Deborah Gyapong: February 2013

Thursday, February 28, 2013

The Whatcott decision ---truth is no defense

I thought my head was going to explode when the Whatcott decision came out yesterday.  Equality trumps both religious freedom and freedom of speech.  Truth, speech based on objective facts, is not defense.

Here's a link to my piece and an excerpt:

Constitutional lawyer Iain Benson, who also argued for Whatcott, said the decision does "not recognize that 'hatred' is too vague a term if it is disconnected from incitement to cause imminent violence or physical harm."

"There is a real need for new thinking on the terms that it uses: 'discrimination' and 'vulnerable groups,' where what is really at issue is not 'attacks on the vulnerable' but strong feelings about what is and what isn't permissible sexual conduct," said Benson. "The court seems unable to make these distinctions with any convincing logic."

Though the court struck down a portion of the code by striking out part of the section that refers to expression that "ridicules, belittles, or otherwise affronts the dignity" of identifiable groups, it left in place the "troublesome" words "tends to expose to hatred," said CCRL executive director Joanne McGarry.

It also leaves in place a system where people can be prosecuted for hate speech without the rules of evidence, right to counsel, and presumption of innocence found in a real court of law, McGarry said.

This means people continue to be vulnerable to complaints about religious expression like those faced by Calgary Bishop Fred Henry for a 2005 pastoral letter and newspaper column defending traditional marriage.

"The league will continue to stand for the principle that if there is any intrusion on charter-protected freedoms, it should be left at the criminal level, which has its own internal processes before a charge can be laid, and a standard of proof of an intention to provoke hatred as part of the charge," said CCRL president Phil Horgan.

He said the code is likely to continue to be used to prosecute people who argue for Christian morality.

"It's not much help to publishers or clergy wondering, 'Can I say this?' or 'Can I say that?'" McGarry said, noting the whole category of hate speech "is subjective."

"I find it troubling that statements that are true or based on fact are not considered a defence," McGarry added.