case. She conflated the notion of sin and sinner, of the person/behaviour distinction, and Justice Rothstein has now adopted it as a majority proposition of six judges of the Supreme Court.

For the Supreme Court to take that forward is something that is fundamentally contrary to the Judeo-Christian tradition: that important distinction between sin and sinner. When our children sin or do something wrong, we discipline the sin; we don’t love the child less. When we involve the criminal justice system, we apply justice to the convicted accused. We don’t incarcerate a person because we hate the individual. That is a key component within our jurisprudence.

For the Supreme Court to say that in the area of same sex behaviour, criticizing the behaviour is really criticizing the person, I think that’s a dangerous proposition. But for some reason the court felt obliged to disregard (the person behaviour distinction) in a way that’s an affront to a sound moral, philosophical position.

Cardus: It struck me with the events around Tom Flanagan last week that you can be very swiftly held accountable for words that offend against a collective sense of right speech. Professor Flanagan’s remarks on child pornography led to him being forced to retire as a university professor. He was condemned by the prime minister’s office. CBC dropped him as a commentator. Even the libertarians in Alberta’s Wild Rose Party publicly disavowed him. Whatever the rights or wrongs of what he said, whether the resulting reaction was just or unjust, there was a reaction and it was powerful. What is deemed offensive speech is not without consequence in Canada. I wonder whether that social response doesn’t render redundant these human rights code provisions and this legal maneuvering.

Phil Horgan: That’s right. I think those types of responses are typically far more immediate, far more effective, and a hallmark of a working democracy that doesn’t fear the robust exchange of ideas in the public square. Are we better served filing human rights complaints against the Bill Whatcotts of the world and engaging, in his case, in an 11-year process to get to an answer that seems to have been answered differently in four different levels of proceedings? Or are we better served engaging in the back and forth on public airwaves, letters to the editor pages of newspapers, or the voting booth with respect to the exchange of ideas?

Certainly the Flanagan case is a good example that a non-court, non-tribunal solution remains quite possible in addressing society’s views on particular commentaries. I’m not saying freedom of expression doesn’t have limits. Certainly whether it’s criminal talk of treason or libel or the kinds of troubled language, as Irwin Cotler describes it, there are a variety of remedies available for people who use speech rights improperly.

But who can really face an 11- or 12-year process as Bill Whatcott did? The reality is that it imposes a chill. Who wants to take that chance?

It’s interesting to note that of the 25 groups that intervened in the Whatcott case, the seven groups related to government institutions all intervened in favour of the commission’s position. So, in effect governments are quite prepared to continue to try to regulate in this area and support each other when it comes forward.

There is a mindset that this is the Canadian way; that we accept a balancing of these rights. Well, that’s perhaps true but there’s also another line of authority in Canada that says we fight vigorously to maintain our freedoms.

Cardus: We can argue quite properly about whether the response to Tom Flanagan was just or overly harsh. The point is there was a social response that didn’t require bureaucrats and legalisms. I think even Tom Flanagan would tell you that is the Canadian way.

Phil Horgan: I don’t know the entire back and forth of how Flanagan came to say what he said. I think there was some element of baiting there. My sense is there is a story yet to tell in the Flanagan case.

But put it in a more convivial context: Don Cherry. Don Cherry says lots of things. And it seems to me that whether he’s saying things that are offensive to some Canadians, for example his views about fighting in hockey, his views about who wears visors or particular approaches to the game, it engages a vigorous national conversation. Do we want to limit the Don Cherrys of the world by having them answer to a human rights commission for what they say?

Cardus: Or (political commentator) Mark Steyn?

Phil Horgan: Or Mark Steyn. Or, from a different perspective, pro-life picketers. There is a case before the B.C. Court of Appeal now in which individuals have been charged because they were outside a public hospital, but inside the bubble zone, holding up a copy of the Access to Abortion Services Act. They were charged because their protest was deemed by the first judge who heard the case to be an anti-abortion protest.

I think those kinds of examples show the slope doesn’t become slippery any more. It becomes perpendicular. Any kind of imposition on those kinds of fundamental rights should be examined very carefully.
That’s why the League says using human rights tribunals to engage in what—and this is proven by the Whatcott history—is a fairly subjective analysis creates uncertainty and a level of mistrust of our institutions, and may not be the best approach in dealing with these issues.



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