Professor Nick Mulé

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 Crown applied to qualify an expert witness to testify on the history and tropes of anti-gay discrimination in the trial of the accused for willful promotion of hatred.

The accused had distributed flyers at the Toronto Pride Parade.

The court applied the Mohan criteria and found that while the expert was qualified and capable of giving unbiased evidence despite his advocacy background, the evidence was not necessary.

The court held that a properly instructed jury could determine whether the flyer constituted hate speech without expert assistance.

Furthermore, the court found that the cost-benefit analysis favoured exclusion due to the high risk of distracting the jury with debates over religious beliefs and political values.

The application was dismissed.