Well Canada has done it again, or to be exact, the Supreme Court of Canada has done it.  I usually do not post twice in one day, but for this I am making an exception.  The Supreme Court has recently upheld a ruling, which has both free expression and freedom of religion implications.  The ruling in question can be found here.  I will try my best to summarize what happened and why you should care.

The story begins with a Saskatchewan resident by the name of William Whatcott.  William, a professing Christian and former practicing homosexual, went about distributing flyers that were critical of public schools and their addition of educational material promoting the homosexual lifestyle.  Several people reported Whatcoff, claiming his four flyers promoted hatred against individuals based on their sexual orientation.  The complaints made their way to a human rights tribunal, which ultimately ruled against Whatcoff.  This wouldn’t be much of a story if it ended there.  The issue moved through the court system where it progressed from the Court of Queen’s Bench to the Saskatchewan Court of Appeal, and eventually onto the Supreme Court of Canada.  Ultimately the Supreme Court ruled that the contents of Whatcoff’s flyers where hate material and were not protected on the basis of freedom of expression or freedom of religion.

So why should you care about this judgment?  First off, it has set precedence in ruling that criticism of homosexual behavior can be classified as ‘hate speech”.  This means that critical examination, dissenting opinion, and possibly our Christian convictions could potentially result in court appearances and jail time.  If that wasn’t worrisome enough consider for a moment how they will go about determining fair criticism verses hate speech.

To begin to understand how this is going to happen we must look at the courts ruling.

the term ‘hatred’ contained in a legislative hate speech prohibition 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.

The court says that they must “objectively” test the speech in question to see if it meets their definition of ‘hatred’.  Can one truly be objective in defining hatred when, by its very nature, hatred is a subjectively emotive concept?  Let’s be honest, we all subjectively find different things repugnant and offensive.  Would an arbitrator or judge be any different than the rest of us?  Although they address this concern in the ruling, I have no idea how it is going to work out in a repeatable and practical way.

My concerns only increased as I read thought the ruling’s history.  Throughout the entire process all levels of authority were faced with the same dilemma and were equipped with the same test.  In a truly objective exercise one would expect consistency in ruling.  However, the Supreme Court and the Saskatchewan Court of Appeal came to completely different conclusions.  Given all things being equal, how else could they come to diametrically opposite rulings unless the process was subjective?

Ultimately this is a blow to our freedom of expression and religion.  Yes, we need to protect people from hate speech, but we need to do it in a fashion that is consistent and predictable.  That is not what the Supreme Court has left us with.  Instead they have left us uncertain as to where we stand, and questioning whether our very convictions are now deemed illegal.

p.s.  Just in case you missed the link to the ruling in the above post you can find it here: Saskatchewan (Human Rights Commission) v. Whatcott