National Post (National Edition)
Anti-gay activist has rights, too
Aclass-action lawsuit against a well-known anti-gay activist who infiltrated the Toronto Pride Parade is nothing more than a political witch hunt to silence dissent and put a chill on free speech.
So say lawyers Dr. Charles Lugosi and John Findlay, who represent activist Bill Whatcott and unnamed others who marched in this year’s parade.
Whatcott and the others, who disguised themselves as members of the Gay Zombies Cannabis Consumers Association and handed out graphic leaflets warning of the health risks and “descending moral depravity” of gay sex, are defendants in the $104-million lawsuit, which hasn’t yet been certified as a class action.
“Whatcott says that public debate at political events ought to be encouraged in a healthy constitutional democracy,” the lawyers say in a factum filed with the Ontario Superior Court, and that constitutionally protected free speech “trumps any civil claim to hurt feelings.”
The lawyers were briefly in court Tuesday to argue a motion from Douglas Elliott, whose firm filed the lawsuit, to force Whatcott to identify the other “Zombies” and anyone who helped him financially.
That argument and a counter-motion to have the lawsuit dismissed are now scheduled to be heard in February.
Elliott’s firm represents Christopher Hudspeth, a veteran gay activist, and George Smitherman, an openly gay longtime Liberal and former deputy Ontario premier.
The two are what’s called the “representative plaintiffs” in the proposed class action who stand in for the “classes” of those allegedly affected.
Hudspeth, according to the statement of claim filed last August, represents the “marcher” class of people who marched in the parade and the “recipient” class who may have actually received Whatcott’s leaflets.
Where it gets interesting is that the suit alleges there’s a third class, or a subclass, of about 500 injured people Smitherman purports to represent — members of the Ontario and federal Liberal parties, marchers who previously held elected office as Liberals, and anyone who “selfidentified as Liberals” by walking with the Liberal contingent in the parade.
The three groups are seeking damages for “intentional infliction of mental suffering” and defamation, particularly “members of the Liberal subclass,” including Prime Minister Justin Trudeau and Ontario Premier Kathleen Wynne, who marched in the parade and were singled out in some of the literature handed out by Whatcott’s group.
Lugosi and Findlay say it’s the overtly political nature of the Pride parade that so distinguishes this case from others where Whatcott has been successfully prosecuted for violation of hatecrime laws.
In 2013, for instance, the Supreme Court of Canada upheld in part an earlier decision of the Saskatchewan Human Rights Commission that found Whatcott had breached hate laws with two of his pamphlets, once of which was entitled “Sodomites in our Public Schools.”
But, his lawyers say, that was “a case where the facts did not involve public participation in a political event and political opposition to the political agendas of the ruling Liberal provincial and federal governments.”
And, the lawyers argue, the message from the Zombies, who wore green bodysuits and face coverings in the parade, “was at its core political statements that represent an opposing viewpoint.”
Like the Black Lives Matter group, whose members held up the progress of the parade and arguably if temporarily hijacked the Pride agenda by demanding police marchers be expelled from future parades, Lugosi and Findlay say this was “a golden opportunity” for the Zombies to make a political statement.
In fact, the lawyers say, “Pride Toronto grants only unto itself the constitutional right to freedom of expression, and suppresses any opposing or dissenting viewpoints” and requires official marchers to “tailor their messaging to be in accordance with … solidarity with the (gay) communities.”
The statement of claim actually says the same thing — that Pride “is not a public forum in which everyone has the right to participate and deliver whatever message they choose.”
Yet the parade is significantly funded out of the public purse. According to Lugosi and Findlay, this year’s version received $140,000 from the federal government, $270,000 from the province and $160,500 from the city of Toronto.
It was, the lawyers say, “a significant political event for leading members of the Liberal governments of Canada and Ontario marched as a very large group to show solidarity with the political goals and agenda of the gay community.”
And now, those governments, “through the Liberal subclass, indirectly join in as partners” in the lawsuit with Hudspeth and Smitherman.
“The tyranny here is the intentional misuse of the instrument of class-action litigation to intimidate, chill and crush legitimate political freedom of expression by not only silencing opposing viewpoints, but also to force disclosure of the identities of those who support and assist Whatcott, so they can then be financially destroyed,” Lugosi and Findlay say.
They argue the suit is an abuse of process, “for it is used as a weapon of mass destruction” against a small but vocal minority “who oppose the viewpoints of the politically powerful.”
Ontario Superior Court Judge Paul Perell has scheduled two days for the motions hearing.