ARPA delivered arguments to Ontario’s highest court last week about respecting the freedom to share religious and moral beliefs on sensitive subjects. Here’s a quick history of how we got there and why it matters.

It all starts with a man named Bill Whatcott. Whatcott says that as a young man he lived on the streets and, on occasion, performed sexual favours for other men for drugs. But Whatcott eventually found his way off the streets, got married, converted to Christianity, and became a nurse. As a nurse working in downtown Toronto, Whatcott says that he saw many men die from AIDS.

Because of his experience and his faith, Whatcott believes it is his calling to preach against homosexuality and transgenderism. But it is Whatcott’s method of doing so that has made him notorious.

Whatcott at the Supreme Court of Canada

In 2013, the Supreme Court of Canada ruled that Whatcott had engaged in hate speech (according to Saskatchewan human rights law) by handing out flyers which warned against including homosexuality as a topic in public education. The flyer said, among other things, that “homosexuals want to share their filth and propaganda with Saskatchewan’s children” and “our children will pay the price in disease, death, abuse.”

The Supreme Court of Canada concluded, in that (2013) case, “The repeated references to ‘filth,’ ‘dirty,’ ‘degenerated’ and ‘sex addicts’ or ‘addictive behaviour’ emphasize the notion that those of same-sex orientation are unclean and possessed with uncontrollable sexual appetites or behaviour.  The message which a reasonable person would take from the flyers is that homosexuals, by virtue of their sexual orientation, are inferior, untrustworthy and seek to proselytize and convert our children.”

Whatcott was ordered to pay a substantial sum to the complainants in that case.  But when it came to passing out more flyers in the future, Whatcott was undeterred. In 2019, ARPA reported on another human rights tribunal decision about a different Whatcott flyer which he had distributed in Vancouver.

From human rights complaints to criminal indictment

The latest Whatcott court case is a more serious matter because it involves not a human rights complaint but an indictment under the Criminal Code of Canada. For this particular crime, the local Crown prosecutor has to ask permission from the Attorney General of Ontario to prosecute a charge, a petition that was granted. If convicted, Whatcott would likely receive a prison sentence.

Though the appeal hearing was held just last week, the story of his criminal case begins 7 years ago. In 2016, Whatcott infiltrated the Toronto Pride Parade under the made-up name “Robert Clinton.” leader of the fake “Gay Zombie Cannabis Consumers Association.” The Pride Parade Committee gave him the green light. Whatcott and company distributed what they called “safe sex packets” at the parade, which contained flyers folded within small wrappers.

On one side, the flyer warned about the health risks of engaging in homosexual relations. It had several graphic photos of infected body parts. It also had a photo of an emaciated corpse on an autopsy table. On the other side, the flyer described sex scandals involving politicians who supported Pride. At the bottom of the flyer, there was a call to repentance and a number to call if you wanted to stop having gay sex and become a Christian. The flyer ended by quoting 1 Peter 2:21-25: “For to this you have been called, because Christ also suffered for you, leaving you an example, so that you might follow in his steps. He committed no sin, neither was deceit found in his mouth. When he was reviled, he did not revile in return; when he suffered, he did not threaten, but continued entrusting himself to him who judges justly. He himself bore our sins in his body on the tree, that we might die to sin and live to righteousness. By his wounds you have been healed. For you were straying like sheep, but have now returned to the Shepherd and Overseer of your souls.”

People complained to the police, who arrested Mr. Whatcott and charged him with “willful promotion of hatred,” one of the Criminal Code’s “hate propaganda” offences.

Whatcott was acquitted at trial, but the Crown appealed

Whatcott was acquitted at trial. The judge decided that Whatcott’s flyer was a “borderline case.” After hearing all the evidence, the judge doubted whether the flyers passed the legal test for hate propaganda. Unhappy with the verdict, the Crown prosecutors appealed.

The Crown subbed in new lawyers to argue the appeal and they subbed in some new arguments as well. At the lower court (the first trial) the Crown prosecutors had argued that Whatcott promoted hatred against gay men by presenting them as dangerous spreaders of disease.

On appeal, however, the Crown also argued that Whatcott, by calling for an end to gay sex, was calling for the “eradication” of gay men. The Crown argued that the flyers themselves were an extreme manifestation of hatred. Finally, they also argued that it was the court’s job to assess the degree to which Whatcott’s personal beliefs were hateful.

ARPA’s legal arguments

This is where ARPA’s arguments came in (you can read our written arguments here). ARPA made three main points to the panel of judges.

First, ARPA explained that the law distinguishes between condemning conduct that is core to a group’s identity (in this case, same-sex sexual relations) and promoting hatred against that group. Leading case law maintains that people are free to criticize or condemn the conduct or beliefs of a group, provided they do not also make “hate-inspiring representations” of that group. What is a hate-inspiring representation? The Supreme Court has used an example the claim that all gay men are pedophiles, a defamatory generalization of gay men that (if believed) might incite hatred in others towards them. 

Second, ARPA clarified that the Criminal Code does not target the beliefs or ideas that someone expresses, per se, but only the substantially certain effects of their communication. The Supreme Court has said that judges should not be deciding what are acceptable or unacceptable beliefs for people to hold or to share. The issue is, rather, whether the accused intended to incite hatred in other people towards an identifiable group (defined by race, religion, sexuality, gender, or disability). Maintaining this distinction in law is important if we are to avoid having judges label beliefs as “hateful” or “hatred.”

Hatred in this legal context means an “intense and extreme emotion” that “belies reason” and that may lead to actual mistreatment or violence. Whether a statement or publication will promote hatred depends not only on the wording and images used but also on all of the circumstances of the speech, including the intended audience. A publication or message (including a Bible verse, a catechism excerpt, or even a Whatcott flyer) cannot “constitute hatred” as the Crown contended because a publication is not an emotion. The “hatred” of concern to the law is a dangerously intense emotion directed towards a group.

And third, ARPA argued that individuals, unlike governments, are generally free to urge other people to change beliefs and conduct that are core to their identity, even if governments are not. (The Crown had cited case law which says that sexual orientation is something the government may not require anyone to change.)

What’s next?

If the Crown’s arguments are accepted, it could have major implications for Christian individuals and institutions who hold an orthodox view on human sexuality and sexual morality. Of course, most Christians don’t engage in the type of expression Whatcott does. But if the judges accept the Crown’s argument in principle, it may not matter how winsome, kind, or genuine you are in your attempts to communicate Christian teaching on such topics. Your speech might still be deemed “hateful.”

We don’t know how the Court will rule. We must wait for their decision, which will likely not be released for a few months to a year. In the meantime, we ask that you pray for the judges, that they would be careful, precise, and wise in their deliberations.