Professor Douglas Farrow

The Crown appealed the acquittal of William Whatcott on a charge of willfully promoting hatred against gay men, stemming from the distribution of flyers at the 2016 Toronto Pride Parade.

The trial judge had acquitted Whatcott, finding the flyers did not constitute hate speech and excluding expert evidence on anti-gay discrimination tropes and evidence of prior discreditable conduct.

The Court of Appeal allowed the Crown's appeal, finding the trial judge erred in excluding the expert evidence, which was necessary to understand how the flyers perpetuated negative stereotypes and promoted hatred in a broader social and historical context.

A new trial was ordered.

The accused was charged with willfully promoting hatred against gay men under s. 319(2) of the Criminal Code after distributing anti-gay flyers at the 2016 Toronto Pride Parade.

The flyers contained graphic images and medical claims about the dangers of the 'homosexual lifestyle', alongside religious messaging.

The court found that while the flyers were offensive and contained exaggerations, they fell into the 'grey zone' between legitimate expression and hate speech, lacking the hallmarks of extreme vilification.

The court also found a reasonable doubt regarding the accused's specific intent to promote hatred, resulting in an acquittal.