PAUL ESAU
The Cascade (University of Fraser Valley)

Bill Whatcott on the U of S campus

ABBOTSFORD, B.C. (CUP) — A few weeks ago in Berlin, U.S. Secretary of State John Kerry said, “in America you have a right to be stupid if you want to be. And you have a right to be disconnected to somebody else if you want to be… and I think that’s a virtue, I think that’s something worth fighting for.”

Admitting that your country considers stupidity a right seems pretty funny. But, Kerry’s statement sits in stark contrast to a Supreme Court ruling in Canada only a few weeks later — a ruling that suggests in Canada you don’t have the right to be “stupid,” or in some cases even to tell the truth. Perhaps American stupidity isn’t the worst national value.

The court ruling was for a case known as “Saskatchewan (Human Rights Commission) vs. Whatcott,” a case against an old white man named Bill Whatcott who was accused of passing out homophobic fliers containing hate speech. The court attempted to reconcile the tension between Whatcott’s freedoms of expression and religion, and the Charter-guaranteed right of Canadians not to be discriminated against on a “prohibited ground” — race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and conviction for a pardoned offence.

The court ruled that Whatcott was indeed guilty of hate speech in two of the four fliers he distributed, but only after it set new precedents for acceptable infringement on the rights to expression and religion.

It’s these precedents that have many journalists and commentators worried, since they appear to place serious constraints on free speech in Canada.

One of the most significant changes is to the legal understanding of “hate” itself, which the court reinterpreted.

“The term ‘hatred’ contained in a legislative hate speech prohibition,” reads the ruling, “should be applied objectively to determine whether a reasonable person, aware of the context and circumstances, would view the expression as likely to expose a person or persons to detestation and vilification on the basis of a prohibited ground of discrimination.”

This is remarkable when combined with section 14 of the Saskatchewan Human Rights Code that Whatcott was found to have violated. Section 14 prohibits the distribution of material “that exposes or tends to expose to hatred… any person or class of persons on the basis of a prohibited ground.”

How exactly does a reasonable person decide what is “likely” to expose someone to “detestation,” or what “tends to expose [someone] to hatred” in a possible future circumstance? How can an individual be convicted of using hate speech on the grounds that what they’ve said could potentially expose another person to hatred?

How many levels of separation will the court allow between an individual and his or her alleged crime?

U.S. courts avoid this dilemma by forcing the prosecution to prove that the utterance itself inflicted injury or historically tends to incite violence. In Canada, it seems no such proof is required.

To add insult to injury, the ruling explicitly states that even truth is no longer a defence against an accusation of hate speech, since “truthful statements can be presented in a manner that would meet the definition of hate speech, and not all truthful statements must be free from restriction.”

As Andrew Coyne wrote in a Feb. 27 National Post piece, “I cannot quite believe I am reading these words, even now.”

Further changes come thick and fast. It is no longer necessary for prosecutors to prove that the defendant intended to be hateful in order to win a hate speech conviction, and the law no longer provides any acceptable defence once the definition of hate speech has been satisfied.

Most worryingly for some religious groups, the courts no longer recognize one’s sexual orientation as differentiable from one’s identity. An attack on sexual behaviour or identity is, by proxy, an attack on the group associated with the behaviour, and is therefore potential grounds for a hate speech charge (for example, Whatcott claimed to “hate the sin, love the sinner.”

In a deomocratic country that supposedly prides itself on being a “marketplace of ideas” and allowing the free and transparent exchange of public discourse, the Whatcott ruling removes many of the barriers necessary to prevent systematic repression.

Yes, Whatcott’s fliers are a disgusting example of the use of free expression, but the alternative is far worse. Do we really have the right, after all, to decide who to silence and who to let speak based upon such generous criteria as what is “likely” or “tends” to cause hate?

Do we have the right to convict someone based on the possibility that their remarks might lead to hatred of a certain minority group, or to ignore the annoying detail that their remarks might actually be true, if poorly stated?

Hopefully the Whatcott ruling is a hiccup in the history of Canadian law and its precedents will be quickly overturned. I would hate to imagine a society in which the robust discussion of ideas is not the accepted way to pursue truth, but that instead “truth” is a politically correct commodity decided upon by the courts and the sensitivites of the citizenry.

Maybe you already considered stupidity to be an inalienable right of Americans; maybe you even considered it a birthright. But remember: the right to pursue stupidity is connected to the right to pursue wisdom and knowledge. In the U.S., the right to free expression is considered one of the central principles of a democratic state. In Canada, we’re frittering it away to prevent nutcases like Whatcott from passing out offensive pamphlets.

Does that sound like a fair exchange?

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Photo:Raisa Pezderic/Photo Editor