Recently, the Saskatchewan Court of Appeal attempted to shed light on how the objective reasonable person understands the Bible, and in particular, whether the Bible is capable of being hate speech.
In June of 1997, in response to an upcoming gay pride week, Hugh Owens decided to publish the first of what was to be two advertisements. The first advertisement consisted of a reference to four passages from the Bible followed by an equal sign and then two stickmen holding hands with the universal “not permitted” symbol superimposed on the stickmen. The second advertisement, which was never published due to complaints received as a result of the first, was the same symbol, but with the accompanying text, “You do have a choice friend, his name is Jesus.” Both advertisements were noted as available as bumper stickers. In response, three gay men filed a complaint with the Saskatchewan Human Rights Board that the first advertisement exposed them to hatred and was an affront to their dignity because of their sexual orientation, contrary to the Saskatchewan Human Rights Code. The Code prohibits the publication or display of any statement or symbol which exposes or tends to expose to hatred, or which ridicules, belittles or is otherwise an affront to the dignity of any person or class of persons on the basis of various prohibited grounds, one of which is sexual orientation.
In 2001, the Saskatchewan Human Rights Board agreed with the complainants and made an order prohibiting Mr. Owens from further publishing or displaying the bumper stickers featured in the advertisement and directing him to pay damages of $1500 to each of the complainants. Mr. Owens appealed, but in 2002 the Saskatchewan Court of Queen’s Bench agreed with the Human Rights Board decision. At the time, many people saw both of these decisions as declaring the Bible to be hate speech.
However, on further appeal, the Saskatchewan Court of Appeal overruled the prior decisions. What is interesting is the approach that the Court of Appeal took in reaching their decision. The Court of Appeal rejected a subjective approach. The question to be determined by the Court is not how a particular individual or particular individuals understand a message. Nor is the test what the person who sends the message intends the outcome to be. Rather the test is objective, with the question being whether a reasonable person, aware of the relevant context and circumstances, would understand the speech to be characterized by “intense feelings and [a] strong sense of detestation, calumny and vilification.” Context is critically important to the court’s analysis and each case is to be assessed on a case-by-case basis.
In Mr. Owens’ case, the Court made four points as to the context. First, the Court concluded that both the broader socio-political context of active debate about the place of sexual identity, and the local context of the advertisement for the upcoming gay pride week, were considerations an objective person would take into account. Second, the Court found that the Bible, as a foundational religious text, is capable of a variety of meanings for contemporary society, which an objective observer, can and would take into consideration. Third, the Court concluded that the Bible contains multiple messages including “themes of love, tolerance and forgiveness,” which an objective observer would take into account when reading the specific Biblical passages referenced in the advertisement. Fourth, the Court accepts that despite the intimately central aspect of an individual’s sexuality to their identity, since many people make a distinction between the “sin” and the “sinner,” thus believing on moral or religious grounds that they can disapprove of same-sex sexual practices without disapproving of gays and lesbians themselves, this contextual factor would be taken into consideration by the objective observer.
In the final analysis, the Court concluded that, despite the strong language, the Bible texts referred to in the advertisement could not be characterized as containing the requisite intense feelings and strong sense of detestation, calumny and vilification, necessary to violate the Human Rights Code.
While the Christian community may see this decision as a victory for religious freedom, the Court did offer a caution. It warned that the Bible cannot “serve as a license for acting unlawfully against gays and lesbians.” Offensive uses of the Bible or other foundational religious texts are not given an automatic exemption from the Human Rights Code. Since each case is assessed contextually use of the Bible could be seen by secular courts as hate speech.
This article was written by Robert G. Kuhn and Ian C. Moes, lawyers who practice in charity and not-for-profit law with the law firm of Kuhn LLP. It is only intended as a guide and cannot cover every situation. It is important to get legal advice for specific situations. If you have questions or comments about this case or other construction law matters, please contact us at 604-864-8877.
