The Ontario Court of Appeal has ordered a retrial of William Whatcott on a criminal charge of willfully promoting hatred against gay men for distributing a graphic flyer at the Toronto Pride Parade that warned about the dangers of gay sex. Mr. Whatcott was acquitted at trial and the Crown appealed. The Crown succeeded at the Court of Appeal in obtaining a retrial.

The Court of Appeal found that the trial judge was wrong to exclude “expert evidence” from York University professor Nick Mulé, who is considered an expert in anti-gay discrimination. Professor Mulé teaches at York University’s School of Gender, Sexuality and Women’s Studies. His Ph.D. is in Social Work and Social Policy.

The excluded evidence was a written opinion by Professor Mulé about how Mr. Whatcott’s flyer relied on several anti-gay “tropes” in order to promote hatred against gay men. Those tropes, according to Professor Mulé, are based on health (gay men are diseased), religion (gay men are morally corrupt), and law (that gay men are criminals). According to Professor Mulé, these “tropes” function somewhat like “dog whistles” – though taking the form of medical claims or sincere religious objections to certain sexual conduct, they are allegedly rooted in deeply discriminatory, damaging, and hateful stereotypes of gay men.

The Court of Appeal concluded that “Professor Mulé’s evidence would have been of great assistance to the trial judge in recognizing and analyzing the contents and impact of the ‘dog whistles’.” The Court of Appeal has therefore ordered a retrial, in which the judge or jury must consider Professor Mulé’s evidence. Whatcott could be acquitted again or convicted on retrial. He could also appeal this ruling to the Supreme Court of Canada.

The rest of this article further explains why the Court of Appeal has ordered a retrial. For more background on this case and a summary of ARPA’s arguments at the Court of Appeal, see our earlier article.

Expert evidence in court cases

Judges must decide cases based only on evidence that is properly before a court. There is a large body of law governing the admissibility of evidence. For starters, the evidence must be reliable and relevant. And its “probative value” must outweigh its “prejudicial effect” – for example, evidence of a defendant’s past convictions may prejudice a jury against him but have little value in helping them determine what happened in the case before them.

All evidence comes before the court through witnesses. Witnesses’ testimony can be tested through cross-examination and compared to the testimony of other witnesses.

Witnesses are not ordinarily permitted to give opinions. Rather, they are to testify about facts they have observed directly – what did they see or hear or say or do? But there is a narrow exception to this rule for experts, who may be permitted to give opinion evidence if their evidence passes a certain test. If permitted, an expert may offer interpretations of facts or an opinion as to what certain facts imply.

Expert evidence is “presumptively inadmissible.” The burden is on the party who wants to bring an expert to court to demonstrate that the expert’s opinion is both relevant to an issue before the court and necessary to assist the judge or jury. The proposed expert witness must also be established as an expert in the subject matter in question and his evidence must not go beyond the scope of his expertise.

An expert opinion is considered necessary to assist the trier of fact where the meaning or implication of certain facts is beyond the ordinary person’s ability to comprehend. For example, an expert may be permitted to testify not only as to what he observed at the scene of a burned building but also to give his opinion on what likely caused the fire.

One danger in admitting expert opinion evidence is that the “trier of fact” – the judge or jury – will defer to the expert’s opinion as to what certain facts established by direct evidence imply, rather than decide this for themselves based on a holistic and objective assessment of all the evidence.

The role of experts in Whatcott’s trial  

In Whatcott’s case, it is not the job of an expert in Christian theology, medicine, social work, or any other field to determine whether Whatcott committed a crime at the pride parade. That is the job of the judge or jury.

But the trial judge did admit opinion evidence from two experts. Dr. Loutfy was an expert in sexually transmitted diseases and gave her opinion regarding the degree of (in)accuracy of Whatcott’s claims about the health risks of engaging in gay sex. Another was Douglas Farrow, a theological expert, who explained the ways in which the flyer was connected to important scriptural themes like the sinfulness of gay sex and the duty to warn people about the dire consequences of sin and to call sinners to repentance.

As for the proposed opinion evidence of Professor Mulé, the trial judge found that the “detailed linkages between the tropes of health and religion and anti-gay discrimination as found in the academic literature are unlikely to be within the knowledge and experience of the trier of fact.” However, the trial judge also concluded that a full knowledge of these “detailed linkages” was unnecessary, as “there is a well-known history of discrimination against gay people based on religion, health, and law.”

The trial judge also found that Professor Mulé’s report, which was highly critical of traditional religious teachings on sexual morality might have a significant prejudicial effect and turn Whatcott’s trial into a debate about the merits of his religious beliefs, rather than about whether he intended in this instance to promote hatred against an identifiable group.

The Court of Appeal concludes the trial judge erred in excluding Professor Mulé’s report

The Court of Appeal found that the trial judge erred by mischaracterizing the issue of necessity. The Court of Appeal said the issue is not whether a judge or jury could understand – without an expert’s opinion – that anti-gay discrimination exists. It is whether the judge could understand the subtle ways in which the flyer “perpetuated long-held negative stereotypes about gay men and relied on these stereotypes to promote hate” (para 41).

The Court of Appeal also reasoned that Professor Mulé’s report will provide important evidence of how the flyer impacts gay men. “The perspective of the gay male community as it relates to the tropes present in the flyer might strengthen (or diminish) the hatefulness of Mr. Whatcott’s communication,” the Court reasons. With respect, the Court’s reasoning on this point appears to constitute an error of law. The Court here seems to incorporate the perspective of gay men into the key task of setting the legal standard for hate speech.

While it is true, as the Court of Appeal notes, that the Supreme Court of Canada has identified the emotional distress caused by hate speech as one of the harms that hate speech laws seek to suppress, the Supreme Court has simultaneously maintained that the legal test for whether a person has committed the crime of willfully promoting hatred is not based on the perspective of the target group. The accused speaker cannot be convicted based on the subjective feelings of the target group. Thus, evidence as to the subjective reaction of the target group is not needed to resolve the case. Nor is an expert opinion necessary to establish how the speech in question makes the target group feel. In any hate speech case, the Crown could call several witnesses from among the target group to testify directly about how the alleged hate speech made them feel if that were relevant.

Thankfully, the Court of Appeal later points out that the standard for hate speech is strictly objective (i.e. not based on the subjective feelings of the target group). It is quite clear on this point and takes direct note of ARPA Canada’s submissions on it. However, the Court does not appear to apply this point directly to its assessment of the relevance and probative value of Dr. Mulé’s report. Rather, the Court suggests that evidence regarding the emotional distress the flyer may cause to gay men is necessary to establish the full context.

The Court of Appeal also found that Dr. Mulé’s evidence was needed to provide balance to Professor Farrow’s evidence:

“The religious explanation [provided by Professor Farrow] and scriptural content of the flyers were fully before the court, and the trial judge relied on it in assessing whether the flyer met the definition of hate speech. However, on the other side, the full extent of the hateful meaning and subtext of the flyer was not presented, and the court did not receive a proper explanation, supported by expert analysis, of how exactly the flyer constituted hate speech against gay men, in the broader social and historical context of tropes in anti-gay discrimination. For example, in relying on Professor Farrow’s evidence to conclude that “sodomite” is an insulting term only in some contexts, the trial judge provided a one-sided analysis of the specific words.”

The Court of Appeal also made certain conclusory statements about Professor Mulé’s evidence that seem inappropriate, given that the accuracy of Professor Mulé’s evidence was not tested before the Court of Appeal. For example, the Court comments, “Professor Mulé demonstrated that the respondent played on classic homophobic tropes such as that gay men are morally inferior, corrosive to Christian morals, dangerous to children, and therefore deserving of disease and suffering.” But it is debatable (at best) that Professor Mulé “demonstrated” that Whatcott did all of the above.

Professor Mulé’s report is especially troubling in its commentary regarding Christianity and homosexuality. He says that there is a range of views within Christianity, with “conservative denominations … utilizing a literal interpretation that opposes same-sex relations.” These denominations, he claims, create and perpetuate “an ‘immorality’ trope that discriminates against LGBT2-SQI communities.” Mulé puts “immorality” in quotes, of course, because he does not believe there is anything immoral about same-sex sexual relations. He also comments that Whatcott’s call for gay men to repent amounts to an accusation that they are sinners, which Mulé says “is both discriminatory and insensitive to the many religious members of  LGBT2-SQI communities.” Mulé, who is not an expert on the Bible, Christianity, or ethics, purports to give an “expert” opinion on the meaning and implications not only of Whatcott’s flyer but of “conservative” Christian teaching on sexual morality.  

ARPA Canada will find out in the next month whether Whatcott will appeal to the Supreme Court of Canada. If he does, ARPA Canada intends to intervene in that hearing too, DV.