Aggressive closing arguments at Bill Whatcott’s “hate speech” trial in Toronto – major court case over a pro-family flyer.
Flyer handed out at obscene “Gay Pride” parade in 2016.
Attorney General is seeking a prison sentence. But a prominent criminal defense attorney is defending Bill.
Can this totalitarian madness happen here?
November 12, 2021
The vehemence from government officials against pro-family Christians who oppose the LGBT agenda is certainly alarming. But it’s much worse in Canada than in the US.
Recently in Canada, hundreds of criminal cases – many involving violence – were simply dismissed because of the COVID disruption. But after a long delay, the Ottawa Attorney General insisted on prosecuting pro-family activist Bill Whatcott on the absurd charge of “willful promotion of hatred” for a flyer he handed out at the obscene 2016 Toronto Gay Pride parade. It warned homosexuals of health risks they may face, while encouraging them to embrace Christianity. (MassResistance has made the flyer available here, while it is banned in Canada.)
The preposterous eight-day trial in Toronto started on Oct. 4 and ended Oct. 27. It included three days of testimony from a medical expert (on the flyer’s medical references), followed by two days of testimony from a theology professor (on the flyer’s religious references).
Luckily, Bill is being represented by John Rosen, the most prominent criminal defense attorney in Canada. In our opinion, Rosen has done an outstanding job.
The final two days included the formal closing arguments first by Crown, then Rosen, then a rebuttal by the Crown. We are used to “closing arguments” in a case taking 20-30 minutes to present. But in this proceeding, each attorney’s wrap-up took several hours. (We summarize them below.)
That so much time and resources were spent on such a meritless case simply emphasized the totalitarian character of this Canadian proceeding: No free country would do this.
Crown Prosecutor’s Closing Argument
Attorney Scott Patterson’s arguments were flimsy at best. He focused on minutiae and quibbled over statistics in the flyer. He argued that the flyer uses devices common to “hate” propaganda. He misrepresented what Whatcott said to the police when he was arrested in 2018.
It is clear that Patterson was not arguing from the law, but simply articulating his own biases. He tried to show that Bill’s marching and handing out the flyer in the Pride parade was a “hate crime,” and the flyer itself was evidence of his “hatred.”
He declared that it is “dehumanizing” to list the illnesses that disproportionately afflict homosexual men. To even bring up AIDS “preys on stereotypes” about gay men and is a “hallmark of the promotion of hate,” Patterson said. The photos in the flyer of the two embracing “gay zombies” and the blotched corpse labelled “AIDS victim” are propaganda meant to “evoke strong feelings” and imply that “gays have the plague,” he argued.
He said that the flyer’s medical “facts” were only “near truth” and Christian references in the flyer were a mere “veneer” to disguise underlying hatred. The fact that Bill sneaked into the parade also proves his message was not delivered in good faith, but was a “Trojan horse” to insert hatred into the gay community’s “biggest day of celebration.”
Altogether, he said, Bill employed classic propaganda devices in the flyer that prove his motivation was hatred. Even if one believes he went to warn the parade attendees, that is separate from the effect of the flyer. (But Patterson did not show that the flyer had any horrible effect on the parade participants or audience.)
Patterson added that Bill “lied to the police” about where he got the photo of the wasted and blotched corpse in the flyer. But the Judge challenged the significance of what Bill may have said about where he got the photo of the corpse, and said that it seems a minor issue.
The Judge asked how Bill’s intent could be proven. Patterson said there may be reasonable doubt about his intention, but what is important is the effect of the flyer and that it would promote hate. The fact that Bill said in his blog post (shortly after the event) that he had intended to “strike the dark forces of the Toronto Homosexual Shame parade” is proof of hate, he said.
These were the main points that Patterson made, and he repeated them during the several hours of his closing argument.
Defense Attorney John Rosen’s Closing Argument
After the Crown’s closing argument – full of inferences of motive without solid evidence – Rosen said it was necessary to return to “first principles.” The hate inferred by the Crown in the flyer is not overt, it is just an impression, he said.
By “first principles” Rosen meant the Court needed to look at Canada’s legal definition of “criminal hate speech.” Had a jury trial been held (rather than trial before Judge alone), the Judge had readied instructions for the jury including the legal definition of “hatred,” which Rosen read aloud:
Hatred is predicated on destruction, and hatred against identifiable groups therefore thrives on insensitivity, bigotry and destruction of both the target group and of the values of our society. Hatred in this sense is a most extreme emotion that belies reason; an emotion that, if exercised against members of an identifiable group, implies that those individuals are to be despised, scorned, denied respect and made subject to ill-treatment on the basis of group affiliation.
Then Rosen asked: Was there a direct attack on an identifiable group? No. Was the group being denied respect? No. And consider that “distasteful contents” are not enough for a finding of guilt.
Thus, said Rosen, this is not really a criminal case, it’s a human rights case. He emphasized the protection of free expression in Section 2(b) of the Charter of Rights and Freedoms (1982):
Everyone has the following fundamental freedoms: … freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.
He explained that Parliament aimed to balance freedom of expression and public order in the criminal code. The statute states that, “The word ‘hatred’ must be construed as encompassing only the most severe and deeply felt form of opprobrium.” It’s not enough that the accused’s opinion is offensive. Where the case is borderline, freedom of expression should win out. The “rough and tumble of public debate” must be allowed.
While the group addressed by the flyer is clearly identified (homosexuals), said Rosen, there is no extreme vilification or detestation with the intent to destroy them.
Rosen on the religious defense
Rosen asked: What is the purpose of the flyer? To call out evil and risks of the homosexual lifestyle. Is that motivated by Scripture? Whatcott acted in good faith. He believes that God’s intention is that people be heterosexual, not homosexual. Professor Farrow (the expert witness) said that was the thrust of the flyer. It is a legitimate religious defense.
Furthermore, Rosen asked the Court to note that Whatcott was reading his Bible and praying during the Police interrogation (in 2018). That shows who he is. There was no call to violence. His action came from his belief in God. The photos in the flyer were meant as a warning. He knows what AIDS looks like because he was a nurse for 10 years in Toronto. He is pro-life, pro-family and says “no” to the homosexual agenda. He is a proselytizer on a mission to warn others. That is his Christian duty, and that was what Professor Farrow’s testimony pointed out. What Whatcott did at Toronto Pride must be seen in this context.
Crown Counsel pointed to a supposed “lie”: Whatcott’s explanation to the Toronto police of where he had gotten the photo of the “AIDS fatality” corpse. But Rosen explained that Atty. Patterson misread completely what Whatcott said in his statement: He did not blatantly lie but said he’d had the photos for years and got it from a medical source. The ultimate source would have been a medical site.
In order to get himself and his friends into the Pride parade, was there lying involved? Given the context, Professor Farrow downplayed the significance of that from a religious standpoint. Whatcott clearly did not follow the rules of the parade organizers on his application (using fabricated personal and group identities). But the parade organizers never called him to question the “cannabis activist zombies.” The concept of “zombies” is not problematic but is a part of popular culture. The flyer let spectators know how to get ahold of him while asking them to consider Jesus.
Rosen on the medical facts argument
Defense Attorney Rosen next challenged the testimony by Crown’s medical expert witness, Dr. Mona Loutfy. The Crown had attempted to prove “hatred” by discrediting details of the medical statements in Whatcott’s flyer.
Rosen had obviously done his homework. He noted that Dr. Loutfy’s bias clearly came out in her effort to downplay and minimize the risks of homosexual sex: She said it’s not a problem because there are vaccines and medications now. However, Rosen explained there is a lot to “gay” sex beyond just “penis inserted in anus” and these behaviors are in fact very risky (e.g., fisting, fingering, scat play, etc.). So the photo of anal warts in the flyer is a reasonable warning. He said Dr. Loutfy tried to deflect the high incidence of HPV among MSM (men who have sex with men) by focusing on the high rate of HPV among women. Rosen pointed out that a leading researcher (Palefsky) said HPV is the most common cause of anal cancer and HPV is “strikingly common among MSM.” But Dr. Loutfy dismissed that research as “just creative writing.”
Rosen pointed out that Dr. Loutfy could not dismiss research showing the flyer’s statistics were reasonable:
Over 80% of anal cancers were linked with HPV.
92.6% of HIV-positive MSM had HPV (the flyer states “nearly 100%”);
and 63.9% of HIV-negative MSM had HPV (the flyer states 67%).
So MSM with HIV are certainly disproportionately affected. Why did the doctor engage in semantics and quibbles in a “hate crime” trial, he asked. The message in the flyer is not that gays are dirty or disease-ridden, but a warning about their heightened risk of disease, Rosen explained.
In addition to HIV and HPV, Rosen explained, MSM make up a small amount of the population but have a high percentage of overall cases of Hepatitis A and Hepatitis B due to their exposure to fecal matter. While Dr. Loutfy focused on available vaccines for these diseases, that does not dispute Whatcott’s statement that they are at “high risk.” Similarly for Hepatitis C, some MSM are at higher risk if they engage in injected drug use, have multiple sex partners, and have “rough sex.”
There is nothing inaccurate in the second box of the flyer, Rosen explained. HIV if untreated does lead to AIDS, which has no cure. An HIV infection lasts for life (even with medication). Approximately 30% of infected people don’t know they have it or are infectious to others. So while Dr. Loutfy said anal sex is safe (and many MSM now believe that), that so-called “safety” comes only with many qualifications.
Rosen asked: If Whatcott wanted to stir people up, why not just make up higher numbers on his disease statistics? But his information is essentially correct, and close enough to show there was no intent to denigrate the MSM group. The message of the flyer is a warning to the group receiving it. It was not given to the general population.
To sum up, Rosen reminded the Court that Whatcott told the police how he had cared for AIDS patients as a nurse and was with them during their isolation with AIDS and through to their deaths (when even their families stayed away). This was sad for him to observe. This is not homophobia, but the reality. It’s not about MSM relationships, but about their risks. The message to the recipients is that risky sex is not as safe as you are being told. Natural law is clear, so he encourages them to abstain from homosexuality. And he provides a spiritual solution: accept Jesus. Rosen again referenced the Judge’s earlier words about what “hatred” is (in the legal definition).
Finally, Rosen described Whatcott’s blog post on the Zombies’ action at the Pride event. Here too the message is clear: to convey the truth about the homosexual lifestyle, to spread and share the blessings of the Gospel. The photos show totally naked men at the parade, and in one they are standing near a little boy. This shows that the people at the parade have taken things too far. It is a Christian’s duty to warn them and invite them to find salvation. There is no malice, no intent of hate, no violence. It expresses a religious (not political) opinion. The action was done in good faith.
Crown Counsel’s Response
The Crown’s response was by Attorney Rebecca De Filippis. She agreed with Rosen that proof of intent is crucial to a finding of “hatred.” But she still did not offer any convincing proof. All she could do was to repeat Atty. Patterson’s claim that the flyer is “inflammatory” and “dehumanizing.”
She said that many of Whatcott’s medical statements are false. How he combines those statements and how they relate to each other only compounds the hatred.
(But that is extremely misleading. As Rosen established, the statements she refers to weren’t objectively “false” but simply slightly inaccurate or a matter of interpretation.)
She went on: Were the inaccurate statements just reckless or negligent? Is that enough to excuse the charge of hate? An error is not an excuse. It’s important how the information is used, whether it is accurate or not. The question is, does it promote hate?
The Judge interjected that there can be a false statement, but that still does not make it “hate.”
Then she attempted to attack the religious testimony: On the use of religion in the flyer, what was the intent, she asked? The presence of religion does not shield one from a hate speech charge. The religious references are just a “Trojan horse” hiding the hate speech. She added that Whatcott is entitled to hold religious beliefs; he can have his opinion. But that does not mean the flyer is not hate speech.
De Filippis said the flyer’s implication is that if you are gay, you will get sick and die. It is not a simple warning: It demonizes gays as carriers of disease and harmful to Canadian society.
Verdict to be announced Dec. 10
The Judge announced that the Court will convene on December 10 at 11:00 a.m. (Eastern) to hear his ruling. Whatcott will be allowed to appear via Zoom from Alberta.
This is very concerning. In Canada, a Judge may announce his verdict immediately and then submit his written reasons at a later time. That happens if the outcome of the case is obvious to him. But if he isn’t sure, he will wait and decide prior to submitting his ruling.
To those who watched this entire case, it seemed like a slam dunk. The Crown’s arguments were frivolous and emotional, and Rosen handled the case brilliantly. The medical expert witness did not offer any substantial reason that Bill should be judged guilty, and the religious expert witness actually reinforced Bill’s innocence.
A larger problem is that the Canadian justice system has tied itself in knots with conflicting principles of “free speech” and the ludicrous concept of criminal “hate speech.” As Rosen said, this is really a human rights case, and should not be in a criminal court.
The very fact that Canadians cannot legally access the flyer that is the center of this case (which a previous court has banned in Canada) unless they go to MassResistance underscores the point that Canada’s legal system is in chaos.
MassResistance has consistently warned that “discrimination” laws and “hate crimes” laws ultimately lead to the stifling of everyone’s human rights. That has clearly happened in Canada. In the US, the First Amendment must be guarded zealously!
Please help us continue to do our uncompromising work!
Our successes depend on people like you.
Your support will make the difference!