CAFE’S SUBMISSIONS  IN SUPPORT OF BILL WHATCOTT’S MOTION TO DISMISS TRANSGENDERED  OGER’S COMPLAINT OF DISCRIMINATION BEFORE B.C. HUMAN RIGHTS  TRIBUNAL

IN THE MATTER OF THE HUMAN RIGHTS CODE

R.S.B.C. 1996, c. 210 (as amended)

AND IN THE MATTER of a complaint before

the British Columbia Human Rights Tribunal

BETWEEN:

Morgane Oger

COMPLAINANT

AND:

Bill Whatcott

RESPONDENT

SUBMISSION BY INTERVENER CAFÉ (CANADIAN ASSOCIATION FOR FREE EXPRESSION) ON RESPONDENT’S APPLICATION FOR SUMMARY DISMISSAL

1.     The BCHRCode is narrow + specific as to what it covers, + doesn’t allow tribunal leeway to invent or make up rules or concepts not specifically provided for.

2.     The concept of “hatred” or “hate” has been narrowly defined by SCC in Whatcott v Sask. (HRC), [2013] SCJ no. 11. These passages from the SCC Whatcott decision confirm “a Modified Definition of ‘Hatred’ “: [56]  First, courts are directed to apply the hate speech prohibitions  objectively . In my view, the reference in  Taylor  to “unusually strong and deep-felt emotions” (at p. 928) should not be interpreted as imposing a subjective test or limiting the analysis to the intensity with which the author of the expression feels the emotion. The question courts must ask is whether a reasonable person, aware of the context and circumstances surrounding the expression, would view it as exposing the protected group to hatred. [57]  Second, the legislative term “hatred” or “hatred and contempt” is to be interpreted as being restricted to those extreme manifestations of the emotion described by the words “detestation” and “vilification”. This filters out expression which, while repugnant and offensive, does not incite the level of abhorrence, delegitimization and rejection that risks causing discrimination or other harmful effects. [58]  Third, tribunals must focus their analysis on the effect of the expression at issue. Is the expression likely to expose the targeted person or group to hatred by others? The repugnancy of the ideas being expressed is not, in itself, sufficient to justify restricting the expression. The prohibition of hate speech is not designed to censor ideas or to compel anyone to think “correctly”.

In light of these three principles, where the term “hatred” is used in the context of a prohibition of expression in human rights legislation, it should be applied objectively to determine whether a reasonable person, aware of the context and circumstances, would view the expression as likely to expose a person or persons to detestation and vilification on the basis of a prohibited ground of discrimination. [85]…prohibiting…any representation which “ridicules, belittles or otherwise affronts the dignity of” any person or class of persons on the basis of a prohibited ground.

The words “ridicules”, “belittles” or “affronts the dignity of” are said to lower the threshold of the test to capture “hurt feelings” and “affronts to dignity”that are not tied to the objective of eliminating discrimination. To the extent that they do, they are said to infringe freedom of expression in ways not rationally connected to the legislative objectives. [87]  Since the decision in  Taylor , the Saskatchewan Court of Appeal has interpreted s. 14(1)( b ) of the  Code , including the words “ridicules, belittles or otherwise affronts the dignity of”, to prohibit only those publications involving unusually strong and deep-felt emotions of detestation, calumny and vilification: see  Bell  at para. 31;  Owens , at para. 53, and  Whatcott (C.A.) , at paras. 53-55. [88]  Although the expansive words “ridicules, belittles or otherwise affronts the dignity of” have essentially been ignored when applying s. 14(1)( b ), it is a matter of concern to some interveners that “the legislation has never been amended, and no declaration has ever been made to read down the impugned law” (Christian Legal Fellowship factum, at para. 22), and that the express wording of the provision contributes to its chilling effect (Canadian Journalists for Free Expression factum, at para. 5). [89]  In my view, expression that “ridicules, belittles or otherwise affronts the dignity of” does not rise to the level of ardent and extreme feelings that were found essential to the constitutionality of s. 13(1) of the  CHRA  in  Taylor . Those words are not synonymous with “hatred” or “contempt”. Rather, they refer to expression which is derogatory and insensitive, such as representations criticizing or making fun of protected groups on the basis of their commonly shared characteristics and practices, or on stereotypes. As Richards J.A. observed in  Owens , at para. 53: “Much speech which is self-evidently constitutionally protected involves some measure of ridicule, belittlement or an affront to dignity grounded in characteristics like race, religion and so forth. I have in mind, by way of general illustration, the editorial cartoon which satirizes people from a particular country, the magazine piece which criticizes the social policy agenda of a religious group and so forth. Freedom of speech in a healthy and robust democracy must make space for that kind of discourse. . . .”[90]  I agree. Expression criticizing or creating humour at the expense of others can be derogatory to the extent of being repugnant. Representations belittling a minority group or attacking its dignity through jokes, ridicule or insults may be hurtful and offensive. However, for the reasons discussed above, offensive ideas are not sufficient to ground a justification for infringing on freedom of expression. While such expression may inspire feelings of distain or superiority, it does not expose the targeted group to hatred. [91]  There may be circumstances where expression that “ridicules” members of a protected group goes beyond humour or satire and risks exposing the person to detestation and vilification on the basis of a prohibited ground of discrimination. In such circumstances, however, the risk results from the intensity of the ridicule reaching a level where the target becomes exposed to hatred. While ridicule, taken to the extreme, can conceivably lead to exposure to hatred, in my view, “ridicule” in its ordinary sense would not typically have the potential to lead to the discrimination that the legislature seeks to address. [92]  Thus, in order to be rationally connected to the legislative objective of eliminating discrimination and the other societal harms of hate speech, s. 14(1)( b ) must only prohibit expression that is likely to cause those effects through exposure to hatred. I find that the words “ridicules, belittles or otherwise affronts the dignity of” in s. 14(1)( b ) are not rationally connected to the legislative purpose of addressing systemic discrimination of protected groups. The manner in which they infringe freedom of expression cannot be justified under s. 1 of the  Charter  and, consequently, they are constitutionally invalid. [93]  It remains to determine whether the words “ridicules, belittles or otherwise affronts the dignity of” can be severed from s. 14(1)( b ) of the  Code , or whether their removal would transform the provision into something which was clearly outside the intention of the legislature. It is significant that in the course of oral argument before this Court, the Attorney General for Saskatchewan endorsed the manner in which the words “ridicules, belittles or otherwise affronts the dignity of” were read out in  Bell . I accept his view that the offending words can be severed without contravening the legislative intent. [94]  Given my determination that these words are unconstitutional, it is time to formally strike out those words from s. 14(1)( b ) of the  Code . The provision would therefore read: (b) that exposes or tends to expose to hatred any person or class of persons on the basis of a prohibited ground. [95]  Accordingly, I will proceed on the basis that the only word in issue on this appeal is “hatred”. Interpreting that term in accordance with the modified  Taylor  definition of “hatred”, the prohibition under s. 14(1)( b ) of the  Code  is applied by inquiring whether,  in the view of a reasonable person aware of the context and circumstances, the representation exposes or tends to expose any person or class of persons to detestation and vilification on the basis of a prohibited ground of discrimination. [99] Having concluded that the words “ridicules, belittles or otherwise affronts the dignity of” in s. 14(1)( b ) are not rationally connected to the objective of prohibiting speech which can lead to discrimination, I also find them constitutionally invalid because they do not minimally impair freedom of expression. [109]  Restricting expression because it may offend or hurt feelings does not give sufficient weight to the role expression plays in individual self-fulfillment, the search for truth, and unfettered political discourse. Prohibiting any representation which “ridicules, belittles or affronts the dignity of” protected groups could capture a great deal of expression which, while offensive to most people, falls short of exposing its target group to the extreme detestation and vilification which risks provoking discriminatory activities against that group. Rather than being tailored to meet the particular requirements, such a broad prohibition would impair freedom of expression in a significant way. [110]  The Saskatchewan legislature recognized the importance of freedom of expression through its enactment of s. 14(2) of the  Code . To repeat, that provision confirms that “[n]othing in subsection (1) restricts the right to freedom of expression under the law upon any subject”. The objective behind s. 14(1)( b ) is not to censor ideas or to legislate morality. The legislative objective of the entire provision is to address harm from hate speech while limiting freedom of expression as little as possible.

3.     All Code-created prohibitions + offences can only be read + interpreted subject to the superior freedoms + rights enacted in the Charter, especially section 2(b) thereof, namely, “freedom of thought, belief, opinion + expression, including freedom of the press + other means of communication.

4.     The Courts in Canada + USA have given paramount importance to freedom of expression in the context of elections, as evidenced in the Canadian SCC decisions of Figueroa v Canada [2003] 1 SCR 912, + Thomson v Canada [1998] 1 SCR 877, + the USSC decision of Citizens United v FEC. Free expression must be given free rein in the vital matter of free democratic elections.

5.     Any member of the public, any citizen, has the absolute right to raise any matter about an election candidate, including: fitness for office, good character, honesty + truthfulness, trustworthiness, faithfulness to others (including one’s spouse and/or children), lying about anything including about oneself, sexual misconduct, sanity (being free of mental disorder or delusion), political agenda (including candidate’s desire, as here, to punish, harrass or bully citizens.

6.     Nobody has a right not to be offended, to protection of so-called “dignity”, “feelings”, “reputation” or “self-respect”. These aren’t in the Code, and no Tribunal has the right to make up or invent concepts from “whole cloth”. It’s not the purpose for which Code was initially enacted, to protect people from actual tangible + palpable harm from true discrimination in matters like employment, houding, + services offered to the public.

7.     Each citizen has the right to express his/her doubt or disbelief that any person has the right to claim any special privilege under the Code.

8.     Each citizen has the right to question the validity of any claim by a person to be of a gender or sex that doesn’t correspond to reality, & to question any demand by someone to be addressed as or referred to as being of a certain gender or sex, or to be referred to by certain pronouns if that does not correspond to reality.

9.     It is submitted that any cases decided by BCHRT or any other tribunal, contrary to the charter or the Code, are wrongly decided + must not be followed. This would include the Browne, Sheridan, waters + dawson decisions. Alternatively, these cases must be distinguished on the basis the facts differed from those in the present case.

All of which is respectfully submitted by the Intervenor, the Canadian Association For Free Expression (CAFÉ), this 22^nd day of December, 2017.

  Per:  _______________________________

Paul Fromm, Director