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Canada: Supreme Court Delivers Hate Speech Ruling

(Mar. 15, 2013) The Supreme Court of Canada issued a decision on February 27, 2013, asserting that limits placed on free speech in connection with hate speech are valid under the Constitution, but disallowing limitation on expression that does not meet that standard. The case concerned William Whatcott, a conservative Christian activist who had been fined CAD$17,500 (about US$17,000) for distributing flyers against homosexuality. (Julie Deisher, Canada Supreme Court Upholds Hate Speech Laws, PAPER CHASE NEWSBURST (Feb. 28, 2013); Saskatchewan (Human Rights Commission) v. Whatcott (Feb. 27, 2013), 2013 SCC 11, Case No. 33676; Warren Kinsella, Non-Criminal Legal Tools Critical in Hate Cases [opinion piece], TORONTO SUN (Mar. 4, 2013).)

Four complaints had been filed with the Saskatchewan Human Rights Commission about four flyers published and distributed by Whatcott, alleging that the flyers advocated hatred against individuals on the basis of their sexual orientation. A tribunal appointed to hear the complaints ruled that the flyers constituted publications in contravention of section 14 of the Saskatchewan Human Rights Code “because they exposed persons to hatred and ridicule on the basis of their sexual orientation.” The tribunal concluded that section 14 “was a reasonable restriction on W’s rights to freedom of religion and expression” guaranteed by sections 2(a) and (b) of the Canadian Charter of Rights and Freedoms. The tribunal’s decision was upheld by the Court of Queen’s Bench, while the Court of Appeal accepted the constitutionality of section 14 but held that the flyers did not contravene it. (Saskatchewan (Human Rights Commission) v. Whatcott, supra.)

The Canadian Charter of Rights and Freedoms, which is part of the country’s Constitution, in its section 1 “guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” (Constitution Act, 1982, Part I: Canadian Charter of Rights and Freedoms, § 1.). It also stipulates everyone has as a fundamental freedom of conscience and religion. (Id. § 2(a).) The Charter further protects “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.” (Id. § 2(b).)

The Saskatchewan Human Rights Code (SHRC), however, places limits on the right of freedom of expression, specifically prohibiting any publication “that exposes or tends to expose to hatred, ridicules, belittles or otherwise affronts the dignity of any person or class of persons on the basis of a prohibited ground” even though it states that “nothing [in that prohibition] restricts the right to freedom of expression under the law upon any subject.” (Saskatchewan Human Rights Code, art. 14(1)(b) & 14(2), respectively.)

The Supreme Court allowed the appeal in part, reinstating the tribunal’s decision in regard to two of the flyers, entitled Keep Homosexuality out of Saskatoon’s Public Schools! and Sodomites in Our Public Schools, but dismissing it with respect to the other two flyers, the same reprint of a page of classified advertisements to which handwritten comments were added. The Court found that while it was reasonable for the Tribunal to conclude that the first two flyers might were “more likely than not to expose homosexuals to hatred,” the second two might be offensive but the expression of views “does not demonstrate the hatred required by the prohibition” in the Code’s section 14(1)(b). (Saskatchewan (Human Rights Commission) v. Whatcott, ¶ 196.)

The Court held that section 14(1)(b) of the Saskatchewan Human Rights Code does infringe sections 2(a) and article 2(b) of the Charter and that “a prohibition of any representation that ‘ridicules, belittles or otherwise affronts the dignity of’ any person or class of persons on the basis of a prohibited ground is not a reasonable limit on freedom of religion.” It stated that such words “are constitutionally invalid.” However, the Court ruled, the prohibition “of any representation ‘that exposes or tends to expose to hatred’ any person or class of persons on the basis of a prohibited ground is a reasonable limit and demonstrably justified in a free and democratic society.” (Id. ¶206.)

Given that, in the Court’s reading of the reasoning of the Tribunal that had awarded compensation on the basis of the harm caused by receipt of the flyers to the individuals involved in the case, the Court indicated that it would not reinstate compensation to the two persons who had received the reprinted advertisements, given the finding that those flyers did not constitute hate speech. The Court did reinstate the compensation awards amounting to $7,500 in all to the two individuals who had received the other flyers, as well as the prohibition on further distribution of those flyers. (Id. ¶204-205.)

The Saskatchewan Human Rights Commission claimed a victory in the case. (Press Release, Saskatchewan Human Rights Commission, Saskatchewan Human Rights Commission Calls Supreme Court Decision a Victory for Minorities (Feb. 27, 2013).) In the view of one law expert, however, while the Supreme Court’s ruling is “a nuanced and well-crafted decision” that “resolves a number of important issues concerning the interpretation and constitutionality of human rights codes,” it may have a chilling effect. Despite “the court’s assurances that individuals remain free to debate questions of sexual morality in the public sphere,” he writes, “the practical effect of the ruling is to all but strangle certain kinds of argument – particularly those made from a religious point of view.” (Michael Plaxton, Whatcott Ruling Is a Very Real Burden on Some Speech [commentary], THE GLOBE AND MAIL (Feb. 28, 2013) [see also “More Related to This Story” on the same webpage].)