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Homophobia. R. v. Whatcott
In R. v. Whatcott (Ont CA, 2023) the Court of Appeal considered (and allowed) a Crown appeal from an acquittal of a 'willfully promoting hatred' charge [under CCC 319(2)]. In these quotes the court considers the dynamics of hate speech, here homophobia:[43] Professor Mulé testified about how the identifiable group would perceive the flyer. Professor Mulé explained how the tropes of anti-gay discrimination, present in the flyer, impact the community. The perspective of the target community is not only relevant per se in an analysis of hate speech, but it is critically important to an assessment of whether the challenged speech causes “emotional distress” to the members of that community: see Ward v. Quebec (Commission des droits de la personne et des droits de la jeunesse), 2021 SCC 43, 463 D.L.R. (4th) 567, at paras. 62, 75, 83-84. The perspective of the gay male community as it relates to the tropes present in the flyer might strengthen (or diminish) the hatefulness of Mr. Whatcott’s communication.
[44] Emotional distress caused to individual members of the group is one of the pressing harms that anti-hate speech laws aim to address. The second, identified in Keegstra, Taylor, and Whatcott (SCC) is the social impact of hateful speech against a targeted group. “If a group of people can be considered inferior, subhuman, or lawless, it is easier to justify denying the group and its members equal rights or status”: Whatcott (SCC), at para. 74. Professor Mulé’s evidence aimed to help the trier of fact situate Mr. Whatcott’s communication via the flyer in its social and historical context. . Corion v Plummer
In Corion v Plummer (Div Court, 2023) the Divisional Court considered a fascinating defamation case where one member of a church 'accused' another member of being gay (and as well essentially of devil-worship, being deceitful and a fake - but those were not pled). The purported 'gay' member sued in Small Claims Court for defamation for being accused of being gay, but not apparently on the devil-worship and other accusations. The deputy-judge (held up on appeal) found the case on narrow legal grounds (essentially a non-suit) that being accused of being gay, regardless of whether true or not, was no longer defamatory (there were past cases to the contrary) and dismissed the action:[12] The law of defamation in Canada requires that to make out the tort of defamation, a person must establish on a balance of probabilities that “(1) the impugned words were defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person; (2) that the words in fact referred to the plaintiff; and (3) that the words were published, meaning they were communicated to at least one person other than the plaintiff”: Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640, at para. 28.
[13] In this case, there was no question that the words in the text sent to the Appellant’s wife were about him and that they were communicated to at least one other person other than the Appellant. The evidence at trial was that the Respondent repeated his assertion that the Appellant was gay to other members of the congregation.
[14] The Deputy Judge correctly stated the test for defamation with reference to Grant v. Torstar Corp. at paras. 4 and 5 of her reasons.
[15] The Deputy Judge applied the test for what is meant by a “reasonable person” with reference to the decision of the Court of Appeal for Ontario in Color your world Corp. The Deputy Judge wrote that the statement should be judged “by the standard of an ordinary right-thinking member of society.” This is in keeping with the description found in Colour your world Corp. at p. 13, as the “perspective of someone reasonable, that is a person who is reasonably thoughtful and informed, rather than someone with an overly fragile sensibility. A degree of common sense must be attributed to viewers.”
[16] The Deputy Judge found that the allegation of being gay, in the context of the Appellant’s church, did have the effect of lowering his reputation in the eyes of the members of that church, because of this church’s attitudes towards homosexuality. However, the Deputy Judge went on to measure the words from the perspective of the broader public and concluded that to say that someone is “gay” in 2018, does not amount to a defamatory statement.
[17] In coming to this conclusion, the Deputy Judge considered human rights protections based on sexual orientation, the legalization of gay marriage, and broad support in Canadian society for the equal rights of same sex partnerships particularly in the last 20 years. Her application of the “reasonable person” standard centred on the broader views of society. She concluded on this basis that the statement that the Appellant was gay, although untrue, was nevertheless not a defamatory statement.
[18] The Appellant submits that this was an error. He relies on a 1974 decision of the Ontario Court of Appeal in which the court ruled that suggesting that a group of persons were “political homosexuals”, amongst other allegations, was a “prima facie defamatory” statement: Wlodek v. Kosko et al., 1974 CanLII 528 (Ont. C.A.).
[19] The Appellant also submits that the 1998 Ontario Court of Justice decision in Anderson v. Kocsis [1998] 86 OTC 107 (O.C.J.) is persuasive although not binding. In that decision, the court accepted the argument that being described as “queer” was capable of being defamatory.
[20] The Appellant submits that even contemporary community attitudes towards an assertion that a person is gay can “range from sympathetic tolerance and understanding to an irrational abhorrence.” He suggests that it is impossible in a pluralistic society to determine community attitudes which can fall across a broad spectrum. He submits that the Deputy Judge failed to apply an objective test to the false statement in this case.
[21] I would not give effect to these submissions. First, the two prior cases which the Appellant relies on concerned events that took place over 25 years ago. They reflect dated attitudes. The Deputy Judge situated her analysis of community attitudes primarily within the last 20 years with reference to legislative and human rights reforms responsive to equality concerns. Her analysis was supported by changes in community attitudes as reflected in laws and policies that recognize full democratic and social participatory rights by members of the community who identify as gay.
[22] The Deputy Judge had a case in defamation before her solely based on the impugned assertion that the Appellant was gay. I conclude that she correctly applied the test for the tort of defamation to the findings of fact and the communications by the Respondent. She considered relevant markers of community acceptance towards persons who describe themselves as or who are described as gay. She distinguished between the attitudes held by members of the Appellant’s church, which is a smaller subset of the greater community. In doing so, she made no error in law.
[23] I observe and agree with Appellate counsel (who was not counsel at trial) that there is a feature of the communication which might have objectively been found to be defamatory. The Respondent’s text suggests that the Appellant was deceitful: that is, he hid his sexual orientation and presented himself as a tithing, contributing member of the church. The Respondent said that he was a “fake”. However, the pleadings, trial evidence and submissions all centred on the defamatory nature of the allegation that the Appellant is gay. The trial judge adjudicated the matter based on how the parties framed the action and so for the reasons above I have found no error in her approach to the legal questions before her.
Issue c: Did the Trial Judge Erred in the Analysis of a “Reasonable Person”
[24] The Appellant submitted that the reasonable person is someone from within the community, in this case the church community to which he belonged and that the Deputy Judge erred in applying this broader standard. I disagree.
[25] In Bou Malhab v. Diffusion Métromédia CMR Inc. 2011 SCC 9, [2011] 1 S.C.R. 214, Deschamps, J. quotes from R. Brown, The Law of Defamation in Canada, 2nd ed. (loose‑leaf), vol. 1, at pp. 5-45 to 5-57:The court will assume that the ordinary reasonable person is someone who is thoughtful and informed, and of fair, average intelligence. They are persons who have a common understanding of the meaning of language and who, in their evaluation of the imputation, entertain a sense of justice and apply moral and social standards reflecting the views of society generally. (Emphasis added) [26] As discussed in the case law, the “reasonable person” is a person who in general will reflect the views of society. This was the approach taken by the Deputy Judge and I find no error in her application of the law in this case.
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