Court decision a blow to free speech

Supreme Court rules that if someone fears harm, no proof of harm is required to bring about the full force of the law

Historically, the very existence of the Supreme Court has forced politicians to respect our Constitution, our long history of British law and our individual liberty.  No more.

Last week, the Supreme Court of Canada upheld a ruling by the Saskatchewan Human Rights Commission that found a defendant guilty of conducting “hate speech”.  The Supreme Court of Canada’s ruling overturned a lower court’s ruling on the case.

To fully appreciate the impact the Whatcott decision will have on your freedoms, first one needs to understand the circumstances surrounding the entire affair.

William Whatcott believes homosexuality is a sin. Whether one agrees, disagrees or holds no view about Whatcott’s beliefs is not important.  Neither is his holding or voicing his views a crime under any of our civil or criminal statues.  Canadians were, until recently, free to hold and voice whatever beliefs we held.

We were never free to assault, encourage others to assault or cause any material harm to another’s person or property, for any reason, let alone our beliefs. Whatcott broke no laws, assaulted no person and caused no material damage to any person or property.   He did, apparently, offend the sensibilities of an individual which, while not a civil or criminal offence, is a “human rights” offence, under Canada’s Pierre Trudeau-inspired Human Rights Commissions. Sticks, stones and now names can hurt you.

Human rights commissions are kangaroo courts.  Cases are chosen by the commissioners, often based on single, anonymous complaints.  There has only been one case in Canada to date where the defendant was not a white, straight male.

The commissions provide the full weight of government resources to the complainant, paying legal, travel and research cost, while providing nothing to the defendant.  A defendant in a Canadian human rights case is well and truly on his own.  Commissions are not bound by the presumption of innocence, have no responsibility to ensure the integrity of evidence or testimony, and make up sentences and penalties in a star chamber, away from the gaze of public scrutiny.  The defendant is not allowed to face his accuser.  These government-sponsored bodies represent almost everything Canada fought against in two world wars and Korea.

Whatcott was convicted of violating section 14.1 b of the Saskatchewan Human Rights Code — which in essence says nobody can publish or cause to be published any material that “exposes or tends to expose, persons or groups to hatred, ridicules, belittles or otherwise affronts the dignity of any person or class of persons on the basis of a prohibited ground.”

Ironically, section 14.2 also states, “Nothing in subsection (1) restricts the right to freedom of expression under the law upon any subject.”

While the irony of this contradiction was lost on the Human Rights Commission, it was not lost on Saskatchewan’s Supreme Court that quite reasonably acquitted him.

Saskatchewan’s HRC appealed to the Supreme Court of Canada, which, in its most incoherent and egregious ruling to date, ruled in favour of Saskatchewan’s HRC.  In supporting the HRC, the Supreme Court has effectively killed free speech in Canada.

The result of the Supreme Court ruling means that a fervent belief is not a defence against hate speech charges. Neither is the truth. The 100-page Orwellian ruling states, “the truth can be used in disparate ways.”

Perhaps as troubling is this part of the ruling: “The difficulty of establishing causality and the seriousness of the harm to vulnerable groups justifies the imposition of preventive measures that do not require proof of actual harm,”

In other words, our Supreme Court has ruled that because someone fears harm may be done by speech, but the extent of that harm is not demonstrable, no proof of harm is required to bring about the full force of the law.

Once we depended on the courts to protect us from the Crown.  It seems unlikely we can ever depend on the Crown to protect us from the court.  From now on, be careful what you say.




Mark Walker is the publisher of the Penticton Western News.



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