Read CCLA's factum before the Saskatchewan Court of Appeal

C.A. No. 678 of 2003BETWEEN:IN THE COURT OF APPEAL FOR SASKATCHEWAN(ON APPEAL FROM THE COURT OF QUEEN’S BENCH)HUGH OWENSAPPELLANT- and -SASKATCHEWAN HUMAN RIGHTS COMMISSIONRESPONDENT- and -CANADIAN CIVIL LIBERTIES ASSOCIATIONINTERVENER- and -CANADIAN RELIGIOUS FREEDOM ALLIANCEINTERVENERFACTUM OF THE INTERVENER,CANADIAN CIVIL LIBERTIES ASSOCIATIONAndrew K. LokanLouis A. BrownePaliare Roland Rosenberg Rothstein LLP McDougall Gauley LLP250 University Avenue, Suite 501 700 Royal Bank Bldg.Toronto, ON M5H 3E52010 11th Ave.Tel: (416) 646-4324Regina, SK S4P 0J3Fax: (416) 646-4323 Tel: (306) 565-5166E-mail: andrew.lokan@paliareroland.com Fax: (306) 359-0785Counsel for the Intervener,Canadian Civil Liberties Association

TO:Hugh Owens#5 – 4100 Rettalack StreetRegina, SK S4S 3C3AppellantAND TO: Milton Woodard, Q.C.Saskatchewan Human Rights Commission8 th Floor, 122 Third Avenue NorthSaskatoon, SK S7K 2H6Counsel for the RespondentAND TO: Tom SchuckNimegeers, Schuck, Wormsbecker & Bobbitt319 Souris Avenue N.E. (P.O. Box 8)Weyburn, SK S4H 2J8Counsel for the Intervener, Canadian Religious Freedom Alliance

TABLE OF CONTENTSPART I - INTRODUCTION 1PART ll - JURISDICTION AND STANDARD REVIEW 3PART III - FACTS 3PART IV - POINTS IN ISSUE 6PART V - ARGUMENT 6PAGEA. Section 14(1) must be interpreted narrowly inaccordance with the Charter 6B. The Order is not justified under section 1 of the Charter 15C. The Board Erred in Failing to Make Required Findings 17Conclusion 19PART VI - RELIEF REQUESTED 20PART VII - TABLE OF AUTHORITIES 21Cases 21Secondary Sources 21

1PART I - INTRODUCTION1. This case presents an important and novel legal issue concerning theinterpretation and application of Section 14(1) of the Saskatchewan Human RightsCode (the “Code”). This Court must determine whether the Appellant’s advertisementfor a bumper sticker citing Biblical passages to convey disapproval of homosexualityconstitutes impermissible hate speech, or is expression protected by s.2(a) and (b) ofthe Charter and ss. 5 and 14(2) of the Code. The Canadian Civil Liberties Association(“CCLA”) submits that the advertisement is protected expression under both the Charterand the Code, and that the Board of Inquiry (the “Board”) and Court below erred inruling that this expression was prohibited under s.14(1).2. The CCLA is Canada’s largest and most active public interest organizationdevoted to protecting rights and freedoms. The CCLA has repeatedly argued inlegislative and court submissions that discrimination on the basis of sexual orientation isunjust and unfair. On the difficult balance between the equality rights of gays andlesbians and the fundamental freedoms of religious groups and individuals, the CCLAdoes not a priori favour one side or another, but rather seeks to determine in each casethe approach that best accords with civil liberties principles. For example, the CCLAtook the following positions in recent cases:• In Trinity Western University v. British Columbia Council of Teachers, 1 theCCLA supported a private university's claim to be accredited forcertification of its graduates as teachers eligible to teach in the publicschool system, despite the fact that the university's religiously-based codeof conduct likely excluded gays and lesbians;• In Chamberlain v. The Board of Trustees of School District #36 (Surrey), 2the CCLA opposed a public school board's decision (purportedly made onreligious grounds) not to approve, for a school curriculum, books depictingsame-sex parents;• In Brockie v. Ontario Human Rights Commission, 3 the CCLA supported acommercial printer's right to refuse service to the Gay and LesbianArchives on religious grounds; and1 [2001] S.C.R. 772.2 [2002] 4 S.C.R. 710.3 [2002] O.J. No. 2375 (Div. Ct.).

2• In Reference re Same-Sex Marriage, 4 the CCLA argued that the extensionof civil marriage to same-sex couples was required under s.15 and did notper se infringe the freedom of religion of objecting churches; but thatbroad protection should be extended to those who did not wish to lendtheir assistance to same-sex marriage ceremonies on religious orconscientious grounds.3. The CCLA does not intervene in this appeal to defend the merits of theAppellant’s views. Indeed, the CCLA explicitly rejects such views. Rather, the CCLAseeks to ensure that the fundamental rights to freedom of expression, conscience, andreligion are given both a broad interpretation and a robust application.4. The CCLA has no doubt that many (or perhaps most) Canadians would find theAppellant’s message to be unpleasant and extreme. However, the CCLA submits thatgenerally, the proper response to speech that is offensive, distasteful, or upsetting iscounter-speech. Indeed, counter-speech was successful in resolving the underlyingdispute in this case, as the Star Phoenix newspaper, in response to vocal protests,voluntarily agreed not to carry advertisements like those of the Appellant’s in the future. 5This decision was made before the Board issued its order prohibiting the newspaperfrom carrying the advertisement.5. When offensive speech is subject to legal prohibition, serious dangers arise: first,expression that is fundamental to the rigorous debate and individual decision-makingthat underlies a functioning democracy may be prohibited; second, such prohibitionscast a chill over all future speakers, leading to self-censorship. Those dangers aremagnified when the speech in issue concerns matters of religion or morality. Theproper interpretation of the Charter and the Code lead to the conclusion that the appealshould be allowed.4 [2004] 3 S.C.R. 698.5 Decision of the Board of Inquiry dated June 15, 2001 (“Decision of the Board”), p. 7.

3PART II - JURISDICTION AND STANDARD OF REVIEW6. This Court has jurisdiction pursuant to Section 32(5) of the Code.7. The overall standard of review in this case is correctness, as conceded by theRespondent. 6 However, contrary to the Respondent’s submission, there is no significantelement of fact-finding in the Board’s decision that requires the basic standard ofcorrectness to be tempered in the circumstances of this case. The issues upon whichthe Respondent would have this Court defer are the characterization of the Appellant’smessage, and “what the Board perceived as hatred and ridicule”. With respect, this isnot a factually complex case that depends upon subtle contextual factors. The nature ofthe Appellant’s message, whether it is protected by s.2(a) and (b) of the Charter and s.5of the Code, and whether it falls within s.14 of the Code are all primarily questions ofinterpretation. The correctness standard applies to these questions. 7PART III - FACTS8. The CCLA takes no position on any contested issue of fact. The CCLA bases itssubmissions on the facts as described in the Board and Court below.9. The narrative facts of this case are simple. The Appellant submitted anadvertisement for the sale of bumper stickers to the Star Phoenix (the “Advertisement”),which was published on a single occasion on June 30, 1997. The Advertisementconsisted of four passages from the Bible in red ink, followed by an equal sign and twostick men holding hands inside a red circle with a line through the stick men. 86 Factum of the Respondent, 26.7 Trinity Western University v. British Columbia College of Teachers, [2001] 1 S.C.R. 772, 805(“The public dimension of religious freedom and the right to determine’s one moral conduct havebeen . . . considered to be legal issues. The accommodation of beliefs is a legal question”); Rossv. New Brunswick School District No. 15, [1996] 1 S.C.R. 825, 32 (holding that no deference needbe given to human rights tribunal’s analysis of Charter values); Toronto (City) v. C.U.P.E. Local 79,[2003] 3 S.C.R. 77, 117 per LeBel J. (“Certain fundamental legal questions -- for instanceconstitutional and human rights questions and those involving civil liberties . . . typically fall to bedecided on the correctness standard”).8 Decision of the Board, p. 2.

410. The Biblical passages referred to in the Advertisement were Romans 1:26,Leviticus 18:22, Leviticus 20:13, and 1 Corinthians 6:9. These passages containvarious comments on the morality of homosexual acts. Most starkly, Leviticus 20:13provides as follows:If a man lies with a man as one lies with a woman, both of them havedone what is detestable. They must be put to death; their blood will be ontheir own heads. 911. The Board heard evidence of a number of subjective interpretations of theAdvertisement and the Biblical passages themselves, which were far from unanimous inthe meanings attributed to them. 10 The Board also heard evidence that there werevarying degrees of acceptance of homosexuality in various religions. The Boardcommented that “[m]uch of this evidence, however, is not relevant to the issues beforethe Board, other than to establish the fact that homosexuality and its acceptance is anissue in many religions and may form part of an individual’s religious beliefs.” 1112. The Board found that there was “no question” that the Appellant “believed that hewas publicly expressing his honestly held religious belief as it related to hisinterpretation of the Bible and its discussion of homosexuality”. 1213. However, the Board found that the Advertisement infringed s.14 of the Code.The Board prohibited the Appellant from displaying the Advertisement, and ordered theAppellant and the Star Phoenix to pay the complainants $1500 each in damages. 1314. The Board characterized the Advertisement in the following terms:In this advertisement there is a pictorial of two stick figures holding hands,and there is a circle and slash superimposed over the image of the twostick figures. There are also four references to Bible passages with an“equals” sign between the pictorial and the passages. The pictorial of thetwo stick figures is a more neutral presentation than the caricature which9 Decision of the Board, p. 10-11.10 Decision of the Board, p. 5-8.11 Decision of the Board, p. 6-8.12 Decision of the Board, p. 13.13 Decision of the Board, p. 15-16.

5were [sic] before the Court of Appeal in the Bell case. The Court ofAppeal determined that the circle and slash superimposed over theimages in that case was the universal symbol for forbidden, not allowed ornot wanted.In the within case, while the stick figures are more neutral, the biblicalpassages… are as follows: [quotation omitted]Having reviewed all of the evidence, the Board accepts that the universalsymbol for forbidden, not allowed or not wanted, consisting of a circle witha slash through it, may not itself communicate hatred. However, whencombined with the passages from the Bible, the Board finds that theadvertisement would expose or tend to expose homosexuals to hatred orridicule, or may otherwise affront their dignity on the basis of their sexualorientation. It is a combination of both the symbol and the biblicalreferences which have lead [sic] to this conclusion…The use of the circle and slash combined with the passages of the Bibleherein make the meaning of the advertisement unmistakable. It is clearthat the advertisement is intended to make the group depicted appear tobe inferior or not wanted at best. When combined with the Biblicalquotations, the advertisement may result in a far stronger meaning. It isobvious that certain of the Biblical quotations suggest more direconsequences and there can be no question that the advertisement canobjectively be seen as exposing homosexuals to hatred or ridicule. 1415. The Appellant’s appeal to the Court of Queen’s Bench was dismissed. JusticeBarclay, after reviewing the facts and the Board’s decision, found as follows:In my view the Board was correct in concluding that the advertisement canobjectively be seen as exposing homosexuals to hatred or ridicule. Whenthe use of the circle and slash is combined with the passages of the Bible,it exposes homosexuals to detestation, vilification and disgrace. In otherwords, the Biblical passage which suggest [sic] that if a man lieswith a man they must be put to death exposes homosexuals tohatred. 15 [emphasis added]14 Decision of the Board, p. 10-12.15 Decision of Barclay J., Owens v. Saskatchewan (Human Rights Commission), [2002] S.J. No.732 (Q.B.), 21.

7what the law prohibits. The law must be construed, and interpretations thatmay minimize the alleged overbreadth must be explored … 2019. The Supreme Court has frequently remarked on the importance of freedom ofexpression, noting that “[i]t makes possible our liberty, our creativity and ourdemocracy.” 21 In Edmonton Journal v. Alberta (AG), 22 the Court stated as follows:It is as difficult to imagine a guaranteed right more important to ademocratic society than freedom of expression. Indeed, a democracycannot exist without that freedom to express new ideas and put forwardopinions about the functioning of public institutions. The concept of freeand uninhibited speech permeates all truly democratic societies andinstitutions. The vital importance of the concept cannot beoveremphasized. . . . It seems that the rights enshrined in s. 2(b) shouldtherefore only be restricted in the clearest of circumstances.20. If the purposes of protecting freedom of expression are to be met, freedom ofexpression must be given a broad interpretation. 23 The guarantee found in s. 2(b)applies even to speech that is regarded by the public “as wrong or false” 24 or“offensive” 25 Indeed, as this Court aptly noted in Saskatchewan (Human RightsCommission) v. Bell, 26 “the very purpose of s. 2(b) is to protect expression which isoffensive to somebody.”21. In the present case, the need to protect expression is underlined by the religiouscontext. The Appellant was found to be expressing a sincerely held religious belief.Furthermore, the harshest part of the Appellant’s communication was found in the Bibleitself. Justice Barclay found that a Biblical passage cited by the Appellant “exposeshomosexuals to hatred”. These facts engage the Appellant’s freedom of conscienceand religion under the Charter. 2720 R. v. Sharpe, [2001] 1 S.C.R. 45, 32.21 R. v. Sharpe, supra, p. 70.22 [1989] 2 S.C.R. 1326, 3 (per Cory, J.).23 Ross, supra at 6024 Zundel, supra, at 752.25 Sharpe, supra, at 70. The only expression that falls outside the scope of s. 2(b) is violent acts:Zundel, supra, at 753.26 114 D.L.R. (4th) 370, 381 (Sask. C.A.).27 Charter, s. 2(a); Trinity Western University, supra; Ross v. New Brunswick School District No.

822. The Respondent has conceded that s. 14(1) of the Code and the Board’s Orderinfringe the fundamental guarantees of freedom of expression, conscience andreligion, 28 and therefore must by justified by reference to section 1 of the Charter. TheSupreme Court has held that “[b]ecause of the importance of the guarantee of freeexpression . . . any attempt to restrict the right must be subjected to the most carefulscrutiny.” 2923. In support of its argument that the breaches are justified, the Respondent reliesheavily upon the Supreme Court’s decision in Taylor and this Court’s decision in Bell. 30The CCLA submits that Taylor and Bell are not determinative, for at least four reasons:• First, Taylor was a narrow decision carefully limited by the Court to its specificcontext.• Second, the statutory provision at issue here is broader than that considered inTaylor, containing additional language which was specifically invoked by theBoard in sustaining the complaints.• Third, neither Taylor nor Bell considered infringements on the Charterguarantees of both freedom of expression and freedom of conscience andreligion.• Fourth, the Advertisement, the gravamen of which was the citation of Biblicalpassages on the morality of homosexual acts, presents quite different facts thanTaylor or Bell.24. In Taylor, the Supreme Court narrowly upheld the constitutionality of a provisionin the Canadian Human Rights Act that forbade certain kinds of hate speech. 31 Whilethe CCLA does not agree with the result in Taylor, the CCLA notes that the majorityopinion took pains to point out that it was not approving of all hate speech statutes,15, [1996] 1 S.C.R. 825, at 70-73.28 Factum of the Respondent, 43.29 Sharpe, supra, at 70.30 The Board simply quoted from the holding in Bell that Section 14(1) was constitutional, and theCourt below proffered little additional analysis: Decision of the Board, at 14-15; Decision ofBarclay J, Owens v. Saskatchewan (Human Rights Commission), supra, 22-23. The Respondentargues that Bell “provides a complete answer to this appeal”: Factum of the Respondent, 45.31 Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892.

9regardless of purpose, need, or language. Instead, the Court stated that the section 1analysis “requires an approach sensitive to the context of a given case” 32 and “anappreciation of the extent to which a restriction of the activity at issue on the facts of theparticular case debilitates or compromises the principles underlying the broadguarantee of freedom of expression.” 33 In other words, an abstract balancing of theevils of hate speech against the value of free expression will not suffice. Further, theCourt specifically limited its analysis to speech which is “intended to circulate extremefeelings of opprobrium and enmity”—hate speech in its most extreme form. 3425. Section 14(1) of the Code refers to expression that “ridicules, belittles orotherwise affronts the dignity of any person,” whereas the Canadian Human Rights Actprovision at issue in Taylor was limited to communications “which were likely toexpose… to hatred or contempt” 35 According to a recent comprehensive survey ofprovincial human rights codes, s. 14(1) is the broadest such provision in Canada. 36 Theprovision in Taylor was interpreted as applying only to speech involving “unusuallystrong and deep-felt emotions of detestation, calumny and vilification”. 37 However, s.14(1) is potentially much broader in scope.26. The CCLA submits that great caution must be exercised in interpreting theseadditional words in s. 14(1). Satirists and cartoonists, who are often effective inachieving political change, depend on humor that may “ridicule, belittle, or affront thedignity” of a certain political figure, organization, country, or group of people. 38 Further,an unduly broad interpretation is likely to “chill” members of the public from participatingin public debates on important political issues, for fear that they may misspeak or bepunished for expressing an unpopular opinion. 39 Section 14(1), if read too broadly,32 Taylor, supra, at 35.33 Taylor, supra, at 48.34 Taylor, supra, at 2.35 Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892, at 1.36 Luke McNamara, Negotiating the Contours of Unlawful Hate Speech: Regulation UnderProvincial Human Rights Laws in Canada, (2005) 38 U.B.C. L. Rev. 1 at 131.37 Taylor, supra, at 61.38 See generally, Nicholas Bakalar, American Satire: An Anthology of Writings From ColonialTimes to the Present (Plume: 1997); Dustin Griffin, Satire: A Critical Reintroduction (University ofKentucky Press, 1995).39 Zundel, supra, at 772: (“The danger is magnified because the prohibition affects not only thosecaught and prosecuted, but those who may refrain from saying what they would like to because of

10could prohibit a broad range of speech that has an important role to play in thedemocratic system.27. In interpreting Section 14(1) in light of the Charter, “what is at issue is the valueof all speech potentially limited by the provision at issue”. 40 If s.14(1) is interpreted toobroadly, a satire on Americans’ love of handguns and militarism could be subject toprohibition as “ridiculing” persons based upon the protected ground of nationality. 41 Ahumorous essay on the foibles of bachelorhood or the bad habits of teenagers could“belittle” persons on the protected grounds of marital status or age. The infamoussuppression of Jehovah’s Witnesses in Quebec in the 1950s and 1960s, defended byQuebec in part on the rationale that the Roman Catholic Church should be protectedfrom insult (eventually overturned by the Supreme Court), could now be justified on theground that such writings “affront the dignity” of Catholics because of their religion. 4228. The CCLA submits that in light of Charter concerns, and the saving clauses forfreedom of speech in ss.5 and 14(2) of the Code, the words “ridicule, belittle orotherwise affront the dignity” in s.14(1) should not be interpreted as broadening thescope of the provision beyond the strict “hatred or contempt” standard of Taylor. 43 Thisissue may be of importance to the present appeal, because the Board expressly foundthe fear that they will be caught”); Taylor, supra, at 139: (“Regard must also be had to thechilling factor likely to accompany restrictions on expression; often the effect of such restrictionsextends far beyond those forms of expression targeted or challenged by legal process”) (perMcLachlin, J., as she then was, dissenting).40 Zundel, supra, at 774-75.41 In 1907, an American immigrant to Canada dissatisfied with his reception was punished undera false news provision for publishing an advertisement that read “Americans not wanted inCanada.” R. v. Hoaglin, (1907) 12 C.C.C. 226 (N.W.T.S.C.).42 See, e.g., “Jehovah’s Witnesses: Church, State and Religious Dissent” in Thomas R. Berger,Fragile Freedoms: Human Rights and Dissent in Canada (Toronto: Clark, Irwin, 1981). See also,Boucher v. The King, [1951] S.C.R. 265; Saumur v. Quebec, [1953] 2 S.C.R. 299.43 In Bell, supra, at p. 381-82, this Court commented that the s.14 prohibition “is so similar to thatconsidered in Taylor” that the following words of Dickson CJC from Taylor would apply:In sum, the language employed… extends only to that expression giving rise to theevil sought to be eradicated and provides a standard of conduct sufficientlyprecise to prevent the unacceptable chilling of expressive activity. Moreover, aslong as the Human Rights Tribunal continues to be well aware of the purpose of[the provision] and pays heed to the ardent and extreme nature of feelingdescribed in the phrase “hatred or contempt”, there is little danger that subjectiveopinion as to offensiveness will supplant the proper meaning of the section.

11that the Advertisement would expose or tend to expose homosexuals to “hatred orridicule, or may otherwise affront their dignity”. 4429. Further, the case at bar also engages the fundamental right to freedom of religionguaranteed in s. 2(a) of the Charter. 45 The Supreme Court of Canada has stated that“[t]he protection of freedom of religion afforded by s. 2(a) of the Charter is broad andjealously guarded in our Charter jurisprudence” 46 and that “human rights codes must beinterpreted and applied in a manner that respects [this] broad protection granted toreligious freedom”. 47 As the Appellant’s right to freedom of religion has clearly beeninfringed, 48 the question becomes whether such an infringement can be justified undersection 1 of the Charter. This inquiry differs from the inquiry in Taylor or Bell.30. A section 1 inquiry is necessarily contextual, and a freedom of religion claim mayraise its own special concerns. For example, as interpreted by the Board and Courtbelow, to what degree would s. 14(1) prevent recourse to core religious texts in debateor commentary by individuals on what those texts mean? While the Appellant’sexpression may be criticized as harsh or extreme, the CCLA questions the extent towhich it can be analytically distinguished from the following examples, which fall on aspectrum of possible similar messages:• “The Bible proscribes homosexual acts”• “The Bible calls for those who engage in homosexual acts to be severelypunished”• “The Bible says that those who engage in homosexual acts should be put todeath”• “The Bible says homosexuality should be severely punished, so we shouldrecriminalize homosexual acts”• “The Bible says homosexuality should be severely punished, so we should denyrecognition to same-sex marriage”44 Decision of the Board, at p. 11, 12; see also p. 15.45 Notice of Appeal, 4(1). The Appellant’s expression was motivated by his religious beliefs,(Factum of the Appellant, at 9), and consisted of references to a religious text, the Bible(Decision of the Board, at p. 10).46 Reference re Same-Sex Marriage, supra, 53.47 Reference re Same-Sex Marriage, supra, at 55.48 Syndicat Northcrest v. Amselem, [2004] S.C.J. No. 46 at 65.

12• “Because the Bible sanctions the execution of homosexuals, we should at leastbe allowed to at least prohibit their activities” (found to be a possibleinterpretation of the Advertisement by Barclay J.) 4931. In this connection, it may be significant that the Biblical passages cited all refer tobehaviour that is characterized as sinful or morally wrong. The CCLA accepts that it isdifficult, if not impossible, to distinguish between sexual practices engaged in by gaysand lesbians, and the identity of gays and lesbians themselves. (Further, in mostcontexts, there is no reason to do so.) However, for the purpose of protecting freedomof conscience and religion, the Court must recognize the fact that some people believeon conscientious or religious grounds that engaging in those practices is wrong or sinful.To equate the expression of this belief with the promotion of hatred against gays andlesbians, pure and simple, risks ignoring the context in which it arises.32. The Supreme Court has specifically stated that “[t]he essence of the concept offreedom 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 anddissemination”. 50 [emphasis added]. Commenting publicly upon the morality ofbehaviour, on expressly religious grounds with Biblical references in support, is squarelywithin the essence of the concept of freedom of religion.33. Indeed, in a robust and self-confident democracy norms of behaviour shouldgenerally be debatable. In this way, people are enabled to reach their own conclusionsthrough democratic processes as to what behaviours should be permitted, encouraged,discouraged, or forbidden. The dangers of taking norms of behaviour to be so selfevidentlycorrect that it is impermissible to question them are illustrated by history –ironically, it is not so long ago that some societies treated homosexuality as selfevidentlywrong, and punished as blasphemy any attempt to question the Bible’sauthority on questions of morality.49 Decision of Barclay J., supra, at 12.50 R. v. Big M Drug Mart, [1985] 1 S.C.R. 295, at 336-37.

1334. The CCLA would therefore not regard the expression of views as to the moralityof behaviour as being protected only when linked to religious belief. Freedom ofexpression and freedom of conscience (not restricted to religious belief) protectstatements about the morality of behaviour even when they are not based uponreligious texts.35. The Respondent cites extensively from the testimony of the Appellant. 51 Whilethis testimony may be somewhat jarring in its stridency, it remains firmly focused uponthe behaviour apparently proscribed by these Biblical passages as sinful, rather thanupon gays and lesbians themselves. Moreover, the Respondent does not suggest thateither the Appellant’s testimony or the Advertisement is an inaccurate summary of theimport of these passages. If this is regarded as being sufficient to constituteimpermissible promotion of hatred against gays and lesbians, then it is a fair implicationthat some or all of the passages themselves promote hatred:The Owens case marks the first occasion in which the mere reference to aBiblical passage has been considered the gravamen and/or primeingredient of a human rights violation. It will be recalled that the bumperstickers at issue in Owens contained simple references to Scripture (e.g.“Romans 1:26”). These references – considered apart from the symboliccomplement of the bumper stickers – direct the reader to passages withinthe most widely distributed and translated book in Canada, as well as theWestern world. It is a fair, if unintended, implication from the Owensdecision that at least portions of the Bible itself may be subject to critiquein their own right as material intending to expose certain groups to hatredand/or ridicule…Even if the Owens decision is read more conservatively, it leads logicallyto other seemingly untenable or at least illogical conclusions. If, forinstance, the gravamen of Owens’ offence were seen to consist notmerely of publishing Biblical references but of coupling these with a “notpermitted” symbol, the question may be raised: Is the “not permitted”message not inherent, and even stronger, in the passages themselves? IfOwens had printed out the relevant passages themselves in full… but hadomitted the symbol, would such a display have fallen afoul of s.14…? 5251 Factum of the Respondent, 10-1152 Tarnopolsky & Pentney, Discrimination and the Law (Carswell: looseleaf) at 10-24.1 – 10-24.2.

1436. The Respondent has taken the position that it is not necessary to decide whetherthe Biblical passages themselves constitute promotion of hatred or contempt. 53 Withrespect, however, the character of these passages is vital to this appeal. If theRespondent concedes that they do not promote hatred or contempt, it is difficult to seehow the “not permitted” symbol transforms the Advertisement into hate speech. If theRespondent’s position is that they do promote hatred or contempt, the Respondentmust account for the potential prohibition of portions of a religious text of verywidespread distribution and enormous cultural and religious significance – and thepotential prohibition of similar statements in other, non-religious contexts (such ashistorical texts and literature).37. As the Supreme Court has frequently noted, we live in a pluralistic society. Insuch a society, there can be sharp disagreements on issues of morality. In the words ofDickson C.J.C. in Big M Drug Mart, “[a] truly free society is one which canaccommodate a wide variety of beliefs, diversity of tastes and pursuits, customs andcodes of conduct.” 54 Religious texts such as the Bible contain many prohibitions onbehaviour (often with specific penalties) that may relate to practices of groups protectedby human rights legislation – eating pork (non-Jews or non-observant Jews),drunkenness (alcoholics), fornication (common-law spouses), worshipping the wronggods or failing to worship at all (other religious groups or atheists). If publicly citing areligious text to say that such behaviour is “not permitted”, or sinful, constitutes hatespeech, there could be wide-ranging impacts upon freedom of religion. Equally, ifexpressing an opinion on the morality of any such behaviour without reference toreligious views or texts constitutes hate speech, freedom of expression and consciencecould be unduly limited.38. The CCLA therefore submits that s. 14(1) must be interpreted narrowly, in a waythat minimizes the impact upon freedom of expression, conscience and religion. It is farbetter to respond to the Appellant’s message by repudiating it (as most Canadians havedone) than by seeking to prohibit its expression.53 Factum of the Respondent, 27, 54-56.54 R. v. Big M Drug Mart, supra, at 336; Trinity Western, supra, at 28.

15B. The Order is not justified under section 1 of the Charter39. Even if it is accepted that s. 14(1) of the Code is constitutional, the Order of theBoard must also be independently justified. For example, in Ross, the Supreme Courtexamined the constitutionality of a Nova Scotia Human Rights Board of Inquiry orderand found that while most of the conditions in the order were justified under Section 1 ofthe Charter, one of the conditions was not sufficiently tailored to minimally impair theappellant’s freedom of expression rights. 55 Similarly, in Taylor, the Supreme Courtexamined both the impugned statute and the impugned order. 5640. In relation to the facts of the case at bar, the portion of the section 1 test mostrelevant is the inquiry into whether there is “a proper balance between the effects of thelimiting measures and the legislative object.” 57 In other words, are “the effects of themeasure [so] severe as to represent an unacceptable abridgement of the right orfreedom” 58 at stake? The inquiry is necessarily contextual. In Ross, for example, theCourt conducted the section 1 inquiry in three contexts: employment, education, andanti-Semitism. 5941. When the facts of this case are put into their proper context, the robust debate inthe 1990s over the rights and social acceptability of gays and lesbians in Canada, itbecomes clear that the negative effects of the Board’s Order far outweigh its speculativecontribution towards reducing discrimination in Saskatchewan.42. Although CCLA fully supports equality for gays and lesbians, the CCLArecognizes that this subject has been long and vigorously debated in Saskatchewanand Canada. “Sexual orientation” was added to the Code in 1993, 60 found to be an55 Ross, supra, at 107.56 Taylor, supra.57 Canadian Newspaper Company v. Canada (AG), [1988] 2 S.C.R. 122, 16.58 Taylor, supra, at 46.59 Ross, supra, at 79.60 Saskatchewan Human Rights Commission, Sexual Orientation—5 Year Report (Fall/Winter1998), available at http://www.gov.sk.ca/shrc/skrfw98p5.htm.

16analogous ground under Section 15 of the Charter by the Supreme Court in 1995, 61 anddeemed sufficiently important to support a claim for same-sex marriage inSaskatchewan in 2004. 62 In the midst of this wide-ranging debate, in 1997, theAppellant published the Advertisement at issue in this case which linked Bible verses todisapproval of homosexuality (allegedly in response to an advertisement for “Gay PrideWeek.”) 63 The Bible’s statements on homosexuality, and their meaning, have been afrequent area of contention in the larger debate over rights for gays and lesbians, withdifferent Biblical verses being used to support each side in the debate. 6443. This context, an on-going social and political debate about homosexuality,contrasts with the statements found to be justifiably prohibited in Taylor (anti-Semiticcomments), Bell (racist stickers), and Ross (anti-Semitic comments). Those cases eachinvolved additional concerns making the expression arguably more dangerous: inTaylor, the anti-Semitic comments often targeted specific persons; 65 in Bell, the raciststickers were being sold in a store, 66 leading to a reasonable inference that the storewould discriminate on the basis of race; in Ross, the unique vulnerabilities of students inan educational setting were at issue. 6744. Although the Supreme Court does not require empirical proof of beneficial effectsbefore a Charter breach can be justified, it does require more than mere assertion orspeculation that a Charter infringement will substantially further an importantgovernment objective. 68 There is no indication from the Board’s reasons that there wasany evidence that, under a Section 1 analysis, the marginal, speculative benefits of theOrder were proportionate to its limits on fundamental freedoms.61 Egan v. Canada, [1995] 2 S.C.R. 513.62 N.W. v. Canada (AG), [2004] S.J. No. 669.(Q.B.).63 Factum of the Appellant, 8.64 See, e.g., Jim Hill & Rand Cheadle, The Bible Tells Me So: Uses and Abuses of Holy Scripture(New York: Doubleday, 1996) at 68-76.65 Taylor, supra, at 7.66 Bell, supra, at 373.67 Ross, supra, at 42.68 In Trinity Western, for example, the Court found that there was no evidence that studentssigning an oath to refrain from homosexual behavior would subsequently discriminate againsthomosexual students when they became teachers: Trinity Western, supra, at 811-12, 816.

17C. The Board Erred in Failing to Make Required Findings45. In Saskatchewan (Human Rights Commission) v. Engineering Students’Society, 69 this Court interpreted the scope of s.14(1) as follows:[H]aving regard especially for the division of powers between the federaland provincial governments, the section requires that the affront beproductive of a specific discriminatory effect or effects. An adversegeneral effect upon the class will not be sufficient to engage theprovision. 7046. Thus, this Court has held that expression prohibited by Section 14(1) must be“such as to cause or be likely to cause others to engage in one or more of thediscriminatory practices” 71 prohibited elsewhere in the Code, for example discriminationin employment, housing, or contracting. 7247. Engineering Students’ Society applied Supreme Court jurisprudence holding thatwhile the provinces have jurisdiction over property and civil rights, “prohibition of thedissemination of ideas, particularly on political and religious subjects, is part of thecriminal law power of Parliament.” 73 Thus, provincial jurisdiction over discriminatoryexpression was limited to matters otherwise within provincial jurisdiction. This holdingwas reaffirmed in Bell. 74 (The scope of provincial jurisdiction was not an issue in Taylor,which is therefore distinguishable on this point.)48. The CCLA submits that this requirement of a specific link to discriminatorypractices is important, not least because it helps to confine the provision from undue69 56 D.L.R. (4th) 604 (Sask. C.A. 1989).70 Engineering Students’ Society, supra, at 608.71 Engineering Students’ Society, supra, at 621.72 Engineering Students’ Society, supra, at 615.73 Engineering Students’ Society, supra, at p.611, citing Tarnopolsky & Pentney, supra, at 10-17(in the current edition), which in turn cites Switzman v. Elbling, [1957] S.C.R. 285.74 Bell, supra, at 378 (requiring that statements “caused or tended to cause others to engage in adiscriminatory practice”).

18incursion into Charter-protected expression. 75 Without such a limitation, provisions suchas s.14 could reach a wide range of printed opinion, editorial commentary, newspaperarticles and the like.49. In any event, this Court has held that provincial jurisdiction over such matters isconfined to statements that tangibly fuel or represent policies or acts of discriminationwith respect to facilities, services, or activities that the province is otherwise competentto regulate. Thus, for example, if the Appellant’s advertisement had been taped to thefront of a retail store, this would signal to gay and lesbian consumers that their presencein the store was unwelcome – a very different set of facts from those in the case at bar.50. However, the Board in the case at bar failed to make any finding on whether theAppellant’s Advertisement would “cause or be likely to cause others” to engage indiscriminatory conduct otherwise forbidden by the Code. 76 Because an “adversegeneral effect” is insufficient, such a finding cannot simply be inferred from the Board’sdecision. The Board therefore erred in making its Order.51. In addition, the Code specifically requires consideration of the freedom ofexpression values that may be infringed by such an order. The Code contains both ageneral guarantee of freedom of expression 77 and a specific guarantee that “[n]othing insubsection (1) [of section 14] restricts the right to freedom of speech under the law uponany subject.” 78 The Supreme Court of Canada has stated that “the so-calledexemptions found in many human rights statutes are best seen as indicating to humanrights tribunals the necessity of balancing the objective of eradicating discrimination withthe need to protect free expression”. 79 Again, the need for this specific analysis in each75 Trinity Western, supra.76 McNamara, supra, at 159: (“Although the Board of Inquiry summarized the elements of s. 14with reference to the Court of Appeal decision . . . (including the ‘additional’ requirement of likelydiscriminatory effect), when it turned to the facts at hand, and the merits of the case, there was nomention of this requirement”).77 Saskatchewan Human Rights Code, s. 5: (“Every person and every class of persons shall,under the law, enjoy the right to freedom of expression through all means of communication”).78 Saskatchewan Human Rights Code, s. 14(2).79 Taylor, supra, at 65; Kane v. Church of Jesus Christ Christian-Aryan Nations, (1992) 18C.H.R.R. D/268 (Alberta Bd. Inq.) (cited at McNamara, supra note 28, at 70) (applying rigoroustest under Human Rights Code freedom of expression guarantee).

19case provides protection against too great an incursion into Charter-protectedexpression.52. The Board failed to take part in this statutorily mandated balancing requirement. 80This failure to balance the purpose and likely effects of the prohibition against the freespeech values expressed in the Code, in the specific context of the case (i.e., not justciting the fact that s.14 was upheld in Bell), constitutes an error that requires that theBoard’s decision be overturned.Conclusion53. There is no question that the Appellant’s advertisement was offensive anddistasteful to many residents of Saskatchewan. CCLA repudiates the content of theadvertisement, and strongly supports the efforts of gays and lesbians to attain fullequality.54. However, the Board’s Order forbidding the Appellant from publishing hisAdvertisement holds troubling implications for our fundamental values of freedom ofexpression, conscience, and religion. The Order is not justified by section 1 of theCharter. Further, the Board erred by failing to make findings on the questions ofwhether the Advertisement would cause or be likely to cause actual discrimination andwhether the need for the Order outweighed the Appellant’s right to freedom of speech.80 See McNamara, supra note 28, at 160 (“The Board was also called upon to consider the effectof the standard free speech rider in s. 14(2). However, it simply quoted from and relied on theauthority of [Bell] to find that s. 14(1) of the Code was a reasonable restriction on Owens’ right tofreedom of expression”).

20PART VI - RELIEF REQUESTED55. The CCLA respectfully submits that the appeal should be allowed. The CCLAdoes not seek costs, and asks that no costs be awarded against it.ALL OF WHICH IS RESPECTFULLY SUBMITTED.Date: September 2, 2005AS FILEDAndrew K. LokanPaliare Roland Rosenberg Rothstein LLPAS FILED________________________________Louis A. BrowneMcDougall Gauley LLP602341.DOCAS FILED________________________________Jeremy PatrickCanadian Civil Liberties Association

21PART VII - TABLE OF AUTHORITIESCASES:Owens v. Saskatchewan (Human Rights Commission), Decision of Inquiry dated June15, 2001, affirmed, [2002] S.J. No. 732 (Q.B.)Trinity Western University v. British Columbia Council of Teachers, [2001] S.C.R. 772Chamberlain v. The Board of Trustees of School District #36 (Surrey), [2002] 4 S.C.R.;710Brockie v. Ontario Human Rights Commission, [2002] O.J. No. 2375 (Div.Ct.)Reference re Same-Sex Marriage, [2004] 3 S.C.R. 698Ross v. New Brunswick School District No. 15; [1996] 1 S.C.R. 825Toronto (City) v. C.U.P.E. Local 79; [[2003] 3 S.C.R. 77R. v. Zundel, [1992] 2 S.C.R. 731Slaight Communications v. Davidson; [1989] 1 S.C.R. 1038R. v. Sharpe, [2001] 1 S.C.R. 45Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892Edmondon v. Journal v. Alberta (AG), [1989] 2 S.C.R. 1326Saskatchewan (Human Rights Commisson) v. Bell, 114 D.L.R. (4 th ) 370 (Sask. C.A.)R. v. Hoaglin, (1907) 12 C.C.C. 226 (N.W.T.S.C.)Boucher v. The King, [1951] S.C.R. 265Saumur v. Quebec, [1953] 2 S.C.R. 299Syndicat Northcrest v. Amselem, [2004] S.C.J. No. 46R. v. Big M Drug Mart, [1985] 1 S.C.R. 295Canadian Newspaper Company v. Canada (AG), [1988] 2 S.C.R. 122

22Egan v. Canada, [1995] 2 S.C.R. 513N.W. v. Canada (AG), [2004] S.J. No. 669 (Q.B.)Saskatchewan (Human Rights Commission) v. Engineering Students' Society, 56 D.L.R.(4 th ) 604 (Sask. C. A. 1989)Switzman v. Elbling, [1957] S.C.R. 285Kane v. Church of Jesus Christ Christian-Aryan Nations, (1992) 18 C.H.R.R. D/268(Alberta Bd. Inq.)Secondary Sources:Luke McNamara, Negotiating the Contours of Unlawful Hate Speech: Regulation UnderProvincial Human Rights Laws in Canada, (2005) 38 U.B.C.L. Rev. 1 at p. 131.Jehovah's Witnesses: Church, State and Religious Dissent" in Thomas R. Berger,Fragile Freedoms: Human Rights and Dissent in Canada (Toronto: Clark, Irwin, 1981)Tarnopolsky & Pentney, Discrimination and the Law (Carswell: looseleaf) at 10-24.1-10.24.2Saskatchewan Human Rights Commission, Sexual Orientation - 5 Year Report(Fall/Winter 1998), available at http://www.gov.sk.ca/shrc/skrfw98pf.htm.Jim Hill and Rand Cheadle, The Bible Tells Me So: Uses and Abuses of Holy Scripture(New York: Doubleday, 1996) at 73-76.