Canadian Court Rules Bible Verses "Hate Speech"


Below is the text of the Canadian ruling:
 


OWENS V. SASKATCHEWAN (HUMAN RIGHTS COMMISSION)

QB02511
Date of Judgment:
December 11, 2002

Number of Pages: 11

2002 SKQB 506
Q.B.G. A.D. 2001
No. 1497 J.C. S.


IN THE QUEEN'S BENCH

JUDICIAL CENTRE OF SASKATOON


IN THE MATTER OF THE HUMAN RIGHTS CODE AND IN THE MATTER OF COMPLAINTS DATED THE 5TH DAY OF AUGUST, 1997, THE 6TH DAY OF AUGUST, 1997 AND THE 12TH DAY OF AUGUST, 1997


BETWEEN:

HUGH OWENS

APPELLANT (APPLICANT)

- and -

SASKATCHEWAN HUMAN RIGHTS COMMISSION

RESPONDENT

- and -

GENS HELLQUIST, JASON ROY AND JEFF DODDS

RESPONDENTS (COMPLAINANTS)

- and -

SASKATCHEWAN HUMAN RIGHTS BOARD OF INQUIRY
VALERIE G. WATSON
RESPONDENT

Hugh Owens self-represented

Milton C. Woodard, Jr. Q.C. for the Saskatchewan Human Rights Commission

JUDGMENT BARCLAY J.
December 11, 2002

[1] This is an appeal from the decision of a Board of Inquiry (the "Board") appointed by the Minister of Justice pursuant to s. 29 of The Saskatchewan Human Rights Code, S.S. 1979, c. S-24.1, as am. (the "Code"). The Board inquired into three complaints: Jeff Dodds v. Hugh Owens, dated August 5, 1997, Jason Roy v. Hugh Owens, dated August 6, 1997 and Gens Hellquist v. High Owens dated August 12, 1997, all of which are complaints filed pursuant to s. 27 of the Code.

[2] Each of the complainants, Dodds, Roy and Hellquist, is a gay male. Each complained concerning the same actions of Hugh Owens (the "appellant").

[3] The hearing was held from August 23, 1999 to August 30, 1999 and the Board rendered its decision on June 15, 2001. The Board found that the appellant violated s. 14 of the Code by publishing an advertisement for certain bumper stickers in the Saskatoon Star-Phoenix. Section 14 of the Code as it read at that time states:

14(1) No person shall publish or display, or cause or permit to be published or displayed, on any lands or premises or in a newspaper, through a television or radio broadcasting station or any other broadcasting device, or in any printed matter or publication or by means of any other medium that he owns, controls, distributes or sells, any representation, including without restricting the generality of the foregoing, any notice, sign, symbol, emblem, article, statement or other representation:

(a) tending or likely to tend to deprive, abridge or otherwise restrict the enjoyment by any person or class of persons of any right to which he is or they are entitled under law; or

(b) which exposes, or tends to expose, to hatred, ridicules, belittles or otherwise affronts the dignity of any person, any class of persons or a group of persons; because of his or their race, creed, religion, colour, sex, sexual orientation, family status, marital status, disability, age, nationality, ancestry, place of origin or receipt of public assistance.

(2) Nothing in subsection (1) restricts the right to freedom of speech under the law upon any subject.

The Board found that the advertisement of the bumper stickers exposed the complainants to hatred, ridicule and an affront to their dignity because of their sexual orientation contrary to this section. The appellant appeals the Board's decision pursuant to s. 32 of the Code. This section allows any party to appeal a Board's decision but only on a question of law.

[4] Similar complaints were filed by each of the same complainants against the Saskatoon Star-Phoenix and the Board also dealt with those complaints. The Board found that the Star-Phoenix violated the Code by publishing the said advertisement. That decision is not under appeal.

[5] At the Board hearing, each of the individual complainants testified. However, none of the complainants independently presented evidence or argument. Each relied on the submissions of the Commission. On this appeal, the complainants continue to rely on the Commission and are not active parties in these proceedings.

[6] On June 30, 1997, the Star-Phoenix published an advertisement for certain bumper stickers. The appellant admitted that he placed the advertisement and that, in fact, he had available for sale the bumper stickers that were advertised. The advertisement was simply a copy of one of the bumper stickers with the following words displayed on the bottom of the sticker: "This message can be purchased in bumper sticker form. Please call 306-584-2611." In fact, this sticker and three similar stickers were offered for sale by the appellant.

[7] The bumper sticker in the advertisement displayed references to four Bible passages: Romans 1, Leviticus 18:22, Leviticus 20:13 and 1 Corinthians 6:9-10, on the left side of the sticker. An equal sign (=) was situated in the middle of the sticker, with a symbol on the right side of the sticker. The symbol on the right side was comprised of two males holding hands with the universal symbol of a red circle with a diagonal bar superimposed over top. The Board noted, citing the Court of Appeal in Saskatchewan Human Rights Commission v. Bell (1994), 120 Sask. R. 122, that the red slash and circle is "the universal symbol for forbidden, not allowed or not wanted." The Bible passages read as follows:

Romans 1:26 Because of this, God gave them over to shameful lusts. Even their women exchanged natural relations for unnatural ones. In the same way the men also abandoned natural relations with women and were inflamed with lust for one another. Men committed indecent acts with other men, and received in themselves the due penalty for their perversion. Furthermore, since they did not think it worthwhile to retain the knowledge of God, he gave them over to a depraved mind, to  do what ought not to be done. They have become filled with every kind of wickedness, evil, greed and depravity. They are full of envy, murder, strife, deceit and malice. They are gossips, slanderers, God-haters, insolent, arrogant, and boastful; they invent ways of doing evil; they disobey their parents; they are senseless, faithless, heartless, ruthless. Although they know God's righteous decree that those who do such things deserve death, they not only continue to do these very things but also approve of those who practice them.

Leviticus 18:22 "Do not lie with a man as one lies with a woman; that is detestable.

Leviticus 20:13 "If a man lies with a man as one lies with a woman, both of them have done what is detestable. They must be put to death; their blood will be on their own heads.

1 Corinthians 6:9 Do you know that the wicked will not inherit the kingdom of God? Do not be deceived: Neither the sexually immoral nor idolaters nor adulterers nor male prostitutes nor homosexual offenders ....

[8] The complainants and a number of experts in human sexuality, various religions and religious fundamentalism testified as to the message of the sticker and the impact of that message. The Board referred to Canadian (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892 and the Bell case, supra, and decided that it had to determine on an objective basis whether the advertisement violated s. 14 of the Code. The Board defined the issue as being "whether or not the effect of the publication of the advertisement exposed or tended to expose to hatred, or otherwise affronted the dignity of gay men and caused or tended to cause others to engage in discriminatory practices against gay men in contravention of Part 2 of the Code."

[9] In the Bell case, supra, the court dealt with similar stickers. But the Board observed that the representation of gay men was more neutral than the demeaning caricatures used on the stickers considered in the Bell case. It commented that the universal symbol "may itself not communicate hatred." However, viewing the sticker in its totality, the Board concluded:

The use of the circle and the slash combined with the passages of the Bible herein make the meaning of the advertisement unmistakable. It is clear that the advertisement is intended to make the group depicted appear to be inferior or not wanted at best. When combined with the Biblical quotations, the advertisement may result in a much stronger meaning. It is obvious that certain of the Biblical quotations suggest more dire consequences and there can be no question that the advertisement can objectively be seen as exposing homosexuals to hatred or ridicule.

[10] Having found that the advertisement violated s. 14(1) by exposing homosexuals to hatred or ridicule, the Board cited the Bell case in concluding that the communication was not protected by either of ss. 5 or 14(2) of the Code, which deal with freedom of expression and speech. Nor did s. 14(1) violate s. 2(b) of the Charter, in that the restriction placed on freedom of expression constituted a reasonable limit under s. 1 of the Charter.

[11] The finding of the Board that the advertisement did expose homosexuals to hatred and ridicule accords with the appellant's own opinion as to the impact of the message contained in the advertisement and the bumper sticker.

[12] The appellant in his testing believes that homosexuals, by being who they are, are committing a sin for which they should be put to death. Furthermore, the passages from the Bible, which are cited in the bumper sticker and in the advertisement, constitute the appellant's authority for this belief. This belief motivates the message in the bumper sticker and the advertisement. The most favourable interpretation that could be given to the bumper stickers is that because the Bible sanctions the execution of homosexuals, we should be allowed to at least prohibit their activities. However, the Board observed there is a more sinister interpretation.

[13] Although there were a number of procedural issues raised in the notice of appeal, they were not seriously argued and in any event, in my view, they are without merit.

[14] I will deal with the substantive issues.

(a) Did the Board misapprehend the facts?

(b) Did the Board apply the wrong test in determining that the advertisement and the bumper sticker it represented violated s. 14(1) of the Code?

(c) Is the advertisement in this case protected by the right to freedom of religion and freedom of expression?

(a) Did the Board misapprehend the facts?

[15] The appellant argues that the Board erred in law when it described the advertisement as consisting of four passages from the Bible in red ink. He further submits that the advertisement does not consist of four passages from the Bible, but a list of four Bible references in red ink. Although the ground may not disclose a point of law, in any event, it is factually incorrect. In my view the Board did not misapprehend the nature of the publication. It is significant that the actual bumper stickers and advertisement were filed as exhibits. Finally, when the Board analyzed whether the advertisement violated s. 14, it described the advertisement as containing four references to Bible passages.

(b) Did the Board apply the wrong test in determining that the advertisement and the bumper sticker it represented violated s. 14(1) of the Code?

[16] The appellant argues that the Board made a number of errors in determining whether the advertisement and the bumper stickers they represented violated s. 14(1). The appellant further submits that the Board failed to consider what constitutes sexual orientation.

[17] The controlling authority as to what criteria is to be applied by the Board in determining whether there has been a violation of s. 14(1) of the Code is the decision of the Supreme Court of Canada in Canada Human Rights Commission v. Taylor, [1990] 3 S.C.R. 892. The Supreme Court held that the Board must use an objective test. The effect of this approach is that the intention of the appellant in placing the ad is irrelevant. In Bell, supra, the Saskatchewan Court of Appeal also prescribed an objective test in determining whether there has been a violation of s. 14(1) of the Code.

[18] The legislative intention of s. 14(1) of the Code was canvassed by Cameron J. in Human Rights Commission (Sask.) v. Engineering Students' Society, University of Saskatchewan (1989), 72 Sask. R. 161. At p. 171, et seq. he states:

[28] The objects of this Act are set forth in s. 3. The first and most general of them is concerned with principle-and is dedicated to gaining greater public recognition, first of that fundamental idea underlying our society which holds that each member of the community is inherently possessed, in equal measure, of human worth and dignity, and, second, of the derivative concept that each is therefore entitled to be treated, and in turn required to treat every other, as equally worthy of respect and concern (s. 3(a))). The second purpose, more specific than the first, is to further public policy in Saskatchewan which, rooted in these concepts, is aimed at discouraging and eliminating discrimination (s. 3(b)).
...
[48] Section 14(1) had added to it in 1979, immediately after the provision prohibiting the publication or display of "any notice, sign, symbol, emblem or other representation" which tends to interfere with the enjoyment by persons of the rights accorded to them by the law, the following words:

"... or which exposes or tends to expose to hatred, ridicules, belittles or otherwise affronts the dignity of any person, any class of persons of a group of persons ... [because of his/her or their race, colour, sex and so on]."

[49] The addition is quite clearly directed at discouraging, if not eliminating, activity which reinforces prejudice and in turn fosters discrimination. Hence the section acquired a second purpose: to discourage some of the underlying causes of "the certain discriminatory practices" covered by Part II.
...
[59] Before turning to the express language of the section, we might say that we have concluded in light of the foregoing that the section requires, by implication, that the message have a specific effect or effects in order to be caught by the section. The message must not only ridicule, belittle or otherwise affront the dignity of the person or the class, it must be such as to cause or be likely to cause others to engage in one or more of the discriminatory practices prohibited by ss. 9 through 13 and 15 through 19.

[19] The Board concluded that the stick figures combined with the Biblical passages would expose homosexuals to hatred and ridicule.

[20] At pp. 11 and 12 the Board states:

Having reviewed all of the evidence, the Board accepts that the universal symbol for forbidden, not allowed or not wanted, consisting of a circle with a slash through it, may itself not communicate hatred. However, when combined with the passages from the Bible, the Board finds that the advertisement would expose or tend to expose homosexuals to hatred or ridicule, or may otherwise affront their dignity on the basis of their sexual orientation. It is a combination of both the symbol and the biblical references which have lead to this conclusion.

[21] In my view the Board was correct in concluding that the advertisement can objectively be seen as exposing homosexuals to hatred or ridicule. When the use of the circle and slash is combined with the passages of the Bible, it exposes homosexuals to detestation, vilification and disgrace. In other words, the Biblical passage which suggest that if a man lies with a man they must be put to death exposes homosexuals to hatred.

[22] I agree with counsel for the Board that the Board was correct in holding that a reference to statements that call for homosexuals to be put to death in the context of equalizing that with a prohibition against them does expose homosexuals to hatred and affronts to their dignity as contemplated by s. 14(1) of the Code.

(c) Is the advertisement in the case at bar protected by the right to freedom of religion and freedom of expression?

[23] In the Bell case, supra, at pp. 132 and 133, Sherstobitoff J.A. states:

[29] Insofar as s. 14 prohibits display of material exposing or tending to expose to hatred because of race or religion, it is unquestionably a reasonable limit for all of the reasons stated by Dickson, C.J., in Taylor. We are bound by those reasons and agree with them. Since we have found that the stickers exposed and tended to expose to hatred, there has been a breach of the section, and, ordinarily, that would be an end of the appeal.

[30] However, s. 14 goes beyond prohibiting material exposing to hatred. It also prohibits material which ridicules, belittles or otherwise affronts the dignity of any group because of race or religion. The appellant argued that these additional grounds for prohibition of publication broadened the section to the extent that the reasoning in Taylor should not apply, and that, as a result, s. 14 was not a reasonable limit on the right to freedom of expression.
...
[33] Accordingly, in our view, s. 14 of the Code is a reasonable limit on the right to freedom of expression as allowed under s. 1 of the Charter. Our reasons for this conclusion are rather perfunctory because the result of this appeal would be the same even if we had concluded that the words "ridicules, belittles or otherwise affronts the dignity of" in s. 14(1)(a) had taken the section beyond the reasoning in Taylor which justified the limit as being reasonable.

[24] In my view, s. 14(1) of the Code is a reasonable restriction on the appellant's right to freedom of expression and religion as contemplated by s. 2(a) of the Charter. See Bell, supra. In Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825, La Forest J. held that the analysis under s. 1 of the Charter is the same whether the legislation infringes the respondent's freedom of expression or freedom of religion.

[25] For all the above reasons the appeal is dismissed.

[26] Costs may be spoken to.



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