Owens v. Saskatchewan Human Rights Commission
2006 SKCA 41
Court of Appeal for Saskatchewan
Date of Decision: April 13, 2006
Date of Issue: April 4, 2007
In this issue:
Bible; sacred texts; discrimination; sexual orientation; human rights; Human Rights Code; section 14(1); publication; hatred, ridicules, belittles or affronts the dignity of any person; Charter of Rights and Freedoms; section 2(a); freedom of religion; section 2(b); freedom of expression; section 1; demonstrable justification; context for human rights determinations and judicial review of same.
In June of 1997, Hugh Owens saw an advertisement in the Saskatoon StarPhoenix announcing an upcoming gay pride week. He believed that his Christian faith required him to respond to the celebration of what he believes is a sin. He attempted to run an advertisement in the church pages of the same newspaper, but his ad could only be published in the sports section.
Owens' advertisement consisted of the citation of four Bible passages, "Romans 1:26; Leviticus 18:22; Leviticus 20:13; 1 Corinthians 6:9-10" with reference in smaller print to the New International Version. The citations were followed by an equal sign and then by two stickmen holding hands. A circle with a line running diagonally in the universal "not permitted" symbol was superimposed on the stickmen. In small print were the words: "This message can be purchased in bumper sticker form. Please call [telephone number]."
The Biblical passages are well known and all are in opposition to homosexual behaviour. The language is considered by some to be strong. In particular, Leviticus 20:13 states that if a "man lies with a man . . . both of them . . . must be put to death. . ."
Owens planned a second message referring specifically to Jesus as the solution to homosexual behaviour. The StarPhoenix refused to publish the second message because of complaints and protests concerning the first one.
Three homosexuals brought a complaint against Owens before the Saskatchewan Human Rights Commission. The complaint was based on the allegation that the advertisement breached section 14 (1) of the Saskatchewan Human Rights Code in that it would expose persons to hatred or ridicule, belittle or affront their dignity on the basis of sexual orientation.
The Human Rights Commission found that Owens breached section 14 of the Code. The Saskatchewan Queen's Bench agreed. Owens then appealed to the Saskatchewan Court of Appeal. The appeal was successful and the Tribunal and the trial judge overturned.
Can the citation of strongly worded statements in a sacred text amount to discrimination on the basis of sexual orientation? Do such texts expose persons to hatred? What public statements can be limited by human rights legislation without unjustifiably infringing the Charter guarantees of freedom of expression and freedom of religion?
The Court of Appeal allowed the appeal, concluding that Owens' advertisement did not offend section 14 of the Code.
The Court immediately recognized that section 14 of the Code would be constitutionally invalid to the extent that it is not a reasonable limit on freedom of expression and freedom of religion, noting as well that subsection 14(2) specifically says that the section is not intended to restrict the right of free expression. The Court bypassed the obvious inconsistency in a provision that limits the publication of certain statements while simultaneously stating that nothing in the section restricts freedom of expression. Instead, the Court reviewed prior authority circumscribing the extent to which human rights legislation can limit expression and remain constitutionally valid.
In Canada (Human Rights Commission) v. Taylor, the Supreme Court of Canada held that to pass constitutional muster, a similar human rights provision had to be aimed only at expression involving feelings of an "ardent and extreme nature" and, in particular, "unusually strong and deep-felt emotions of detestation, calumny and vilification." The Court in Owens applied this reasoning to the provision in issue, holding that the "prohibition against ridicule, belittlement and affronts to the dignity [extends] only to communications . . . which involve extreme feelings and strong emotions of detestation, calumny and vilification".
The Court of Appeal also immediately recognized that Owens was religiously motivated, that his published expressions came at a time when the issue of the scope of sexual orientation protection was "new" and therefore still a matter for public debate and that his advertisement was therefore protected not only by freedom of expression, but also by freedom of religion.
The Court then applied the high standard from prior cases to Owens' conduct, holding that this had to be objectively assessed (i.e. not assessed on the basis of what Owens intended to elicit by way of response or how the advertisement was actually received by some individuals); how would the reasonable person assess it in the context of the situation as a whole?
The Court accepted that the advertisement would be "jarring. . .distressing and offensive", but that it was part of a broader societal and public policy debate at the time rather than a message of hatred or ill will. The Court analyzed the advertisement carefully, breaking it into its components of the scriptural references, the stick men and the prohibition or "not permitted" symbol, making allowance for the fact that the scriptures are "ancient and fundamental religious text". Interestingly, the Court acknowledged that most people understand that the Bible also contains many texts involving themes of love, tolerance and forgiveness while at the same time eschewing any attempt to interpret sacred texts.
While questioning whether a distinction between the "sin" and the "sinner" has any legal significance, the Court also acknowledged that many people do make such a distinction, which has an effect on how people would interpret Owens' advertisement.
In the result, the Court concluded that the essential message in Owens' publication was not one that involved the ardent emotions or strong sense of detestation, calumny and vilification required by the Human Rights Code, as properly interpreted under the Charter.
The Owens case justifiably caused a great deal of concern within Christian and other religious groups across the country because of the possibility that certain texts in the Bible could be found to contain hateful or discriminatory language, the publication of which could offend human rights statutes. This would have the potential to make illegal scriptural readings or the dissemination of religious teachings.
The Saskatchewan Court of Appeal effectively and appropriately dealt with this potential, holding that sacred texts are to be understood in their full context and that the Court should avoid detailed attempts to interpret them.
Of equal importance was that the Court appropriately limited the nature of statements and publications that can be prohibited by human rights statutes and gave no deference to the tribunal's interpretation in this context—holding such tribunals to the rigorous "correctness" standard on review.
Limited Role of the Courts in Interpreting Sacred Texts
The Court was appropriately reluctant to become involved in an exercise of ascribing meaning to the strongly worded Biblical references prohibiting homosexual relationships. It had little choice but to broach the topic since Owens' advertisement made reference to Biblical passages and it had to be determined, in the context of the human rights complaint, whether the advertisement affronted the dignity of homosexual persons.
As found in the first instant by the human rights tribunal and the Court of Queen's Bench, it would be quite easy to refer to the scriptures in which homosexuals are to be killed and conclude that Owens' message was one of hatred or vilification. However, the Court of Appeal recognized that the role of the courts is not to provide its understanding or add its own interpretation to religious subjects but to determine, according to legal precedent alone, what is likely to cause hatred, calumny or vilification.
This is consistent with the repeated statements of the Supreme Court of Canada that, in assessing claims of breaches of freedom of religion, it is not the role of the court to assess the validity of religious belief or practice. In Syndicat Northcrest v. Amselem the Supreme Court of Canada held at para. 43:
The emphasis then is on personal choice of religious beliefs. In my opinion, these decisions and commentary should not be construed to imply that freedom of religion protects only those aspects of religious belief or conduct that are objectively recognized by religious experts as being obligatory tenets or precepts of a particular religion. Consequently, claimants seeking to invoke freedom of religion should not need to prove the objective validity of their beliefs in that their beliefs are objectively recognized as valid by other members of the same religion, nor is such an inquiry appropriate for courts to make.
This is very important as the courts can too easily engage in questions of the appropriateness of religious teachings or beliefs and thereby undermine the foundation of religious groups and organizations.
With respect to its analysis of the biblical passages that reject homosexual conduct, the Court provided some useful guidelines. First, the Court acknowledged that any attempt to attribute meaning must acknowledge that the Bible is an "ancient and fundamental religious text." This acknowledgement is significant as it requires the interpreter to recognize the language is much more than a modern day statement on an issue of public policy. Such words are, in the words of the Supreme Court of Canada in Amselem, "about freely and deeply held personal convictions or beliefs connected to an individual's spiritual faith and integrally linked to one's self-definition and spiritual fulfillment".
As such, the courts must be very cautious about attempting to authoritatively ascribe meaning to sacred texts. If a court is free to affix either its imprimatur or opprobrium to specific religious texts or beliefs, either the freedom of religion or the non-theocratic role of the courts would be in jeopardy.
Second, the Court noted that the Biblical passages cited did not, in a sense, stand alone and that the Bible, properly looked at in context is not a "hate homosexuals and kill them" kind of textbook. The Court went beyond the texts quoted by Owens and acknowledged broader Biblical themes of love, tolerance and forgiveness. The Court justified this intrusion into scriptural interpretation as required to assess how an objective reader would interpret Owens' advertisement in the context of the Bible "the most widely available book in the world."
The Court would have great difficulty simply concluding that since a Biblical text is involved, the human rights legislation could not apply and there was no judicial authority whatsoever. Those who advocate for a strict separation of the religious from the civil should recognize that, from time to time, the civil courts are called on to involve themselves in matters of religious belief and practice. This should only occur where the outcome of a civil dispute absolutely requires some reference to religious belief and writings. Even then, the court should eschew any purported authoritative interpretation of specific texts, as did the Saskatchewan Court of Appeal.
Conversely, there cannot be a strict rule that the religious has no role in the places where our society makes public policy decisions. As the Supreme Court, following the British Columbia Court of Appeal in Chamberlain, on this point, noted, there is and can be no "litmus test" that requires religious believers but not others to check their religious faiths at the door (see LexView 40.0). Those who would stifle the opinions of the religious must recognize that, at least to a very limited extent, the laws of our society have an effect on all citizens, religious and non-religious and that to preclude public religious expression (but not non-religious expressions) would act as an insidious suppression of the expressions of some citizens in a manner not countenanced by the constitutional rights all citizens possess. Thus, there can be no pre-emptive assumption of a privatization of religious belief and influence in Canada. This cannot be a one-way relationship in which the state can act to affect religion but religion is prohibited from any effects on the state. That having been said, the impacts must be appropriately limited to ensure appropriate freedom of religion.
This careful approach to the competing rights at issue was further evidenced in Owens by the manner in which the Court acknowledged that religion and religious people differentiate between the homosexual person and the morality of homosexual conduct. While the Court questioned the application of such thinking to human rights jurisprudence, it also appropriately acknowledged that moral and religious reasoning draws this distinction and, as such, it has resonance that must be conceded in a policy debate. This distinction was raised in argument before the Supreme Court of Canada in Trinity Western University v. British Columbia College of Teachers (see LexView 46.0) and Justice L'Heureux-Dubé stated, in dissent:
I am dismayed that at various points in the history of this case the argument has been made that one can separate condemnation of the "sexual sin" of "homosexual behaviour" from intolerance of those with homosexual or bisexual orientations.
Human rights law may not acknowledge such a distinction, instead concluding that sexual conduct is inherently tied to sexual identity on which discrimination is prohibited. However, the Court of Appeal for Saskatchewan has now properly recognized that such reasoning does have an important legal impact when considering whether religiously motivated speech breaches human rights guarantees. As we have argued before (see LexView 51.0), the distinction between acts and persons is essential in the law and any coherent development in this area will have to recognize such a distinction (and its limitations) sooner or later.
Limiting the Impact of Prohibitions on Religious Expression
In Kempling v. British Columbia College of Teachers (see LexView 58.0), the B.C. Court of Appeal upheld the professional discipline of Chris Kempling on the basis that his writings (some of which made specific reference to scriptures) crossed the line from "reasoned debate" to "discriminatory rhetoric". This distinction had not appeared in prior cases and left a significant question of what expression would fall in which of those two categories.
In Owens, the Saskatchewan Court of Appeal closely reviewed prior cases (not including Kempling) to determine when expression can properly be considered to discriminate under human rights guarantees without offending section 2 of the Charter (which protects freedom of expression and freedom of religion). The Court recognized that only extreme language will be sufficient to override constitutional guarantees and therefore human rights prohibitions must be appropriately circumscribed.
It is of note that the legislation in question prohibited expression that "ridicules" or "belittles" a person on a prohibited ground, including sexual orientation. This does not appear to be a high threshold. However, the Court immediately recognized that a low threshold would unjustifiably infringe on free expression and freedom of religion, which protects the right to communicate and disseminate religious belief.
As such, the Court held that 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".
This does little to remove the distinction drawn in Kempling between "reasoned debate" and "discriminatory rhetoric". However, it can usefully limit the types of expression that will be considered "discriminatory rhetoric" and expand those falling into "reasoned debate". As recognized by the Court, freedom in a healthy and robust democracy must make room for some offensive discourse, particularly that which has a social policy impact. Only extreme language should be proscribed.
This is entirely appropriate. It is a weak and impoverished sense of freedom that limits expression simply because others take offense or because, in some limited sense, their dignity is affronted. Dignity of the human person must mean more than simply one's feelings being hurt.
It was also appropriate for the Court to conclude that and objective test is appropriate in order to answer the question of whether expression is extreme enough to attract human rights prohibition. It cannot be determined simply on the basis of how one or a few individuals felt about it or how they believe it affronted their dignity. The Court must objectively determine whether the language used would, as viewed by a reasonable person, have a severe impact on society. This objective necessarily means that writers and speakers may exceed the limits of permitted speech without ever having intended to cause an extreme impact but also serves to generalize the analysis of such "speech acts" beyond those who may have developed an unusually thin skin; both these aspects are to be welcomed.
Another positive element of the Court's analysis was its recognition of overall context in determining whether Owens' speech crossed the line into extreme and prohibited expression. Often times, courts and tribunals consider context only from the perspective of the group that has suffered historical discrimination. This time, the Court acknowledged the historical discrimination against homosexuals, but also placed weight on the public policy debate concerning homosexuality that was ongoing at the time the advertisement was published. In other words, the fact that there was an active debate informed whether vilification or hatred was intended or the likely result when viewed alongside the need for matters of importance to be fully argued in the public sphere.
The Court of Appeal elevated the analysis beyond that we have criticized in other decisions (such as Kempling, above) when it objectively and rationally dissected the impact of penalizing Owens' expression in a wider civil context. At the end of the day, all in Canada must recognize that diverse opinions within society on controversial matters, including those involving morality and religion, will necessarily cause some discomfort and offence, to both religious and non-religious citizens, but that a healthy and free democracy cannot long thrive without such vibrant debates.
The decision was not appealed further.
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.
LexView is a project brought to you by the Cardus Centre for Cultural Renewal, a not-for-profit agency. LexView is made possible through the donations of foundations, corporations and individuals. To inquire about making your contribution, please contact Cardus.
LexView is an on-going review of judgments of Canadian courts that have an impact on the complex interrelationships between law, public policy, culture, moral reasoning and religious belief.
Please note that LexView is not intended to constitute legal advice and the interpretation and comments are those of the authors alone and are not necessarily those of the Editorial Board.
Copyright notice: LexView may be copied, printed, and re-transmitted by e-mail, provided that the copying, printing, or re-transmission is not for commercial purpose. Portions of LexView less than a single paragraph may appear in broadcast, print or other media, provided that proper citation is made. Otherwise, LexView may not be reproduced, in any form in broadcast or print media without express written permission. Permission may be obtained by application to email@example.com.