During the 2016 Toronto Pride Parade, William Whatcott and others dressed as “gay zombies” and distributed flyers disguised as condoms to attendees. The flyers highlighted the health risks associated with gay sex, featured images of sexually transmitted diseases, and urged belief in Jesus Christ.
One recipient of the flyer complained to the police, who charged him with the “wilful promotion of hatred” according to section 319(2) of the Criminal Code of Canada. Mr. Whatcott surrendered himself to police in Calgary, where he lived.
At trial, the Crown argued that advocacy against engaging in gay sex was legally equivalent to advocating for the eradication of gay men. The Crown further urged the Ontario Court of Appeal to effectively expand the definition of the “wilful promotion of hatred” to include the disapproval of certain sexual behaviours.
On December 10, 2021, Mr. Whatcott was acquitted at the Ontario Superior Court of Justice by Justice Robert Goldstein, who was left with reasonable doubt that Mr. Whatcott had willfully promoted hatred. In his decision, he wrote, “Our values as a free society and our centuries-old legal tradition requires that our system not criminalize those who hold views that are merely obnoxious and unpopular. We take this approach not because we like or approve of Mr. Whatcott’s views but because protection of speech we dislike, or even despise, protects everyone in a free and democratic society.”
The Crown appealed his acquittal, however, arguing that the trial judge had misapplied the meaning of “hatred” and had excluded key evidence from its expert witnesses.
With help from the Justice Centre, Canadian non-profit Free to Care was granted intervenor status in the case on May 8, 2023. (“Intervenor status” refers to the legal right of a non-party to participate in a legal proceeding by, for example, providing evidence to the court.) In the words of founder and spokesperson Jojo Ruba, Free to Care sought to intervene “because of the potential implications this could have both on our work as well as in the lives of millions of Canadians, including members of the LGBTQ community. Specifically, Free to Care is concerned that the Crown’s arguments would result in criminalizing legitimate conversations that seek to persuade people to change their actions or beliefs.”
In their factum, Free to Care argued that expanding the definition of “hate speech” to include criticism of behaviours or beliefs that are fundamental to a group’s identity could lead to the criminalization of even authentic dialogue and discussion surrounding numerous issues, including sexuality, religion, and politics. Expanding definitions of “hate speech” could have a quieting effect on the expression of all communities, including LGBTQ communities. Free to Care does not take a position on the acquittal of Mr. Whatcott. Instead, they seek to caution the Court against accepting the Crown’s argument that moral disagreement with gay sex is equivalent to advocating for “the eradication.
The Court of Appeal of Ontario heard the appeal on June 21, 2023, and, on August 11, 2023, ordered a new trial for Mr. Whatcott on the basis that the trial judge had erred by excluding expert evidence about discrimination against gay people. The Court did not comment on whether the standard for the wilful promotion of hatred was misconstrued or improperly applied.
Lawyer Hatim Kheir commented, The Court did not adopt the Crown’s argument that criticizing sexual behaviour is equivalent to advocating for the eradication of a group. We are pleased to see that the Court of Appeal has affirmed the Supreme Court of Canada precedent and has not expanded the definition of the offence of the wilful promotion of hatred. The Court’s decision leaves space for good faith criticism and debate.
“Canada has a long history of different religious groups living side by side peacefully with the freedom to disagree with each other’s practices,” continued Mr. Kheir. “This history stretches back to the Constitution Act of 1867 and is strengthened in the Canadian Charter of Rights and Freedoms. Our country is built on the idea that the best way to live together peacefully is to give people the freedom to authentically express their views and beliefs and to live out their own values.”
