Q.B. No. 923 of 2005
IN THE COURT OF QUEEN'S BENCH FOR SASKATCHEWAN
JUDICIAL CENTRE OF REGINA
IN THE MATTER of the Saskatchewan Human Rights Code and a complaint
By James Komar, of Saskatoon, Saskatchewan, a complaint by Brendan
Wallace of Regina, Saskatchewan, a complaint by Guy Taylor, of Saskatoon,
Saskatchewan, and a complaint by Kathy Hamre, of Regina, Saskatchewan
Against William G. Whatcott of Regina, SaskatchewanWilliam Whatcott,
Formally of Regina, Saskatchewan, and now of Edmonton, Alberta
The Saskatchewan Human Rights Tribunal, The Saskatchewan Human Rights Commission, James Komar, Brendan Wallace, Guy Taylor and Kathy Hamre, all in the province of Saskatchewan
BRIEF OF LAW
Brief filed on behalf of the
NIMEGEERS, SCHUCK, WORMSBECKER & BOBBITT
Barristers and Solicitors
Weyburn, SK S4H 2J8
Part I – Introduction
1. The Appellant, William Whatcott, is a Christian activist who believes he has a responsibility to God to speak out upon the evils of same sex sexual relations, and to oppose the teachings of the gay culture to Canada’s youth, in our schools and on university campuses.
2. The material entered as Exhibit “D” objects to homosexual programs entering the public school system of the City of Saskatoon. Exhibit “E” was distributed to object to the “breaking the silence” conference held at the University of Saskatchewan. Exhibit “F” was distributed to expose advertisements for “boys” in the largest gay magazine in Saskatchewan.
3. None of the material was distributed to engender hate but, rather, to press the opinions of Whatcott and his church in the ongoing debate as to the place that the homosexual culture has in our society and, in particular, in our schools and universities.
4. It is submitted that comment upon the sexual behaviour of others has always been allowed as part of free speech in Canada. Similarly, comment upon the morality of sexual behaviour has always been part of religious expression and freedom.
5. Whatcott’s material was clearly targeting sexual behaviour. Sexual behaviour is not a “protected ground” under the Saskatchewan Human Rights Code, and, therefore, as Whatcott was criticizing certain sexual practices or behaviour, Whatcott ought not to have been convicted.
6. Alternatively, if sexual orientation can be interpreted so as to include sexual behaviour, such freedom from criticism clearly contradicts freedom of speech and religion and is contrary to the Saskatchewan Human Rights Code (hereinafter referred to as the “Code”) and, alternatively, Canada’s Charter of Rights and Freedoms (hereinafter referred to as the “Charter”).
Part II – Jurisdiction and Standard of Review
7. This Court has jurisdiction to hear the Appeal pursuant to s. 32 (1) off the Code which reads as follows:
“Any party to a proceeding before a human rights tribunal may appeal on a question of law from the decision or order of the human rights tribunal to a judge of the Court of Queen’s Bench by serving a notice of motion, in accordance with The Queen’s Bench Rules, within 30 days after the decision of order of the tribunal, on:
a) the human rights tribunal;
b) the commission; and
c) the other parties in the proceeding before the human rights tribunal.
8. The standard of review it is submitted ought to be one of “correctness.” It is submitted that this Court is in a superior position to the Human Rights Tribunal to determine what actions ought to be discriminatory under the law. It is submitted that where there is little or no deference called for by the Court to the Tribunal, a correctness standard is to be used. See College of Physicians and Surgeons of British Columbia v. Dr. Q., page 226 , 1 S.C.R. 242 (paragraph 35), Owens v. HRC , SKCA 41.
Part III – Summary of Facts
9. The Appellant admits that he distributed the pamphlets in question, namely Exhibits “D”, “E”, “F” and “G”.
10. It is submitted that the Appellant distributed the pamphlets because of a sincerely held view that same sex sexual relations are morally wrong and harmful to those who engage in such acts and to others.
11. Moreover, because of his religious convictions, he believes that he has a moral obligation to (a) speak out against same sex sexual relations, and attempt to stop such conduct by those who are engaging in same, and (b) attempt to stop same sex advocates from evangelizing youth in schools and accepting their system of beliefs.
12. Evidence of Rev. Irwin Pudrycki spoke of the moral obligation of Christians to speak out against acts of homosexuality and testified that the Lutheran Church of Canada did not approve of same sex sexual activities. Rev. Pudrycki was a retired Lutheran Minister who was present when such resolutions were passed by his congregation. He also gave evidence as to how he would feel if he was unable to proclaim the word of God as he believed it in a public way in relation to same sex sexual activities.
13. Exhibits “A” and “C” are documents of the Roman Catholic Church that describes same sex sexual activities as morally wrong.
14. It is submitted that Exhibit “D” simply objects to the utilization of the public schools to gain social acceptance of the gay lifestyle, and, in particular, acceptance of same sex sexual activities as normal. Similarly, Exhibit “E” objects to the university being used to gain acceptance of same sex sexual activity among university students.
15. Exhibits “F” and “G” are a reproduction of a page from Saskatchewan’s largest gay magazine, showing an advertisement for “boys” and a commentary. The ad in issue specifically stated that “your age…not so relevant”.
Part IV – Points in Issue
A. Do the pamphlets objectively exhibit “unusually strong and deep-felt emotions of detestation, calamity and vilification”, as set out in the Decision of Owens v. HRC , SKCA 41, such that would warrant a conviction.
B. If the material does exhibit hate, is the material directed towards the “orientation”, or is it directed towards same sex sexual activity, which is not protected under the Code.
C. If sexual behaviour is protected under the Code, then Section 14 of the Code conflicts with freedom of religion, as prohibiting criticism of same sex sexual activities marginalizes those people who believe same sex sexual activities are morally wrong, and “exposes or tends to expose to hatred, ridicules, belittles or otherwise affronts the dignity of…a class of persons on the basis of” their religion, contrary to Section 14(1)(b) of the Code.
D. If same sex sexual activities are protected under the guise of sexual orientation under the Code, then there is a collision of rights between freedom of religion and sexual orientation. The Tribunal did not appear to recognize this collision and, if it did, it did not recognize that this was also a collision of rights under the Canadian Charter of Rights & Freedom (hereinafter called the Charter) and did not follow the analysis for resolving the collision as set out in the Law.
Part V - Argument
Issue A Do the pamphlets objectively exhibit “unusually strong and deep-felt emotions of detestation, calamity and vilification”, as set out in the Decision of Owens v. HRC , SKCA 41, such that would warrant a conviction.
16. It is submitted that the Tribunal erred in finding that the commentary distributed by Whatcott constituted a breach of section 14(1) of the Code. The Tribunal followed the Court of Queen’s Bench decision of Owens v. HRC (supra) in finding against Whatcott. That decision has since been reversed by the Saskatchewan Court of Appeal. It is submitted that had the Tribunal had the benefit of the Owens appeal decision, it would not have convicted Whatcott.
17. The Owens decision required an objective test, and to justify a breach of section 14(1)b of the Code there must be a communication which involves “extreme feeling and strong emotions of detestation, calamity and vilification” (Owens C.A., para. 52). The Canada (Human Rights Commission) v Taylor , 3 S.C.R. 892 decision of the Supreme Court required words of “extreme” ill will and emotion, which allows for “no redeeming qualities” to warrant such a finding. (A quotation from para. 48 in the Owens decision).
18. The Christian message characterizing same sex sexual activities as immoral has long been part of our cultural heritage. Indeed, sodomy was a criminal offence in Canada until about 1968. A reasonable reading of Whatcott’s brochures clearly distinguishes between “sexual orientation”, which is a protected ground under the Code, and same sex sexual activity, which is not.
19. The Owens decision (C.A.) also requires that the material be considered in “the context of the time and circumstances in which is what published”. (para. 67). The Tribunal failed to give any meaningful significance to the context of the debate that was transpiring at that time in Saskatoon.
20. Schedule “D” was distributed as part of an ongoing debate as to whether the gay community ought to be allowed into the Saskatoon Public School System. The material clearly targeted conduct, as opposed to orientation and targeted the protection of youth from gay propaganda – it was not directed solely or even in part to engender hate. Furthermore, the material clearly repeats the traditional Christian message and traditional acceptance of the orientation, as opposed to same sex sexual activity. The material possesses the redeeming quality referred to in the Taylor (supra) decision.
21. Similarly, the objective purpose of Schedule “E” was to object to the University of Saskatchewan holding conferences to indoctrinate young students and, in particular, students in the College of Education, into embracing the gay lifestyle and agenda. Similar to Schedule “D”, the material targeted conduct – not orientation and had obvious purpose and context other than spreading hate. Even then, far from spreading hate, the material spoke of “redemption and healing”, and objectively, one would have to conclude that the author displayed compassion and care for the homosexual person and their souls.
22. It is respectively submitted that Courts and Tribunals can not knit pick material to the point that the less sophisticated are unable to participate in debates over morality and what is taught in public schools and universities without concern of prosecution.
23. Schedules “F” and “G” were simply a reprint of classified advertisements in Saskatchewan’s largest gay newspaper, of a 28 year old seeking boys. If the advertisement causes some people to hate homosexual people, the cause is not the whistle blower. The cause is the advertisement and the possibility of the gay newspaper facilitating criminal behaviour. If not so politically incorrect, Whatcott would deserve a reward, not centure, for outing a pedophile.
24. It is trite law to say that there are limits to freedom of speech and on what one may say or do under the auspices of freedom of religion.
However, it seems necessary to point out that freedom from discrimination on the basis of sexual orientation, like all other rights, also has limitations, and especially when in conflict with the rights of others. There is no law that says sexual orientation trumps freedom of speech and religion.
25. It is frightening to witness just how quickly fundamental freedoms can be disregarded in the face of politically correct ideologies. Protection from hate does not mean protection from all criticism – even criticism that uses insulting or objectionable language. In order for the Code to operate, it requires a high degree of tolerance, and especially for those whose views do not reflect the ideologies of those in positions of power.
Issue B If the material does exhibit hate, is the material directed towards the “orientation”, or is it directed towards same sex sexual activity, which is not protected under the Code.
26. It is critical to distinguish between the person and the actions of a person. Although sexual orientation is a prohibited ground under the Code, the actions of homosexual people are not afforded special protection.
27. In addition, not all homosexual people engage in sexual activity with other people of the same sex, and some people who are not homosexual may engage in same sex sexual activities. Therefore, one cannot say that criticism of same sex activities are protected under the guise of sexual orientation.
28. The Code prohibits discrimination against a person for “being” a member of a prohibited ground. However, prohibiting discrimination for being a member of a prohibited ground is distinct from prohibiting criticism of the conduct of people who are members of a prohibited ground.
29 Although the primary behaviour Whatcott referred to is sodomy, if it is illegal to criticize sodomy, one would ask what other behaviour of the gay culture is placed beyond criticism? Can fisting be criticized? What about gay parades?
30. Although the Court of Appeal in the Owens decision acknowledged that the sexual practices of homosexual persons is part of their identity, the Court did not say that certain sexual practices or any sexual practices were protected under the ground of sexual orientation. Indeed, the Court proceeded to recognize that many people do indeed distinguish between the homosexual person and same sex sexual practices. On the other hand, Chastity has always been part of the Christian identity.
31. S. 14(2) of the Code reads as follows:
14(2) Nothing in subsection (1) restricts the right to freedom of expression under the law upon any subject.
If s. 14(2) has any meaning at all, free speech must allow the criticism of the behaviour of a person in a prohibited ground.
32. Unfortunately, there is ambiguity, often intentionally, when words such as “homosexual” or “gay” are used, as they are used to describe the person as well as behaviour. However, the phrase “sexual orientation,” clearly refers to the “being” of a person, and not the “behaviour.” This distinction is never made by the Tribunal. The Tribunal proceeded on the assumption that “homosexual” or “gay” always mean the same thing as “sexual orientation.” This lack of clarity results in a distinction never being drawn between the “person” and the “behaviour.”
33. Not all sexual impulses are acted upon, and not all sexual impulses are moral; however, it is not up to Human Rights Tribunals or the Courts to decide what is moral and what is immoral. But clearly, the Tribunal was attempting to define sexual morality in its decision.
34. It is important to recognize the difference between people who have a sexual orientation (whether the orientation tends to draw them towards having sexual relations with a person of the same sex, or orientated towards animals, or orientated towards children, all of which are morally neutral) and that of the action itself, which is sodomy, bestiality and pedophilia, all of which many people may object to, and have the right to object to under the Code and under the Charter of Rights and Freedoms.
35. It is submitted that no Court has ever ruled that comment upon same sex sexual behavior is discriminatory and cannot be commented upon, simply because the orientation is protected.
36. Although this matter is being decided upon the basis of Saskatchewan Human Rights Code, cases on the Charter are instructive. It has not been established in any leading Supreme Court case, to date, including Vriend v. Alberta  1 S.C.R. 493, that it is unconstitutional for Canadian citizens to disapprove of homosexual sexual conduct and sexual relationships. Most judges seem to recognize that to do so would be a grave violation of the freedoms of expression, conscience and religion. Only L=Heureux-Dubé J., dissenting alone in Trinity Western, claimed at p. 824 that the distinction between persons and action, between Athe sinner@ and Athe sin@ as she stated, was unjustifiable in the context of homosexuality.
We would add that a homosexual person ought not to be referred to as a “sinner”; but, comment upon sexual activities, whether between heterosexual or homosexual people has always been part of freedom of speech and freedom of religion.
37. It is submitted that Exhibits “D” and “E” were prepared by Whatcott for the purpose of keeping programs of homosexual activists out of the Universities and public school systems. It was a safe assumption on his part, that the gay issues entering the schools would affirm same sex sexual activity as being normal, and that the schools would be used to evangelize youth into acceptance of the gay culture.
If the Code is read to protect behaviour and limit freedom of speech and religion, it would be unconstitutional under the Charter and therefore in conflict with the Charter.
38. In both Exhibits “D” and “E”, Whatcott clearly distinguishes between homosexual same sex sexual activities and the homosexual person. The material exhorts the homosexual person to turn away from same sex sexual activities and find redemption. Clearly, Whatcott does not condemn the homosexual person, but simply urges a change in their behavior.
At the time Whatcott distributed Exhibits “D” and “E”, an important public debate was occurring on whether homosexual values and the gay culture should enter the public schools and be part of University presentations. The material was Whatcott’s contribution to this debate. The Owens decision of the Saskatchewan Court of Appeal supports the necessity of recognizing the context in which the material, Exhibits “D” and “E”, were distributed.
39. It is important to have the highest threshold of tolerance on issues of public concern so that all people are able to participate without fear of prosecution by more favored interest groups. Poor people participate in public debates through pickets and pamphlets. Their contribution clearly will not have the same polish as University elites, bureaucrats, main stream media and lawyers. Public debate on this issue is not reserved only for the elites.
40. The content of Whatcott’s material was, fundamentally, a political and religious expression on the issue of sexual morality. Specifically, Whatcott voiced his opinion that same sex sexual activity was immoral, and therefore, ought not to be exposed to youth.
Issue C If sexual behaviour is protected under the Code, then Section 14 of the Code conflicts with freedom of religion as prohibiting criticism of same sex sexual activities marginalizes those people who believe same sex sexual activities are morally wrong, and “exposes or tends to expose to hatred, ridicules, belittles or otherwise affronts the dignity of…a class of persons on the basis of” their religion, contrary to Section 14(1)(b) of the Code.
41. The Tribunal erred in law by creating a right to be protected from criticism for sodomy and other sexual practices under the guise of sexual orientation, and then allowed such a right to trump the right of freedom of speech and all aspects of religion and religious beliefs protected under S. 2(1) m.2 of the Code. In addition, their rulings were contrary to S. 14(2) of the Code and S. 2(a), 2(b), and 15 of the Charter.
42. The Tribunal erred in law in the decision as:
a) it removes the right of freedom of speech from people who wish to criticize some people’s sexual behavior.
b) it removes the right of others who wish to exercise religious freedom by criticizing sodomy as immoral and harmful to the people who practice it and, believe they are called by God to proclaim chastity as a way of life.
c) It gives preferential treatment to the belief system or “religion” of the gay culture, and in particular, their belief in the morality of a wider range of different sexual activities and its intolerance for any criticism.
43. Sexual conduct has always been a topic of religious discussion. If criticizing same sex sexual activities is prohibited because it offends homosexuals, then criticizing premarital sex would offend the Code as well, as “marital status” is also a prohibited ground, and single people who fornicate may feel offended when anyone referred to their conduct as sinful. Similarly, adulterers may feel offended when anyone referred to their conduct as sinful, or called them an adulterer.
44. It is submitted, that to comment upon the morality of sexual conduct of others has always been part of religion and a safeguard of public morality. No court has yet to declare promiscuous conduct or sodomy to be a virtue. Neither has any court yet to declare same sex sexual activity to be no longer immoral. Simply because acts of sodomy have been decriminalized, does not make it state policy, and an act of faith required for all public servants that same sex sexual activity is moral.
45. We recognize that public debates over moral issues often evoke strong emotions and reactions and, moreover, generally involve religious belief. Debate about moral issues necessarily sees both sides judging the conduct of the other. This is no less true of the debate over the legal treatment of various types of adult, personal relationships based on quite different understandings of sexual morality. When a court holds that the government is justified in limiting debate because the debate involves statements critical of others on issues of morality, as was the result of the decision of the Tribunal, the court acts to close down serious debate over a serious issue. If all that is left for public debate are uncontroversial issues that evoke little emotion, then freedom of expression becomes a freedom without value and freedom of religion is fundamentally undermined.
It would be illogical to interpret “sexual orientation” in the Code to include all behaviour of a person protected in that class, but if the behaviour of the class referred to as “sexual orientation” were granted protection, then, likewise, the behaviour of people who are members of other classes that make up the “prohibited grounds,” should also have their behaviour protected. That protection would include protection for Christian behaviour and other religions that criticize all intimate sexual behaviour outside of a marriage between a man and a woman.
46. The extent to which the legislatures and courts should extend legal benefits to same-sex couples has been a matter of national prominence and debate for the past two decades and remains high on the agenda of public issues. The Tribunal’s decision skews public debate on this issue by labeling the views of anyone who opposed same-sex sexual activities as “discriminatory”. Debate is based on disagreement. For a Tribunal to declare that the views on one side of an issue are “discriminatory”, is, effectively, to terminate public debate by suggesting that one side is acting in an unlawful way and should not be heard.
47. Many believe that sodomy, in particular, is immoral. Indeed, Canada=s forefathers and those who built our nation considered it so wrong that it was criminalized. To tell a Christian that he can no longer comment in public on what are proper and improper forms of sexual conduct is to deny a significant part of Canada’s Christian heritage. To prohibit comment and criticism of same sex sexual activity is to impose a new brand of morality because the court is making a value judgment when it declares that those who publicly oppose same sex sexual activities are hateful, and therefore immoral. It is a sign of oppression, religious bigotry and intolerance that one can be charged with “hate”, for proclaiming what has always been a historical part of the Christian message and, until the last 40 years, illegal under Canadian law.
48. If Whatcott is fined for upholding what he believes to be the truth, and what has been upheld and taught not only by the Christian religion for two thousand years, but by the government of Canada for most of its existence, it will be part of a process of oppressing the religious convictions of the many people who still believe in traditional sexual morality, including Christian, Jewish, Muslim, Hindus and many other religions. To make a finding that a Christian who criticizes those who participate in sodomy, adultery, fornication or living common law has the effect of discriminating against the religion of religious people, as religious people believe that they have an obligation to warn and attempt to correct the ways of those who act improperly and to protect them from the natural, harmful consequences of their actions.
49. It is submitted that one cannot protect same sex sexual behaviour from criticism and at the same time protect religious freedom. To protect same sex sexual behaviour from criticism in itself breaches s. 14 (1) of the Code as the ruling of the Tribunal has exposed Whatcott (and other Christians) “to hatred” and “ridicules, belittles or otherwise affronts the dignity” of Whatcott and many other Christians and people of faith. The effect of the decisions is itself a violation of the Code by offending some Christian people by convicting them for their beliefs. Whatcott is also entitled to the protection of the Code because “creed” and “religion” are protected and they too are a prohibited grounds of discrimination under section 14 of the Code.
50. The decision of the Tribunal could result in outlawing the objective aspect of “preaching” and “conversion” of the faith of Whatcott. If Whatcott cannot proclaim that portion of his religion that says same sex sexual activity is immoral, the Tribunal decision exposes him and his religion to hatred and ridicule, and belittles and affronts his faith and dignity as a person, contrary to section 14(1) of the Code, because it prevents him from making a statement about improper sexual practices (preaching) and from bringing his faith to people who engage in same sex sexual practices (conversion).
51. Section 14(2) protects freedom of speech. But more important is freedom of religion. Critical to religion is the right to provide moral guidance of activities, including sexual activities. Religions of the world have always created formulas for living a happy and good life, and usually have indicated what sexual activity is morally permissible and what is not.
52. Mr. Whatcott’s material must be recognized for what, objectively, it is; namely, an expression of his faith. He is saying that those people who engage in same sex sexual behavior are committing an immoral act, and that God disapproves.
53. Referring to another’s conduct as “sinful” or “immoral”, may result in the person who is being accused of sinning, of feeling that his rights under section 14(1) have been violated. It goes without saying that a person whose conduct is referred to as a “sin”, may feel ”hated, ridiculed, belittled,” and their dignity affronted. If calling same sex sexual activity immoral becomes illegal in Saskatchewan, than any expression that calls certain other lifestyles immoral, such as living common law, fornicating or adultery would also be illegal, as these relationships are also protected under the Code. They are included under the definition of Amarital status@. All universal religions have, at times, condemned sexual relationships outside of marriage, and have reserved marriage for the union of one man and one woman. Will it now be an offense to say someone is living in sin? Or that adultery is a sin, or fornication is a sin? Or is sodomy the only protected “sin” under the Code?
54. If the Court decides in favor of the Tribunal, it will send a chill through every person who follows the creed of any organized religion or faith. The decision could result in the prohibition of any condemnation of behavior, such as sodomy, adultery or common law relationships, bestiality and polygamy all of which have historically been considered immoral by most religions.
55. “Creed” and “Religion” are as protected as “sexual orientation” and “marital status” in every section of the Code. See the definition of religion in s. 2 (1) m.2 of the Code. Indeed, section 4 specifically protects freedom of conscience and section 5 protects freedom of expression.
56. All religions have had a component that requires adherents to “preach” and “convert”; hence, the necessity to preach outside of their own religious community. For Whatcott, that means telling others what God thinks of same sex sexual activity.
57. The Tribunal’s decision breaches S. 14(1)(b) of the Code in that it “exposes or tends to expose to hatred, ridicules, belittles or otherwise affronts the dignity” of religious people who feel called by God to preach the word of God and people who wish to comment upon the morality or immorality of some sexual practices. The decision has the effect of making it a breach of S. 14 of the Code to preach the word of God, as they see it, in relation to sexual practices such a sodomy, adultery and fornication.
Issue D If same sex sexual activities are protected under the guise of sexual orientation under the Code, then there is a collision of rights between freedom of religion and sexual orientation. The Tribunal did not appear to recognize this collision and, if it did, it did not recognize that this was also a collision of rights under the Canadian Charter of Rights & Freedom (hereinafter called the Charter) and did not follow the analysis for resolving the collision as set out in the Law.
58a. In the event that the Court finds that conduct is protected in the Saskatchewan Code, it would be unconstitutional pursuant to Canada’s Charter of Rights and Freedoms, as the Charter has upheld the freedom to criticize behavior. In Chamberlain v. Surrey School District No. 36 , 4 S.C.R. 710, Gonthier, J. emphasized that an approach that transforms disagreement over sexual morality into unlawful discriminatory statements threatens a vibrant notion of pluralism (at para. 132):
Beyond this, nothing in Vriend v. Alberta , 1 S.C.R., 493, or the existing s. 15 case law speaks to a constitutionally enforced inability of Canadian citizens to morally disapprove of homosexual behavior or relationships: it is a feeble notion of pluralism that transforms "tolerance" into "mandated approval or acceptance"…. Surely a person's s. 2(a) or s. 2(b) Charter right to hold beliefs which disapprove of the conduct of others cannot be obliterated by another person's s. 15 rights, just like a person's s. 15 rights cannot be trumped by s. 2(a) or 2(b) rights…
Gonthier, J. pointed out (at para. 150) that to remain true to all Charter guarantees, it is important to distinguish between the expression of competing beliefs on moral issues, on the one hand, and discrimination, on the other. To label one set of views on sexual morality as discriminatory would result in s. 15 values trumping all others, leaving s.2 freedoms emasculated:
The moral status of same-sex relationships is controversial: to say otherwise is to ignore the reality of competing beliefs which led to this case. This moral debate, however, is clearly distinct from the very clear proposition that no persons are to be discriminated against on the basis of sexual orientation. The appellants, using the courts, seek to make this controversial moral issue uncontroversial by saying that s. 15 and "Charter values" are required to eradicate moral beliefs, because the hypothesis is that possible future acts of discrimination are likely to emanate from such beliefs. This is not, however, necessarily true. As discussed above, many persons are staunchly committed to the principle of non-discrimination and the inherent dignity of all persons, and yet concurrently hold views which disapprove of the conduct of some persons. To permit the courts to wade into this debate risks seeing s. 15 protection against discrimination based upon sexual orientation being employed aggressively to trump s. 2(a) protection of the freedom of religion and conscience, as well as s. 15 protection against discrimination based on conscience, religious or otherwise. This would be a reading of the Charter that is inconsistent with the case law of this Court, which does not permit a hierarchy of rights, as well as inconsistent with the purpose of the Charter itself.
58b. Freedom of speech and freedom of religion are described in the Charter under the heading “fundamental freedoms.” Although the Supreme Court has read in sexual orientation to s. 15, this cannot override the freedoms that are described in the Charter as being fundamental.
59. The preamble of our Charter is based upon our belief in the Supremacy of God. God has historically been associated with religion, and religion is a collective expression of what some people believe God wants of them. Although one can no doubt find some people who would claim they have a religion that blesses sodomy, bestiality or the holding of nudist camp church services, these religious expressions are exceedingly rare.
60. It is trite law that in Canada freedom of expression protects controversial speech. As long as an activity is expressive in nature and is conveyed by non-violent means it enjoys the protection of section 2(b). That is the first step of any s.2(b) analysis as the Supreme Court of Canada made crystal clear in Irwin Toy Ltd. v. Quebec , 1 S.C.R., 927. At page 968, it stressed that section 2(b) protects “all expressions of the heart and mind, however unpopular, distasteful or contrary to the mainstream”. Under the second step of the Irwin Toy analysis, “[i]f the government's purpose is to restrict the content of expression by singling out particular meanings that are not to be conveyed”, it contravenes s. 2(b) (page 974).
61. In Irwin Toy, page 969, the Supreme Court adopted the wording of the European Court in the Handyside case as support for its broad approach to freedom of expression, stating that the guarantee:
... is applicable not only to "information" or "ideas" that are favorably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broad-mindedness without which there is no "democratic society.
62. As set out in R. v. Big M Drug Mart Ltd. , 1 S.C.R., 295 at p. 336, the freedoms of conscience and religion clearly have an essential public dimension:
“[t]he essence of the concept of freedom of religion is the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or by teaching and dissemination.”
In Trinity Western, however, it was recognized that
“[f]reedom of religion, conscience and association coexist with the right to be free of discrimination based on sexual orientation.”
63. A very close link exists between aspects of s. 2(a)’s guarantee of freedom of religion and freedom of expression under s. 2(b). In the case of R. v. Big M Drug Mart (supra), Dickson, J. (as he then was), in the course of defining the scope of freedom of religion under the Charter, stated that the “essence” of s. 2(a) protects the “right to declare beliefs … without fear of hindrance or reprisal” (page 336).
64. In the recent decision of Syndicat Northcrest v. Amselem , S.C.C. 47, both the majority and minority of the Supreme Court re-affirmed the expansive definition of freedom of religion articulated in Big M Drug Mart, supra, and Bastarache, J., for the minority, re-iterated that freedom of religion has two elements (para. 137):
First, there is the freedom to believe and to profess one's beliefs; second, there is the right to manifest one's beliefs, primarily by observing rites, and by sharing one's faith by establishing places of worship and frequenting them.
The profession of one’s beliefs, including how they apply to matters of morality, thus engages both ss. 2(a) and 2(b) of the Charter.
65. The protection of section 2(a) of the Charter is not confined to situations where a person is wearing his “personal capacity hat”. For many, religious belief goes to the core of their being and influences all aspects of their conduct. The centrality of religion to human dignity was recognized by the Supreme Court in Amselem (supra) (para. 39):
In essence, religion is 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, the practices of which allow individuals to foster a connection with the divine or with the subject or object of that spiritual faith.
66. In R. v. Keegstra , 3 S.C.R. 697, Dickson, C.J. stated (at pp.763-764):
The connection between freedom of expression and the political process is perhaps the linchpin of the s. 2(b) guarantee, and the nature of this connection is largely derived from the Canadian commitment to democracy.
In Harper v. Canada (Attorney General) , 1 S.C.R. 827, the Supreme Court of Canada re-affirmed that political speech lies at the core of the guarantee of freedom of expression. (see paras. 11, 12 and 84)
67. The Tribunal ignored the political nature of much of Mr. Whatcott’s material. As a result, it ironically (and erroneously) concluded that Mr. Whatcott’s pamphlets breached s. 14(1). Mr. Whatcott was participating “in social and political decision-making”. He was expressing religiously-founded opinions on an important matter of public debate. His views may not have been shared by all, but the content of his message does not detract from its political nature.
68. In addition to its political dimension, Mr. Whatcott’s expression possessed a religious dimension, in two respects. First, as noted above, Mr. Whatcott expressly linked some of his statements to his religious beliefs through the use of biblical quotes. Second, Mr. Whatcott’s material spoke to a highly contentious social issue that has strong ties with religious belief: sexual practices.
69. Most religions engage in profound reflection on the moral dimensions of human conduct by asking: what is the right way by which a person should lead his or her life? Since religions reflect upon and speak to the human condition, their teachings and precepts inevitably touch on matters of human interaction that may also be protected under legal human rights guarantees. Marital status and sexual orientation are two examples of areas of human conduct that attract both religious and legal comment and treatment. The labeling of expression and commentary on such topics as “discriminatory”, and therefore less worthy of respect and protection, derogates from and undermines the guarantee of freedom of religion. The effect is to create a hierarchy of rights, with the equality guarantee trumping freedom of religion. The Supreme Court of Canada has rejected an approach to constitutional jurisprudence that results in such a hierarchy.
70. In her dissent in Keegstra (supra) McLachlin, J. (as she then was) warned against the dangers of labeling speech and thereby pre-determining the results of a section 1 analysis (at p.841):
[I]f one starts from the premise that the speech covered by section 319(2)[of the Criminal Code] is dangerous and without value, then it is simple to conclude that none of the commonly-offered justifications for protecting freedom of expression are served by it.
71. That is precisely what the Tribunal did in this case. By first labeling Mr. Whatcott’s speech as “discriminatory”, it paved the way to justify the infringement of Mr. Whatcott’s freedom of expression. It characterized Mr. Whatcott’s material as discriminatory, although the material was critical of homosexual sexual conduct not orientation. It is submitted the characterization of Mr. Whatcott’s action fails to take account of the past jurisprudence of the Supreme Court. If this characterization is permitted to stand, it would shut down one side of the public debate over sexual morality and its public policy implications. As Professor Cameron has written:
In Canada, it seems, expressive freedom is prized when it reinforces conventional views and otherwise limited whenever unpopular views can be dismissed as valueless, and thereby silenced or punished.
Jamie Cameron, Anticipation: Expressive Freedom and The Supreme Court of Canada in the New Millennium (2001), 14 S.C.L.R.(2d) 68 at p.70
72. The Supreme Court has recognized that a healthy democracy requires robust, critical debate on serious issues and that religious belief should not be precluded from that debate. As stated by Dickson, C.J. in Irwin Toy (supra) (at p.968):
Freedom of expression was entrenched in our Constitution and is guaranteed in the Quebec Charter so as to ensure that everyone can manifest their thoughts, opinions, beliefs, indeed all expressions of the heart and mind, however unpopular, distasteful or contrary to the mainstream. Such protection is, in the words of both the Canadian and Quebec Charters, "fundamental" because in a free, pluralistic and democratic society we prize a diversity of ideas and opinions for their inherent value both to the community and to the individual.
See also Chamberlain, supra, at para. 46a.
73. Courts should not take sides in political debates if freedom of expression and freedom of religion under the Charter are to have any real meaning. Yet, that is precisely what the Tribunal did in this case. By characterizing Mr. Whatcott’s statement that disagreed with homosexual conduct as “discriminatory”, the court permitted a government agency to censor his speech and effectively end his participation in a public debate on a matter of public interest.
74. In sum, Mr. Whatcott’s statements involved core values associated with political speech and the profession of religious belief. As a result, we submit that the mere, and incorrect, labeling of such expression as “discriminatory” is not sufficient to justify an infringement of Mr. Whatcott’s ss. 2(a) and (b) freedoms.
Part VI – Relief
75. It is requested that the Decision of the Court below be set aside together with costs.
ALL OF WHICH IS RESPECTFULLY SUBMITTED.
DATED at Weyburn, Saskatchewan, this 11th day of September, 2006.
NIMEGEERS, SCHUCK, WORMSBECKER & BOBBITT
Solicitors for the Plaintiff
THIS DOCUMENT WAS DELIVERED BY:
NIMEGEERS, SCHUCK, WORMSBECKER & BOBBITT
Barristers and Solicitors, whose business address and
ADDRESS FOR SERVICE IS: 319 Souris Avenue N.E.
(P.O. Box Cool, Weyburn, Saskatchewan S4H 2J8
TELEPHONE: (306) 842-4654 FAX: (306) 842-0522
SOLICITOR IN CHARGE OF FILE: Thomas A. Schuck
Part VII – Authorities
1. Saskatchewan Human Rights Code
2. College of Physicians and Surgeons of British Columbia v. Dr. Q. , 1 S.C.R. 226
3. Owens v. HRC , SKCA 41
4. Owens v. HRC , 228 Sask.R. 148 (QB)
5. Canada Human Rights Commission v. Taylor , 3 S.C.R. 892
6. Canadian Charter of Rights and Freedoms
7. Vriend v. Alberta , 1 S.C.R. 493 (headnote only)
8. Trinity Western University v. British Columbia Council of Teachers,  S.C.R. 772 (headnote only)
9. Chamberlain v. Surrey School District No. 36 , 4 S.C.R. 710 (headnote only)
10. Irwin Toy Ltd. v. Quebec , 1 S.C.R. 927 (headnote only)
11. R v. Big M Drug Mart Ltd. , 1 S.C.R. 295 at p. 336 (headnote only)
12. Syndicat Northcrest v. Amselem , S.C.C. 47
13. R. v. Keegstra , 3 S.C.R. 697 (headnote only)
14. Harper v. Canada (Attorney General) , 1 S.C.R. 827 (headnote only)
15. Jamie Cameron, Anticipation: Expressive Freedom and The Supreme Court of Canada in the New Millennium , 14 S.C.L.R. (2d) 68, page 70
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