In its recent decision in Saskatchewan Human Rights Commission v. Whatcott, the Supreme Court of Canada addressed important questions regarding the limits of freedom of expression, the scope of freedom of religion and equality rights, and the role of human rights bodies in regulating the exercise and enjoyment of these rights.
In an unexpected unanimous judgment (penned by Justice Rothstein), the Court affirmed the constitutionality of human rights legislation proscribing “hate speech”, while revising the test for establishing “hatred” under such provisions. In doing so, the Court systematically addressed criticisms of such statutes, recognizing that they appropriately balance the fundamental values underlying freedom of expression with competing Charter rights and other values essential to a free and democratic society. In the result, the Court found that the Respondent, a member of an organization called “Christian Truth Activists” who had published flyers containing various statements expressing opposition against “the homosexual lifestyle”, had breached s. 14(1)(b) of the Saskatchewan Human Rights Code and ordered him to pay compensation awards to the original complainants.
This case arose from complaints by LGBT individuals in Saskatchewan who had been the recipients of various flyers – titled, inter alia, “Keep Homosexuality out of Saskatoon’s Public Schools!” and “Sodomites in our Public Schools” – that were published by the Respondent. The matter proceeded through the Saskatchewan Human Rights Tribunal, Court of Queen’s Bench, and Court of Appeal over the course of a decade, before the final appeal was heard in 2012. In granting leave to appeal, the SCC stated constitutional questions as to whether s. 14(1)(b) of the Code breached ss. 2(a) or 2(b) of the Charter, and if so, whether such breaches could be justified under s. 1 thereof.
In light of the important legal and policy issues involved, the appeal attracted the largest number of interveners in any case before the SCC. The Canadian Bar Association was one of the interveners granted leave to make written and oral submissions (see p. XX to learn more about the CBA intervention). The oral arguments were spirited and passionate, and the questions asked by the Court demonstrated the complex and difficult nature of the issues before it. The last time the SCC dealt with such a case, the result was a 5-4 split, with then-Justice McLachlin penning the dissent. It was therefore surprising to many legal observers that the outcome here was unanimous.
Before addressing the constitutional questions, the Court took the opportunity to revisit the definition of “hatred” that was established in its seminal decision in Canada (Human Rights Commission) v. Taylor, part of a 1990 trilogy of cases involving hate speech. In Taylor, Chief Justice Dickson (for the majority) defined “hatred” for the purposes of human rights legislation refers to “unusually strong and deep-felt emotions of detestation, calumny, and vilification.” In the intervening two decades, critics have argued that the Taylor standard was vague, arbitrary, and overreaching, and has a chilling effect on public debate, religious expression, and media coverage of issues about moral conduct and social policy.
In Whatcott, the Court endorsed the “hallmarks of hate” enumerated in Warman v. Kouba as examples of the types of “extreme and egregious” expressions and speech devices that reach the threshold of “hatred” contemplated. The Court also affirmed that the analysis must be objective and focused not on the nature of the ideas expressed or the speaker’s (or audience’s) subjective feelings, but rather on the likely effects of the impugned speech or publication in exposing a protected group to hatred. Thus, in the normal course, satirical speech that targets a protected group, news reports about hate speech perpetrated by others, and private communications would not likely be captured by the definition. In the result, the Court modified the Taylor definition of “hatred” to be applied objectively to determine whether a reasonable person would view the impugned expression as likely to expose a person or persons to detestation and vilification on the basis of a prohibited ground of discrimination.
Turning to the constitutionality of s. 14(1)(b) of the Code, the Court affirmed the broad scope of the protections under ss. 2(a) and 2(b) of the Charter and held that the provision infringed the guarantees of freedom of religion and freedom of expression. However, such infringement was justified under s. 1 of because reducing the harmful effects and social costs of discrimination was a pressing and substantial objective and -- after the clause “ridicules, belittles or otherwise affronts the dignity of” was severed from the provision -- the limitations on Charter rights were proportionate to the legislative purpose. In particular, the Court held that hate speech does little to promote the values underlying freedom of expression; it distorts or limits the robust and free exchange of ideas by silencing the voice of the target group. Thus, while the Respondent would have been within his rights to preach against same-sex activities and to seek to convert others to their point of view, the freedom to hold and publicly express such views was properly limited by the requirement that they not be conveyed through hate speech.
In addition to its ruling on the constitutionality of hate speech prohibitions, the Court’s decision is significant for its explicit recognition of the broader context in which the publications occurred – in particular, the history of discrimination against those of same-sex orientation and the relatively recent recognition of their equality rights and protection as a vulnerable group. It is also important that the Court expressly rejected the notion – unfortunately endorsed by the Saskatchewan Court of Appeal – that criticisms purportedly aimed at sexual conduct, but only when practiced by those of a certain sexual orientation, can be framed as anything but attacks based on a prohibited ground of discrimination.
While the decision in Whatcott is no doubt controversial and remains subject to attack (the Respondent filed a motion for reconsideration on March 14, 2013), it will be regarded as a seminal case in human rights and Charter jurisprudence for many years to come. As highlighted by the media coverage leading up to and after the appeal, the public is engaged in these issues and the debate about the balancing of rights in a free society will no doubt continue elsewhere.
About the Author
Paul Jonathan Saguil is a member of the OBA Council and Equality Committee, and was also co-counsel to one of the interveners before the SCC.