A recent decision of the Ontario Court of Appeal to order a retrial for a Canadian man accused of promoting hate against gay men is yet another example of hate speech laws being used to silence unfashionable views.

Mr William Whatcott was criminally charged with “wilfully promoting hatred against gay men” for distributing a flyer during the Toronto Pride Parade which contained information about the health risks associated with homosexual sex.

Whatcott's actions were motivated by his experience first as a young man living on the streets, when on occasion he had exchanged sexual favours for drugs with other men. After cleaning up his life, converting to Christianity and later working as a nurse caring for AIDS patients, he has come to the belief that it is his “calling to preach against homosexuality and transgenderism”.

He was initially acquitted against the charges, with the judge expressing doubt about “whether the flyers passed the legal test for hate propaganda”.

However, a retrial was ordered after the Court of Appeal deemed that the trial judge had wrongfully excluded “expert evidence” from Professor Nick Mulé, an expert in anti-gay discrimination. Mulé argued that Whatcott's flyer subtly employed anti-gay “tropes,” functioning as “dog whistles” - seemingly innocuous on the surface but deeply rooted in discriminatory and hateful stereotypes.

The Association for Reformed Political Action (Canada) (ARPA) intervened in the case on behalf of Mr Whatcott. They put three main arguments to the Court:

1. There is a difference between condemning conduct and promoting hatred: ARPA emphasised the legal difference between criticising a group's core conduct and actively promoting hatred against said group.
2. The focus of the law is not to police personal beliefs or the expression of them: ARPA argued that the focus of the Criminal Code is on the tangible consequences of a communication, namely whether it incites hatred towards an identifiable group. It's crucial that the law ensures beliefs themselves are not labelled as ‘hatred’.
3. There is a freedom for individuals to urge change: ARPA argued that while governments may be restricted, individuals possess the liberty to encourage others to reconsider beliefs and behaviours central to their identity.

The implications of the outcome of this case will be far reaching for Christians who want to share their faith as commanded by Jesus in the Gospels.

As APRA has said:

“If the Crown’s arguments are accepted, it could have major implications for Christian individuals and institutions who hold an orthodox view on human sexuality and sexual morality. Of course, most Christians don’t engage in the type of expression Whatcott does. But if the judges accept the Crown’s argument in principle, it may not matter how winsome, kind, or genuine you are in your attempts to communicate Christian teaching on such topics. Your speech might still be deemed ‘hateful’”.

Here in Australia, it is reasonable to expect more cases like this one to be brought forward, as vilification and hate speech laws are amended and strengthened across the country.

Lyle Shelton's recent case at the Queensland Civil and Administrative Tribunal highlights a significant point: with vilification and hate speech laws, the process itself is the punishment. Even though Lyle won, the two drag queens who initially filed the claim have decided to appeal. The HRLA continues to assist Lyle through his appeal.