Freedom's panhandlers
by George Jonas
National Post
March 3, 2010
In Saskatchewan, a human rights law, so called, makes it an offence for anyone to say, sing, dance, mime, write or draw anything that exposes, or tends to expose, other people to hatred or ridicule, or belittles or otherwise affronts their dignity, on the basis of certain prohibited grounds, including sexual orientation.
All right -- I mean, it's not all right, it's anything but all right, but it's the law.
If that's the law, you'd think that likening Canada's gay parades to Sodom and Gomorrah might breach it. You'd think stuffing flyers into people's mailboxes that say: "If Saskatchewan's sodomites have their way, your school board will be celebrating buggery, too!" might affront the dignity of gays and lesbians.
You might think that, but you'd be wrong.
About nine years ago, a man named William Whatcott, who described himself as a Christian Truth Activist, appeared to run afoul of the province's Human Rights Code, which prohibits exposing homosexuals to hatred and ridicule, by distributing a series of flyers in Regina and Saskatoon that stated, among other things, that "now the homosexuals want to share their filth and propaganda with Saskatchewan's children."
Given that the provincial Human Rights Code prohibits belittling and ridiculing gays, Whatcott impressed four homosexual and lesbian complainants as being in breach of the Code. He created a similar impression in the provincial Human Right Commission, which appointed a tribunal to hear the complaints; in the Human Rights Tribunal that made a finding of such a breach; and finally in the Court of the Queen's Bench, which dismissed Whatcott's appeal.
Last week, the Court of Appeal for Saskatchewan told them they were all wrong. Justices Hunter, Smith and Sherstobitoff did what an old proverb describes as feeding the goat and saving the cabbage, too. They allowed Whatcott's appeal, finding that while prohibiting speech that belittles or ridicules protected groups doesn't contravene constitutional guarantees of free expression, being referred to as a sodomite abomination bent on corrupting schoolchildren, when viewed "in context" and "properly considered," doesn't ridicule, belittle or affront the dignity of anyone.
Well, you could have fooled me.
Make no mistake, I'm happy with the result. I'm only unhappy with the judges' reason for reaching it. They didn't allow the appeal because they found that Canada is a free country. They allowed it because they found that Canadians can't read.
The Saskatchewan Appeal Court didn't actually add insult to injury, only replaced injury with insult. It twisted what it didn't dare to confront. The judges didn't exonerate Whatcott on the basis that the state has no business telling people who to ridicule and belittle in a free society. No. After much hairsplitting and parsing, the judges exonerated Whatcott on the basis that he didn't really ridicule, belittle and affront.
Which is nonsense. Whatcott affronted and belittled, not entirely inaccurately some might say, but rudely, crudely, nastily and immoderately. So what? Doing so was his human right for which he should have to answer to no one.
I think the law that snared Whatcott shouldn't be on the books. I think the Human Rights Commission that convened the tribunal that found Whatcott in breach of the Code shouldn't exist. I think the Code shouldn't exist in the first place.
Not being exposed to hatred, ridicule, belittlement and effrontery isn't a human right. It's a human ambition. While it's a perfectly understandable one, it should never be protected against a human right. In this case, the human right at issue is Whatcott's. It's his fundamental, ancient, common law, Charter-preceding, Runnymede-rooted, Anglo-Saxon freedom of expression: his right to say whatever the hell he likes.
Judges aren't legislators, of course. They can't re-write the law, only interpret it. The fact they can't lay an egg, though, shouldn't preclude them from smelling one that's rotten. And Canada's human rights legislation stinks.
Canada's federal and provincial human rights codes, commissions and tribunals aren't protecting human rights. They are protecting human ambitions against human rights. They're protecting our ambition not to be rejected, ridiculed, belittled and affronted against our right to choose our associates, words and ideas freely. There are noble ambitions and ugly rights, but unless our worst rights outrank our best ambitions, we aren't free.
Assume Parliament passes an Act for Preserving the Integrity of Liquids, making it unlawful for anyone to blow on his spoon before raising it to his lips. Since the legislation would oblige people to drink their soup as hot as they serve it, resulting in an epidemic of scalded Canadians, a moderate, compromise-prone provincial Court of Appeal might find that when a defendant blew on his spoon it wasn't to cool his chicken broth, an unlawful purpose, but to alter the pattern of swirls on the surface of the liquid, which is lawful.
Would Canada's civil liberties community applaud such a judgment? I'm afraid it might. From proud warriors of freedom, we've regressed to being its panhandlers. When, after taking a dollar's worth of our liberties the authorities drop a penny's worth into our beggar's bowls, we hear a mendicants' chorus thanking God for small mercies.