Sunday, March 23, 2008

Daily hate speech case: Owens v. Saskatchewan (Human Rights Commission) (Sask. Q.B.)

Now for a trip outside of British Columbia, to the prairies. This case (click here), Owens v. Saskatchewan (Human Rights Commission) (Sask Q.B.) [2002], dates from a while ago, and in fact the Human Rights Tribunal case where it originated was from way back in 1997. Try as I might, I could not find a reported version of the original HRT case, either on the tribunal's website or on Quicklaw or Westlaw. Until I can locate the written reasons of the tribunal from '97 (assuming that the tribunal did write any), it will have to suffice to look at Hugh Owens' appeal to the Saskatchewan Court of Queen's Bench (which is the equivalent of the Supreme Court here in British Columbia - the Court to which you apply if you want to appeal a decision by the HRT).

Mr. Owens background is not discussed in the case, and I suppose it is just as well. I have done some looking around to find out who the man is and what he did for a living, but have not been able to find out very much of interest, and in any event his occupation and background are not very important. More important are the facts of the case, which, briefly, are this:

The Appellant, Bruce Owens, had been found to have breached s. 14(1) of the Saskatchewan Human Rights Code, which in part prohibits the publication of any material "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."Mr. Owens, a Protestant Christian from Regina, placed an advertisement for bumper stickers in the Star-Phoenix, Saskatoon's major daily newspaper. Included in the advertisement was a reproduction of the images on one of the bumper stickers he was putting up for sale. The sticker in the advertisement featured references to four Bible passages - Romans 1, Leviticus 18:22, Leviticus 20:13 and 1 Corinthians 6:9-10 - that condemn homosexuality and sexual immorality, and warn that such acts were contrary to the will of God. Note that the Bible passages themselves were not reprinted in the advertisement, merely cited to chapter and verse. Next to the citations, in the middle of the sticker, was the 'equal' symbol ( = ).

On the right side was a drawing of two stick figures, like the kind you would see on a public men's restroom door, representing two men, holding hands. Overtop these two figures was superimposed a large red circle with a red slash through the middle. The Court refers to this, in a reference to another case, Saskatchewan Human Rights Commission v. Bell, as "the universal symbol for forbidden, not allowed, or not wanted."
The meaning, then, could be one of two things: 'The Bible says homosexuality is forbidden'; or, read in another way, 'Because the Bible says homosexuality is forbidden, it is forbidden.'

Actually, not only 'forbidden;' because a couple of the passages advocate violent punishment for such sinners. For example, the Romans bit reads, "those who do such things deserve death," and Leviticus says "They must be put to death; their blood will be on their own hands." So, could we formulate the meaning like this: 'Because the Bible says homosexuality is forbidden and gays should be put to death, gays should be put to death'? That may be going a bit too far. The red circle with the slash does not really seem to signify death, as the Court notes. It means something closer to "forbidden, not allowed, or not wanted," as the definition goes.

Barclay J. for the Court of Queen's Bench cited with approval the Tribunal's interpretation of the publication:

"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..."

Neither the Tribunal nor the Court, then, could really settle on an objective meaning. The passage above says that the publication in question "may" go as far as inciting violence, but at the very least contains a message of strong contempt for homosexuals. Whatever the actual message was, it was enough for the Tribunal to find against Mr. Owens. It found that, while the drawing of the stick figures might not have been sufficient to expose gays to "hatred and ridicule," when combined with the references to Bible passages it was strong enough to be caught by the section. The respondent was ordered to pay $1500 dollars in damages to each of the three men who had brought complaints.

Now before Queen's Bench, Mr. Owens made three arguments on his appeal: First, that the Tribunal had misapprehended the facts of the case by finding that he had included four Bible passages instead of four Bible references. This was splitting hairs, and the Court basically said so. Second, he said that the Tribunal had used the wrong legal test in determining whether s. 14(1) of the Code should apply. In considering this, the Court cited
Human Rights Commission (Sask.) v. Engineering Students' Society[1989], that the section's purpose was to discourage or prohibit any activity which "belittles or otherwise affronts the dignity of any person," and that the message in question would need to have a specific effect in order to be caught. The judge found that this was, indeed, the proper test, and that their conclusion about the message's effects was correct.

The Appellant's third ground of appeal was that the Tribunal's ruling had violated his freedom of expression under s. 2(b) of the Charter. The Court dealt with this argument very perfunctorily, considering the importance of the right and the gravity of the claim. Citing Chief Justice Dickson's ruling in the famous case of R. v. Taylor by way of Bell, Barclay J. had clear and binding authority to the effect that an infringement of s. 2(b) could be justified as a reasonable limit in circumstances like those at bar. Furthermore, the judge cited Ross v. New Brunswick School District (discussed briefly in a post below), where the SCC said that the legal test was the same for infringements of religious freedoms as for infringements of free speech. Barclay J. then dismissed the appeal.

Mr. Owens would, however, subsequently take his fight to the Saskatchewan Court of Appeal. I will take a look at that case next time.