Whatcott hearing at BC Human Rights Tribunal

Day 4: Oger’s closing arguments; beginning of closing arguments for Whatcott

Judges allow new evidence against Whatcott: His recent flyer, blog post, videos considered a "serious offense" against the Tribunal.

Plus videos, photos, etc.

by Amy Contrada
December 14, 2018

The day began with Oger’s attorney, Susanna Quail, asking to add more “evidence” against Bill Whatcott, namely his reports on his blog, his Facebook videos, posted during the proceeding, and the new flyer he was handing out on the sidewalks in Vancouver during the hearing. All of these new transgressions by Bill should increase his fine the Tribunal may assess, she said.

On the first day of the hearing Bill passed out this flyer on the sidewalk outside the building. Read it here.

Whatcott’s attorney, Dr. Charles Lugosi, objected as this new “evidence” was not being introduced in the regular manner but at the last minute, contrary to usual court proceedings. The items would not be subject to cross-examination by the defense. Whatcott had not received any order to cease and desist regarding his reporting on the hearing, so how can the three-judge Panel have any jurisdiction, Lugosi asked? It is not right to restrict his freedom of expression in this way. (The complainant Oger also spoke with reporters during breaks, but without the Tribunal’s objection.)

The judges overruled Atty. Lugosi’s objection. Atty. Quail was allowed to submit Whatcott’s reports and new flyer as evidence against him.

Ms. Quail then gave a long exposition of the legal arguments for finding Whatcott guilty of “hate speech” in his election flyer.

Oger's attorney, Susanna Quail

(Keep in mind: As explained in earlier sections of this report, the flyer did not include “hateful” statements, did not include threats, and did not encourage violence. It simply told people not to vote for Oger because Whatcott believed his transgender identity meant he would support policies that were not good for society. But the Tribunal is told it is hateful. Even the Bible quotes were interpreted by the complainant’s attorney as carrying hateful intent.)

Oger’s attorney, Ms. Quail, explained  that religious freedom and freedom of speech can be practiced only if there is no injury to one’s neighbors, or interference with their rights to hold their own beliefs and participate freely in democracy. References were made to the Canadian Charter of Rights and Freedoms as well as the British Columbia Human Rights Code, Section 7-(1) (a) and (b).

Quail admitted that Oger knew his election bid was a long shot, and there is no way of proving how much harm (if any) the flyer did to the campaign. But Oger’s feelings that his “dignity and personhood” were harmed was enough to prove Whatcott’s guilt. She further argued:

• The flyer was an attempt to exclude a “transgender woman” from the political process.
• There was no value or truth in the flyer’s reference to the candidate’s genitalia and DNA.
• Whatcott’s beliefs injured his neighbor (though there was no bodily harm or violence). Oger felt the flyer was “hurtful” and it made him feel unsafe.
• At issue is not determining the “truth,” but protecting every individual’s perception of who they are.
• Whatcott is guilty because “he communicated a rejection of diversity.”

Atty. Quail stated that there were no matters of public interest in the flyer. (She ignored Oger’s identity as a major activist and advocate for ongoing transgender demands – obviously matters of public interest, or there would be no activism.) She made the case that Whatcott’s claim that he had policy concerns if Oger were elected had no foundation.

Quail even stated that there is no ongoing societal debate on transgender rights. It’s all completely settled, except in the minds of Whatcott and a very few marginal people. She claims one simply cannot use a candidate’s “gender identity or expression” as grounds for opposing a candidate since almost everyone is fine with transgenderism now.

She claimed, “Whatcott is not being told what to believe.”

In fact, he was certainly instructed by the Tribunal before and during the proceeding on what language he must use in addressing Oger. And the Human Rights Code tells him he cannot disagree publicly (in print) with the current law or ongoing transgender political demands. The Tribunal tells him he cannot publicly express his concerns about the unfairness of the Tribunal’s rules.

Ms. Quail did not answer: What is the value of one’s private beliefs that can’t be expressed to others? The law allows Whatcott to hold a belief in his own head or in a private communication, but he can’t publicly communicate his beliefs to others via print or video. When is the line crossed between that, and telling someone what they must “believe”?

Ms. Quail said that the Tribunal did not need proof that Whatcott’s flyer actually did any harm to Oger. (And she provided no proof.) She said his intent was not at issue according to the law. He didn’t have to intend harm or discrimination for it to be discrimination. Rather, the principle is what matters: “Hate speech” is insidious and can have broad societal harm (even if it can’t be measured).

Oger’s team believes that transgender-identifying people are exposed to “detestation and vilification” in the flyer. They are “delegitimized.” Their very existence is denied, and associating transgenders and gays with bad outcomes (higher rates of diseases, suicide, depression, drug use) exposes the groups to hatred from others (even if that was not Whatcott’s intent). The truth of the statements about health issues, for instance, is no defense, Quail said.

Ms. Quail said that Oger is asking for $35,000 in damages from Whatcott for these injuries. And she recommended that the Tribunal should assess costs (fines) in addition, especially after the “inappropriate conduct” Whatcott exhibited during the hearing. She listed his transgressions:

• Refusing to address Oger as Ms./she/her.
• Refusing to remove his shirt with the Bible quote (“Male and female He created them”) and message to Oger that he will always be a guy no matter what he gets the state to do.
• Undermining of the Tribunal’s integrity by calling the proceedings a “kangaroo court” and posting disrespectful videos.
• Taking a photo inside the hearing room.

She added that Whatcott “is responsible for the conduct of his counsel” Dr. Lugosi, who slipped several times and called Oger he. That means more fines for Whatcott, apparently.

The hearing room then got to watch Whatcott’s video posted Dec. 13 on Facebook. It was accepted as last-minute “evidence.” This video was said to be a "serious offense" against the Tribunal, antiiidemeaning the Tribunal in the eyes of citizens.

We at MassResistance think Whatcott's summary of the day that he describes in the video is brilliant. But in the eyes of the Tribunal, it deserves harsh punishment because he exposes the dishonesty and hypocrisy of the proceeding.

Also during the afternoon session, Kari Simpson, a leader of the B.C. pro-family group CultureGuard, was chastised by judge Cousineau for taking her photo in the hallway. (Notice of her bad behavior will be in the record!) The judge is a public servant but believes she has the right to remain anonymous. Supporters of Oger (including those on record in the proceeding) likewise complained, saying they had a "right to privacy."

We therefore include photos of the 3 judges who are presiding at Bill Whatcott’s hearing:

The three radical judges (left to right): Norman Trerise, Devyn Cousineau, and Diana Juricevic.

Two other attorneys spoke against Whatcott, representing the B.C. Federation of Teachers and a radical feminist group.

The British Columbia Federation of Teachers’ participation in the proceeding emphasizes that this case will be an important precedent for the SOGI (sexual orientation & gender identity) curricula in the schools – which will become entrenched and even more radical once parents and community members who disagree realize they may face their own Tribunal hearing if they object in any way. How could any resistance be organized if they aren’t allowed to oppose transgenderism in publications and online posts?

The teachers’ union attorney droned on about how LGBTQ students “don’t feel safe in school” and how “hate speech” and anti-discrimination laws need to be buttressed by a forceful ruling.

Since British Columbia only just included “gender identity or expression” in the anti-discrimination law in 2016, the teachers’ union looks forward to a powerful precedent coming from this first challenge under the new law, the attorney admitted.

Typical propaganda poster from the BC Teachers' Federation

An attorney from a radical feminist group in B.C. that supports “transgender women,” West Coast Leaf, spoke of the “acute vulnerability” of transgender people who “face extreme social stigma.” Transphobia and trans bashing are common. Oger’s “functioning was significantly impaired” by Whatcott’s flyer, she said. “Hate speech” is used against transgender people to “erase” and “dehumanize” them. “Erasure” can then lead to violence and keeps victim groups from expressing their ideas. Whatcott’s flyer was meant to prevent Oger’s participation in democracy, she claimed.

Bill discussed the LEAF attorney’s presentation on his blog.

Last to speak on Day 4 was Paul Fromm who supported Whatcott’s freedom of speech. Representing the group Canadian Association for Free Expression (CAFÉ), he pointed out the Tribunal’s procedural inconsistency, showing deference to Oger’s side. He mentioned that Whatcott reasonably asked Judge Cousineau to recuse herself given her obvious bias, but she refused.

As a free speech advocate, he was extremely troubled by the imposition of speech guidelines by the Tribunal (pronouns, etc.). “This makes it difficult for us to be our authentic selves,” Fromm said. One side is clearly advantaged.

Freedom is very much in peril in Canada. The Tribunal won’t even allow any examination of the concept and ideology of “gender identity.” But this is important. Where is it taking us, he asked.

He attempted to bring up another case before the Tribunal as cautionary: a “female with a penis” who has filed complaints against multiple women’s salons that refused to give him a “Brazilian wax” (which would involve handling his penis and testicles). He was quickly cut off by the judges who this had nothing to do with the issue before the Tribunal. He protested it went to the meaning of “gender identity” and validity of the concept. The Judge cut him off again.

He pointed out that Section 7-1a of the Human Rights Code was not a blanket prohibition and was never intended to apply to elections. Voters’ decisions are secret; we can’t know how they vote. Their reasons could be “discriminatory” and based on something like ethnicity. And it should be OK to advocate to vote against a candidate. Oger was not entitled to anyone’s vote. A vote is not like a “service” to be rendered, which is what most of the anti-discrimination sections in the code deal with.

The flyer did not prevent Oger from being a candidate. It just urged voters not to vote for him as he would not be a suitable representative. There has been overstated fearmongering about the flyer, Fromm said. There is no call for violence. It says only “tell the NDP you won’t be voting for them.”

Whatcott never said Oger could not or should not participate in public life. In fact, Oger went on to run for Vancouver School Trustee, so was not intimidated from political participation.

Both Oger and Whatcott went through a major change of life. Bill expressed no ill-will towards the complainant. Oger is Vice President of the NDP and has been a major lobbyist for transgender rights. Both of these men are political players. Oger admitted in testimony that he is “tough” (but he also said “hurt”). He made a transgender identification a part of his political persona – part of his calling card. So it is legitimate to challenge that. Character and policies are both open for discussion. It is a severe limitation on speech to not be able to mention transgender identity.

Speculative harm is not a good argument. It’s equally possible that Oger gained votes due to Whatcott’s flyer. In Canada today, Oger can hardly be said to be vulnerable. The press is on his side. Transgenders are a well-protected minority. Whatcott is the outlier in this case.

“Let the voters decide” should be the government’s position, and not interfere with them. Respect the voters. “Hatred” is a high bar; a call (direct advocacy) to violence would necessarily be included. The religion speech in the flyer does not advocate violence. And Bill is not a violent man.

The mantra that people “don’t feel safe” is overused. It’s used to silence people.