Ontario Court of Appeal orders new trial for William Whatcott on criminal hate speech

TORONTO, ONTARIO: The Justice Centre for Constitutional Freedoms is reviewing the Ontario Court of Appeal ruling ordering a new trial for William Whatcott, a “Christian Truth Activist” who was criminally charged with “wilful promotion of hatred” after he and others in “gay zombie” costumes entered the 2016 Toronto Pride Parade under a different name and distributed flyers disguised as condoms.

The Ontario Court of Appeal granted the Crown’s appeal and ordered a new trial solely on the basis that the trial judge had erred by excluding expert evidence about anti-gay discrimination. The Court made no comment on whether the standard for promotion of hatred was misconstrued or improperly applied.

Mr. Whatcott and five associates marched in the 2016 Pride Parade disguised as “gay zombies”, wearing green skin-tight outfits that covered their faces and each in some kind of rainbow accessory. As Mr. Whatcott and his associates marched, they distributed fliers disguised as condoms. The flyer stated that gay sex was dangerous and unhealthy, and included images of sexually transmitted diseases and a corpse. The flyer concluded by urging readers to believe in Jesus Christ.

On December 10, 2021, Mr. Whatcott was acquitted following a trial in the Superior Court of Justice in Ontario.

The Crown then appealed Mr. Whatcott’s acquittal, arguing that the trial judge misapplied the meaning of “hatred” and incorrectly excluded evidence from one the Crown’s expert witnesses. The Crown argued that condemning gay sex is equivalent to advocating for “the eradication” of gay men. The Crown argued for expanding the scope of the offence of wilfully promoting hatred (as prohibited by section 319(2) of the Criminal Code of Canada) to include expressing moral disapproval of certain sexual behaviours.

The Justice Centre provided counsel to Free to Care, a Canadian ministry which provides support and encouragement for the advancement of the Biblical view of sexuality across Canada and the right to choose one’s sexual behaviour. Free to Care was granted intervenor status in the Ontario Court of Appeal. In the words of its founder and spokesperson, Jojo Ruba, Free to Care sought to intervene “because of the potential implications this case could have, both on our work, as well as in the lives of millions of Canadians, including members of the LGBT community, who uphold traditional views on sexuality. 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.”

The appeal was heard by the Court of Appeal of Ontario on June 21, 2023. Legal counsel for Free to Care argued that the Crown’s argument “risks equivocating advocacy against a practice central to an identifiable group’s identity with advocacy for the eradication of that group. Such an argument, if accepted, would stifle authentic dialogue and curtail the fundamental freedoms of all Canadians, including religious adherents and members of the LGBT community.” Free to Care further argued that freedom of expression, including freedom to criticize other beliefs, is integral to our democratic society, and that the Charter right to freedom of expression chiefly protects unpopular views.

“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. The Court’s decision leaves space for good faith criticism and debate,” said lawyer Hatim Kheir.

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