Court File and Parties

COURT FILE NO.: CR-19-70000064-0000 DATE: 20200316 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – WILLIAM WHATCOTT

Counsel: Scott Patterson and Rebecca De Filippis, for the Crown Lindsay Daviau and John Rosen, for Mr. Whatcott

HEARD: January 14, 2020

R.F. GOLDSTEIN J.

REASONS FOR JUDGMENT

[1] The annual Pride Parade took place in Toronto on July 3, 2016. Organizations can apply to march in the Pride Parade. One of the organizations that marched on July 3, 2016 was the “Gay Zombies Cannabis Consumers Association”. The representative of that organization was “Robert Clinton”. On the day of the Parade, the Zombies handed out “Zombie Safe Sex” packages.

[2] The “Zombie Safe Sex” packages were flyers condemning homosexual sex. The flyers warned of the dangers of the “homosexual lifestyle”. William Whatcott was the driving force behind the Zombies. He was the “Robert Clinton” who applied for a permit to march in the Parade. He and member of his group attended the parade dressed as Zombies and handed out flyers. He described the Zombies as “Christian Commandos” spreading the truth.

[3] The Attorney General preferred a direct indictment against Mr. Whatcott, charging him with one count of wilfully promoting hatred contrary to s. 319(2) of the Criminal Code. The indictment alleges that he promoted hatred by communicating statements consisting of “written words and images in a two paged flyer, wilfully promoting hatred against an identifiable group, to wit: gays…”

[4] A warrant was issued for Mr. Whatcott’s arrest. He turned himself in to the Calgary police. He gave the police a statement. When he surrendered to police, he had copies of the flyer in his possession.

[5] Mr. Whatcott’s trial is scheduled to commence in June 2020. The Crown seeks to introduce several pieces of evidence at the trial. That evidence includes:

• The flyer itself;
• The Zombie’s registration package for the Parade;
• Mr. Whatcott’s statement to the police on arrest;
• Flyers in Mr. Whatcott’s possession upon arrest;
• Flyers handed out by Mr. Whatcott in 2001 and 2002 in Saskatchewan and an associated decision of the Supreme Court of Canada; and,
• Several blog posts by Mr. Whatcott and internet articles which the Crown wishes to introduce as motive.

[6] This application concerns the blog posts and internet articles. There was some discussion about the exact nature of the evidence – for example, the Crown originally considered the evidence as after the fact conduct evidence but resiled from that position. Ultimately, the Crown sought to introduce the blog posts and internet articles as evidence of motive (for simplicity, I will refer to this material throughout this ruling as the “proposed motive evidence”). The Crown argues that the proposed motive evidence demonstrates Mr. Whatcott’s animus towards gay people.

[7] I make the following ruling:

• The flyer, consisting as it does of the actus reus of the alleged offence, is admissible, as agreed by the parties;
• The defence concedes that the Zombie’s registration package is admissible;
• The parties have indicated that they will negotiate those portions of Mr. Whatcott’s statement to the Calgary police that can be admitted at trial;
• I agree with the defence that the flyers in Mr. Whatcott’s position on arrest are irrelevant;
• The parties will negotiate whether the 2001 flyers can be admitted, and if not I will provide a further ruling after submissions;
• The proposed motive evidence is not admissible. It is not material and it is irrelevant to the issues the jury will have to decide. Moreover, the prejudicial effect of this proposed motive evidence significantly outweighs whatever limited probative value it has. The proposed motive evidence will distract the jury from the task of determining whether the Crown has proven the elements of the offence beyond a reasonable doubt.

BACKGROUND

(a) Mr. Whatcott’s Activities

[8] Mr. Whatcott is a public health nurse by profession. He is also a conservative Christian and an activist. He believes strongly in spreading the Gospel of Jesus Christ. He also believes that homosexual sex is a sin. He preaches the Gospel, and tries to convince others that homosexual sex is degrading and dangerous, both spiritually and physically. He also believes that forces in our society seek to stifle traditional Christian values and Christian individuals. He believes that those forces reject restraints on sexual behaviour while promoting alternative lifestyles. Those lifestyles are immoral. They include drug use and alternative sexual practices.

[9] Ordinarily, of course, a person’s religious and political views are irrelevant in a criminal case. Mr. Whatcott has the right to hold and to communicate his views. Mr. Whatcott’s views only matter for the purpose of this ruling because the Crown says that they underlie his motive for the alleged crime.

[10] In 2000 and 2001 Mr. Whatcott distributed four flyers in Saskatchewan. The flyers were entitled “Keep Homosexuality out of Saskatoon’s Public Schools” and “Sodomites in our Public Schools”. The flyers were distributed on behalf of an organization called the “Christian Truth Activists”. Some people who received the flyers complained to the Saskatchewan Human Rights Commission.

[11] The Human Rights Commission found that Mr. Whatcott had breached s. 14(1)(b) of the Saskatchewan Human Rights Code (which I will refer to as the SHR Code, to distinguish it from the Criminal Code). That section of the SHR Code prohibited any person to publish or display any representation that “exposes or tends to expose to hatred, ridicules, belittles or otherwise affronts the dignity of any person or class of persons on the basis of a prohibited ground.” One of the prohibited grounds in the SHR Code was sexual orientation. The Saskatchewan Human Rights Tribunal held that the flyers violated s. 14(1)(b) of the SHR Code. Mr. Whatcott was prohibited from distributing further fliers and fined.

[12] The case eventually made its way to the Supreme Court of Canada. There were two issues before the Court. First, whether s. 14(1)(b) of the SHR Code was constitutional; and second, whether the four flyers violated s. 14(1)(b) of the SHR Code. The Court held that s. 14(1)(b) limited protections under s. 2(a) (freedom of religion) and s. 2(b) (freedom of expression) of the Canadian Charter of Rights and Freedoms but that the limits were justified under s. 1 of the Charter. Accordingly, s. 14(1)(b) of the SHR Code was constitutional. The Court also held that two of the flyers did not violate the SHR Code: Saskatchewan Human Rights Commission v. Whatcott, 2013 SCC 11, [2013] 1 S.C.R. 467 (Application Record, Appendix C).

[13] In 2016 Mr. Whatcott, under the guise of Robert Clinton, applied to march in the Toronto Pride Parade. The Pride organizers granted permission. On his blog (Application Record, Appendices E and F) Mr. Whatcott describes his activities during the Pride Parade. The blog is hosted on freenorthamerica.ca. The first page shows Mr. Whatcott and his compatriots dressed in skin-tight green costumes and wearing Pride paraphernalia (in Mr. Whatcott’s case, a rainbow-coloured ballet tutu). They are on a subway platform. The caption reads:

“Here is my Elite Top Secret Special Forces Crack Christian Commando Anti-Sodomite Counter Intelligence Unit leaving the Sherbourne Subway Station disguised as the ‘Gay Zombies Cannabis Consumers Association’ to infiltrate and strike the dark forces of the Toronto Homosexual Shame parade and bring about a glorious victory for the Gospel of Jesus Christ by delivering 3000 ‘Zombie Safe Sex’ packages to the parade goers.”

[14] The blog has several biblical quotes interspersed with the photographs. The quotes are from the Hebrew Bible (Deuterotomy), the Gospels (Luke) and the Epistles (Ephesians and Corinthians). The blog includes photographs of Mr. Whatcott and his compatriots in their Zombie costumes marching in the parade, and handing out the “Zombie Safe Sex” flyers (Application Record, Appendix B). There are photographs of other Pride Parade participants and spectators. There are photographs of Mr. Whatcott marching in the Parade dressed in his Zombie costume. He is handing out a “Zombie Safe Sex” flyer in one of the photographs. There is a photograph of another of his compatriots with the description:

“Here is one of my commandos delivering Biblical, medical, and sociological truth on the harms of homosexuality. Sadly, in order to deliver this much needed truth he had to disguise himself as a ‘gay’ zombie because the parade was too intolerant to accept him as an ‘out of the closet’ Christian man who speaks the truth about homosexuality.”

[15] Mr. Whatcott’s blog is critical of the Pride Parade and some of those marching in it. For example, he takes one group to task, the “Toronto Sisters of Perpetual Indulgence”. One of the marchers has “a picture of Our Lord painted on his crotch”. He argues that the group promotes hate and shows “a level of disrespect towards Christians that would get Christians charged with a ‘hate crime’ if we were to emulate their nastiness and behave in a similar fashion towards homosexuals or any other minority.”

(b) The material in the Application Record

[16] The Crown seeks to have the following material introduced at Mr. Whatcott’s trial (the appendices refer to the Application Record itself; Appendix A is simply the indictment):

(a) Mr. Whatcott’s statement to the Calgary Police upon arrest; (b) Appendix B: The “Zombie Safe Sex Package” as distributed at the Pride Parade in 2016; (c) Flyers seized from Mr. Whatcott when he turned himself in to the Calgary Police; (d) Appendix C: Portions of the Saskatchewan Human Rights Commission v. Whatcott, 2013 SCC 11, [2013] 1 S.C.R. 467, which including copies of the flyers in that case; (e) Appendix D: Registration Package for the “Gay Zombies Cannabis Consumer’s Association”; (f) Appendix E: Blog post by Mr. Whatcott dated July 4, 2016 entitled “Whatcott Christian Commandos Infiltrate Toronto Shame Parade”; (g) Appendix F: Continuation of the Blog at Appendix E; (h) Appendix G: Blog post by Mr. Whatcott dated April 15, 2018 entitled “Whatcott explains cultural Marxism at Agape Global Fellowshi” (an obvious reference to Fellowship); (i) Appendix H: Blog post by Mr. Whatcott dated July 23, 2018 entitled “Lifesite News & Whatcott update on July 23 court appearance”; (j) Appendix I: Article by Lianne Laurence dated July 23, 2018 on lifesitenews.com entitled “Canadian Christian activist’s legal battle against hate crime charges continues in September”; (k) Appendix J: Article by Mr. Whatcott dated September 3, 2018 on freenorthamerica.com entitled “‘Christian’ school rejects Whatcott kids TWU rejects reality”; (l) Appendix K: Article by Mr. Whatcott dated September 8, 2018 on freenorthamerica.com entitled “Whatcott in Toronto court Sept. 20, U of T Sept. 21”; (m) Appendix L: Blog post by Mr. Whatcott dated September 23, 2018 on freenorthamerica.com entitled “Video & photos preaching at the University of Toronto campus”; (n) Appendix M: Blog post by Mr. Whatcott dated December 3, 2018 on freenorthamerica.com entitled “Whatcott speech text, history of homosexual activism in Cana” (an obvious reference to Canada); (o) Appendix N: Blog post by Mr. Whatcott dated January 9, 2019 on freenorthamerica.com entitled “Whatcott, January 8, activist and hate crime charge update”; (p) Appendix O: Blog post by Mr. Whatcott dated July 22, 2018 on gab.com mentioning the current charge; (q) Appendix P: Blog post by Mr. Whatcott dated August 5, 2019 on gab.com discussing some of his views.

[17] The defence concedes admissibility of Appendices B, D, E, and F. Crown and defence will discuss the admissibility of portions of Mr. Whatcott’s statement to the Calgary police. Crown and defence will also discuss Appendix C (the Saskatchewan flyers). The defence contests the admissibility of Appendices G to P, which is the proposed motive evidence.

ISSUES

[18] This trial will not be about the facts. The facts are obvious. Mr. Whatcott not only distributed the flyer, he was proud of it. He blogged about it. He kept a record of it, including photographs of himself handing out the flyers at the Pride Parade. Rather, the key issues at trial will be whether the flyer constitutes hate speech; and whether Mr. Whatcott intended to promote hatred. The proposed motive evidence, the Crown says, is relevant to Mr. Whatcott’s intention because it shows his animus towards gay people.

[19] The Crown’s position is that the all of the proposed motive evidence ought to be admitted at the upcoming jury trial as evidence of motive notwithstanding that it is evidence of extrinsic bad conduct. Extrinsic bad conduct is evidence of bad conduct that falls outside the indictment. Such evidence is, of course, generally inadmissible. It may become admissible if it is relevant to an issue, and the probative value of the evidence outweighs its prejudicial effect. In this case, the proposed disreputable conduct evidence is allegedly relevant to motive. The Crown argues that Mr. Whatcott harbours an animus or hatred towards gay people. That animus is his motive in handing out the flyers at the Pride Parade. The proposed motive evidence illustrates his animus. Mr. Whatcott’s motive is relevant to his intent to promote hatred. The prejudicial effect can be limited, the Crown argues, with a proper jury instruction.

[20] The defence position generally is that the flyer did not constitute hate speech; and that Mr. Whatcott did not intend to promote hatred against gay people. It is not clear whether the defence will also (or alternatively) rely on one of the statutory defences. The defence position on this application is that the proposed disreputable evidence does not, on its face, show that Mr. Whatcott hates gay people.

[21] Accordingly, I will deal with these issues:

(a) Is the proposed motive evidence capable of demonstrating that Mr. Whatcott has an animus towards gay people? (b) Does the probative value of the proposed motive evidence outweigh the prejudicial effect?

ANALYSIS

(a) Is the proposed motive evidence capable of demonstrating that Mr. Whatcott has animus towards gay people?

[22] The Crown argues that the proposed motive evidence is relevant to motive and narrative context. Evidence can be highly probative of intent. Evidence of motive can show that a person intended to act in accordance with his or her motive: R. v. Salah, 2015 ONCA 23 at paras. 64-66. As the Crown put it in the factum:

The [Crown] relies on evidence of [Mr. Whatcott’s] discreditable conduct to prove [Mr. Whatcott] has demonstrated animus towards gay people. Evidence of this animus logically tends to support that proposition that he acted on that animus in handing out his fliers at PRIDE 2016.

[23] According to the Crown, the proposed motive evidence demonstrates that Mr. Whatcott hates gay people. It is that hatred, the Crown argues, that motivated him to distribute the flyer.

[24] I respectfully disagree with the Crown. The proposed motive evidence is not capable of demonstrating that Mr. Whatcott has an animus towards gay people (with one arguable exception).

[25] Evidence may be introduced in a criminal trial if it is relevant, material, and admissible. Evidence is relevant if it has “some tendency as a matter of logic and human experience to make the proposition for which it is advanced more likely than the proposition would be in the absence of that evidence”: R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433 at para. 36 quoting Paciocco and Stuesser, The Law Of Evidence (5th Ed, 2008). “Evidence is material if what it is offered to prove or disprove is a fact in issue”: R. v. Luciano, 2011 ONCA 89 at para. 207. As an example, evidence that tended to show the identity of a killer and his or her contemporaneous state of mind would be material: Luciano, at para. 208.

[26] Evidence is, therefore, probative to an issue only if the inferences the Crown seeks to draw are relevant to the matters in issue: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908 at para. 26. In this case the proposed motive evidence must be capable of demonstrating the proposition that Mr. Whatcott hates gay people. If it does, then the probative value of the evidence must still be weighed against its prejudicial effect.

[27] The Crown is obviously correct that evidence of motive by an accused person’s words or deeds is relevant as circumstantial evidence of intent. Martin J.A. set out the general principle in R. v. Jackson, [1980] O.J. No. 1468, 57 C.C.C. (3d) 154 (C.A.) at para. 37:

[28] Motive, in the sense of an emotion or feeling such as anger, fear, jealousy and desire, which are likely to lead to the doing of an act, is a relevant circumstance to prove the doing of an act as well as the intent with which an act is done. The relevant emotion may be evidenced by

(a) conduct or utterances expressing the emotion, (b) external circumstances which have probative value to show the probable excitement of the relevant emotion, and (c) by its prior or subsequent existence (if sufficiently proximate): see Wigmore On Evidence, 3rd ed., Vol. I, pp. 557-61; Vol. II, pp. 328-29.

A previous threat to kill the victim is admissible to show animus or feelings of hostility.

[29] Thus, an accused person’s previous state of mind, actions, or state of affairs can be circumstantial evidence that the person acted on that state of mind: Salah at para. 64. As Watt J.A. put it at para. 66 of that case:

The term “motive” refers to an emotion or inner feeling like hate or greed, which is likely to lead to the doing of an act. The term is also used, however, to refer to external events, like allegations of sexual impropriety, which is likely to excite the emotions… It is open to the Crown to adduce evidence that shows or tends to show the intensity and permanence of a motive since this may enhance the probability that the person with the motive acted in accordance with it.

[30] “Hatred” means “connotes emotion of an intense and extreme nature that is clearly associated with vilification and detestation”: R. v. Keegstra, [1990] 3 S.C.R. 697 at para. 121. The Crown must establish that the accused person “the accused had as a conscious purpose the promotion of hatred against the identifiable group, or if he or she foresaw that the promotion of hatred against that group was certain to result and nevertheless communicated the statements… the speaker must desire that the message stir up hatred”: Mugesera, at para. 104. Thus, the proposed motive evidence must be evidence showing that Mr. Whatcott vilifies and detests gay people – in other words, an animus.

[31] In my respectful view, the proposed motive evidence is not generally capable of proving that Mr. Whatcott has an animus towards gay people. Since the proposed motive evidence is not capable of proving an animus, it is not capable of showing that Mr. Whatcott had a motive to commit the crime (again, with an exception that I will set out).

[32] The proposed motive evidence is certainly capable of proving that Mr. Whatcott has very strong political and religious objections to homosexuality as a sexual act. The proposed motive evidence is also capable of proving that Mr. Whatcott strongly objects to what he calls, broadly, the homosexual lifestyle. Those objections appear to be based on Mr. Whatcott’s religious faith and political philosophy. The proposed motive evidence is also capable of proving that Mr. Whatcott believes that this prosecution is simply a form of persecution for his political beliefs.

[33] There is no question that the proposed motive evidence would be relevant and material (although still not necessarily admissible) if it did demonstrate that Mr. Whatcott hates gay people. If the evidence could demonstrate that Mr. Whatcott hates gay people that could certainly show that he had a motive. In my view, however, the proposed motive evidence simply does not go that far, as I will indicate when I analyze each piece of evidence separately.

[34] Briefly dealing with narrative, I have little difficulty in finding that the material is not relevant to narrative context. The blog posts and internet articles were posted after the charge was laid in this case. The Crown is ordinarily enitled to admit narrative evidence where it is necessary to set out timing and context: R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788; R. v. Khan, 2017 ONCA 114. The evidence is not required for that purpose here. Indeed, given the timing the proposed motive evidence is not capable of demonstrating narrative context.

[35] I turn next to the analysis of each piece of proposed motive evidence.

(b) Does the probative value of the proposed motive evidence outweigh the prejudicial effect?

[36] The words spoken by an accused person are generally admissible in evidence against that person where they are relevant to an issue: R. v. Foreman (2002), 169 C.C.C. (3d) 489 (Ont. C.A.) at para. 37.

[37] While the Crown is obviously correct that statements against interest are generally admissible, as with all otherwise admissible evidence, a trial judge has the discretion to exclude it where the probative value outweighs the prejudicial effect. Here, the prejudicial effect greatly outweighs the probative value.

[38] I turn first to the question of probative value. In doing so, I return to R. v. Handy, where Binnie J. stated:

The contest over the admissibility of similar fact evidence is all about inferences, i.e., when do they arise? What are they intended to prove? By what process of reasoning do they prove it? How strong is the proof they provide? When are they so unfair as to be excluded on the grounds of judicial policy and the presumption of innocence? The answers to these questions have proven so controversial as to create what Lord Hailsham described as a "pitted battlefield": Boardman v. Director of Public Prosecutions, [1975] A.C. 421.

[39] As a general rule, “evidence of misconduct beyond what is alleged in the indictment which does no more than blacken his character is inadmissible”: Handy at paras. 31 to 36. Binnie J. noted the policy reasons for excluding propensity evidence:

The policy basis for the exclusion is that while in some cases propensity inferred from similar facts may be relevant, it may also capture the attention of the trier of fact to an unwarranted degree. Its potential for prejudice, distraction and time consumption is very great and these disadvantages will almost always outweigh its probative value. It ought, in general, to form no part of the case which the accused is called on to answer. It is excluded notwithstanding the general rule that all relevant evidence is admissible…

[40] As I will explain when I examine the individual items, this statement perfectly describes the proposed motive evidence.

[41] Of course, motive evidence may be so “highly relevant and cogent that its probative value in the search for the truth outweighs any potential for misuse…”: Handy at para. 41. That is what the Crown argues here. In Jackson, as discussed, threats made to the deceased by the accused were admissible. Martin J.A. warned, however, at para. 37:

Utterances, however, which cannot be regarded as other than the venting of feelings of temporary annoyance, and which on any reasonable view, are not capable of evidencing feelings of ill will constituting a motive for the murder of the deceased, are inadmissible.

[42] As I will show when dealing with each proposed item of evidence, the probative value of the proposed motive evidence is low. In contrast, I find that the prejudicial effect is very high. I say that for several reasons.

[43] First, admitting the proposed motive evidence risks the possibility that Mr. Whatcott may be convicted for holding unpopular views, rather than for committing a criminal offence.

[44] Second, the proposed motive evidence risks shifting the burden of proof. The evidence includes Mr. Whatcott’s views on a range of subjects. Those subjects include what he sees as the reasons for the decline of Western civilization. They also include what he sees as the persecution (and prosecution) of Christians for telling the truth. Instead of the Crown bearing the burden of proving each element of the offence beyond a reasonable doubt, the trial may well become an exercise where Mr. Whatcott is forced to defend his political and religious views.

[45] Third, admitting the proposed motive evidence also comes dangerously close to criminalizing speech that many might consider distasteful but would otherwise not attract any kind of criminal liability. The Crown does not allege that the proposed motive evidence is otherwise criminal speech. Indeed, much of it is speech that one may hear or read in some parts of the media.

[46] Fourth, and perhaps most importantly, the evidence is highly distracting. The jury may well end up debating Mr. Whatcott’s political and religious views, rather than examining the evidence to determine whether the Crown has proven the case.

[47] In my view, even a well-crafted jury instruction would not remedy these dangers.

[48] I now deal with each individual item:

I. Mr. Whatcott’s statement to the Calgary Police upon arrest

[49] The parties agree that portions of the statement can be admitted at trial. The parties will discuss and agree upon those portions.

II. Appendix B: The “Zombie Safe Sex Package”

[50] This document contains the alleged hate speech. It is admissible as the actus reus of the alleged crime.

III. Flyers seized from Mr. Whatcott when he turned himself in to the Calgary Police

[51] As noted, I agree with the defence that Mr. Whatcott’s possession of flyers upon arrest is irrelevant. Mr. Whatcott has never denied distributing the flyers at the Pride Parade. There is no inference about Mr. Whatcott’s state of mind that the jury could draw from his possession – other than he thought possession of the flyers was not criminal in and of itself. Indeed it is not. The flyers may contain evidence going to the promotion part of wilful promotion of hatred, but merely possessing the flyers is not a crime.

IV. Appendix C: Portions of the Saskatchewan Human Rights Commission v. Whatcott, 2013 SCC 11, [2013] 1 S.C.R. 467, which including copies of the flyers in that case

[52] I do not need to consider this decision and the attached flyers.

V. Appendix D: Registration Package for the “Gay Zombies Cannabis Consumer’s Association”

[53] The Crown’s position is that this document is admissible as a business record. The defence does not contest admissibility of this evidence.

VI. Appendix E: Blog post by Mr. Whatcott dated July 4, 2016 entitled “Whatcott Christian Commandos Infiltrate Toronto Shame Parade”

[54] This document is a description, by Mr. Whatcott, of what actually took place at the 2016 Pride Parade. The defence does not contest admissibility.

VII. Appendix F: Continuation of the Blog at Appendix E

[55] As with Appendix E, the defence does not contest admissibility.

VIII. Appendix G: Blog post by Mr. Whatcott dated April 15, 2018 entitled “Whatcott explains cultural Marxism at Agape Global Fellowshi” (an obvious reference to Fellowship)

[56] Mr. Whatcott gave a speech at the “Agape Global Fellowship” in Calgary on April 13, 2018. Apparently Mr. Whatcott addressed a “packed audience” on “the role of cultural Marxism In the moral and social decline of Canada and cultural Marxism’s role in our loss of freedom.” The speech appears to describe Mr. Whatcott’s worldview. He reproduced the text of the speech in the blog post. The Crown seeks to introduce part of the text as proposed motive evidence.

[57] I find that there is virtually no probative value to this proposed motive evidence. It does not show that Mr. Whatcott is motivated by hatred towards gay people. It does show that he is very critical of this prosecution. He has argued that the prosecution is politically motivated. It is his right to make that argument. As far as I am aware, he is not under any bail conditions that prevent him from making political comments about the nature of the prosecution.

[58] Even if there were some value to this proposed motive evidence, the prejudicial effect is extraordinarily high. It will inevitably distract the jury from its main task.

[59] Mr. Whatcott began the speech by referring to a notice he received from the British Columbia Human Rights Commission. Apparently, Mr. Whatcott had criticised an NDP candidate in a B.C. provincial election. That candidate was a transgender person. Mr. Whatcott refused to refer to the candidate by her chosen female name. Instead, Mr. Whatcott insisted on referring to the candidate by her male birth name. As he put it:

I distributed 1000 flyers telling voters that their NDP candidate was a biological male, that God did not want them to vote for the NDP, and the concept that undergoing cosmetic surgery, taking hormones, and cross dressing can actually change one’s sex is a lie.

[60] The B.C. flyers appear to have generated a human rights complaint against Mr. Whatcott. Mr. Whatcott brought a motion to dismiss the complaint. He indicated in the speech that the motion was unsuccessful. Mr. Whatcott then stated:

It is an abomination that a man is able to run for political office as a fake woman and then use the British Columbia Human Rights Tribunal to bully and punish people who are unwilling to confirm his gender delusion.

[61] In the text, Mr. Whatcott makes clear his dislike of human rights commissions across the country. He sees them as a vehicle for the suppression of unpopular views – namely, his views.

[62] The Crown does not wish to introduce the first part of the text dealing with the BC Human Rights complaint.

[63] Mr. Whatcott then went on to set up the conflict in modern Western society as a struggle between God and Satan. Satan is the father of lies. Satan hates God, humanity in general, and the people of God in particular. Mr. Whatcott then states:

The push of cultural Marxism in western society and its accompanying push for sexual deviancy and gender confusion is profoundly spiritual, even if many of the proponents of this dishonest and hateful ideology are atheist and fail to see it.

[64] According to Mr. Whatcott, Satan is the inspiration for “cultural Marxism”. The cultural Marxists, being atheists, don’t know it or acknowledge it. Mr. Whatcott then goes on to describe cultural Marxism. He attributes the origins of cultural Marxism to a group of “mostly Jewish academics” belonging to the Frankfurt school of philosophers in the 1920s. These philosophers developed “critical theory”. He argues that:

The goal of Critical Theory is to relentlessly attack the west’s Christian faith and values. Critical Theory also seeks to undermine the dominant traditional heterosexual family structure and white European Christian identity that was until recently prevalent in Canada and provided our nation with a certain degree of unity and moral stability.

[65] The speech quotes liberally from the Gospels (Mark and Matthew) and the Epistles (Hebrews, Corinthians, Romans). Mr. Whatcott sees Christianity as a force in opposition to cultural Marxism. He describes most modern Canadian institutions as being in the grip of cultural Marxism. That grip has poisoned Canadian society and led to the rejection of faith in God. It has also led to deviancy such as drug use, promiscuous and adulterous sex, and homosexual sex. Towards the end of his speech, Mr. Whatcott states that his faith calls upon him to love his enemies and pray for them:

Jesus in addition to warning those of us who follow Him that we will face persecution, and in addition to calling on us to endure to the end, also gave us a radical command as to how we should respond to our persecutors. Our Lord told us to, “Love your enemies and pray for those who persecute you”: Matthew 5:44.

I’ve been tempted to hate my enemies and harbour resentment towards those who hurt me, both non-Christians and Christians. In the end I have found praying for my enemies and asking God to touch them in ways they need to be touched has made me a happier and less bitter person.

[66] If Mr. Whatcott hates anyone or anything (at least from the speech), it seems he hates what he considers to be a systematic decline in the moral foundations of our institutions. The result is what he sees as a political persecution in the name of political correctness. I see nowhere the kind of explicit hatred of gay people that would provide evidence of motive. It is clear, to repeat, that Mr. Whatcott disapproves of gay sex. He considers gay sex and what he calls the homosexual lifestyle to be sinful and deviant behaviour. His disapproval is based on his Christian faith. He also says, broadly, that his Christian faith inspires him to pray that gay people come to Christ in order to be saved. In fairness, Mr. Whatcott seems to disapprove, in equal measure, of sexual practices that he considers degenerate that are usually considered heterosexual, or at least not exclusively homosexual, such as wife-swapping, watching pornography, and polyamory.

[67] I am aware that words can be “dog whistles”. Broadly, in this context a “dog whistle” would be a communication that speaks to people who are bigoted against LGTBQ people, using language that bigoted people would understand, but might otherwise be considered innocuous. I do not see anything that could be called a “dog whistle”.

[68] There is a more fundamental problem with admitting this speech as evidence. It will inevitably turn the trial into a discussion of the merits of Mr. Whatcott’s political, religious, and philosophical views. The role of the jury is to determine whether the Crown has proven the elements of the offence beyond a reasonable doubt. It is hard to imagine something more distracting and less productive for a criminal jury than having them tease through the themes of this speech to find evidence of hatred. Even if the Crown were to propose that only certain portions of the speech be admitted, the defence will inevitably (and correctly) argue that other parts will be required to balance the picture.

IX. Appendix H: Blog post by Mr. Whatcott dated July 23, 2018 entitled “Lifesite News & Whatcott update on July 23 court appearance”

[69] The Crown argues that Mr. Whatcott’s use of the words “sodomite” and “homofascism” are evidence of his animus towards gay people. That animus is, in turn, evidence of motive.

[70] In this blog post Mr. Whatcott describes his court appearance at College Park courts in Toronto. The blog posts featured photos and descriptions of some of his supporters. Mr. Whatcott posted a picture of some of his friends at the court appearance with the following caption:

A nice group of friends who came out to show their support and say no to the Ontario government’s blatant display of homofascism.

[71] Mr. Whatcott also used the term “homofascism” in a blog post dated September 8, 2018 (see Appendix K). Mr. Whatcott announced that he would be in Toronto to go to court on this charge on September 20, 2018. He also announced that he would take the opportunity to do some preaching with his wife:

On September 21 Jadranka and I will be inviting ourselves to the front entrance of the University of Toronto Faculty of Law Library to preach the Gospel of Jesus Christ and to preach against the abomination of homofascism.

[72] Afterwards, he posted the following:

Our preaching session at the University of Toronto was very successful. My wife and two courageous Christian activists came with me to the Faculty of Law to preach against homofascism and offer God’s gifts of Holy Matrimony and sins forgiven through Jesus Christ as much better alternatives.

[73] Mr. Whatcott observed a rainbow flag (the symbol of the Pride movement) in the probation office at the courthouse. He called it a “big sodomite pride flag”. He also posted a picture of himself in front of a Starbucks with a rainbow flag with the caption “Starbucks Pride”. Mr. Whatcott stated on his blog:

We didn’t go to this place. In fact I have been boycotting Starbucks because of their sodomy worship, unhealthy pride, and antipathy towards Christians for over ten years now.

[74] I make no comment on Mr. Whatcott’s confusing sentence construction or on his decision to boycott Starbucks. Mr. Whatcott also uses the word “sodomite” in a blog post dated September 3, 2018 about this charge (Appendix J). He describes it as “an indictable offence for the ‘crime’ of sharing the Gospel and accurate medical information with sodomites at the Toronto homosexual shame parade in 2016.”

[75] The Crown argues that this blog post is evidence of Mr. Whatcott’s animus towards gay people because of the use of the terms “homofascism” and “sodomy” (or “sodomite”) in this and other blog posts. The use of the term “homofascism”, according to the Crown, is a hallmark of Mr. Whatcott’s animus toward gay people. During the course of submissions, I asked Crown counsel for a definition of the term. Crown counsel used the following definition, which appears to be taken from the online Urban Dictionary:

The persecution of people who won’t accept the concept that the LGBT lifestyle is normal.

[76] There is controversy about the use of the Urban Dictionary in the courts. The definition of “homofascism” quoted by the Crown, however, seems to properly describe Mr. Whatcott’s use of the word.

[77] In this case, I find that the word “homofascism” is not capable of showing that Mr. Whatcott has an animus towards gay people. The proposed motive evidence shows that he is very critical of this prosecution.

[78] My reading of Mr. Whatcott’s blog post is that he uses the term “homofascism” as shorthand for what he perceives to be forced tolerance of views he strongly disagrees with – and intolerance of his own ideas. There is no evidence that Mr. Whatcott used the term until after this charge was laid. He obviously associates this prosecution with persecution. He clearly believes that people with a “homosexual agenda” want to use this charge to silence him. As he sees it, all he wants to do is spread the truth. I do not see how it could be evidence of animus towards gay people. It may be evidence of animus towards those who initiated and pursued a prosecution.

[79] Perhaps more importantly, this proposed motive evidence will be highly distracting to the jury. Even if there is some probative value to it, it is far outweighed by the prejudicial effect. As with Appendix G, the jury may well end up debating the nature and use of the term “homofascism” and delve into the impermissible question of whether the prosecution should have even been brought.

[80] Mr. Whatcott’s use of the word “sodomite” is more problematic. Mr. Whatcott uses the word to describe gay people. He uses the term sodomy and sodomite indiscriminately. He uses it sometimes to describe homosexual sex, and sometimes to describe institutions that support Pride (such as Starbucks).

[81] Mr. Whatcott obviously rejects homosexuality and what he calls the “homosexual lifestyle” for political and religious reasons. His posts are clearly strong evidence of his religious faith. His religious faith informs his views about homosexuality. Mr. Whatcott does not use the word “sodomite” in a complimentary way; he uses it to describe behaviour that he believes is condemned on religious grounds. It is a form of shorthand for him – a derogatory form of shorthand to be sure.

[82] “Sodomy”, of course, derives the the passages in the Hebrew Bible that refer to the destruction of Sodom by God by raining fire from heaven: Genesis 19:24. God destroyed Sodom to punish the wickedness of the people. Other scriptural references underly Mr. Whatcott’s beliefs: Leviticus 18 sets out a code of sexual behaviour for the Hebrews, and includes prohibitions on such things as sex with a first degree relative, sex with animals, and sexual relations between men: Leviticus 18:22. Leviticus 20 sets out punishments for sexual sins. Most of them involve the death penalty, including sexual relations between men: Leviticus 20:13. The use of the concept, if not the word, is not confined to the Hebrew Bible. Homosexual behaviour is also condemned in the Epistles of Paul and other books of the New Testament: 1 Corinthians 6:9.

[83] I am aware that many people consider the use of the terms “sodomy” and “sodomite” to be a sign of animus towards gay people. No doubt use of the term when it is directed at someone can be quite wounding to that person. What is key for this purposes of this application, however, is not what is in the mind of target of the comment. What is key is what is in Mr. Whatcott’s mind. I think it is arguable whether Mr. Whatcott’s use of the terms is a sign of animus.

[84] What is considerably less arguable is that permitting the introduction of this evidence would be, as with the other proposed motive evidence, enormously distracting to the jury. I have described the use of the term “sodomy” and sodomite” because to do so is to illustrate exactly why it ought not to be admitted in a criminal trial. No jury should be in the position of having to decide whether Mr. Whatcott believes LGTBQ people can be saved, or whether they are irredeemable sinners, or whether he just hates them. And yet, to admit this proposed motive evidence would facilitate that debate in the jury room. The prejudicial effect is obvious. It would almost certainly distract the jury from the real task. It would risk putting Mr. Whatcott on trial for views that many people consider retrograde, out of touch, and even offensive, rather than for committing a crime. While there may be some probative value to this proposed motive evidence, the prejudicial effect is obvious.

[85] I note that the blog post also includes an article from “Lifesite News”. The article is generally sympathetic to Mr. Whatcott. Mr. Whatcott is quoted liberally in the article. The article clearly condemns this prosecution. To repeat, Mr. Whatcott believes that this prosecution is persecution based on his unpopular beliefs. The article also describes some of Mr. Whatcott’s other legal troubles. I can see nothing in this article that suggests an animus towards LGTBQ people. Moreover, the article risks distracting the jury from a discussion of whether the Crown has proven the elements of the offence to a discussion of whether Mr. Whatcott should be prosecuted at all.

X. Appendix I: Article by Lianne Laurence dated July 23, 2018 on lifesitenews.com entitled “Canadian Christian activist’s legal battle against hate crime charges continues in September”

[86] The Crown does not intend to lead this evidence.

XI. Appendix J: Article by Mr. Whatcott dated September 3, 2018 on freenorthamerica.com entitled “‘Christian’ school rejects Whatcott kids TWU rejects reality”

[87] In this blog post, Mr. Whatcott recounts his attempts to enrol his children in a Christian school. Most of this blog post is simply irrelevant. There is, however, commentary that the Crown argues divulges Mr. Whatcott’s hatred towards the LGBTQ community:

It seems to me a lot of Canadians want to believe lies, such as one can be born a different gender from the one God made them, even though this is self-evidently false. Canadians want to believe that homosexuality is a human right, even though God condemns the behaviour as a human wrong that goes against His natural law. We want to reject God’s plan of marriage and embrace such aberrations as promiscuity, wife swapping, porn, homosexuality, polyamory, and whatever enticement our out of control appetites can come up with and if someone disrespects this new, false God of Canada’s, there is a hate crime charge, human rights tribunal, or HR manager with a termination paper to make sure the offending truth teller is properly punished and an example made, lest anyone else offends with the truth.

I wonder if Canada is entering a time where truth tellers need to give up (not our faith in Christ, but maybe our prophetic truth telling) and let Canadians do what they want, without bothering their consciences with the truth they don’t want to hear?

Indeed, if we give up and go away, Canadians who reject God and who worship at the altars of LGBT, or comfort at all cost, will only be happy for a moment. The fact of the matter is our silence will be to their destruction. But on the other hand, is it not true that you can’t save someone who really doesn’t want to be saved? And is it not a waste of time to cast pearls before swine who don’t want them?

[88] I agree with the Crown that this excerpt illustrates Mr. Whatcott’s world-view towards LGTBQ people. It is not a friendly view. It is informed principally by what he sees as the failure of LGTBQ people to embrace the God’s Truth and their worship of what Mr. Whatcott sees as a lie.

[89] That said, I simply cannot see how this is an expression of animus towards LGTBQ people. If anything, Mr. Whatcott appears moved to condemn what he considers to be sinful and licentious behaviour, including sinful behaviour that is mainly heterosexual. Even if there were probative value, I find, again, that it would be so distracting that the jury would inevitably be drawn into a discussion of Mr. Whatcott’s views – or a completely pointless discussion of (for example) whether wife-swapping can be evidence of Mr. Whatcott’s animus towards gay people – rather than a discussion of whether the Crown had proven the elements of the offence. I cannot imagine anything less conducive to a proper discussion in the jury room.

XII. Appendix K: Article by Mr. Whatcott dated September 8, 2018 on freenorthamerica.com entitled “Whatcott in Toronto court Sept. 20, U of T Sept. 21”

[90] Mr. Whatcott indicates in this short blog post that he will be in court on September 20, 2018. Afterwards, he indicates, he will preach the Gospel and against “homofascism” at the entrance to the University of Toronto Law Library.

[91] The Crown wishes to introduce this blog post because it contains the term “homofascism”. For the reasons that I have mentioned in Appendix H, the prejudicial effect outweighs the probative value. The blog post is not admissible.

XIII. Appendix L: Blog post by Mr. Whatcott dated September 23, 2018 on freenorthamerica.com entitled “Video & photos preaching at the University of Toronto campus”

[92] In this blog post Mr. Whatcott repeats many of his other arguments. He also describes his day of preaching at the University of Toronto Law Library. Among the sins he preaches against is “homofascism.” Again, the Crown seeks to introduce this blog post. Again, find that the blog post is not admissible for the reasons I have already mentioned.

XIV. Appendix M: Blog post by Mr. Whatcott dated December 3, 2018 on freenorthamerica.com entitled “Whatcott speech text, history of homosexual activisim in Cana” (an obvious reference to Canada)

[93] In this blog post, Mr. Whatcott posted a speech he gave on December 1, 2018. He noted that he was banned from Twitter for violating Twitter’s rules against hateful conduct. He then introduced the text of his speech:

Dear Friends:

Yesterday was a blessed time as I shared my message on the history of homosexual activism in Canada and tied it into the tyranny and corruption that is our present day fake human rights raquet [sic] in Canada.

Anyways, here is the text of my speech… on the history of homosexual activism in Canada and the hijacking of Human Rights Commissions to push Sodom’s agenda on this not so free country.

[94] Mr. Whatcott’s theme is set out in the first paragraph. He noted that it has now been “50 years since Prime Minister Pierre Trudeau famously plagiarized Globe and Mail writer Martin O’Malley’s intellectually dishonest comment “the state has no place in the bedrooms of the nation”. Mr. Whatcott then states:

Of course, we can look at the past 50 years and see what Trudeau assured us would merely be legalizing private consensual activity in the bedroom, has grown into something much more than that.

[95] Mr. Whatcott then reviewed his version of the political activism that enshrined protections for LGTBQ people, including marriage equality, into our law. It is unnecessary to go over that history. He liberally mentions “The Body Politic”, the “Pink Triangle Press”, and Gerald Hannon’s famous article “Men Loving Boys Loving Men”. He then noted:

Sadly, in the 1980’s, homosexuality began to be presented in a favourable light in the Canadian mainstream media, the first homosexual oriented movies slowly started to appear on the prime time Canadian TV screens, newspapers such as The Globe and Mail and Toronto Star began to editorialize in favour of homosexual rights and concurrently the first loss of real freedoms began to be felt in Canada, though few noticed at first.

[96] The Crown pointed to Mr. Whatcott’s criticism of Canadian Human Rights Commissions as the real reason for his hatred towards LGTBQ people:

Today, few believe HRC’s are truly remedial and non-punitive in nature and indeed HRC’s are now enforcing homosexual rights complete with anti-free speech codes with a vigor…

In 2014 the BCHRT imposed a $75,000 penalty on the University of British Columbia because of alleged “loss of dignity and hurt feelings… This punitive category is typically the grounds used to punish Christians for so called “hate speech” when we witness against homosexuality and transvestitism.

[97] The Crown argues that this blog post also demonstrates Mr. Whatcott’s animus towards gay people. Again, I cannot agree. What is clear is that Mr. Whatcott disapproves of the movement towards the normalization of what he calls homosexual behaviour and choices in our society. That is a political position that has been widely rejected in Canadian society of 2020, but still resonates with many people. He also disapproves of the progress that has been made in protecting the rights of LGTBQ people in our society. That, in and of itself, is not evidence of animus or hatred towards gay people. It is evidence that Mr. Whatcott disagrees that social and political rights should be extended to LGTBQ people on the basis of their sexual orientation or sexual identification. I repeat the same points: even if this blog post were somehow evidence of Mr. Whatcott’s animus, the prejudicial effect far outweighs the probative value; the distraction to the jury would be enormous; this proposed motive evidence would risk a pointless debate in the jury room; and it would risk putting Mr. Whatcott on trial for his views.

XV. Appendix N: Blog post by Mr. Whatcott dated January 9, 2019 on freenorthamerica.com entitled “Whatcott, January 8, activist and hate crime charge update”

[98] The Crown points to the use of the term “freak” in this blog post dated January 9, 2019. Mr. Whatcott posted a picture of the back of a naked man at the Pride parade. The man had a rainbow flag on a small flagpole inserted into his rectum. Mr. Whatcott called him a “freak”. He then criticised the charge against him. He commented that it was wrong for the Liberal Party of Ontario and Canada to force taxpayers to pay for the Pride Parade but then punish taxpayers who speak out against it.

[99] I do not agree that this blog post, and specifically the use of the word “freak”, is capable of showing animus towards gay people. I think that a plain reading of the blog post is that Mr. Whatcott called the man a “freak” for walking around naked with a flagpole in his rectum. Mr. Whatcott nowhere criticizes the man for being gay. It is obviously an available inference that the man is likely gay, but there is no evidence. Moreover, this photograph and the description represent an enormous distraction. There is virtually no probative value to this proposed motive evidence. The distracting effect makes it highly prejudicial.

XVI. Appendix O: Blog post by Mr. Whatcott dated July 22, 2018 on gab.com mentioning the current charge

[100] In this short blog post, Mr. Whatcott indicated that he was flying to Toronto for a court appearance, for,

… this spurious hate crime charge, which really is a testament to how much Canadian LGBT lobby hates God and hates the truth.

[101] The Crown argued that this post identifies the LGBTQ lobby as the object of his hatred. It is further evidence of his animus.

[102] I do not agree. In my respectful view, Mr. Whatcott is expressing a political view that he is the victim of a campaign of persecution for his beliefs. Even if I am wrong about that, it is at least debatable. And that is, once again, the problem. Again, for the reasons I have mentioned, this proposed motive evidence has very limited probative value, but the prejudicial effect is obvious. It will form part of the material that the jury will have to debate. It will be, again, so distracting, that the jury will likely not focus on the elements of the offence but Mr. Whatcott’s political views.

XVII. Appendix P: Blog post by Mr. Whatcott dated August 5, 2019 on gab.com discussing some of his views.

[103] In this blog, Mr. Whatcott describes some of his views. He criticizes the CBC, Ontario schools, and the costs associated with the Toronto Pride parade. I do not think that it is necessary, again, to state the reasons why this proposed motive evidence ought not to go before the jury. It raises the same problems that I have already mentioned.

DISPOSITION

[104] The Crown’s application to introduce the proposed motive evidence is dismissed.

[105] It is always uncomfortable for a court to engage with issues that raise questions of freedom of speech and the interpretation of words in a political context. Nothing in these reasons should be taken as either an endorsement or condemnation of Mr. Whatcott’s words or his attitudes. I am well aware that many people may strongly disagree with a decision to exclude this proposed motive evidence in a prosecution for an alleged hate crime. That is especially so where the victims are considered by many to be marginalized and vulnerable. It is an important social value for the court to protect all individuals, especially the marginalized and the vulnerable.

[106] It is also, of course, an equally important social value to ensure that everyone who comes before the Court receives a fair trial. Mr. Whatcott’s views may be odious to many people in this community, but he still has a right to a fair trial – indeed, in our democracy it may be especially important to make sure that someone with views considered odious has a fair trial.

[107] I also realize that there are those who may argue that Mr. Whatcott deliberately, provocatively, and perhaps cynically invited the prosecution. They will point to the “whataboutism” in his captions dealing with the Sisters of Perpetual Tolerance. That may or may not be a defence in the court of public opinion. It will not be a defence in a court of law.

R.F. Goldstein J. Released: March 16, 2020