Longtime anti-2SLGBTQ+ activist William Whatcott's appeal to prevent a retrial for charges of willful promotion of hatred has been rejected by the country’s highest court.
Canadian Anti-Hate Network
The Supreme Court of Canada in Ottawa. Source: @SCC_eng/Twitter
A longtime anti-2SLGBTQ+ activist will be going back to court after losing an appeal that would have overturned a decision to retry a charge of promoting hate.
William Whatcott was charged with the willful promotion of hatred relating to the protest of a 2016 Toronto Pride festival. Though he initially beat the case against him in 2021, on appeal by the Crown it was found that the trial judge’s decision to exclude expert testimony was an error, meaning a new trial to take place. He appealed that decision to the Supreme Court of Canada, which ruled against him on February 15.
“I would allow the appeal on the basis that the trial judge erred in excluding the expert evidence. In my view, in light of this error, a new trial is required,” Justice Lorne Sossin wrote.
Whatcott is an Alberta resident, but the case is related to an Ontario incident in 2016. Registering for the Toronto Pride Parade, Whatcott gave a fake name and misrepresented himself and others as an educational group called Gay Zombies Cannabis Consumers Association.
On the day of the parade, according to the judge's decision, Whatcott and five others dressed in green body suits and distributed “Zombie Safe Sex Packets.” Disguised to look like condoms, the packet actually contained a flyer containing material denigrating 2SLGBTQ+ people, specifically gay men.
A report written by the expert whose testimony was excluded, Nick J. Mulé, was posted by Whatcott on his website. It breaks down the specifics of the materials Whatcott distributed during the parade.
Finding Whatcott’s religious values “diametrically opposed” to the Pride event, the flyers were “denigrating a targeted group based on their sexual orientation or gender identity and expression,” Mulé wrote in the report.
“The surface intent of Mr. Whatcott and his cohorts to caution and discourage people from the ‘homosexual lifestyle’ or ‘changing their gender’ becomes suspect, as their subversive actions were disguised to allow them the means to communicate hate while simultaneously discriminating against LGBT2-SQIs.”
The flyer’s contents would be what led to the trial.
Featuring a photo of two men embracing with their shirts off, the images were altered to give the models “zombie eyes and blood dripping from their mouths,” according to the decision.
Under a headline reading, “Gay Zombies want you to practice safe sex,” the flyer contained a series of extremely graphic images.
“The first two photographs were of a male anus with anal warts and a dead body with multiple lesions,” the appeal decision reads. “Next to the photo of the male anus, the flyer shared statistics about HPV infection rates among HIV-negative and HIV-positive gay men as well as a list of other infections that ‘homosexuals are at a high risk of acquiring’.”
Text next to the images claimed that “Many homosexuals falsely believe that sodomy is safe with the advancement of anti-retroviral therapy” but “the truth is that an average of 15,000 people still succumb to AIDS annually in North America.”
Medical experts in the initial trial said that the claims in the flyer were “either in the ballpark of plausible or at worst an exaggeration.” The trial judge ruled they did not rise to the level of willfully promoting hatred.
“Although I find Mr. Whatcott not guilty, he should not take this result as a vindication or as an endorsement of his views,” said an Ontario Superior Court of Justice in 2021. “I have found him not guilty because the flyer is in the grey zone between legitimate expression and hate speech.” The judge also noted that he found it “puzzling that if the respondent intended to promote hatred, he would have distributed the flyers to the very group he intended to promote hatred against.”
Besides the exclusion of an expert witness, the appeal also notes the trial judge excluded evidence of Whatcott’s previous discreditable conduct, including social media posts, blog posts and the circulation of similar material the Supreme Court of Canada determined exposed gay men to hatred under The Saskatchewan Human Rights Code.
Hatim Kheir, an attorney with the Justice Centre for Constitutional Freedoms, said in a press release the court did not adopt the Crown’s argument that criticizing sexual behaviour is the equivalent of advocating for the eradication of a group.
“We’re pleased to see that the Court of Appeal has affirmed the Supreme Court precedent and has not expanded the definition of the offence of promotion of hatred,” Kheir said. “The Court’s decision leaves space for good faith criticism and debate.”
This is not the first stunt to land Whatcott in legal trouble. In 2019, a BC human rights tribunal ordered him to pay $55,000 to trans rights advocate Morgane Oger after Whatcott printed 1,500 flyers claiming the then-political candidate was promoting “homosexuality and transvestism” and that transgender people are prone to sexually transmitted diseases, at risk of domestic violence, abusing alcohol, and suicide.
The tribunal found that the flyering campaign was an intentional attempt to exclude Oger from the Vancouver-False Creek election based on her gender.
In 2014, Whatcott was found not guilty of mischief for handing out flyers on the University of Regina campus. According to the CBC, he refused to leave the school’s property when asked by campus staff.
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