William Whatcott

The Supreme Court of Canada handed down a lengthy but fascinating decision today in the case of Saskatchewan (Human Rights commission) v. William Whatcott.  The case is the latest foray by the Supreme Court into the area of restrictions on hate speech in Canada.  Suprisingly, the Court reached a unanimous decision, concluding that restrictions on hate speech in Canada continue to be legal if they are targeted at expression which exposes groups to hatred on the basis of characteristics listed in human rights legislation or Canada’s Charter of Rights and Freedoms.  I say suprisingly, not because of the result, but because the Supreme Court has been issuing increasingly complex decisions with different Court members holding different (and often diametrically opposite) opinions.

The Court also held that restrictions on expression which “ridicule, belittle or affront the dignity” of minority groups on the basis of personal characteristics will not be upheld.  In other words, Canadians are free to make fun of other people – and even “ridicule, belittle and affront the dignity” of others, without worrying about violating hate speech legislation.  But expression which exposes others to hatred or which is intended to promote hatred can be legally restricted or penalized.

In this case, the issue centred on a series of posters prepared by Mr. Whatcott which attacked homosexuals.  Some of the language used by Whatcott in his posters was laden with biblical references, which was one of the main bases on which Mr. Whatcott defended his expression.  Other posters were found to have painted homosexuals as “carriers of disease, sex addicts, pedophiles and predators who proselytize vulnerable children and cause their premature death.”  In total, four posters were the subject of human rights complaint un der the Saskatchewan Human Rights Code.  The case made its way up to the Supreme Court.  Two of the posters were ultimately have found to have crossed the line and advocated hatred of homosexuals.  Restrictions on this type of expression, contained in the Saskatchewan legislation were upheld by the Court.

The Supreme Court decided that two other posters did not violate the hate law legislation – as the Supreme Court recrafted it.  The Court effectively hived off part of the legislation and eliminated a ban on certain types of expression.  The two posters that advocated hatred were found to have violated the legislation whereas the other posters, as offensive as they were, did not violate the legislation.  Although they may have “affronted the dignity” of homosexuals, they did not advocate hatred.

In making its decision, the Supreme Court first ruled that all of the restrictions on hate speech violated the Charter‘s protections of freedom of expression and of freedom of religion.   However, the Court went on to hold that some of the restrictions were demonstrably justified in a free and democratic society, as provided for in section 1 of the Charter.  This two step process is a unique part of the Canadian Charter, which first requires courts to determine whether there has been a violation of a right and then asks courts to determine whether the violation (if there has been one) is justifiable in a free and democratic country.

A few principles emerge from this decision:

1. “Freedom of Religion” does not give religious groups carte blanche to promote hatred against minority groups.   While the Court held that religious groups can vocally express their religious-based opposition to homosexuality, they are are not free to promote hatred against homosexuals.  Admittedly, even after reading this decision, this is still a difficult line to draw.  The Court specifically stated that it would not accept the argument that the hate speech in question was only directed against “homosexual acts”  and not homosexuals since the targeted behaviour is “integral to and inseparable from the indentiy of the group.”  This principle would likely extend to other minority groups, including other religious minorities.   That is to say, a religious group could not use “freedom of religion” to defend the spread of hatred against another religious group.  Further, it could not save such hateful expression by claiming that it was only aimed at “actions” that were integral components of that other group’s religious belief system.

2.  The Court sent a strong message that equality and respect for the inherent dignity owed to all human beings are values in Canada that will be at leaset as important or even outweigh freedom of expression or freedom of religion in certain cases.  This is not to say that freedom of expression and freedom of religion have been dealt a crippling blow.  The Court was dealing with extreme examples of the promotion of hatred.  It still left available a wide range of noxious expression and religious activity (even offensive religious activity) that will not be challengable under hate speech laws.

The Supreme Court has spoken with a unanimous voice and has bolstered some of its previous jurisprudence in the area of restrictions on hate speech.  It has also reinforced its previous rulings that gays  and lesbians in Canada are as entitled to protection from hate speech as any other protected group.  This decision is likely to be applauded by the LGBT community and by other groups that have been the targets of hate speech in Canada, including Jewish and Muslim Canadians as well as other ethnic groups.  At the same, the decision will be attacked by those who place freedom of expression above any other Charter rights and oppose any restrictions on expressive activity.