Supreme Foolishness

Janice Fiamengo is an author, editor, and Professor of English at the University of Ottawa.


Coarse and rebarbative though his words undoubtedly were, William Whatcott was not far wrong when, in a flyer titled “Keep Homosexuality out of Saskatoon’s Public Schools,” he pinpointed the massive shift in law and public opinion that had taken place in Canada over the previous 30 years. “In 1968 it was illegal to engage in homosexual acts,” he wrote in one of four flyers he distributed in 2001 and 2002 to denounce the normalizing of homosexuality in schools and the mainstreaming of gay desire in the media, and “now it is almost becoming illegal to question [homosexuality].”

One of the most remarkable aspects of the judgment last week by Canada’s Supreme Court is the impression it conveys that it’s still 1968, that Canada is rampant with homophobia, with gay men and women living in the shadows, anxiously on the alert for the next Christian pamphlet that will unleash public humiliation and cruel reprisals. Is it irrelevant that six of the nine justices are senior citizens, four of them over seventy years of age? Do hellfire evangelicals wield such an enormous social influence that far-reaching measures by an enlightened Court are needed to protect sexual minorities? Canadian society has been a relatively welcoming place for gay men and lesbians for decades, with gay marriage legalized in 2005 and gay urban enclaves set up well before hate speech provisions existed. There is not complete acceptance of homosexuality in all quarters, but neither is there anything close to wide-scale discrimination. Nonetheless, the Supreme Court judges, in striking their phantom blow against prejudice, have handed down a decision that restricts the free expression of a religious minority and limits truth-based arguments on matters of pressing concern.

Much has already been written about the absurdities and inconsistencies of the Supreme Court decision, which affirms the constitutionality of Canada’s notorious hate speech laws and upholds Whatcott’s 2005 conviction, by the Saskatchewan Human Rights Tribunal, for hatred. A member of “Christian Truth Activists” and a former addict who became a biblically faithful Christian while in jail, Bill Whatcott campaigned to prevent the Saskatoon Public School Board from introducing discussion of homosexuality in Grades 3 and 4. His use of ugly words such as “sodomy,” “buggery,” and “filth” to describe homosexuality, and his apocalyptic-style warnings that “Our children will pay the price in disease, death, abuse and ultimately eternal judgment if we do not say no to the Sodomite desire to socialize [them]” convinced the Court that his flyers went well beyond merely offensive speech.

The judgment seems to assume that blunt and old-fashioned words—though laughable to many in Canadian society today— are more dangerous than sophisticated ones. (As Bruce Bawer astutely points out, Whatcott’s obsolete wording is more likely to have crystallized opposition to him than to have incited hatred in previously hate-free hearts or “silenced” the targets of his opprobrium, as the Court avers.) Rather than rehearse the entirety of the foolishness and illogicalities in the decision, I will make a few points about the preoccupation with “effect” as the determinant of unacceptable speech. In focusing not on the content of Whatcott’s expression—in which case the judges would have had to acknowledge the statements about God’s grace that soften his abrasive message—but instead on its presumed effect, the decision creates a legal nightmare that advances an unworkable concept of hate, exposes Christians to contempt, and insulates repugnant Muslim doctrines, simply because they are held by Muslims, from justifiable exposure and attack.

As a number of critics have already pointed out (see especially Andrew Coyne’s brilliant article), you can’t get a much vaguer or more hypothetical definition of hate speech than its “likely effect” as determined by a “reasonable person.” As any reasonable person can attest, a “likely effect” concerning something as subjective as hatred can never be known in advance. It might be that a targeted group is as likely to be vilified because of excessive praise as because of hateful censure: would the praise then, in its harmful effect, constitute hate speech too? More to the point in this case, might the Court’s prohibition of expressions of hatred towards homosexuality actually exacerbate such hatred by creating the (not unfounded) impression that homosexuals are granted special legal protections not available to heterosexual Canadians?

Even more confounding to logic is the Court’s related claim that “proof of actual harm” need not be established in relation to hate speech. “The seriousness of the harm to vulnerable groups,” the Court states, is so great that it needs no demonstration, being “part of the everyday knowledge and experience of Canadians.” In a culture in which storefronts sport the rainbow flag to declare their allegiance with gay people, Hollywood celebrates gay heroes (and condemns evangelicals), and thousands applaud Gay Pride Parades in every major Canadian city, it is not clear that homophobia is “part of the everyday knowledge and experience of Canadians.” The Court’s fundamental assumption about the self-evidence of prejudice and therefore of the harm of hateful speech is demonstrably false.

Given that the Supreme Court’s own reasoning defines hate speech by its likelihood to cause an identifiable group to be subject to prejudice and discrimination, one could reasonably conclude that the judgment is itself an example of hate speech directed at bible-believing Protestant evangelicals, a religious minority comprising about 8% of the Canadian population according to a recent report. Is it not likely that many of the self-righteous and politically correct members of the chattering classes who read about the Supreme Court judgment in their Thursday newspapers experienced a satisfying frisson of disgust and smug horror against Christians? A main concern of the Court is that hate speech may cause people to “reconsider the social standing” of a vulnerable group. Many well-heeled secularists are already inclined to feel contempt for Christians who believe the Bible’s moral injunctions; now they have an enhanced reason to do so, and from a source far more respectable and influential than Whatcott’s crudely written flyers.

Given the massive increase in violence against Christians in the Muslim Middle East over the past two years, is there not a well-founded fear that the Supreme Court’s decision will reduce Canadians’ indignation over the persecution of the same group presented in the Court decision as hateful and malignant? Such speculations are, admittedly, as vague as the Supreme Court’s own definition of hate speech. Still, there can be no doubt that the Court decision places a particular limitation on Christian discourse, suggesting that speaking the Bible’s truth is unacceptable and that restrictions on Christian freedom are necessary to protect others from harm. By implication, Christians like Whatcott are a menace to society, a belief that the Supreme Court decision defines as typical of hateful expression.

Finally and most grievously, in affirming that “even truthful statements may … expose a vulnerable group to hatred,” the Supreme Court ruling places an ill-advised limitation on fact-based criticism of minority groups, especially those groups whose ideology and cultural practices may be heinous enough that their mere recitation is likely to incense and repulse listeners. The Court’s overwhelming concern is “the need to protect the societal standing of vulnerable groups”—but what if the “vulnerable groups” have beliefs and practices deserving of censure? The Court would suggest that one should draw the line at sweeping and vehement denunciations. Referring to cases of anti-Semitism, the Court notes that hate speech typically creates the false impression that a certain group is responsible for social problems or seeks to undermine Western civilization.

But what if the group actually does seek to undermine Western civilization, as Muslim Brotherhood strategy states? According to the Court, it doesn’t matter if criticisms are true or not, for “to the extent that truthful statements are used in a manner or context that exposes a vulnerable group to hatred, their use risks the same potential harmful effects” as gutter-variety hate—and must be penalized. This is astounding. If truth is no defense against the charge of fomenting hatred, then we confront the collapse of all rational discourse in this country. The ruling comes at a time when there is a pressing need to speak about injurious Islamic practices such as honor killing, creeping Sharia enforcement, Jew hatred, and female genital mutilation—to say nothing about vicious physical as well as verbal attacks on homosexuals. What the Court clearly cannot imagine or accept is that there might be cases in which detestation of a culture’s practices is justified, even beneficial. Should not any group advocating a fascist program be exposed and denounced in vehement terms?

The Canadian Supreme Court’s overarching imperative to “protect the societal standing of vulnerable groups” makes the answer “No.” I am still shaking my head in disbelief.

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  • truebearing

    Courts were intended to dispense justice, but thes fools on Canada's highest court don't know the definition of the word. How do these fools end up in power?

    It seems the entire West is under some kind of pernicious Dhimmitude wish.

    • Mary Sue

      Same way they get there in usa. USA, president appoints them. Canada, the Prime Minister appoints them. We had a long run of Liberal governments that stacked the court with left wing whacko judges.

      • truebearing

        Canada has managed the world's economic problems far better than our Meccan Horse, Imambama, but even our Supreme Court hasn't sunk to this level of stupidity. May mortality bless Canada before it's too late.

      • LINO

        That's certainly true. But the current conservative government could easily repeal these laws if they wanted to. Generally the far-right in Canada is to the left of the far left in the U.S.

  • Anonymous

    Isn't exposing certain Supremes to contempt based on age (as I laugh) a proscribed discriminatory action according to the misnamed "human rights" act? Remember now, truth is no defense! Yeah, so much for "free speech" in Canada. The only hope now is to plead with politicians to abolish the Human Rights Tribunals as impediments of fundamental freedoms.

  • http://www.adinakutnicki.com AdinaK

    When the mission is to silence any criticism of certain "protected" groups, the Court's decision makes eminent sense. In fact, having recently prescribed an anti-dote/pushback against such overreach, perhaps the most imperiled group, which needs protection from PC dementia/overreach, will learn its lessons – http://adinakutnicki.com/2013/03/03/an-authentic-

    The above lessons may well be adapted for others who are truly infringed upon by the (il)liberal thought police!

    Adina Kutnicki, Israel http://adinakutnicki.com/about/

  • kafir4life

    If someone in Canada were to point out the fact that islam is a gutter cult invented by a pedophilic madman named mohamat, who invented the moon god allah, shat the contents of the terror guide the Koran following coitus with then later a meal of his favorite pig, or "mom" as he called her, what would happen to them?

    allahu snackbar to the muslims.

  • Brujo Blanco

    Canada may be demonstrating what we may have in the USA. The Bible is considered contraband in a number of public venues that allow the Koran. There are schools that will not tolerate Christian activities but have foot bathes and prayer time for Muslims. This is unfair and in your face discrimination. We may have laws here in the USA that will allow privilege for one religion over another.

  • Alpha_1

    At whatever the cost, we MUST allow for truth over all else. Good God, I can't imagine what's going to happen in criminal court cases in Canada. I thought we took an oath to tell the truth and nothing but the truth?

    These old toadies are living in a lala land that is so far removed from mainstream Canadians that it makes me sick to read their judgement on this issue. I, like the author of the article above could only mumble 'HUH?' after reading their decision. This is not the Canada that I grew up in and contributed to all my life!

  • tagalog

    What gives a court -any court, Canadian or American- the power to decide what kind of speech should be prohibited in the name of "hate" and what kind of speech should not be prohibited?

    Since when do courts decide such things?

    Hate and dislike are not justiciable issues unless some harm -real harm, not just offense- is committed. Even then, it's pretty questionable.

    • Mary Sue

      since lawyers that become judges took Identity Politics and Womens Studies/Ethnic Studies/Marxist claptrap etc in school.

  • Elan-tima

    The fact that the author of this article would use the term "homophobia" as a description of someone who opposes homosexuality's integration into common society delegitimizes her and her argument. If free speech is free its never "ugly" or homophobic(a mental disorder).

    Just one Fascist's opinion.

  • tagalog

    Of course Canadian Christians and political conservatives can expect exactly the same scrupulousness in the law enforcement and judicial approach when atheists and lefties attack Christianity and conservative views.

    Right?

  • Western Canadian

    In Canada, in the last couple of months, we have had citizens guilty of no wrong-doing, threatened with arrest is they dare to walk accross a bridge. Why? Well, one of the protection-plus groups (aboriginals), was staging an illegal road block. Instead of charging them, the police shirked their duty, and prevented anyone else, on foot or in a car, from using the bridge. Within the last couple of years, chants of ‘koill the jews kill the jews’ were heard (in arabic), across the street from an old folks home, occupied by jews (including extermination camp survivers). This happened on several weekends, with nothing done about it by the mockery of police, until the owner of the property they hate-mongers were illegaly occupying, filed a complaint. Canada’s shameful mockery of a supreme court, has re-written laws to favour one of their own members, and recently have ordered all courts to enforce a racist standard, giving extra special kid-glove treatment to the first mentioned protection-plus group.

    I have had no respect for the Canadian legal system for too many years, ever since I happened to be in the city in eastern Canada where a very important court case was underway… A Canadian law hung in the balance, and every paper in the city the case was being tried in, announced one morning that one of the jurors had been dismissed from the jury. No explanation ever given, and the court went downhill from there. A law was overturned in Canada, with the aid of jury tampering. And it was never reported as happening, in western Canada, the dismisal of the juror, was never publicised.

    The Canadian PM selects a judge from a short list, as compiled by a collection of lawyers. They have not offered up a conservative cantidate, in years. The system is a corrupt joke.

    • defcon 4

      Wow, where were the HRC when scuzzlums were publicly screaming 'kill the Jews, kill the Jews'? Where was the media? Did they all take a day off for islamofascist appreciation day?

      • Anonymous

        The Tribunals practice a double standard. If an Imam condemns homosexuals — that is OK. The tribunals do not attack Muslims for hate speech. Thus the tribunals inform Canadians that not everyone is equal under the law. (If you're interested, look up on Wikipedia "Canadian human Rights Commission Free Speech Controversy." Then look for Imam al-Hayti. It's informative. Also, see the paragraph which begins "In a press conference on October 2, 2008 …."

      • Mary Sue

        the HRC got after David Ahenakew, an Indian leader, for talking trash about Jews a few years ago. It was the same-old "the jews control the world and Hitler was right" sort of deal.

        • Anonymous

          No. It was not a Human Rights Commission. David Ahenakew was criminally charged with a willful promotion of hatred — done by the Saskatchewan Department of Justice. Unlike the Human Rights Commission he was given a REAL trial with a REAL judge. Initially he was convicted, but he appealed his conviction, and after years of litigation, his original offense was overturned. David Ahenakew won his appeal — he was deemed innocent of willfully promoting hatred.

    • Mary Sue

      the attawapiskat blockade of the diamond mine, or another Idle No Mo blockade?

    • Paul Marks

      In many American States the system is the same – and you are correct it is FATAL. Once the lawyers select the judges the left have an iron grip. That is why the establishment (the Economist magazine and so on) hate the free election of judges – and hate the free selction of judges by elected Governors also (they want rigged selection – in the hands of an "enlightened" elite).

      As for the law in England …….. believe me you do not want to know.

  • Western Canadian

    Sorry about all the typo’s, it has been a long day…..

  • Paul Marks

    Freedom of speech – but only for opinions with which the Progressive elite agree (not for ones that they do not agree with – they are "hate speech").

    No freedom of religion – ministers arrested from their own pulpits (even in supposedly conservative Alberta).

    And SLAVERY – printers forced to print things for homosexual events. Prosecuted if they do not.

    All this in the name of "tolerance".

    • Anonymous

      I think another oppressive horror of the misnamed Human Rights Commission is to force people whose only "crime" is to sincerely hold a politically incorrect belief is to require them to write (against their will) an apology to the claimed "victim". Now that is borrowing a page from a Stalinist regime. (Will the HRC next be committing dissents to insane asylums for the purposes of "correction?")

      • Paul Marks

        Quite so Sir.

        And I long for the day when you do not have to be anonymous – although I fully support your right to be so,