LexView 64.0 - The State of Free Speech in Saskatchewan

December 17, 2008


Whatcott v. Saskatchewan (Human Rights Tribunal)
2007 SKQB 450
Saskatchewan Court of Queen's Bench

and

Whatcott v. Saskatchewan Association of Licensed Practical Nurses
2008 SKCA 6
Saskatchewan Court of Appeal

Date of Decisions: December 11, 2007 and January 16, 2008
Date of Issue: December 17, 2008


In this issue:

  1. Key Terms
  2. Summary of Facts
  3. Significant Issues
  4. Decision and the Court's Reasons
  5. LexView Commentary


Key Terms:

Religion; discrimination; sexual orientation; homosexuality; human rights; section 14 of the Saskatchewan Human Rights Code; publication; ridicule; extreme feelings; strong emotions; detestation; vilification; freedom of conscience and religion; section 2(a); freedom of expression; section 2(b); the Charter of Rights and Freedoms; reasonable restriction; justifiable limit; professional discipline.


Summary of Facts:

William Whatcott ("Mr. Whatcott") is a former licensed practical nurse and a former homosexual who converted to Christianity and became an activist against both abortion and homosexuality. As a result of his actions he was the subject of both a human rights complaint for hate speech and a professional disciplinary review for allegations of conduct unbecoming a licensed practical nurse. This review covers both proceedings.


i. Human Rights Matter

In 2001 and 2002 Mr. Whatcott distributed four separate pamphlets that criticized homosexuality.

Flyer A was titled, "Keeping Homosexuality out of Saskatoon's Public Schools", indicating that a Saskatoon Public School Board committee had recommended that information on homosexuality be included in the curriculum and school libraries. It stated, in part:

. . . sexual politics of the perverted type . . . Now the homosexuals want to share their filth and propaganda with Saskatchewan's children.

. . . We also believe that for sodomites and lesbians who want to remain in their lifestyle and proselytize vulnerable young people that civil law should discriminate against them. In 1968 it was illegal to engage in homosexual acts, now it is almost becoming illegal to question any of their sick desires. Our children will pay the price in disease, death, abuse and ultimately eternal judgement if we do not say no to the sodomite desire to socialize your children into accepting something that is clearly wrong.

Flyer B was titled, "Sodomites in our Public Schools" and in addition to the printed message had the following hand written comments:

Break the Silence! Born Gay? No Way! Homosexual sex is about risky & addictive behaviour!

Break the Silence! Sodomites are 430 times more likely to acquire Aids & 3 times more likely to sexually abuse children!

Flyers C and D copied the classified section of a gay magazine that stated, "searching for boys/men for penpals, friendship exchanging video, pics, magazines and anything more." The hand written comments on the flyers stated:

Saskatchewan's largest gay magazine allows ads for men seeking boys!

'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' Jesus Christ

The ads with men advertising as bottoms are men who want to get sodomized. This shouldn't be legal in Saskatchewan.

Four separate human rights complaints were filed with the Saskatchewan Human Rights Tribunal (the "Tribunal"). In May 2005, the Tribunal ruled that Mr. Whatcott violated section 14 of The Saskatchewan Human Rights Code, S.S. 1979, c. S-24.1 (the "Code") and that section 14 was a reasonable restriction on Mr. Whatcott's right to freedom of religion and expression as guaranteed by section 2 of the Canadian Charter of Rights and Freedoms (the "Charter").

Mr. Whatcott was ordered to pay $2,500 to one of the complainants and $5,000 to each of the three other complainants. He appealed the Tribunal's decision to the Saskatchewan Court of Queen's Bench.


ii. Professional Misconduct Matter

Mr. Whatcott is also is a former member of the Saskatchewan Association of Licensed Practical Nurses (the "Association"). On several occasions in 2002 and 2003, he picketed in front of the offices of Planned Parenthood Regina ("Planned Parenthood") criticizing them for their involvement with abortion. Specifically, Mr. Whatcott: (a) carried signs with pictures of foetuses and captions such as "Planned Parenthood Aborts Babies" and "Planned Parenthood refers for abortions." He also shouted such phrases as "Planned Parenthood will give you Aids" and "This place is the world's biggest baby killer".

Planned Parenthood complained to the Association. Two charges of professional misconduct contrary to section 24 of the Saskatchewan Licensed Practical Nurses Act, 2000 (the "Act") were laid against him.

In November 2004 the Discipline Committee of the Association found Mr. Whatcott guilty on both charges of professional misconduct and in January 2005 Mr. Whatcott was suspended from working as a licensed practical nurse for a total of 45 days and ordered to pay $15,000 in costs. Mr. Whatcott unsuccessfully appealed the Discipline Committee's decision to the Saskatchewan Court of Queen's Bench. He appealed further to the Saskatchewan Court of Appeal.


Significant Issues:

i. Judicial Review of the Human Rights Tribunal Decision

Does suggesting homosexuals are paedophiles amount to conveying extreme feelings and strong emotions of detestation, calumny and vilification contrary to human rights guarantees? Is a purely objective test sufficient to determine whether section 14(b) of the Code is violated?


ii. Judicial Review of the Discipline Committee and Appeal of the Court of Queen's Bench Decision

Must professional disciplinary bodies consider the Charter rights of professionals in assessing professional misconduct? Did the Discipline Committee's decision infringe Mr. Whatcott's right to freedom of expression under section 2(b) of the Charter? What expression is protected under the Charter?


Decision and The Court's Reasons:

i. Judicial Review of the Human Rights Tribunal Decision

Applying the standard of correctness, Mr. Justice Kovach for the Saskatchewan Court of Queen's Bench upheld the decision of the Tribunal, concluding that the flyers conveyed hatred or otherwise contravened section 14(1)(b) of the Code. He also found that section 14(1)(b) of the Code did not contravene Mr. Whatcott's freedom of religion pursuant to section 2(a) of the Charter.

Mr. Justice Kovach applied the recent Saskatchewan Court of Appeal decisions in Hellquest v. Owens ("Owens") (see LexView 61.0, "Can Bible Verses be hate speech?"), which was released after the Tribunal had reached its decision in 2005. The Saskatchewan Court of Appeal in Owens held that in order for section 14(1)(b) of the Code to be violated, an impugned communication must be the sort that involves extreme feelings and strong emotions of detestation, calumny and vilification.

Mr. Justice Kovach held that since (a) the flyers alleged that homosexuals are paedophiles and more likely to abuse children, and (b) Canadian society as a whole views paedophilia and the abuse of children as extremely vile and detestable, the flyers met the test set out in Owens and violated section 14(1)(b) of the Code.

While all of the flyers contained religious references to homosexuality as a sin, Mr. Justice Kovach held the biblical references were neither directly nor logically related to the allusion that homosexual people sexually abuse children. Rather it was because the (non-religious) content of the flyers referred to homosexuals as a group sexually molesting children that the flyers contravened section 14(1)(b) of the Code.

Kovach J. also relied on the Owens decision to find that while section 14(1)(b) may violate Mr. Whatcott's freedom of religion under the Charter, section 14(1)(b) is a justifiable limit on this freedom, particularly where, as in this case, religiously motivated speech involved injury or harm to others. There was no consideration of Mr. Whatcott's freedom of expression rights under section 2(b) of the Charter.


ii. Judicial Review of the Discipline Committee and Appeal of the Court of Queen's Bench Decision

Madam Justice Jackson, for a unanimous Saskatchewan Court of Appeal, relied on the recent Supreme Court of Canada decision in Multani v. Commission Scolair Marguerite-Bourgeoys (see LexView 57.0) where the majority of the Supreme Court held that an administrative tribunal's decision can be challenged on the basis that it infringed Charter rights. Based on Multani, Madam Justice Jackson held that. . . "[T]he Discipline Committee's decision . . . infringed Mr. Whatcott's freedom of expression. The fundamental effect of the decision is to preclude Mr. Whatcott from both picketing in the manner he chose and working as a nurse until he pays the fine. He is denied the ability both to express himself in the way he has chosen and to work".

In considering whether the Discipline Committee's decision was a reasonable and demonstrably justifiable limit on Mr. Whatcott's freedom of expression, the Court concluded that the pressing and substantial objective of the Discipline Committee to ensure respect for the status and standing of the licensed practical nurse was sufficiently important. However, she held that the means chosen by the Discipline Committee were neither rationally connected to the objective nor proportionate or balanced in effect.

When assessing rational connection the Court found the Discipline Committee lacked evidence that the public would have greater respect for practical nurses if Mr. Whatcott was no longer able to work as one. Echoing the reasoning in Kempling v. B.C. College of Teachers (see LexView 58.0), the Court found that Mr. Whatcott did not link his activities with the fact that he was a licensed practical nurse and therefore it was not legitimate to draw a link between Mr. Whatcott's off-duty time and his work as a nurse.

In determining whether the Discipline Committee's decision was proportionate or balanced in effect Madam Justice Jackson stated that, "[t]he impugned conduct is not professional misconduct during office hours or on hospital property. The general or overall health of the public is not affected." She further stated that the Discipline Committee "did not engage in any of the balancing necessary to weigh Mr. Whatcott's right to work, the high standards to which nurses aspire and free speech." Particularly since Planned Parenthood had already obtain an interim injunction prohibiting Mr. Whatcott from referring to Planned Parenthood as murderers, abortionists or disseminators.

As a result, the Discipline Committee's decision was found to be unconstitutional and quashed, and the Court of Queen's Bench decision was set aside.

The Association sought leave to appeal to the Supreme Court of Canada, which was denied on May 29, 2008.


LexView Commentary:

The Whatcott decisions highlight the inherent tension of competing rights that administrative tribunals, courts and disciplinary bodies are faced with in relation to freedom of expression and other Charter and human rights. The Saskatchewan courts' treatment of this tension provides some guidance of the scope of limits on freedom of expression, but also shows that there is little certainty in how such arguments on competing rights will be resolved. Mr. Whatcott's legal experience clearly shows a mixed result.


Applying Owens: The Need for a Subjective-Objective Test

In Owens, the Saskatchewan Court of Appeal recognized that only extreme language will be sufficient to override constitutional guarantees and therefore human rights prohibitions must be appropriately circumscribed. Therefore, in order to justifiably limit religious expression, a human rights guarantee must only prohibit writings that are of an "ardent and extreme nature" and, in particular, objectively invoke "unusually strong and deep-felt emotions of detestation, calumny and vilification."

The Court of Queen's Bench properly held that this was the test to be applied to the Tribunal's analysis of Mr. Whatcott's expression, despite the fact that it was not fully articulated until after the Tribunal decision was granted.

For Mr. Justice Kovach, this test was satisfied when he simply concluded that, "There is no doubt paedophil[ia] and abuse of children is an action which Canadian society as a whole views as extremely vile and detestable." However, he did not engage in any contextual analysis, which the court in Owens held was "critically important".

At the time Mr. Whatcott published his flyers, there was an ongoing debate about how the Saskatchewan public schools should or should not include information on homosexuality in the curriculum and school libraries. Like Owens, when seen in this broader context Mr. Whatcott's flyers on balance take on more of the character of a position advanced in an ongoing public policy debate rather than ardent, extreme, unusually strong and deep-felt emotions of detestation, calumny and vilification.

The failure of the lower court and Tribunal to take the wider context into consideration was held to be a significant error in Owens, and on its face, the Court of Queen's Bench in Mr. Whatcott's case appears to have repeated their same mistake.

While the objectivity requirement is laudable in some regards (see Owens paragraphs 58-60), the problem of relying upon a strict objective assessment is that it deprives the speaker of a robust contextual analysis. This renders less important evidence that they did not intend to communicate hatred, were engaged in "short-form" speech, were relying upon published statistics or may be communicating the truth or view of third parties.

Instead of relying solely on an objective test to determine whether section 14(1)(b) of the Code was violated, a hybrid subjective-objective test would provide more opportunity for and require the Court to fully engage in a contextual analysis of the competing rights and the inherent tension contained therein. This might occur in determining whether or not section 14(b) of the Code is violated, but at a minimum, should occur as part of the Charter analysis.

The hybrid subjective-objective test has been recognized and applied by the Supreme Court of Canada in criminal matters. Since human rights offences are not criminal in nature, it would not undermine the importance of human rights guarantees (deemed, after all, to be "near constitutional") to utilize similarly structured reasoning. While not leading to as potentially serious consequences as criminal proceedings, human rights guarantees are fundamental to our law and should accord strict protections to the important principles they embody.

In applying a subjective-objective test to section 14(1)(b), a trier of fact would first determine subjectively the speaker's purpose. This determination may involve a consideration of objective criteria. The question is what object the speaker knew would probably flow from his communication, regardless of whether he desired it or not. Subsequently, the trier of fact would determine objectively whether that purpose would, in all the circumstances, expose or tend to expose to hatred, ridicule, belittlement or otherwise affront the dignity of a protect person or class of persons.

Given the value we as a society place on the freedom of speech, and the seriousness of the financial and other burdens of Human Rights proceedings, there is good reason why we should guard against abuse by human rights tribunals should they adopt tests and approaches that fail to give serious enough protection to fundamental freedoms.


Applying Kempling: What Expression is Protected and the Requirement for an Actual Harm

In Kempling, the British Columbia Court of Appeal held that freedom of expression under the Charter protects speech communicated in both a professional and non-professional capacity. However, the Court did not require proof of an actual harm (as was required by the previous jurisprudence; see LexView 46.0), and permitted an assumption or inference of harm in order to uphold an infringement of Mr. Kempling's freedom of expression. Because, in the Court's opinion, Mr. Kempling's writings (some of which made specific reference to the Bible) crossed the line from "reasoned debate" to "discriminatory rhetoric", they upheld the professional discipline of Mr. Kempling.

While Kempling was not referenced by the Discipline Committee dealing with Mr. Whatcott, they took a similar approach, stating:

The mere fact that Mr. Whatcott was picketing is not in and of itself professional misconduct. However, the manner [in] which he conducts himself while picketing may constitute professional misconduct. Lying and uttering defamatory comments are unprofessional activities in that they harm the standing of the profession and bring members into disrespect.

Remarkably, the Discipline Committee did not engage in any analysis of whether their decision to fine and suspend Mr. Whatcott unreasonably restricted his Charter right to freedom of expression, despite arguments being made by Mr. Whatcott's legal counsel to this effect. They in effect held that since Mr. Whatcott's speech was, in their opinion, false and defamatory it was entitled to no protection.

While Mr. Justice Barclay, the same judge that heard the Owens case at the Court of Queen's Bench level, did engage in a constitutional analysis of Mr. Whatcott's freedom of speech at the first level of judicial review, he likewise concluded that, "the level of protection to which expression may be entitled will vary with the nature of the expression" and, "[t]he farther that expression is from the core values of this right, the greater will be the ability to justify the statement's restricted action."

Quite properly, the Saskatchewan Court of Appeal did not follow the Kempling decision but referenced Chief Justice Dickson (as he then was) in R. v. Keegstra, and Chief Justice McLachlin in R. v. Zundel, both of which concerned the constitutional protection of allegedly false speech. In Keegstra, Chief Justice Dickson stated:

. . . it must be emphasized that the protection of extreme statements, even where they attack those principles underlying the freedom of expression, is not completely divorced from the aims of s. 2(b) of the Charter. . . .[I]t is partly through clash with extreme and erroneous views that truth and the democratic vision remain vigorous and alive.

Having the courts assess truthfulness of statements as an indicator of whether and to what extent they should be constitutionally protected is inherently difficult and dangerous. In Zundel, McLachlin J. (as she then was) alluded to this:

The first difficulty results from the premise that deliberate lies can never have value. Exaggeration—even clear falsification—may arguably serve useful social purposes linked to the value underlying freedom of expression. . . .

The second difficulty lies in the assumption that we can identify the essence of the communication and determine that it is false with sufficient accuracy to make falsity a fair criterion for denial of constitutional protection. . . .

One problem lies in determining the meaning which is to be judged to be true or false. A given expression may offer many meanings, some which seem false, others, of a metaphorical or allegorical nature, which may possess some validity. Moreover, meaning is not a datum so much as an interactive process, depending on the listener as well as the speaker. Different people may draw from the same statement different meanings at different times. The guarantee of freedom of expression seeks to protect not only the meaning intended to be communicated by the publisher but also the meaning or meanings understood by the reader...The result is that a statement that is true on one level or for one person may be false on another level for a different person.

A second problem arises in determining whether the particular meaning assigned to the statement is true or false. This may be easy in many cases; it may even be easy in this case. But in others, particularly where complex social and historical facts are involved, it may prove exceedingly difficult . . .

Before we put a person beyond the pale of the Constitution, before we deny a person the protection which the most fundamental law of this land on its face accords to the person, we should, in my belief, be entirely certain that there can be no justification for offering protection. The criterion of falsity falls short of this certainty . . .

The Saskatchewan Court of Appeal correctly stated that these statements remain applicable at this stage as indicative of the difficulty in determining what is false and what is true. More importantly, determining objective truth in matters of opinion is impossible and therefore allowing truth to be a measure of the extent of freedom of expression will allow freedom to speak to be limited by what the hearer determines acceptable.

This judicial analysis of the scope of freedom of expression properly understands that the purpose of section 2(b) of the Charter includes protecting expression which is offensive to somebody. Hopefully the courts across Canada will follow the Saskatchewan Court of Appeal's lead in jealously safeguarding freedom of speech, ensuring that it remains a robust fundamental right. Recent suggestions that the "hate speech" provisions of the Federal Human Rights legislation be removed (and provincial discussion in the same direction) are reflective of a generalized concern about the "over-reach" of Human Rights Tribunals when it comes to monitory speech. (see: ). Here, at Section 4 (b) the following statement, which accords with the concerns expressed above, is set out:

The principal recommendation of this report is that section 13 be repealed so that the censorship of Internet hate speech is dealt with exclusively by the criminal law. A narrowly drawn ban on hate speech that focuses on expression that is tied to violence does not fit easily or simply into a human rights law that takes an expansive view of discrimination and seeks to advance the goal of social equality through education and conciliation. For reasons discussed in the next part of this section, the process established in the Canadian Human Rights Act (CHRA) for receiving and investigating complaints of discrimination is poorly suited to section 13 complaints. More generally, there is a tension between the general purpose or ethos of the CHRA and the narrow definition of hate speech adopted by the CHRT and, with some refinement, supported in this report.

Professor Moon's conclusion is also noteworthy and is quoted here in full:

I have taken the position in this report that the censorship of hate speech should be limited to speech that explicitly or implicitly threatens, justifies or advocates violence against the members of an identifiable group. However, the prohibition of this narrow category of extreme expression fits awkwardly in a human rights law that is concerned with the eradication of discrimination through education and conciliation. It is for this reason that my principal recommendation is that section 13 of the CHRA be repealed. The Criminal Code hate speech provisions, and in particular section 319(2) and section 320.1, offer an effective response to hate speech while respecting the public and constitutional commitment to freedom of expression. If section 13 is retained, however, I have proposed a series of amendments to the scope of the section, and the related complaint process, which are intended to make the hate speech ban fairer and more efficient. Censorship of expression that stereotypes or defames the members of an identifiable group is not a practical option and so we must, as a community, develop other ways to respond to this expression.




This issue of LexView was researched and written by:
Kevin L. Boonstra, B.A. (Hons.), LL.B., of the British Columbia Bar; with further research, writing, and editing from Iain T. Benson, B.A. (Hons.), M.A. (Cantab.), LL.B. of the British Columbia Bar.

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