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Biblical scriptures Re: homosexuals exonerated
  -  Canadian Victory for Christian Freedom: Bible = Hate Literature Ruling Reversed

By John-Henry Westen

REGINA, April 13, 2006 ( - One of the most concerning court decisions against religious freedom in Canada has been reversed. The highest court in the province of Saskatchewan has reversed a 2002 decision by the Court of Queen's Bench which ruled that a man who placed references to Bible verses on homosexuality into a newspaper ad was guilty of inciting hatred.

The December 11, 2002 decision was in response to an appeal of a 2001 Saskatchewan Human Rights Commission (HRC) ruling which ordered both the Saskatoon StarPhoenix newspaper and Hugh Owens of Regina to pay $1,500 to three homosexual activists for publishing an ad in the Saskatoon newspaper quoting bible verses regarding homosexuality.

The human rights board of inquiry held that Mr. Owens had violated s. 14(1)(b) of The Saskatchewan Human Rights Code. It prohibits the publication or display of a sign or statement which exposes or tends to expose to hatred, or which ridicules, belittles, or otherwise affronts the dignity of persons on the basis of various grounds. One of those grounds is sexual orientation.

In 1997, Mr. Owens placed an advertisement in a Saskatoon paper which reflected his religiously-based views on homosexuality.

The purpose of the ad was to indicate that the Bible says no to homosexual behaviour. The advertisement displayed references to four Bible passages: Romans 1, Leviticus 18:22, Leviticus 20:13 and 1 Corinthians 6:9-10, on the left side. An equal sign (=) was situated in the middle, with a symbol on the right side. The symbol was comprised of two males holding hands with the universal symbol of a red circle with a diagonal bar superimposed over top.

The Court of Appeal for Saskatchewan released its 37 page decision in Hugh Owens v. Saskatchewan today.

The ruling stressed that s. 14(1)(b) had to be read and interpreted in a way which respected the fundamental freedoms of speech and religion as guaranteed by the Canadian Charter of Rights and Freedoms. As a result, citing Supreme Court authority, the Court said s. 14(1)(b) must be read as applying only in cases where the message in question involved extreme emotions and strong feelings of detestation, calumny and vilification. The Court also stressed that any message impugned under s. 14(1)(b) must be carefully examined with regard to its full context in order to determine whether the section has been offended.

The Court concluded that, although his advertisement was jarring and offensive to many, Mr. Owens had not acted contrary to s. 14(1)(b).

Since the previous court ruling had indicated that the Bible verses themselves expose "homosexuals to hatred", Christian legal experts were concerned that the Bible itself may be banned due to the passage of the hate propaganda legislation in Canada.

See the full ruling online:

Here it is!

Citation: 2006 SKCA 41 Date: 20060413
Between: Docket: 678
Hugh Owens
- and -
Saskatchewan Human Rights Commission
- and -
Gens Hellquist
Jason Roy and
Jeff Dodds
- and -
Saskatchewan Human Rights Board of Inquiry
Valerie G. Watson
- and -
Sterling Newspapers Company
operating as The StarPhoenix
- and -
Canadian Civil Liberties Association
- and -
Canadian Religious Freedom Alliance
Sherstobitoff, Richards & Smith JJ.A.
Hugh Owens present without counsel
Milton Woodard, Q.C. for the Sask. Human Rights Commission,
Gens Hellquist and Jeff Dodds
Andrew Lokan and Louis Browne for the Canadian Civil Liberties
Thomas Schuck and Janet Buckingham for the Canadian
Religious Freedom Alliance
From: 2002 SKQB 506
Heard: September 15, 2005
Disposition: Allowed
Written Reasons: April 13, 2006
By: The Honourable Mr. Justice Richards
In Concurrence: The Honourable Mr. Justice Sherstobitoff
The Honourable Madam Justice Smith
Page 1
Richards J.A.
I. Introduction
[1] Section 14(1)(b) of The Saskatchewan Human Rights Code, S.S. 1979,
c. S-24.1 prohibits the publication of statements which expose or tend to
expose to hatred, or which ridicule, belittle or otherwise affront the dignity of
any person or class of persons on the basis of various prohibited grounds. One
of those grounds is sexual orientation.
[2] A human rights board of inquiry found that the appellant, Hugh Owens,
contravened s. 14(1)(b) by publishing a newspaper advertisement which
reflected his Biblically-based views about homosexuality. That result was
upheld by the Court of Queen's Bench.
[3] I conclude, for the reasons which follow, that Mr. Owens did not violate
s. 14(1)(b) and that his appeal should be allowed.
II. Background
A. The Facts
[4] Mr. Owens saw an advertisement in the Saskatoon StarPhoenix in June
of 1997 announcing an upcoming gay pride week. He thought that his
Christian faith required him to respond to the celebration of what he believes
God calls a sin. He contacted The StarPhoenix with a view to running his own
advertisement during gay pride week in the church pages of the paper.
Page 2
[5] The StarPhoenix did not respond until eight days later which, as it
turned out, was too late to place the ad in the church pages. Mr. Owens then
told The StarPhoenix to run the ad wherever there was space. It ultimately
appeared in the sports section of the newspaper on June 30, 1997.
[6] The advertisement consisted of the citations of four Bible passages,
"Romans 1:26; Leviticus 18:22; Leviticus 20:13; 1 Corinthians 6:9-10", set
out prominently in bold type. They were accompanied by a reference in
smaller print to the New International version of the Bible. The citations were
followed by an equal sign and then by two stickmen holding hands. A circle
with a line running diagonally from the two o'clock to the eight o'clock
position (the "not permitted" symbol) was superimposed on the stickmen. The
following words appeared in small print at the bottom of the advertisement:
"This message can be purchased in bumper sticker form. Please call
[telephone number]."
[7] The passages referred to in the advertisement, as found in the New
International version of the Bible, read as follows:
Romans 1:26 Because of this, God gave them over to shameful lusts. Even their
women exchanged natural relations for unnatural ones. In the same way the men
also abandoned natural relations with women and were inflamed with lust for one
another. Men committed indecent acts with other men, and received in themselves
the due penalty for their perversion.
Furthermore, since they did not think it worthwhile to retain the knowledge
of God, he gave them over to a depraved mind, to do what ought not to be done.
They have become filled with every kind of wickedness, evil, greed and depravity.
They are full of envy, murder, strife, deceit and malice. They are gossips,
slanderers, God-haters, insolent, arrogant, and boastful; they invent ways of doing
evil; they disobey their parents; they are senseless, faithless, heartless, ruthless.
Although they know God's righteous decree that those who do such things deserve
Page 3
death, they not only continue to do these very things but also approve of those who
practice them.
Leviticus 18:22 "Do not lie with a man as one lies with a woman; that is
Leviticus 20:13 "If a man lies with a man as one lies with a woman, both of
them have done what is detestable. They must be put to death; their blood will be
on their own heads.
1 Corinthians 6:9 Do you not know that the wicked will not inherit the
kingdom of God? Do not be deceived: Neither the sexually immoral nor idolaters
nor adulterers nor male prostitutes nor homosexual offenders…
[8] Mr. Owens planned to follow-up with a second message. It also
featured a not permitted sign superimposed on two stickmen holding hands
but, rather than containing a reference to the Bible, it stated "You do have a
choice friend, his name is Jesus." In his evidence, he explained his thinking
as follows:
… Christians and the Christian community are accused and rightly so, many times
of being all too judgmental, all to condemning, and never offering any solutions,
never offering any ways of dealing with certain situations. As I said, this message
was crafted in two particular bumper stickers. The first one was, as we already
know, the advertisement that was placed that dealt with God's declaration
concerning homosexual behaviour, and then the second message was the bumper
sticker that offered the solution. As a Christian, there is only one solution, and that
is God himself and His name just happens to be Jesus Christ.
[9] The StarPhoenix declined to publish the second message given the
complaints and protest which had been sparked by Mr. Owens' first
[10] The respondents Gens Hellquist, Jason Roy and Jeff Dodds filed
complaints with the respondent Saskatchewan Human Rights Commission in
Page 4
August of 1997. They alleged the publication of the advertisement had
offended s. 14 of the Code. Section 14 reads as follows:
14(1) No person shall publish or display, or cause or permit to be published or
displayed, on any lands or premises or in a newspaper, through a television or radio
broadcasting station or any other broadcasting device, or in any printed matter or
publication or by means of any other medium that the person owns, controls,
distributes or sells, any representation, including any notice, sign, symbol, emblem,
article, statement or other representation:
(a) tending or likely to tend to deprive, abridge or otherwise restrict the
enjoyment by any person or class of persons, on the basis of a prohibited
ground, of any right to which that person or class of persons is entitled
under law; or
(b) 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.
(2) Nothing in subsection (1) restricts the right to freedom of expression under the
law upon any subject.
[11] Mr. Hellquist, Mr. Roy and Mr. Dodds each stated the particulars of his
complaint in the same way:
I am a gay man. On or about June, 1997, Hugh Owens caused an advertisement to
be published in The StarPhoenix, a daily newspaper in Saskatchewan. The
advertisement contained a message that certain passages of the Bible were
authority for the proposition that gay men should not be allowed. The
advertisement indicated the message could be purchased in bumper sticker form.
I have reasonable grounds to believe, and I do believe, that Hugh Owens has caused
this representation to be published or displayed in a newspaper, and that he is
distributing the representation, which tends to restrict the enjoyment of rights
which I am entitled to under the law and which exposes me to hatred and otherwise
affronts my dignity of [sic] because of my sexual orientation, contrary to Section
14 of the Saskatchewan Human Rights Code.
[12] The complaints named both Mr. Owens and Sterling Newspapers
Company, the operator of The StarPhoenix, as respondents. Sterling
Newspapers is no longer involved in these proceedings and, as a result, I need
Page 5
make no further reference to it in these reasons. I also note that Mr. Roy did
not participate in this appeal and has renounced any claim to the compensation
awarded to him.
B. The Board of Inquiry Decision
[13] The complaints filed by Mr. Hellquist, Mr. Roy and Mr. Dodds were
referred to a board of inquiry for determination.
[14] The Board of Inquiry heard a considerable amount of evidence. The
complainants provided a compelling narrative with respect to the difficulties,
threats and dangers faced by gay men. They expressed the anger, hurt and
frustration caused to them by the message in the advertisement. Mr. Hellquist
believed the advertisement gave licence to people who wanted to discriminate
against gay men and a licence to people who were inclined to harass or assault
gay men. Mr. Roy said the overall message he received from the ad was that
"God instructs us that intimacy between two people of the same gender is
inappropriate or some type of religious crime and those who engage in such
acts should be put to death." Mr. Dodds saw the advertisement in a very
similar way.
[15] The Board of Inquiry also heard evidence from several individuals who
were qualified as experts. Dr. Madiha Khayatt testified in general terms about
human sexuality, including homosexuality, from a sociological point of view.
Reverend Brent Hawkes testified about the history of the Bible, the Bible's
commentary on homosexuality and possible interpretations of the Bible
Page 6
passages referred to in Mr. Owens' advertisement. Reverend Canon Clay
gave evidence concerning the various degrees of acceptance of homosexuality
among different church groups. The Board of Inquiry also heard from
individuals who testified as to the approach taken to homosexuality by the
Lutheran, Roman Catholic and Jewish faiths.
[16] In its decision, reported at (2001), 40 C.H.R.R. D/197, the Board of
Inquiry began by summarizing the evidence which had been presented. It then
considered whether the advertisement breached s. 14(1)(b) of the Code and
concluded that it did. Its finding as to whether the advertisement involved
some or all of hate, belittlement, ridicule or an affront to dignity was not
stated in a consistent way. The Board first wrote as follows:
[26] Having reviewed all of the evidence, the Board accepts that the universal
symbol for forbidden, not allowed or not wanted, consisting of a circle with a slash
through it, may itself not communicate hatred. However, when combined with the
passages from the Bible, the Board finds that the advertisement would expose or
tend to expose homosexuals to hatred or ridicule, or may otherwise affront their
dignity on the basis of their sexual orientation. It is a combination of both the
symbol and the biblical references which have led to this conclusion.
[17] After referring to case authority in relation to the significance of the not
permitted symbol, the Board stated its views somewhat differently by saying:
[28] The use of the circle and slash combined with the passages of the Bible
herein make the meaning of the advertisement unmistakeable. It is clear that the
advertisement is intended to make the group depicted appear to be inferior or not
wanted at best. When combined with the biblical quotations, the advertisement
may result in a far stronger meaning. It is obvious that certain of the biblical
quotations suggest more dire consequences and there can be no question that the
advertisement can objectively be seen as exposing homosexuals to hatred or
Page 7
[18] The Board then went on to consider whether the advertisement was a
permissible exercise of freedom of speech within the meaning of s. 14(2) of
the Code. After referring to leading case authority, it presented its conclusion
in this way:
[32] The Board has concluded that the complainants, Jeff Dodds, Jason Roy, and
Gens Hellquist, have been discriminated against with respect to the advertisement
placed in the Saskatoon Star Phoenix on June 30, 1997, and as a result, were
exposed to hatred, ridicule and their dignity was affronted on the basis of their
sexual orientation. Based on the evidence given by the complainants, the Board
finds that the complainants suffered in respect of their feelings and self-respect as
a result of the contravention.
[19] The Board made an order prohibiting Mr. Owens from further
publishing or displaying the bumper stickers featured in the advertisement and
directed him to pay damages of $1,500 to each of the complainants.
C. The Queen's Bench Decision
[20] Mr. Owens appealed the Board of Inquiry's decision to the Court of
Queen's Bench. In dismissing the appeal, the Chambers judge purported to
agree with the findings of the Board but was also somewhat inconsistent as to
whether the advertisement involved only hatred or whether it also involved
ridicule, belittlement and/or an affront to dignity. The relevant passages from
that aspect of his decision, reported at (2002), 228 Sask. R. 148, are set out
[21] In my view the Board was correct in concluding that the advertisement can
objectively be seen as exposing homosexuals to hatred or ridicule. When the use
of the circle and slash is combined with the passages of the Bible, it exposes
homosexuals to detestation, vilification, and disgrace. In other words, the Biblical
passage which suggest that if a man lies with a man they must be put to death
exposes homosexuals to hatred.
[22] I agree with counsel for the Board that the Board was correct in holding that
a reference to statements that call for homosexuals to be put to death in the context
Page 8
of equalizing that with a prohibition against them does expose homosexuals to
hatred and affronts to their dignity as contemplated by s. 14(1) of the Code.
[21] Having stated his conclusion in those terms, the Chambers judge
considered whether the advertisement was protected by the guarantees of
freedom of speech or religion. His analysis in that regard consisted of quoting
from Saskatchewan (Human Rights Commission) v. Bell, [1994] 5 W.W.R.
460 (Sask. C.A.) and then stating:
[24] In my view, s. 14(1) of the Code is a reasonable restriction on the
appellant's right to freedom of expression and religion as contemplated by s. 2(a)
of the Charter. See Bell, supra. In Attis v. Board of Education of District No. 15
et al., [Ross v. New Brunswick School District No. 15], [1996] 1 S.C.R. 825; 195
N.R. 81; 171 N.B.R. (2d) 321; 437 A.P.R. 321, La Forest J. held that the analysis
under s.1 of the Charter is the same whether the legislation infringes the
respondent's freedom of expression or freedom of religion.
[25] For all the above reasons the appeal is dismissed.
[22] Mr. Owens takes issue with that decision. Two interveners, Canadian
Civil Liberties Association and ,
support his request that the appeal be allowed.
III. Issues
[23] Mr. Owens raised a number of points but there was considerable overlap
among them. His essential argument can be reduced to two key contentions.
The first is that the Board of Inquiry and the Court of Queen's Bench erred in
their characterization of the advertisement. He submits that it does not convey
hatred or otherwise offend s. 14(1)(b) of the Code. The second is that the
Board of Inquiry and the Court of Queen's Bench both failed to give proper
Page 9
consideration to the fact that, in publishing the advertisement, he was
exercising his freedom of religion.
[24] Mr. Owens does not suggest the publication of the advertisement fell
outside the reach of s. 14(1) because it was not sufficiently connected to a
violation or potential violation of ss. 9 to 13 or 15 to 19 of the Code in the
sense considered by this Court in Saskatchewan (Human Rights Commission)
v. Engineering Students' Society (1989), 56 D.L.R. (4th) 604 (Sask. C.A.).
Accordingly, we are not here concerned with that point.
[25] For their part, the respondents, i.e. the Commission and the
complainants, argued that the Board of Inquiry properly identified the import
of the advertisement. They accept that the advertisement involved the
exercise of Mr. Owens' freedom of religion but say his freedom in that regard
is not absolute and that the Code justifiably limits religious speech which is
hateful or otherwise comes within the scope of s. 14(1)(b).
[26] Although the complaints filed in this matter refer generally to an alleged
violation of s. 14 of the Code, the case has been presented and adjudicated
from the outset as turning solely on s. 14(1)(b) of the Code. Section 14(1)(a)
is not directly at issue in these proceedings.
IV. Analysis
[27] This appeal is most readily resolved by dealing with each of the
following main points in turn: (i) the right of appeal, (ii) the appropriate
Page 10
standard of review, (iii) the meaning and scope of s. 14(1)(b), and (iv) the
proper characterization of Mr. Owens' advertisement.
A. Right of Appeal
[28] These proceedings are grounded on s. 32 of the Code. It allows an
appeal on a question of law from a board of inquiry decision to the Court of
Queen's Bench and a further appeal to this Court.
[29] The respondents accept that the issues raised by Mr. Owens are properly
before the Court. Their position in this regard is correct. Mr. Owens'
argument self-evidently involves questions of law to the extent it turns on the
interpretation of the Code. Further, to the extent it turns on the proper
application of the Code to the facts of this case, it also involves a question of
law for purposes of the appeal provisions in s. 32. See: Valley Beef
Co-operative Ltd. v. Farm Credit Corp., [2002] 11 W.W.R. 587 (Sask. C.A.)
at paras. 96-106; Trinity Western University v. British Columbia College of
Teachers, [2001] 1 S.C.R. 772 at para. 18.
B. Standard of Review
[30] Counsel for the Commission, Mr. Hellquist and Mr. Roy agreed in oral
argument that this Court was free to make its own assessment of whether the
advertisement offended s. 14(1)(b), i.e. that it should use the correctness
standard in reviewing the question of whether s. 14(1)(b) had been violated.
That concession was properly made.
Page 11
[31] The Supreme Court has said that, even for statutory appeals from
administrative tribunals, the "functional and pragmatic" analysis summarized
in cases such as Pushpanathan v. Canada, [1998] 1 S.C.R. 982 must be
applied in order to determine the applicable standard of review. See: Dr. Q.
v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R.
226 at para. 21.
[32] The factors which are to be considered under the functional and
pragmatic approach include (i) the presence or absence of a privative clause
protecting the tribunal's decision, (ii) the expertise of the tribunal, (iii) the
purpose of the legislative scheme in which the tribunal operates, and (iv) the
nature of the problem in issue. These factors must be weighed together to
determine the proper standard of review. The overall object of the exercise is
to determine whether the question in issue is one the Legislature intended to
be left to the exclusive jurisdiction of boards of inquiry.
[33] Essentially the same considerations under the functional and pragmatic
analysis are applicable to all aspects of Mr. Owens' appeal. That analysis
indicates the Board of Inquiry's decision that Mr. Owens offended the Code
by publishing the advertisement should be reviewed on a standard of
correctness. First, the Board's decisions are not made under the umbrella of
a privative clause. To the contrary, the Code sets out a right of appeal in
relation to questions of law. This points to review on the basis of correctness.
Page 12
[34] Second, boards of inquiry under the statutory regime in place at the time
relevant to this appeal did not have any special expertise in relation to human
rights issues. Board members were not full time human rights adjudicators.
Rather, they were lawyers involved in private practice who were appointed on
an ad hoc and file-by-file basis to hear complaints. As a result, at least
relative to the judiciary, boards of inquiry had no particular expertise in
respect of the legal issues at play in human rights problems. Accordingly, this
factor also suggests that a correctness standard of review is appropriate.
[35] Third, the purpose of the board of inquiry system under the Code is to
establish the rights of the complainant and the respondent through a formal
adjudicative process. Decision making is not what the Supreme Court has
described as "polycentric" i.e. decision making which involves a large number
of interlocking and interacting interests and considerations. As a result, this
consideration also suggests a correctness standard of review.
[36] Fourth and finally, the nature of the problem under review in this case
also points to the correctness standard. The Supreme Court, broadly speaking,
has said that questions which impact future decisions of lawyers and judges
will tend to attract relatively little deference. Issues of more limited interest
and those of a purely factual nature will attract more deference. The questions
raised by this appeal are, of course, rooted in a particular set of facts but they
ultimately turn on important points of law including the interpretation of
s. 14(1)(b) of the Code as informed by the basic constitutional values of
equality, freedom of religion and freedom of speech. In my view this is very
Page 13
much the sort of matter which the Legislature would have intended the courts
to decide.
[37] I pause here, however, to observe that it could be asked if the Board of
Inquiry's findings that Mr. Owens' advertisement exposed the complainants
to hatred, affronted their diginity and so forth are essentially questions of fact
and, therefore, matters which warrant deference on the part of the Court. The
problem with this line of thinking, of course, is that the notions of "hatred,"
"ridicule," "belittlement" and "affronts to dignity" are the key legal concepts
in s. 14(1)(b) itself and, as will be discussed below, are ultimately given
meaning by a relatively complex set of constitutional considerations. As a
result, the Board's conclusions in this regard do not require deference on the
part of the courts.
[38] Moving on from the detail of the functional and pragmatic approach, I
note that the application of the correctness standard in the present
circumstances is in keeping with what the Supreme Court has said about
standards of review in other cases dealing with human rights issues. Gould
v. Yukon Order of Pioneers, [1996] 1 S.C.R. 571 involved a situation where
a woman had been denied membership in an organization on the basis of her
gender. As in the present case, the statutory regime allowed for appeals only
"on questions of law." The central issue was whether the organization was
"offering or providing services… to the public" within the meaning of the
Yukon human rights legislation. The majority of the Supreme Court found,
at para. 46, that the appropriate standard of review was correctness on the
Page 14
basis that the issue on the appeal was one of "statutory interpretation and
general legal reasoning." In cases grounded on judicial review applications,
the Supreme Court has also endorsed a correctness standard in relation to
questions of law. See: Canada (Attorney General) v. Mossop, [1993] 1 S.C.R.
554; University of British Columbia v. Berg, [1993] 2 S.C.R. 353.
[39] Accordingly, I proceed on the basis that the correctness standard of
review is applicable in relation to the issues raised in this case.
C. The Meaning and Scope of Section 14(1)(b)
[40] Section 14(1)(b) of the Code prohibits the publication or display of any
statement or symbol "that exposes or tends to expose to hatred, ridicule,
belittles or otherwise affronts the dignity" of any person or class of persons
on the basis of a prohibited ground. The task of determining whether
Mr. Owens violated the Code by publishing the advertisement must begin
with a confirmation of the meaning and scope of those statutory terms.
1. Some General Principles
[41] Section 14(1)(b) is aimed directly at expressive activity and hence
self-evidently constrains free speech. It also limits constitutionally protected
religious interests in that freedom of religion includes the right to disseminate
beliefs. Dickson J. confirmed that point in R. v. Big M Drug Mart Ltd., [1985]
1 S.C.R. 295 at p. 336:
… The essence of the concept of freedom of religion is the right to entertain such
religious beliefs as a person chooses, the right to declare religious beliefs openly
and without fear of hindrance or reprisal, and the right to manifest religious belief
by worship and practice or by teaching and dissemination.
Page 15
[42] The Charter guarantees both freedom of speech and freedom of religion
by providing as follows in ss. 2(a) and (b):
2. Everyone has the following fundamental freedoms:
a) freedom of conscience and religion;
b) freedom of thought, belief, opinion and expression, including freedom of
the press and other media of communication;
Those guarantees can only be limited in ways which are reasonable and
demonstrably justifiable within the meaning of s. 1 of the Charter. Section
14(1)(b) would, of course, be constitutionally invalid to the extent it is not a
reasonable limitation of guaranteed freedoms.
[43] Freedom of expression and freedom of religion are also enshrined in the
Human Rights Code itself. The Bill of Rights part of the Code expressly
protects both freedoms. Sections 4 and 5 of the Code state:
4 Every person and every class of persons shall enjoy the right to freedom of
conscience, opinion and belief and freedom of religious association, teaching,
practice and worship.
5 Every person and every class of persons shall, under the law, enjoy the right
to freedom of expression through all means of communication, including, without
limiting the generality of the foregoing, the arts, speech, the press or radio,
television or any other broadcasting device.
Section 14(2), it will be recalled, specifically says that "Nothing in subsection
(1) restricts the right to freedom of expression under the law upon any
Page 16
[44] All of this means freedom of speech and religion must be carefully
considered when interpreting s. 14(1)(b). First, as the Supreme Court noted
in R. v. Zundel, [1992] 2 S.C.R. 731 at p. 771, when a statute is susceptible of
alternative interpretations, the one which accords with the Charter and the
values to which it gives expression should be preferred. Second, as a matter
of pure statutory interpretation, s. 14(1)(b) must be read in the context of the
Code as a whole and, to the extent reasonably possible, given a construction
which is consistent with an overall legislative scheme which respects and
guarantees freedom of speech and religion. See: Rizzo and Rizzo Shoes
Ltd. (Re), [1998] 1 S.C.R. 27 at p. 41.
2. The Authorities
[45] With that background, it is appropriate to turn to the authorities which
have considered the meaning of s. 14(1)(b). There are two key and controlling
cases. The first is Canada (Human Rights Commission) v. Taylor, [1990] 3
S.C.R. 892. The second is Saskatchewan (Human Rights Commission) v. Bell,
[46] In Taylor, the Supreme Court considered the constitutional validity of
the hate speech prohibition in s. 13(1) of the Canadian Human Rights Act.
That provision reads as follows:
13. (1) It is a discriminatory practice for a person or a group of persons acting in
concert to communicate telephonically or to cause to be so communicated,
repeatedly, in whole or in part by means of the facilities of a telecommunication
undertaking within the legislative authority of Parliament, any matter that is likely
to expose a person or persons to hatred or contempt by reason of the fact that that
person or those persons are identifiable on the basis of a prohibited ground of
Page 17
The prohibited grounds of discrimination referred to in the section include
(but are not limited to) race, national or ethnic origin, colour and religion.
[47] Mr. Taylor had initiated a telephone service whereby members of the
public could dial a telephone number and listen to a recorded message. Some
thirteen different messages were played over a two year period but they had
a consistent overriding theme involving an attack on Jews. A human rights
tribunal determined that Mr. Taylor had violated s. 13(1) of the Human Rights
Act and, in so doing, it summarized the nature of the messages as follows at
p. 903:
Although many of these messages are difficult to follow, there is a
recurring theme. There is a conspiracy which controls and programmes
Canadian society; it is difficult to find out the truth about this conspiracy
because our books, our schools and our media are controlled by the
conspirators. The conspirators cause unemployment and inflation; they
weaken us by encouraging perversion, laziness, drug use and race mixing.
They become enriched by stealing our property. They have founded
communism which is responsible for many of our economic problems such
as the postal strike; they continue to control communism and they use it in
the furtherance of the conspiracy. The conspirators are Jews.
[48] The Supreme Court narrowly upheld s. 13(1) as being a reasonable
limitation on the right of freedom of expression guaranteed by s. 2(b) of the
Charter. Dickson C.J.C. wrote for the majority. In the central part of his
reasons, he referred to a decision of a human rights tribunal which had
considered the meaning of "hatred" and "contempt" in s. 13(1) and then went
on to summarize his own position as follows at pp. 928-929:
The approach taken in [the decision of the human rights tribunal] gives full
force and recognition to the purpose of the Canadian Human Rights Act while
Page 18
remaining consistent with the Charter. The reference to "hatred" in the above
quotation speaks of "extreme" ill-will and an emotion which allows for "no
redeeming qualities" in the person at whom it is directed. "Contempt" appears to
be viewed as similarly extreme, though is felt by the Tribunal to describe more
appropriately circumstances where the object of one's feelings is looked down
upon. According to the reading of the Tribunal, s. 13(1) thus refers to unusually
strong and deep-felt emotions of detestation, calumny and vilification, and I do not
find this interpretation to be particularly expansive. To the extent that the section
may impose a slightly broader limit upon freedom of expression than does s. 319(2)
of the Criminal Code, however, I am of the view that the conciliatory bent of a
human rights statute renders such a limit more acceptable than would be the case
with a criminal provision.
62 In sum, the language employed in s. 13(1) of the Canadian Human Rights
Act extends only to that expression giving rise to the evil sought to be eradicated
and provides a standard of conduct sufficiently precise to prevent the unacceptable
chilling of expressive activity. Moreover, as long as the Human Rights Tribunal
continues to be well aware of the purpose of s. 13(1) and pays heed to the ardent
and extreme nature of feeling described in the phrase "hatred or contempt", there is
little danger that subjective opinion as to offensiveness will supplant the proper
meaning of the section. [emphasis added]
[49] The key to the Taylor decision for present purposes is Dickson C.J.C.'s
requirement that, in order to pass constitutional muster, s. 13(1) must be read
as being aimed only at expression involving feelings of an "ardent and
extreme nature" and, in particular, "unusually strong and deep-felt emotions
of detestation, calumny and vilification."
[50] I turn then to Bell, a decision of this Court. It involved a human rights
complaint under s. 14 of the Code arising from a situation where Mr. Bell, the
owner of a motorcycle shop, had displayed and offered for sale offensive
stickers. The stickers carried crude and demeaning caricatures of a Sikh
person, an Oriental person and a Black person superimposed with a red circle
and a diagonal bar - the not permitted sign. Mr. Bell challenged the
Page 19
constitutional validity of s. 14 on the basis that it offended the guarantee of
freedom of expression found in s. 2(b) of the Charter.
[51] Not surprisingly, the Taylor ruling figured prominently in
Sherstobitoff J.A.'s reasons upholding the validity of s. 14. He noted that
Taylor directly governed the question of whether the "hate" aspect of s. 14(1)
could be justified. He also found that the reasoning in Taylor applied in
relation to those aspects of s. 14 which speak to belittlement, ridicule and
affronts to dignity. The most significant passage from his reasons is
reproduced below in full:
29 Insofar as s. 14 prohibits display of material exposing or tending to expose
to hatred because of race or religion, it is unquestionably a reasonable limit for all
of the reasons stated by Dickson C.J.C. in Taylor. We are bound by those reasons
and agree with them. Since we have found that the stickers exposed and tended to
expose to hatred, there has been a breach of the section, and, ordinarily, that would
be an end of the appeal.
30 However, s. 14 goes beyond prohibiting material exposing to hatred. It also
prohibits material which ridicules, belittles or otherwise affronts the dignity of any
group because of race or religion. The appellant argued that these additional
grounds for prohibition of publication broadened the section to the extent that the
reasoning in Taylor should not apply, and that, as a result, s. 14 was not a
reasonable limit on the right to freedom of expression.
31 The legislation under consideration in Taylor prohibited communications
which were "likely to expose ... to hatred or contempt." The prohibition in s. 14
against communications which expose or tend to expose to hatred, or which
"ridicule, belittle or otherwise affront the dignity" of persons is so similar to that
considered in Taylor that the words of Dickson C.J.C. at p. 929 apply:
In sum, the language employed in s. 13(1) of the Canadian Human
Rights Act extends only to that expression giving rise to the evil sought to
be eradicated and provides a standard of conduct sufficiently precise to
prevent the unacceptable chilling of expressive activity. Moreover, as long
as the Human Rights Tribunal continues to be well aware of the purpose of
s. 13(1) and pays heed to the ardent and extreme nature of feeling described
in the phrase "hatred or contempt", there is little danger that subjective
opinion as to offensiveness will supplant the proper meaning of the section.
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32 This reasoning is reinforced by the fact that s. 14 of the Code is tempered by
interpretative and exemption provisions which were absent in the legislation under
consideration in Taylor. Subsection (2) of s. 14 provides:
(2) Nothing in subsection (1) restricts the right to freedom of speech under
the law upon any subject.
Section 5 provides:
5 Every person and every class of persons shall, under the law, enjoy the
right to freedom of expression through all means of communication,
including, without limiting the generality of the foregoing, the arts, speech,
the press or radio, television or any other broadcasting device.
Such provisions are normal in human rights legislation and Dickson C.J.C. said as
follows in reference to such provisions at p. 930:
Perhaps the so-called exemptions found in many human rights
statutes are best seen as indicating to human rights tribunals the necessity of
balancing the objective of eradicating discrimination with the need to
protect free expression (see, e.g., Rasheed v. Bramhill (1980), 2 C.H.R.R.
D/249, at p. D/252).
33 Accordingly, in our view, s. 14 of the Code is a reasonable limit on the right
to freedom of expression as allowed under s. 1 of the Charter. Our reasons for this
conclusion are rather perfunctory because the result of this appeal would be the
same even if we had concluded that the words "ridicules, belittles or otherwise
affronts the dignity of" in s. 14(1)(a) had taken the section beyond the reasoning in
Taylor which justified the limit as being reasonable. [emphasis added]
[52] Thus, while Bell upheld s. 14(1)(b) of the Code as being a reasonable
limit on freedom of expression, it did so on a very particular basis. The Court
saw s. 14(1)(b) as operating only in those situations where the "ridicule",
"belittlement" or "affront to dignity" in issue met the standard endorsed in
Taylor. In other words, the Court interpreted the prohibition against ridicule,
belittlement and affronts to dignity as extending only to communications of
that sort which involve extreme feelings and strong emotions of detestation,
calumny and vilification.
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[53] No other result, of course, could be justifiable. Much speech which is
self-evidently constitutionally protected involves some measure of ridicule,
belittlement or an affront to dignity grounded in characteristics like race,
religion and so forth. I have in mind, by way of general illustration, the
editorial cartoon which satirizes people from a particular country, the
magazine piece which criticizes the social policy agenda of a religious group
and so forth. Freedom of speech in a healthy and robust democracy must make
space for that kind of discourse and the Code should not be read as being
inconsistent with that imperative. Section 14(1)(b) is concerned only with
speech which is genuinely extreme in the sense contemplated by the Taylor
and Bell decisions.
3. Freedom of Religion
[54] Bell concerned the validity of s. 14(1)(b) with reference to freedom of
expression as protected by s. 2(b) of the Charter. Although he does not
directly attack the constitutionality of s. 14(1)(b) itself, Mr. Owens argues that
both the Board of Inquiry and the Court of Queen's Bench erred in their
deliberations because they failed to give weight or effect to his freedom of
religion. In this regard, all parties to this appeal agree and accept that
Mr. Owens published the advertisement pursuant to a sincere and bona fide
conviction forming part of his religious beliefs. As a result, there is no doubt
that s. 2(a) of the Charter is engaged by the facts of this case and must be
Page 22
[55] Mr. Owens correctly contends that the Board of Inquiry said nothing
about freedom of religion and that the Chambers judge gave it only the
briefest of consideration. However, at least insofar as the constitutional
validity of s. 14(1)(b) is concerned, the result in Bell does not change when
freedom of religion is brought into the equation. This is so because the
authorities universally recognize that freedom of religion is not absolute. See:
Multani v. Commission scolaire Marguerite-Bourgeoys, [2006] S.C.J. No. 6;
2006 SCC 6 at para. 30.
[56] As is the case with all other rights and freedoms, religious speech and
religious practices which harm others are subject to limitation in ways which
are reasonable and justifiable within the meaning of s. 1 of the Charter. This
is part of the foundation on which our pluralistic society has been constructed.
Iacobucci J. recently underlined this point when exploring the allowable
limitations on religious freedom in Syndicat Northcrest v. Amselem, [2004] 2
S.C.R. 551 at para. 61:
61 In this respect, it should be emphasized that not every action will become
summarily unassailable and receive automatic protection under the banner of
freedom of religion. No right, including freedom of religion, is absolute: see, e.g.,
Big M, supra; P. (D.) v. S. (C.), [1993] 4 S.C.R. 141, at p. 182; B. (R.) v. Children's
Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315, at para. 226; Trinity
Western University v. British Columbia College of Teachers, [2001] 1 S.C.R. 772,
2001 SCC 31, at para. 29. This is so because we live in a society of individuals in
which we must always take the rights of others into account. In the words of John
Stuart Mill: "The only freedom which deserves the name, is that of pursuing our
own good in our own way, so long as we do not attempt to deprive others of theirs,
or impede their efforts to obtain it": On Liberty and Considerations on
Representative Government (1946), at p. 11. In the real world, oftentimes the
fundamental rights of individuals will conflict or compete with one another.
Page 23
[57] The Constitution protects all dimensions of freedom of religion.
However, it also accommodates the need to safeguard citizens from harm and
to ensure that each of them has non-discriminatory access to education,
employment, accommodation and services. In situations where religiously
motivated speech involves injury or harm to others, it is necessarily subject to
reasonable limitations. As a result, s. 14(1)(b) is a justifiable limit on
religiously inspired speech in effectively the same way as it is a justifiable
limit on speech generally. See: Ross v. New Brunswick School District No. 15,
[1996] 1 S.C.R. 825.
4. Applying Section 14(1)(b)
[58] The sensibilities and vulnerabilities of the individuals who are the target
of speech which is alleged to breach s. 14(1)(b) should not be disregarded in
deciding whether there has been a violation of the Code. However, the
question of how a particular individual or particular individuals understand a
message cannot determine whether it should be found to involve hate,
belittlement, ridicule or is an affront to dignity. Injecting that sort of
subjectivity into the analysis would make the reach of the section entirely
unpredictable and, as a result, would create an unacceptable chilling effect on
free speech.
[59] Similarly, the perspective of the person who sends a message cannot
control the outcome of the inquiry as to whether the message violates
s. 14(1)(b). He or she might have a sense of the meaning of the message
Page 24
which, because of prejudice or otherwise, is wholly inconsistent with its
actual effect. Focusing on the subjective views of the person alleged to have
offended s. 14(1)(b) thus runs the risk of making that provision inapplicable
to even the most offensive and dangerous messages and, consequently, of
defeating its purpose.
[60] As a result, it is apparent that s. 14(1)(b) must be applied using an
objective approach. The question is whether, when considered objectively by
a reasonable person aware of the relevant context and circumstances, the
speech in question would be understood as exposing or tending to expose
members of the target group to hatred or as ridiculing, belittling or affronting
their dignity within the restricted meaning of those terms as prescribed by
C. The Characterization of the Advertisement
[61] Having confirmed the construction of s. 14(1)(b) and the way in which
it must be applied, it is now possible to turn to the particulars of Mr. Owens'
advertisement and the question of whether he offended the Code by publishing
[62] There is no doubt that the advertisement is jarring and would have been
seen by many as distressing and offensive. That, however, is not the basis on
which the Code prohibits speech. The overriding question is whether the
advertisement was characterized by the intense feelings and strong sense of
detestation, calumny and vilification referred to in Bell.
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[63] That question can be answered only by considering the contents of the
advertisement as a whole in light of the circumstances in which it was
published. Context is critically important in this regard. The analysis
pursuant to s. 14(1)(b) of the Code must be performed carefully and always
on a case-by-case basis.
[64] For his part, Mr. Owens says the advertisement simply means "God says
no to the behaviour of homosexuality" and, as a result, he submits there was
no violation of s. 14(1)(b).
1. Context
[65] Part of the context which must inform the meaning of Mr. Owens'
advertisement is the long history of discrimination against gay, lesbian,
bisexual and trans-identified people in this country and elsewhere. As Cory J.
said in Egan v. Canada, [1995] 2 S.C.R. 513 at para. 175, gays and lesbians
"whether as individuals or couples, form an identifiable minority who have
suffered and continue to suffer serious social, political and economic
disadvantage." The evidence of the complainants in this case clearly revealed
the marginalization and fear which are part of the life many gay men are
obliged to live.
[66] At the same time, it is significant that the advertisement in issue here
was published in 1997 and, thus, in the middle of an ongoing national debate
about how Canadian legal and constitutional regimes should or should not
Page 26
accommodate sexual identities. "Sexual orientation" had been added as a
prohibited ground of discrimination under The Saskatchewan Human Rights
Code only in 1993. Sexual orientation had been found by the Supreme Court
of Canada to be an analogous ground of discrimination under s. 15 of the
Charter just two years before the advertisement was published. See: Egan v.
Canada, supra. Parliament would not pass legislation to make government
programs and benefits available on an equal basis to gay and lesbian couples
until three years after the advertisement appeared. See: Modernization of
Benefits and Obligations Act, S.C. 2000, c. 12. When Mr. Owens' message
was published the judicial sanctioning of same-sex marriage in Saskatchewan
was still seven years in the future and its sanctioning by the Supreme Court
of Canada was eight years in the future. See: W. (N.) v. Canada (Attorney
General) (2004), 246 D.L.R. (4th) 345 (Q.B.); Reference Re Same-Sex
Marriage, [2004] 3 S.C.R. 698.
[67] This does not mean that a newly won right to be free from
discrimination should be accorded less vigorous protection than similar rights
based on more historically established grounds such as race and religion. But,
for purposes of applying a provision like s. 14(1)(b) of the Code, it is
important to consider Mr. Owens' advertisement in the context of the time and
circumstances in which it was published. That environment featured an active
debate and discussion about the place of sexual identity in Canadian society.
Indeed, the advertisement at issue here was published in connection with gay
pride week - an event promoted by the gay community as a celebration of
diversity and used in part as a platform for the advancement of gay rights.
Page 27
[68] Seen in this broader context, Mr. Owens' advertisement tends to take on
the character of a position advanced in a continuing public policy debate
rather than the character of a message of hatred or ill will in the sense
contemplated by Bell. Both the Board of Inquiry and the Chambers judge
erred by failing to give any consideration to this wider context.
2. The Detail of the Advertisement
[69] In analyzing the advertisement itself, it is useful to begin by separately
considering its two main elements: the not permitted symbol superimposed
on the stickmen and the Bible passages.
[70] I begin with the stickmen. They are drawn very simply in the classic
style of the genre. The two figures are identical and stand side by side with
conjoined hands. They are not, as was the case with the caricatures at issue in
Bell, depicted in a way which suggests undesirable characteristics such as
dangerousness, untrustworthiness, lack of cleanliness, dishonesty or deceit.
They are presented in a neutral and straightforward fashion. As a result, there
is nothing about the stickmen themselves which might engage s. 14(1)(b) of
the Code.
[71] The significance of the not permitted sign itself is somewhat more
difficult to ascertain. In the proper context, I do not doubt that it can confirm
or be an integral part of a hateful message. That was the case in Bell where it
was superimposed on cruel and demeaning racial caricatures. However, at the
Page 28
same time, the not permitted sign can also be used in ways which do not
involve the kind of malevolent feelings described in Bell and Taylor. The
evidence at the Board of Inquiry showed it was employed in a range of
circumstances including those which were quite innocuous. Accordingly, in
my view, the Board of Inquiry properly concluded that the not permitted
symbol "may itself not communicate hatred".
[72] In the result, it is apparent that the part of the advertisement involving
the not permitted symbol superimposed on the stickmen does not, in and of
itself, satisfy the standard prescribed by Bell. The Board of Inquiry and the
Chambers judge reached the same conclusion, finding that s. 14(1)(b) of the
Code was not independently offended by that feature of the advertisement but
was offended only by that feature combined with the Bible passages.
[73] This leads to the other element of the advertisement, the Bible citations.
As an initial point on this limb of the case, Mr. Owens contends that the Board
of Inquiry and the Court of Queen's Bench should not have looked beyond the
advertisement itself to determine its meaning. In his view, the advertisement
should have been evaluated on its face and in isolation from the Biblical text
it cites.
[74] I do not accept that proposition. In principle, the effect of s. 14(1)(b)
of the Code cannot be side-stepped by publishing or distributing what
amounts to a direction or invitation to refer to material which offends its
terms. That approach would deprive the provision of much of its effect and
Page 29
does not reconcile with the concept that human rights legislation should be
given a generous and purposive interpretation. See: Gould v. Yukon Order
of Pioneers, supra at paras. 119-120; University of British Columbia v. Berg,
supra, at para. 39.
[75] The advertisement was, in effect, an invitation to consult the referenced
Bible passages. That text, of course, is readily available as the Bible enjoys
a wider circulation than any other book. Accordingly, therefore, it is
necessary to consider the referenced Bible passages themselves in order to
determine whether s. 14(1)(b) was offended.
[76] Those passages, as quoted above from the New International version of
the Bible, use undeniably strong language. Romans 1:26 indicates that men
who commit indecent acts with other men "deserve death". Leviticus 18:22
says it is "detestable" for a man to lie with a man as he would a woman.
Leviticus 20:13 says it is "detestable" that a man lie with a man and that those
who do so "must be put to death". 1 Corinthians 6:9 says that "homosexual
offenders" will not inherit the Kingdom of God.
[77] The Board of Inquiry and the Chambers judge both took these passages
at face value, making no allowance for the fact they are ancient and
fundamental religious text. In other words, the passages referred to by
Mr. Owens were assessed by the Board and the Chambers judge in the same
way as one might consider a contemporary poster, notice or publication saying
"Homosexuals should be killed". In my view, that was an error.
Page 30
[78] I do not mean by this to suggest in some blanket way that a foundational
religious text itself could never be hateful or otherwise offend s. 14(1)(b) of
the Code or that it could never be used in a way that offended the Code. That
broad issue is not before the Court in this case. However, at the same time, it
is apparent that a human rights tribunal or court should exercise care in
dealing with arguments to the effect that foundational religious writings
violate the Code. While the courts cannot be drawn into the business of
attempting to authoritatively interpret sacred texts such as the Bible, those
texts will typically have characteristics which cannot be ignored if they are to
be properly assessed in relation to s. 14(1)(b) of the Code. That is certainly
true in this case.
[79] First, the passages cited by Mr. Owens are self-evidently part of a larger
work, the Bible, and would tend to be seen as such by an objective observer.
One need not be a Biblical scholar, or even a Christian, to know that the Bible
as a whole is the source of more than one sort of message and, more
specifically, is the source of messages involving themes of love, tolerance and
forgiveness. It contains many passages of that sort: Mark 12:31 "Love your
neighbor as yourself."; Matthew 6:14-15 "For if you forgive men when they
sin against you, your heavenly Father will also forgive you. But if you do not
forgive men their sins, your Father will not forgive your sins." Matthew 7:1
"Do not judge, or you too will be judged." Leviticus 19:18 "Do not seek
revenge or bear a grudge against one of your people, but love your neighbor
as yourself." Proverbs 10:12 "Hatred stirs up dissension, but love covers over
Page 31
all wrongs." Although, as indicated, the Court cannot authoritatively
determine the meaning of sacred writings, it is important to recognize that an
objective reader of Mr. Owens' advertisement would see it in the context of
the other concepts popularly understood as flowing from the Bible. This
would tend to colour the advertisement as something falling below the
standard prescribed in Bell.
[80] A second point concerning the Bible passages cited by Mr. Owens is
that an objective observer would understand that their meaning and relevance
for contemporary society can and would be assessed in a variety of ways.
Some, like Mr. Owens himself, might see them as definitive revelations to the
effect that God is opposed to certain gay sexual practices. Other people might
see the passages as meaning the Bible opposes such practices but would
consider that same-sex sexual activity is a sin no more heinous than various
others identified in the text such as sexual immorality, idolatry, adultery and
male prostitution. Others might contest the very meaning of the passages and
suggest they refer to pederasty (a relationship between an older male partner
and a youth) rather than same-sex relationships as understood in
contemporary terms. Still others might acknowledge that the Bible opposes
same-sex relationships but would see its dictates as so dated in time and
rooted in ancient culture, or as so foreign to their own beliefs, as to be
irrelevant. See: R. Scroggs, The New Testament and Homosexuality,
(Philadelphia: Fortress Press, 1983) at pp. 7-16.
[81] The fact that the passages referred to in the advertisement can be seen
in such a variety of ways makes them significantly different than the
Page 32
hypothetical present day message referred to above, i.e. a message that
"Homosexuals should be killed". Unlike the Bible text in issue, that sort of
statement admits of only one meaning. This characteristic of the Bible
passages also cuts against seeing them as coming within the scope of
s. 14(1)(b).
[82] A third point, stressed by Mr. Owens and the interveners supporting
him, is that the Bible passages in issue refer to behaviour said to be sinful or
morally wrong and do not condemn the mere fact of gay men's sexual identity.
In most contexts, I would have difficulty placing stock in what is sometimes
referred to as the distinction between the "sin" and the "sinner." Sexuality
and sexual practices are such intimately central aspects of an individual's
identity that it is artificial to suggest that the practices of gays and lesbians in
this regard can somehow be separated out from those individuals themselves.
However, in the present circumstances, it is necessary to recognize that many
people do make such a distinction and believe on moral or religious grounds
that they can disapprove of the same-sex sexual practices without
disapproving of gays and lesbians themselves. This fact is at least part of the
overall context in which Mr. Owens' advertisement must be considered.
Again this tends to shade the content of the advertisement away from it being
the sort of message which falls within the scope of s. 14(1)(b) of the Code.
[83] As a result, despite its strong language, the Bible text referred to in the
advertisement cannot be seen from an objective perspective as involving
feeling and emotions that are as categorical or as loaded with the sort of
Page 33
emotion canvassed in Bell as the respondents suggest and as the Board of
Inquiry and the Court of Queen's Bench found. At least in the context at issue
here, the Bible passages must be seen in a different light than a plain assertion
made in contemporary times to the effect that "Homosexuality is evil and
homosexuals should be killed."
3. The Advertisement as a Whole
[84] I have separately considered the two basic elements of Mr. Owens'
advertisement - the stickmen and the Bible passages. It is now necessary to
bring those two elements together and assess their global import.
[85] In my view, the core or gravamen of the advertisement is its first
element - the Bible passages. As discussed above, in and of themselves and
as presented here, they do not violate the Code. Given the benign design of
the stickmen and the somewhat ambiguous meaning of the not permitted
symbol, I do not believe that the second element of the advertisement
transforms the advertisement as a whole into a message which meets the Bell
standard. Indeed, the stickmen element of the advertisement can be seen as
understating the literal meaning of the most extreme parts of the Bible text in
that it suggests certain kinds of activity are not allowed rather than suggesting
that gay men should be killed.
[86] Overall, although bluntly presented and doubtless upsetting to many,
the essential message conveyed by the advertisement is not one which
involves the ardent emotions and strong sense of detestation, calumny and
vilification required by Bell.
Page 34
[87] None of this is to say, of course, that the Bible passages referred to by
Mr. Owens, or any other sacred text, can serve as a licence for acting
unlawfully against gays and lesbians. Discrimination on the basis of sexual
orientation is prohibited in relation to education, employment, housing,
services and facilities by The Saskatchewan Human Rights Code and the
Canadian Human Rights Act. The Criminal Code offers protection against
assaults and threats of violence and, indeed, says in s. 718.2 that evidence an
offence was motivated by bias, prejudice or hate based on sexual orientation
is an aggravating factor for purposes of sentencing a criminal offender. The
entire community can and should expect that all of these legislative provisions
will be actively engaged to protect the dignity, rights and the security of gay
men, lesbians, bi-sexual and trans-identified persons.
V. Conclusion
[88] I conclude that the appeal should be allowed. The publication of the
advertisement, properly considered in its full context, did not offend
s. 14(1)(b) of the Code.
[89] Mr. Owens represented himself in these proceedings. Therefore, in
keeping with the traditional practice of the Court, there will be no order as to
DATED at the City of Regina, in the Province of Saskatchewan, this
13th day of April, A.D. 2006.
Page 35
I concur ____________________________________
I concur ____________________________________