Saskatchewan Human Rights Commission v Whatcott

Last updated

Saskatchewan Human Rights Commission v Whatcott
Supreme court of Canada in summer.jpg
Supreme Court of Canada
Hearing: 12 October 2011
Judgment: 27 February 2013
Full case nameSaskatchewan Human Rights Commission v William Whatcott
Citations 2013 SCC 11, [2013] 1 SCR 467
Docket No. 33676
Prior historyAppeal from 2010 SKCA 26
RulingAppeal allowed in part.
Holding
Section 14(1)(b) of the Saskatchewan Human Rights Code infringes both sections 2(a) and 2(b) of the Canadian Charter of Rights and Freedoms but is saved by section 1 of the Charter.
Court membership
Chief Justice: Beverley McLachlin
Puisne Justices: Ian Binnie, Louis LeBel, Marie Deschamps, Morris Fish, Rosalie Abella, Marshall Rothstein, Thomas Cromwell
Reasons given
Unanimous reasons byRothstein
Binnie and Deschamps took no part in the consideration or decision of the case.

Saskatchewan Human Rights Commission v Whatcott is a Canadian constitutional law case concerning the constitutionality of the hate speech provision in Saskatchewan's human rights legislation.

Contents

Background

Four complainants brought an application to the Saskatchewan Human Rights Commission after receiving flyers entitled "Keep Homosexuality out of Saskatoon's Public Schools!" and "Sodomites in our Public Schools" from Christian anti-homosexual activist Bill Whatcott. [1] The complainants alleged a violation of section 14 of The Saskatchewan Human Rights Code (SHRC), which prohibits "publication or display of any representation 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". [2] Sexual orientation was one such prohibited ground. A Saskatchewan human rights tribunal heard the case, holding that the contents of each flyer objectively contravened section 14 of the SHRC, and that the provision did not unreasonably restrict Whatcott's section 2(b) Charter rights. [3] The Tribunal prohibited Whatcott from further distributing the flyers and awarded compensation to the complainants. [4]

Upon appeal to the Saskatchewan Court of Queen's Bench in 2007, the appeals judge upheld the Tribunal's findings with respect to the violation of section 14 of the SHRC and its constitutionality. [5] In 2010, the case was appealed to the Saskatchewan Court of Appeal. The court held that the tribunal and the trial judge had erred by considering only certain phrases from the flyers and that the flyers were not a prohibited hate publication. [6]

Reasons of the SCC

Twenty-six third parties acted as interveners during oral hearings in 2011. [7] Rothstein J wrote the reasons for a unanimous Supreme Court.

Defining "hatred"

Rothstein J began by considering the definition of "hatred" as contemplated in R v Taylor, where the Supreme Court had found that "hatred" as used in the Canadian Human Rights Act "refers to unusually strong and deep-felt emotions of detestation, calumny and vilification". [8] Rothstein J identified two primary difficulties arising alongside the Taylor hatred doctrine; namely, that hatred is inherently subjective, which could conflict with the court's attempt at objectivity, and that it could lead to a "mistaken propensity to focus on the ideas being expressed, rather than on the effect of the expression". [9] In response to these criticisms, Rothstein J adapted the Taylor standard by holding that it should be conducted objectively, that "hatred" should be interpreted as "extreme manifestations of the emotion described by the words 'detestation' and 'vilification'", [10] a threshold which would not include merely repugnant or offensive expression, and that tribunals should consider the effect of the expression, not its inherent offensiveness. [11]

Freedom of expression analysis

Rothstein J next analyzed the constitutionality of section 14(1)(b) of the SHRC, applying the correctness standard of review. [12] Rothstein J held that the expression was protected by section 2(b) of the Charter, and proceeded to conduct a section 1 Oakes test. Rothstein J described the purpose of the legislation as "reducing the harmful effects and social costs of discrimination by tackling certain causes of discriminatory activity", [13] noting its emotional and societal effects on vulnerable groups [14] and its ability to impede democratic discussion. [15] Thus Rothstein J found that the provision was prescribed by law and that its objective was pressing and substantial.

Rational connection

Next, Rothstein J considered whether the section 14(1)(b) limitation on free expression was rationally connected to the legislation's purpose. Rothstein J wrote that such expression "must seek to marginalize the group by affecting its social status and acceptance in the eyes of the majority" [16] in order for a rational connection to exist. Since section 14(1)(b) only captured hate speech communicated in public, and since it applied only to expression based on existing prohibited grounds of discrimination, [17] Rothstein J found that the provision was rationally connected to the legislative objective. However, Rothstein J found that the wording "ridicules, belittles or otherwise affronts the dignity of" contained in section 14(1)(b) of the SHRC was constitutionally invalid, since the threshold set by that language was too low and thus did not align with the legislation's purpose. [18] The offending words were removed from the section. [19]

Minimal impairment

Rothstein J then considered whether the provision minimally impaired the impugned right to freedom of expression. Rothstein J answered affirmatively, holding that alternative measures, including a "marketplace of ideas" and an expanded role for the criminal law in hate speech cases, would not achieve the legislative objective, or would only achieve it ineffectively. [20] Rothstein J held also that the provision was not overbroad once the language "ridicules, belittles or otherwise affronts the dignity of" was removed. [21]

Rothstein J rejected Whatcott's argument that the expression at issue was protected because it was political in nature:

[120] In my view, s. 14 of the Code provides an appropriate means by which to protect almost the entirety of political discourse as a vital part of freedom of expression. It extricates only an extreme and marginal type of expression which contributes little to the values underlying freedom of expression and whose restriction is therefore easier to justify.

Rothstein J also rejected Whatcott's submission that his expression was protected because it differentiated between homosexual orientation and activity. Instead, Rothstein J held that "attacks on conduct [that is a crucial aspect of the identity of the vulnerable group] stand as a proxy for attacks on the group itself". [22] Rothstein J also rejected arguments that the SHRC was overbroad because it did not require proof of intent or harm and because it did not offer any defences. Rothstein J instead wrote that the analysis must focus on the effects of the impugned expression, not the communicator's intent, [23] that the legislature is "entitled to a reasonable apprehension of societal harm as a result of hate speech", [24] and that the absence of defences in the SHRC was not determinative; truthful statements or sincerely held beliefs do not affect the analysis, which must be undertaken from an objective standpoint. [25]

Benefits and deleterious effects

Rothstein J found that the benefits of the section 14(1)(b) prohibition on hate speech outweighed the "detrimental effect of restricting expression which, by its nature, does little to promote the values underlying freedom of expression". [26]

Freedom of religion analysis

Next, Rothstein J considered whether section 14(1)(b) of the SHRC infringed the freedom of religion enshrined in section 2(a) of the Charter. Rothstein J concluded that section 2(a) had been infringed because Whatcott had a sincere religious belief and since section 14(1)(b) would significantly interfere with his ability to communicate his sincerely held beliefs. [27] However, Rothstein J found that the infringement was justified under section 1 of the Charter, but again held that the wording "ridicules, belittles or otherwise affronts the dignity of" was unconstitutional. [28]

Application

Rothstein J held that the standard of review of the Tribunal's decision was reasonableness, based on the Court's reasoning in Dunsmuir v New Brunswick . [29] Rothstein found that the Tribunal's decision to read certain parts of the flyer in isolation was reasonable, since "even one phrase or sentence... found to bring the publication, as a whole, in contravention of the Code... precludes publication of the flyer in its current form". [30] Rothstein J also held that the Tribunal's application of section 14(1)(b) to two of Whatcott's flyers (Flyers D and E) was reasonable, since those flyers portrayed the targeted group "as a menace that could threaten the safety and well-being of others", [31] objectively depicted them as "inferior [and] untrustworthy", [32] "[vilified] those of same-sex orientation by portraying them as child abusers or predators", [33] and called for discrimination against the portrayed group. [34]

However, Rothstein J found that the Tribunal's decision with respect to two other flyers (Flyers F and G) was unreasonable, since a reasonable person would not have found them to subject homosexuals to "detestation" and vilification". [35] In particular, Rothstein J noted that a Bible passage that Whatcott had quoted in Flyers F and G was not hateful expression, writing that "it would only be unusual circumstances and context that could transform a simple reading or publication of a religion’s holy text into what could objectively be viewed as hate speech". [36]

Remedy

Rothstein J reinstated the compensation for those complainants who had received flyers which were in contravention of the SHRC. [37]

Impact

Reaction to the Supreme Court's decision was mixed. Andrew Coyne called Whatcott a "calamitous decision", criticizing the Supreme Court's loose definition of "harm" and Rothstein J's finding that "truth may be used for widely disparate ends". [38] Charlie Gillis, writing for Maclean's, described the decision as a "missed opportunity to erect robust legal protections around a bedrock Canadian value". [39]

Pearl Eliadis, writing for the Montreal Gazette, called the decision "reasonable and balanced" and found that it would "provide comfort to those concerned about being found liable for "offending" others". [40]

Related Research Articles

<i>Canadian Human Rights Act</i> Canadian federal statute protecting human rights

The Canadian Human Rights Act is a statute passed by the Parliament of Canada in 1977 with the express goal of extending the law to ensure equal opportunity to individuals who may be victims of discriminatory practices based on a set of prohibited grounds.

<i>Vriend v Alberta</i> Supreme Court of Canada case

Vriend v Alberta [1998] 1 S.C.R. 493 is an important Supreme Court of Canada case that determined that a legislative omission can be the subject of a Charter violation. The case involved a dismissal of a teacher because of his sexual orientation and was an issue of great controversy during that period.

<span class="mw-page-title-main">Freedom of religion in Canada</span> Overview of religious freedom in Canada

Freedom of religion in Canada is a constitutionally protected right, allowing believers the freedom to assemble and worship without limitation or interference.

<i>R v Keegstra</i> Supreme Court of Canada case on wilful promotion of hatred

R v Keegstra, [1990] 3 SCR 697 is a freedom of expression decision of the Supreme Court of Canada where the court upheld the Criminal Code provision prohibiting the wilful promotion of hatred against an identifiable group as constitutional under the freedom of expression provision in section 2(b) of the Canadian Charter of Rights and Freedoms. It is a companion case to R v Andrews.

<i>Prostitution Reference</i> Supreme Court of Canada case

Reference re ss. 193 & 195.1(1)(c) of the Criminal Code (Man.) [1990] 1 S.C.R. 1123, commonly known as the Prostitution Reference, is a decision of the Supreme Court of Canada on the right to freedom of expression under section 2(b) of the Canadian Charter of Rights and Freedoms, and on prostitution in Canada. Manitoba's Appeal Court had ruled the legislation violated the guarantee of freedom of expression in the Charter of Rights and Freedoms, by constraining communication in relation to legal activity. The case was referred to the Supreme court.

William Gary Whatcott, known as Bill Whatcott, is a Canadian social conservative activist who campaigns against homosexuality and abortion. The dramatic nature of his activities have attracted attention from the media, including an appearance on The Daily Show. He has also run for political office in Toronto, Saskatchewan and Edmonton.

The Constitution of India provides the right of freedom, given in article 19 with the view of guaranteeing individual rights that were considered vital by the framers of the constitution. The right to freedom in Article 19 guarantees the freedom of speech and expression, as one of its six freedoms.

Human rights complaints against Maclean's magazine were filed in December 2007 by Mohamed Elmasry of the Canadian Islamic Congress with the Canadian Human Rights Commission, the British Columbia Human Rights Tribunal and the Ontario Human Rights Commission. Maclean's magazine was accused of publishing eighteen Islamophobic articles between January 2005 and July 2007. The articles in question included a column by Mark Steyn titled "The Future Belongs to Islam", an excerpt from a book written by Steyn.

Section 13 of the Canadian Human Rights Act was a provision of the Canadian Human Rights Act dealing with hate messages. The provision prohibited online communications which were "likely to expose a person or persons to hatred or contempt" on the basis of a prohibited ground of discrimination. Complaints under this section were brought to the Canadian Human Rights Commission and if the Commission found sufficient evidence, the case would be heard by the Canadian Human Rights Tribunal. The provision was used successfully in several cases against white supremacists, anti-Semitic, and neo-Nazi groups. However, it was repealed by the Parliament of Canada in June 2014, following a Canada-wide campaign when a group of young Muslim law students, for the first time in Canada, used the human rights system to challenge alleged Islamophobia by right-wing columnists, including Ezra Levant and Mark Steyn. The Ontario Court of Appeal would describe the campaign in libel proceedings against Ezra Levant in relation to events that took place from 2007 in Awan v. Levant.

<span class="mw-page-title-main">Freedom of speech by country</span> National breakdowns of freedom of speech

Freedom of speech is the concept of the inherent human right to voice one's opinion publicly without fear of government censorship or punishment. "Speech" is not limited to public speaking and is generally taken to include other forms of expression. The right is preserved in the United Nations Universal Declaration of Human Rights and is granted formal recognition by the laws of most nations. Nonetheless, the degree to which the right is upheld in practice varies greatly from one nation to another. In many nations, particularly those with authoritarian forms of government, overt government censorship is enforced. Censorship has also been claimed to occur in other forms and there are different approaches to issues such as hate speech, obscenity, and defamation laws.

<span class="mw-page-title-main">Human rights in Canada</span> Overview article

Human rights in Canada have come under increasing public attention and legal protection since World War II. Prior to that time, there were few legal protections for human rights. The protections which did exist focused on specific issues, rather than taking a general approach to human rights.

<span class="mw-page-title-main">Hate speech laws in Canada</span> Canadian laws relating to hate speech

Hate speech laws in Canada include provisions in the federal Criminal Code, as well as statutory provisions relating to hate publications in three provinces and one territory.

<span class="mw-page-title-main">Freedom of expression in Canada</span>

Freedom of expression in Canada is protected as a "fundamental freedom" by section 2 of the Canadian Charter of Rights and Freedoms, however, in practice the Charter permits the government to enforce "reasonable" limits censoring speech. Hate speech, obscenity, and defamation are common categories of restricted speech in Canada. During the 1970 October Crisis, the War Measures Act was used to limit speech from the militant political opposition.

The "comparator group" is an element that has been used in Canadian jurisprudence to analyze statutory human rights complaints and claims pursuant to section 15 of the Canadian Charter of Rights and Freedoms. Section 15 guarantees equality rights and the right to be free from discrimination on certain enumerated grounds.

<i>Canadian National Railway Co v Canada (AG)</i> Supreme Court of Canada case

Canadian National Railway Co v Canada (AG), 2014 SCC 40 is a significant case from the Supreme Court of Canada in the area of Canadian administrative law, focusing on whether the standard of review framework set out in Dunsmuir v. New Brunswick applies to decisions of the Governor in Council of Canada, and whether it has authority to vary or rescind an administrative tribunal decision on questions of law or jurisdiction.

<i>Canadian Artists Representation v National Gallery of Canada</i> Supreme Court of Canada case

Canadian Artists' Representation v National Gallery of Canada, 2014 SCC 42 is a landmark case of the Supreme Court of Canada on the nature of bargaining in good faith. It also has an effect on the nature of negotiations for royalties that may be due to artists under Canada's Copyright Act.

<i>R v Spencer</i> Supreme Court of Canada case

R v Spencer, 2014 SCC 43 is a landmark decision of the Supreme Court of Canada on informational privacy. The Court unanimously held that internet users were entitled to a reasonable expectation of privacy in subscriber information held by Internet Service Providers. And as such, police attempts to access such data could be subject to section 8 of the Charter of Rights and Freedoms.

<i>R v Nur</i> Supreme Court of Canada case

R v Nur, 2015 SCC 15, is a Canadian constitutional law case concerning the constitutionality of mandatory minimum sentences for firearm offences in Canada.

<i>Mouvement laïque québécois v Saguenay</i> (City) Supreme Court of Canada case

Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16 is a Canadian administrative law case, dealing with the effect of a prayer held at the beginning of a municipal council session on the state's duty of neutrality in relation to freedom of conscience and freedom of religion. The decision upheld an earlier decision by the Quebec Human Rights Tribunal, ordering the Saguenay council to stop recitation of the prayer and rendering the by-law supporting such prayer inoperable, as well as imposing $30,000 in compensatory and punitive damages. The ruling has implications for all levels of government in Canada, and several cities announced changes to drop the use of prayers before municipal meetings.

<span class="mw-page-title-main">Russell Brown (judge)</span>

Russell S. Brown is a puisne justice of the Supreme Court of Canada. He was nominated by Prime Minister Stephen Harper to replace outgoing justice Marshall Rothstein and has been serving in the role since August 31, 2015. Prior to his appointment to the Supreme Court, he was a justice at the Alberta Court of Appeal, and before that a law professor at the University of Alberta.

References

  1. ↑ "Top court upholds key part of Sask. anti-hate law", CBC, February 27, 2013.
  2. ↑ Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11, [2013] 1 SCR 467, par. 3.
  3. ↑ SCC, par. 9–10
  4. ↑ SCC, par. 11
  5. ↑ SCC, par. 13–14
  6. ↑ SCC, par. 15–18
  7. ↑ Bowal, Peter; McKay, Colin (7 July 2014). "The Whatcott Case: Balancing Free Speech and Social Harmony". LawNow. CLPLEA. Retrieved 15 May 2015.
  8. ↑ SCC, par. 24
  9. ↑ SCC, par. 31
  10. ↑ SCC, par. 57
  11. ↑ SCC, par. 56–59
  12. ↑ SCC, par. 60–61
  13. ↑ SCC, par. 71
  14. ↑ SCC, par. 74
  15. ↑ SCC, par. 75
  16. ↑ SCC, par. 80
  17. ↑ SCC, par. 84
  18. ↑ SCC, par. 92
  19. ↑ SCC, par. 94–95
  20. ↑ SCC, par. 102–105
  21. ↑ SCC, par. 111
  22. ↑ SCC, par. 124
  23. ↑ SCC, par. 127
  24. ↑ SCC, par. 135
  25. ↑ SCC, par. 144
  26. ↑ SCC, par. 148
  27. ↑ SCC, par 154–156
  28. ↑ SCC, par. 164
  29. ↑ SCC, par. 167–168
  30. ↑ SCC, par. 175
  31. ↑ SCC, par. 187
  32. ↑ SCC, par. 188
  33. ↑ SCC, par. 189
  34. ↑ SCC, par. 192
  35. ↑ SCC, par. 196
  36. ↑ SCC, par. 199
  37. ↑ SCC, par. 205
  38. ↑ Coyne, Andrew (27 February 2013). "Andrew Coyne: Supreme Court twists the Charter of Rights in its haste to limit free speech". National Post . Retrieved 15 May 2015.
  39. ↑ Gillis, Charlie (27 February 2013). "Whatcott fallout: the Supreme Court upholds protections we don't need". Maclean's . Retrieved 15 May 2015.
  40. ↑ Eliadis, Pearl (27 February 2013). "Opinion: Supreme Court decision in Whatcott case is fair and balanced". Montreal Gazette . Retrieved 15 May 2015.
This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.