Leah Hennel, Calgary Herald CALGARY, AB.: NOVEMBER 15, 2011 -- William Whatcott enters the Calgary Court Centre in Calgary, Alberta on November 15, 2011 for his trespassing at the University of Calgary verdict. (Leah Hennel, Calgary Herald) (For City story by Daryl Slade)
Judge says U of C ban on man distributing anti-gay flyer violated his rights
Edmonton anti-gay, anti-abortion protester’s trespassing conviction tossed out
By Daryl Slade, Calgary Herald
November 15, 2011 10:43 PM
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CALGARY - An Edmonton man’s charter right to freedom of expression was infringed when he was charged with trespassing for distributing anti-gay pamphlets at the University of Calgary more than three years ago, a judge has ruled.
In his written decision released on Tuesday, provincial court Judge John Bascom issued a judicial stay of the July 25, 2008, trespassing violation against William Whatcott.
An indefinite ban against Whatcott from setting foot on the campus, stemming from a similar incident on Jan. 16, 2005, when Whatcott was cited for handing out anti-abortion flyers, was also lifted.
“Preventing the peaceful distribution of leaflets that an individual attendee finds offensive does not relate to an objective that is pressing and substantial,” Bascom said in his written decision.
“It is therefore not of sufficient importance to override a constitutionally protected right. Having found the university actions in banning Mr. Whatcott is not a significant objective, it is unnecessary to move to the second part of the test, that is, the means chosen are reasonable and demonstrably justified. . . . I find that banning Mr. Whatcott is arbitrary and unfair. The means used by campus security halted Mr. Whatcott’s distribution of these flyers and violated his right of free expression. In addition, the indefinite ban for Mr. Whatcott’s actions of Jan. 16, 2005, are out of proportion.”
Dale Fedorchuk, Whatcott’s lawyer, said outside court the judge’s decision found that the Charter of Rights and Freedoms applied to the actions taken by the university in this case to ban him and issue him with a trespassing ticket.
“In so doing, the judge applied the charter to the University of Calgary, notwithstanding the Crown’s (Kristyn Stevens) argument that the university is private property to which the charter does not apply,” said Fedorchuk.
“To reach that decision, Judge Bascom concluded private entities may be subject to charter scrutiny for such actions when actions are inherently governmental.”
Whatcott said he was “very happy” with the decision.
“I see this as an important victory for social conservatives and Christians who want to express themselves,” Whatcott said outside court.
“We were at Carleton University in Ottawa a couple of weeks ago and we’ll be visiting campuses with our point of view in the near future — U of Alberta, U of Calgary, Grant MacEwan. They are all a concern to me. They are very homogenous in the professors they hire, to discriminate against speech that displays conservative Christian values.”
University of Calgary spokesman Grady Semmens said the university could not comment on the decision as it had not yet seen the document.
However, he added, “Our legal folks will review it and try to decide if anything is there that may impact our operations.”
“This is really between the police and the Crown and the defendant, because police laid the charges,” said Semmens. “The university was asked to testify in the case and we did.”
A campus security officer testified that in the 2008 incident, he received a complaint about an unknown person posting anti-gay literature without permission, saying it was offensive material.
Whatcott and his partner, whose identity is undetermined by the court, were spotted in a parking lot handing out the flyers and when confronted, they started walking away.
When asked his name, Whatcott gave him a flyer and it was confirmed he was under the ban from three years earlier. He was arrested for trespassing, handcuffed and temporarily detained.
Bascom said the 2005 ban and the 2008 violation ticket are inextricably connected and must be viewed together.
“Mr. Whatcott entered the university property with a purpose to distribute his literature to students, staff and public,” said the judge. “His activity was peaceful and presented no harm to the university structures or those who frequented the campus. Traditionally, universities have been places for the exchange of ideas.
“Although Mr. Whatcott’s pamphlet is not scholarly, freedom of speech is not limited to academic works. The concept of free expression is part of the University of Calgary philosophy . . . “
Fedorchuk had conceded previously “it was clear in 2005 the content of the flyer offended people,” but that was not the issue.
Stevens insisted the content of the flyers did not play a role in either of the incidents, although complaints led to both arrests, and the charter doesn’t apply.
She said in 2005, Whatcott did not have permission to distribute material of any kind, as the university must regulate where and when anyone hands out information in order to not disrupt learning.
As far as 2008, she added, Whatcott was asked to leave, and when he didn’t. he was arrested solely for being on the campus contrary to the ban.
Stevens said Whatcott could either have appealed his ban, asked someone else to hand out the material by following rules, or hand it out himself anywhere off campus.
“He was not legally on the property and had no legal rights to be on campus,” Stevens argued. “Mr. Whatcott could easily have complied by applying to come back at a designated time and place.
“It has to do with policy, not content. Campus security is acting as property owners to determine who can come on the property or not . . . in this case, it is a relationship between a property owner and a member of the public who is not connected to the university.”
Semmens said he could not discuss whether the university would consider an appeal until it has been thoroughly reviewed.
dslade@calgaryherald.com
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