Highlights and howlers from Morgane Oger's B.C. Human Rights Tribunal hearing

On March 27, the B.C. Human Rights Tribunal ordered Saskatchewan Christian activist William Whatcott to pay prominent Vancouver trans activist (and the 2017 B.C. NDP candidate for Vancouver-False Creek) Morgane Oger $55,000.

The award—$35,000 “as compensation for injury to her dignity, feelings, and self-respect” and $20,000 in punitive costs for “improper conduct during the course of the complaint”—came after the tribunal determined that Whatcott violated Section 7 (Discriminatory Publication) of the B.C. Human Rights Code. That section, generally, prohibits publication of statements that discriminate against a person or class of persons or exposes those people to hatred or contempt.

Whatcott distributed 1,500 flyers in Oger’s riding during her election campaign. The flyers, according to the tribunal decision, described Oger as “a man who ‘lived as a transvestite for eight years, cut off his penis, and injected himself with female hormones, in an effort to delude himself and everyone around him into thinking he was a female’ ”.

Whatcott estimated that about 10,000 people viewed the flyers, either as hard copy or on the Internet; Oger lost the election by about 400 votes and filed her complaint shortly afterward.

Tribunal panel member Devyn Cousineau wrote in the 105-page decision that Whatcott had “clear intent” during the five sometimes rambunctious hearing days in December 2018 “to pubicly humiliate her [Oger]”.

An unusual aspect of this B.C. Human Rights Tribunal hearing was the number of intervenors and legal representatives, with 10 lawyers, one “agent”, and four intervenor organizations (Justice Centre for Constitutional Freedoms, Canadian Association for Free Expression, West Coast LEAF, and the B.C. Teachers’ Federation) attending most of the hearing. Two of the lawyers represented the attorney general of B.C. in response to a “notice of constitutional question” brought by respondent Whatcott.

Personalities involved in the hearings included controversial local Christian activist Kari Simpson and notorious white supremacist Paul Fromm.

We read the entire 105-page document so you don't have to. Here are some of the most interesting/entertaining quotes from indicated sections of the tribunal’s written decision.

From II (13):

He [Whatcott] asked God how he could help in the election. He started researching the candidates across the province and, in this way, came across Ms. Oger....Most importantly, however, he was upset that the media and public at large were “pretending” that Ms. Oger was a woman....He sees himself as the small boy in the fairy tale about the Emperor with no clothes—the only one brave enough to speak the truth about Ms. Oger’s gender.

III [A] (25)

...the purposes of the [B.C. Human Rights] Code, are not furthered when the Tribunal takes up time and resources to hear irrelevant evidence. In our view, that is the nature of the evidence which Mr. Whatcott proposed to introduce through the Witnesses. Their views of, and response to, the Flyer are no more relevant to our analysis than the views of any individual on the street. Their evidence could have no bearing on whether the Flyer violated s. 7. That analysis is an objective one, undertaken from the perspective of a reasonable person and not Ms. Oger, Mr. Whatcott, or—most significantly—the Witnesses...

III [B] (30), (31), (32)

Mr. Whatcott tendered Dr. Gutowski as an expert witness at the hearing, and the panel began by hearing oral evidence about his qualifications. That evidence established that Dr. Gutowski had practiced as a psychiatrist for 28 years....He practiced for six years as the head of psychiatry at a health centre in the Northern Mariana Islands. There, he was frequently qualified as an expert to give his opinion about whether a person should be involuntarily detained on the basis of mental illness. Dr. Gutowski testified that he had treated one transgender patient “with serious problems”. He retired in 2010....In cross examination, Dr. Gutowski conceded that he had no special training or expertise in the origins of love and hate....Dr. Gutowski has not spoken publicly or published any peer-reviewed research or material related to the origins of love and hate. After hearing this testimony, and argument from counsel, the panel concluded that Dr. Gutowski was not qualified to give the Tribunal an expert opinion about what causes people to feel love or hate.

III [C] (39), (40)

Mr. Whatcott’s lawyer, Dr. Lugosi, then cross-examined Ms. Oger for over four hours. At about the four-hour mark, the panel warned Dr. Lugosi that he would have 15 more minutes to complete his cross-examination. Fifteen minutes later, the panel ended the cross-examination. Dr. Lugosi objected to the curtailment of his time....the bulk of Dr. Lugosi’s cross examination was not relevant to any issue that this Tribunal had to decide....He questioned her about backlash that Mr. Whatcott had experienced since publishing the Flyer, which was not relevant to any issue in the complaint. He challenged Ms. Oger on the basis that the heart of her complaint was an attack against the Bible. He asked her to agree that the Flyer was a proper political attack based on her moral fitness to govern. None of this was helpful evidence.

III [D] (43), (45), (46), (47), (48)

December 17, 2018 was the fifth and final day of this hearing. The parties’ evidence had concluded the previous week, on December 12....It was at that point that Kari Simpson stood up from her seat in the gallery and handed the panel an application to intervene in the complaint....She sought leave to cross-examine Ms. Oger and to lead evidence through a witness....Six months earlier, the Tribunal had posted a public notice on its website inviting intervenor applications by June 15, 2018. That deadline had long since passed. Ms. Simpson had the same right as anyone else to apply by that deadline but did not. It would not be fair to any of the participants to allow her to participate on the final afternoon of a five-day hearing....Ms. Simpson’s application fundamentally misunderstood the purpose and nature of an intervenor in this process....Her proposed intervention was aimed at introducing argument and evidence about her own interactions with Ms. Oger. This had nothing to do with any issues raised by the parties to the complaint and—as such—was not the subject of an appropriate intervention. The application was denied.

IV [B] (109), (110), (116), (141)

Mr. Whatcott, [and intervenors] JCCF, and CAFE characterize the Flyer as “political speech” and argue that it is of the highest value. The purposes underlying freedom of expression, they say, is perhaps never more directly engaged than during an election campaign....This group argues further that, in disseminating the Flyer, Mr. Whatcott was contributing to the “marketplace of ideas” and furthering the search for truth about “transgenderism and the portrayal of these issues in politics and by the media”....[I] reject the characterisation of Mr. Whatcott’s Flyer as “political speech”....Far from an attempt to engage in an enriching policy debate, the expression contained in the Flyer is intended to denigrate and humiliate Ms. Oger based on her gender identity and encourage voters not to support her party....In my view, the Flyer is the modern version of a “whites only” sign. It is an attempt to block the doors of government with a message that the political realm is for “cisgender people only”...

IV [C] (159), (160), (161), (174)

Mr. Whatcott accuses transgender people of “disgusting characteristics, inherent deficiencies [and] immoral propensities which are too vile in nature to be shared” by Mr. Whatcott or other “right thinking” members of society.... read in context, it is clear that the reference to sexually transmitted disease and social ills is to suggest that transgender people are a source of those problems and, as such, a menace to society more broadly...I find that the reference to...“[cutting] off his penis, and [injecting] himself with female hormones” is of similar effect. The language here is intentionally shocking....Mr. Whatcott’s description characterises those choices as gross and wanton acts of self-mutilation and, in doing so, positions himself above any person who would engage in such behaviour....While the Court did express a view [In Christian Heritage Party of Canada v. Hamilton (City), 2018 ONSC 3690,] that a “dog whistle” message could not constitute obvious hate speech, that observation has no application to the Flyer in this case. The Flyer was not a “dog whistle”, it was an air horn.

V [A] (199)

Mr. Whatcott undermines his own argument by grossly exaggerating the stakes in this complaint. While I can appreciate that a finding of discrimination may generate negative consequences, including stigma and restrictions on a person’s ability to discriminate in the future, likening liability for discrimination to a re-education detention facility treads into the realm of absurdity. No order by this Tribunal could compel Mr. Whatcott to change his fundamental beliefs, under threat of sanction. The Code simply prohibits him from expressing and manifesting those beliefs in a manner that results in prohibited discrimination.

VIII (244)

At the hearing, Ms. Oger amended her [punitive] costs application to add further publications and videos issued by Mr. Whatcott since her original application, as well as allegations that Mr. Whatcott and/or his representatives had acted improperly by: their conduct toward Ms. Oger during the hearing; repeatedly re-arguing issues that had already been decided by the Tribunal; showing a disregard for deadlines set by the Tribunal; breaching Tribunal orders; and testifying in a manner that demonstrated a flagrant disregard for the Tribunal’s process....

VIII [A] (248), (249), (250), (251), (252), (254), (255), (256), (258), (259), (260), (263), (267), (268)

I have no difficulty concluding that Mr. Whatcott’s conduct during this hearing was improper. I begin with Mr. Whatcott’s t-shirt. For each day of this five-day hearing, Mr. Whatcott wore a white t-shirt with a large picture of Ms. Oger on it. On the front of the shirt, it read: “Mr. Oger, no matter how you use the state to silence your critics, you are still a guy.” On the back there was a quote from the Bible: “Male and Female he created them: Genesis 5:2”. Mr. Whatcott ensured that the shirt was visible as he sat in the gallery, directly facing Ms. Oger, throughout the hearing. The message of the shirt, and Mr. Whatcott’s clear intent in wearing it, was to deny Ms. Oger’s gender identity and to publicly humiliate her once more....Before Mr. Whatcott gave his testimony to the Tribunal, the panel took the parties’ counsel into a separate room to discuss Mr. Whatcott’s intention to testify wearing the t-shirt. The panel advised Mr. Whatcott’s counsel that the shirt was improper, and it would be improper for Mr. Whatcott to testify while wearing it. We gave Mr. Whatcott’s counsel the chance to speak with his client privately about the potential consequences of continuing to wear the shirt. It is our understanding that he did so. When the hearing reconvened, Mr. Whatcott sat in the witness chair still wearing the shirt....He continued to wear the shirt throughout his testimony and until the conclusion of the hearing....Mr. Whatcott continued the conduct knowingly in the face of the Tribunal’s clear message that it was improper, and so he should not be surprised to learn now that I have concluded that it warrants an order for costs.... From the beginning of this complaint, Mr. Whatcott has referred to Ms. Oger as a man and deliberately referred to her using male pronouns. On June 9, 2017, Member Rilkoff ordered him to stop this practice....Mr. Whatcott continued to refer to Ms. Oger as a man, and on September 13 ,2017, Member Rilkoff again warned him of the possible consequences of his conduct.... Mr. Whatcott and his representatives were to respect Ms. Oger’s gender identity in this process. They could refer to her as the woman that she is, or they could use gender neutral language. They could not continue to call her a man and refer to her as “he” or “him”....Again, Mr. Whatcott deliberately and knowingly refused to comply with the Tribunal’s orders....Kari Simpson, who was at the time identified as one of Mr. Whatcott’s representatives, then burst out: “Shouldn’t the panel also refer to Complainant Oger as “Complainant Oger” so it doesn’t offend a number of us in this room? Would the panel undertake that courtesy and show us that kind of respect?”... Ms. Simpson’s outburst, while inappropriate, was short-lived and she was later removed as Mr. Whatcott’s representative....Mr. Whatcott kept his audience updated about the progress of the hearing through his Facebook page. On the first day of hearing, he posted a picture of the inside of the hearing room and the people inside of it.This was contrary to the Tribunal’s “Public Access & Media Policy”, which prohibits filming or photographing a hearing room from inside or outside the room without permission of the Tribunal. Mr. Whatcott posted the photograph after being alerted by the Tribunal to this policy during the hearing. This deliberate violation of a Tribunal policy was improper....To her immense credit, Ms. Oger comported herself with grace and dignity in the face of the persistent efforts to insult, undermine, and humiliate her. It will be—in my view—necessary to make a substantial award of costs to signal this Tribunal’s strongest possible condemnation of Mr. Whatcott’s conduct during the hearing...

VIII [B] (279)

It is important to note that all these issues involving repetitive arguments arose during the period of time that Mr. Whatcott was represented by legal counsel. While I can appreciate that a self-represented litigant may struggle to understand the proper route to challenge decisions of this Tribunal, or the Tribunal’s constitutional jurisdiction, a lawyer should not...

VIII [C] (282), (283), (287), (288), (290)

I begin with the attacks against me personally....The general tenor of Mr. Whatcott’s public comments about me is that I am biased against him and closely aligned with the “far left”, “homosexual agenda” that he stands against. On his website, Mr. Whatcott describes me as a “hard left ‘judge’” and a “homosexual activist kangaroo judge”. He says he has “no confidence in this far left, pro-homosexual activist who is attempting to pass herself off as a credible judge at all”. After discussing 2014 activity on my Twitter account, he asks: “And I am supposed to expect impartial justice from this leftist kangaroo, who believes the truthfulness of my statements is irrelevant?” He speculates, wrongly, that it is “highly probable” that Ms. Oger and I know each other “at least socially”, since we travel “in the same far left/regressive/pro-homosexual circles”....Next are the references to Ms. Oger’s lawyer. Throughout his posts, Mr. Whattcot repeatedly referred to Ms. Quail as Ms. Oger’s “lesbian lawyer” and “lesbian activist lawyer”. In context, it was clear that this was intended as an insult to denigrate Ms. Quail on the basis of her sexual orientation....The primary target of Mr. Whatcott’s attacks was, of course, Ms. Oger herself. Throughout the months while this complaint was underway, Mr. Whatcott used every public platform at his disposal to talk about the complaint and repeat his hateful rhetoric about Ms. Oger....He describes her as a “deluded tyrant who cross-dresses, persecutes Christians who tell the truth that he is a man, and hangs out with homosexuals in assless chaps at shame parades”. He says that what Ms. Oger “actually needs is psychiatric and pastoral help to overcome his gender identity issues, not public platforms and human rights tribunals that enable him to proclaim his mental illness to the world and prosecute those who refuse to go along with his delusion”....On November 20, 2018, Mr. Whatcott announced that he had created “a new hard hitting flyer accurately exposing the tyrannical and perverse nature of the BCHRT” and that up to 5,000 copies would be “hitting the streets” during the hearing. True to his word, Mr. Whatcott printed 2,000 copies of a flyer titled “British Columbia Human Rights Tribunal protects transvestite deviant, enables him to prey on vulnerable biological women”. He distributed copies of this flyer on the streets outside the Tribunal’s offices on the days when the hearing was in session.

IX (325), (326), (327), (328), (329), (330), (331)

...the intervention of CAFE [Canadian Association for Free Expression] was not helpful or—at some points—even appropriate. I feel compelled to acknowledge this in my decision because of the risk that CAFE’s intervenor status in this complaint could be used to buttress further applications for intervention in future cases. It should not be....In a previous letter decision, I admonished CAFE for repeatedly filing unsolicited submissions....I expressed concern that “CAFE has demonstrated a pattern of disregard for the Tribunal’s clear instructions, and a persistent misunderstanding about its role in these proceedings”. Critically, I also found that the substance of CAFE’s submissions was improper....At that point, I put CAFE on notice that if it continued that type of behaviour, I would revoke its status as an intervenor....At the hearing, each intervenor was allotted 45 minutes to make their final, closing submissions. The panel instructed them to submit their written arguments at the same time as those closing submissions....During his allotted time, Mr. [Paul] Fromm, representing CAFE, did not submit any written argument but instead made all his submissions orally. Those submissions were not helpful....For the most part, Mr. Fromm’s submissions appeared to be rooted in his own beliefs about the case. Mr. Fromm delivered his closing submissions on the Friday so that he could return home over the weekend. On the Monday, he delivered to the Tribunal and the participants his “final written submission”. This was contrary to the panel’s clear instruction that all participants submit their written submissions along with the oral argument. CAFE’s final written submission was 65 pages of dense, disorganized and barely intelligible text....He denies the existence of transgender people, likening it to “acting, role-playing, being theatrical” and calls gender identity a “recognized MENTAL DISORDER”....Suffice to say that his argument was—at best—mostly irrelevant and unhelpful and—at worst—improper. It is possible that these failings of the CAFE intervention arose from the fact that it was not represented by a lawyer. Regardless of the reason, however, the intervention was not helpful and at times constituted an unwelcome and inflammatory distraction from the substance of the issues at hand. CAFE’s participation in this complaint should not be used to support further applications to intervene at this Tribunal or any level of court.