Whatcott: Canadian Hate Speech Laws Live to Fight Another Day

by Bennett Jones LLP
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The Supreme Court of Canada released its much-anticipated decision in Saskatchewan Human Rights Commission v Whatcott today (they are all “much-anticipated” but this decision was on reserve for 16 months, a long time for the Supreme Court). The Court, in a unanimous 6-0 decision, held that the hate speech prohibition in the Saskatchewan Human Rights Code was largely constitutional. We acted for an intervener on the appeal.

The facts of the case are notorious. William Whatcott distributed flyers in Regina and Saskatoon that condemned homosexuality using very strong (and, as the Court ultimately found, hateful) language. The Saskatchewan Human Rights Tribunal found that that Whatcott’s actions were a breach of section 14(1)(b) of the Code, which prohibits the publication of printed matter that “exposes or tends to expose to hatred, ridicules, belittles or otherwise affronts the dignity of any person or class of persons” because of sexual orientation.

Whatcott argued that the hate speech provision violates his freedom of expression under the Canadian Charter of Rights and Freedoms. The Saskatchewan Court of Appeal held that the provision was constitutional but found that Whatcott’s flyers did not rise to the level of hatred prohibited by the Code. The Supreme Court agreed that the provision is constitutional and some of Whatcott’s flyers do not constitute hate speech.

The Supreme Court of Canada’s decision is important for three reasons:

1. The Court adopted a modified definition of hatred for human rights proceedings. In an earlier decision, the Court held that hatred “refers to unusually strong and deep-felt emotions and detestation, calumny and vilification”. In Whatcott, the Court reframes the test as follows: “whether a reasonable person, aware of the context and circumstances, would view the expression as likely to expose a person or persons to detestation and vilification on the basis of a prohibited ground of discrimination.”

The test now emphasizes three factors: (a) the test of hatred has to be applied objectively (i.e., the reasonable person aware of the relevant context and circumstances), not based on the subjective views of the publisher or the victim; (b) “hatred” involves two concepts—detestation and vilification, which enforce the legislative objectives of anti-discrimination laws; and (c) hate speech laws should focus on the effects of the expression not the content of the expression. Critics argued that “calumny” was hard to define. “Detestation and vilification” will likely suffer the same attacks.

2. The prohibition on ridicule, belittlement or affronts to dignity do not meet constitutional muster. According to the Court, these words are not synonymous with hatred and such expression does not give rise to the “ardent and extreme feelings”. Though the Saskatchewan courts had, in obiter dicta, read down these words in previous decisions, the Court made clear that it is unconstitutional to prohibit speech that something less than detestation and vilification.

3. Finally, the Court held that the freedom of religion (Whatcott argued that his flyers were motivated by his sincere religious beliefs) and religious speech has broad protection like the freedom of expression. But, at the same time, that speech cannot expose vulnerable groups to detestation and vilification, even if it is sincerely-held.

In the lead-up to the decision, there was much debate online about what the Court’s delay meant: Was the Court hopelessly divided? Would it significantly reframe or recast the test for hate speech? Was the Court going to overturn its earlier decisions? The decision was probably anti-climactic in hindsight.

The real effect on hate speech law in Canada remains to be seen. Bill C-304, which repeals the hate speech provision in the Canadian Human Rights Act, has passed the House of Commons and is being debated in the Senate. In October 2012, the Federal Court found that same provision largely constitutional. In Alberta, Premier Alison Redford promised during her leadership campaign to repeal the equivalent Alberta provision. This decision may embolden proponents of hate speech laws to argue that this type of legislation has a role to play in prohibiting discrimination and may quell some of the debate on this issue.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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