The country's highest court heard arguments pitting freedom of expression against laws banning hate speech Wednesday, setting the stage for an eventual ruling on what is more in need of protection: groups targeted with hatred, or a citizen's right to speak freely.
It could take the Supreme Court months to decide on which side they fall in the case of the Saskatchewan Human Rights Commission versus William Whatcott.
The commission is appealing a decision that overturned its original ruling against Whatcott, who published and distributed four anti-gay flyers in towns and cities in Saskatchewan in 2001 and 2002. They led four people to file complaints with the commission.
Whatcott's flyers used words like "filth," "propaganda" and "sodomy" to describe gay relationships and the discussion of equality.
Saskatchewan law prohibits publishing or broadcasting anything that “exposes or tends to expose to hatred, ridicules, belittles or otherwise affronts the dignity of any person or class of persons on the basis of a prohibited ground.”
The analysis set up in 1990 by the court, referred to as Taylor, is based on the idea that protecting people from hate propaganda was important enough to override the right to free expression.
Commission lawyer Grant Scharfstein said the group doesn't want to limit what Whatcott says or which beliefs he can hold.
"We are not saying he cannot express those publicly. What we are saying is that he cannot do it in a way that is hateful," he told the court Wednesday morning.
Scharfstein argues that protection is needed more than ever because of the internet and how quickly hate speech can spread online.
Chief Justice Beverley McLachlin said ordinary citizens should be able to look at the act and know what they can or cannot say, without needing to become a Supreme Court scholar.
“When you have words such as belittling or affronting the dignity, which you would seem to concede fall outside the Taylor standard, shouldn’t those words be removed so that the ordinary citizen knows where the line is?” she asked Scharfstein.
Whatcott argues that he opposes sexual behaviour, not sexuality, and that ruling against him would be contravening his right to freedom of religion. His lawyer, Thomas Schuck, argues that this is an opportunity for the court “to affirm that freedom of expression is not limited only to matters about which there is agreement but to matters about which there can be great – and sometimes heated, disagreement.”
Schuck says the court should revisit Taylor, as the court questioned him on the specifics of what could be considered hateful.
“What if someone were to say being black should be a crime?” Justice Thomas Cromwell asked.
“You've moved away from behaviour. Usually we criminalize behaviour as opposed to the colour of people's skin,” Schuck said. “There's clearly a big difference between the two.”
Asked whether it’s possible to express opinions about homosexuality without being hateful, Schuck said Whatcott is essentially a street kid, who once sold his body to pay for drugs.
“You can't expect a person like him to have the same kind of finesse as a lawyer or professional writer or a college professor. Everybody should be able to participate in the debate as to what children should be taught in schools,” he said.
As to whether it's hateful to describe gay sex as filthy and sick, Schuck said it spreads disease, and listed several explicit sex acts he said "lots of people" find revolting.
"They’re repulsive. To some people. And to Mr. Whatcott," he said.
The Saskatchewan Human Rights Commission found in favour of those who complained about Whatcott’s flyers and ordered him to pay fines to the commission on behalf of the complainants.
The Court of Appeal overturned that finding, ruling that the flyers didn’t expose people to hatred.
The Supreme Court reserved its decision for a later date.