By Lauren Dancer-
In Saskatchewan (Human Rights Commission) v. Whatcott 2013 SCC 11the Supreme Court of Canada considered whether s 14(1)(b) of The Saskatchewan Human Rights Code which prohibits the publication 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’ infringed the rights to freedom of religion and freedom of expression contained in the Canadian Charter of Rights and Freedoms.
The case concerned four flyers that were published and distributed by the respondent, William Whatcott, on behalf of the Christian Truth Activists. The first two flyers were entitled “Keep Homosexuality out of Saskatoon’s Public Schools!” and “Sodomites in our Public Schools”. The other two flyers were a reprint of a page of classified advertisements to which handwritten comments had been added.
The Court unanimously held that while the hate speech legislation did infringe the rights to freedom of religion and freedom of expression in the Charter, the protection of vulnerable groups from discrimination was of such importance as to justify the infringement. However, the Court found that only the first two flyers constituted hate speech.
The Court, confirming earlier case law, said that three principles should be applied in interpreting prohibitions on hate speech: first, the prohibition must be applied objectively; second, “hatred” must be interpreted as being restricted to extreme manifestations of the emotion described by the words “detestation” and “vilification”; and third, courts must focus on the effect of the expression at issue, rather than the nature of the ideas expressed.
Imposing Reasonable Limits on Freedom of Expression and Religion
The Court held that s 14(1)(b) was aimed at a pressing and substantial objective: addressing the potential causes of discriminatory practices. Moreover, s 14(1)(b) was a proportionate response to this objective, as it only applied to public, not private, communications, and only applied to hate speech directed at an individual on the basis of characteristics already protected from discrimination.
However, the Court held that the additional words in s 14(1)(b) (‘ridicules, belittles or otherwise affronts the dignity of’), were not rationally connected to the goal of reducing discrimination, and were constitutionally invalid.
A Very Real Burden?
Professor Michael Plaxton has raised concerns that ‘the practical effect of the ruling is to all but strangle certain kinds of argument – particularly those made from a religious point of view.’
However, this conclusion disregards the very narrow scope the Court afforded to hate speech legislation. The Court emphasised that the repugnancy of the ideas being expressed was not sufficient to justify restricting freedom of expression. Instead, the Court focussed on extreme modes of expression, and their likely effect on vulnerable groups.
Mr Whatcott’s flyers were found to expose people of same-sex orientation to hatred by portraying them as child abusers and predators – not because of any religious element. The Court made clear that Mr Whatcott was free to preach against same-sex practices, but must not convey his views through hate speech.
Lauren Dancer is currently reading for the BCL at St John’s College, Oxford