Commercial Litigation and Dispute Resolution Blog

In the realm of Canadian human rights law, few topics have generated as much discussion and controversy in recent years as the “hate law” provisions found in many human rights statutes.  These provisions typically prohibit the publication of statements that have or are likely to have the effect of exposing a person or class of persons to ridicule and hatred.

Defenders of these provisions argue that they are necessary in order to protect vulnerable persons and groups in our society whereas critics decry them as an unwarranted attack on freedom of expression. The debate illustrates the challenge that often arises in constitutional litigation where the court is called upon to strike a balance between competing rights and values.

In its recent decision in Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11, the Supreme Court provides some guidance as to how this delicate balance will be struck.

The case involves complaints filed with the Saskatchewan Human Rights Commission concerning four flyers published and distributed by William Whalcott, an avowed anti-homosexual activist.  Two of the flyers were entitled “Keep Homosexuality out of Saskatoon’s Public Schools” and “Sodomites in our Public Schools.”  The other two flyers in issue were copies of personal ads published in local newspapers with anti-homosexual handwritten notes added.  Four individuals who received the flyers at their homes filed complaints with the Commission alleging that the flyers promoted hatred against them because of their sexual orientation, in violation of the Saskatchewan Human Rights Code.

The relevant provision of the Code, section 14(1)(b), which is similar to provisions found in other provincial human rights statutes, prohibits the publication of any statement or 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.”

A tribunal appointed by the Commission to hear the matter found that the flyers violated s. 14(1)(b).  The tribunal further held that section 14 of the Code was a reasonable limit on Mr. Whalcott’s freedom of expression and freedom of religion as guaranteed by ss. 2(a) and (b) of the Canadian Charter of Rights. The Saskatchewan Court of Queen’s Bench upheld the tribunal decision.  On further appeal to the Saskatchewan Court of Appeal, the Court agreed that the provision of the Code was constitutional but found that the flyers did not contravene it.

Three issues were before the Supreme Court of Canada: first, does s. 14(1)(b) of the Code violate ss. 2(a) and (b) of the Charter; second, if so, is the infringement demonstrably justified under s. 1 of the Charter; and third, if the provision is constitutionally sound, was the tribunal correct in finding that the flyers violate that provision.

The Court had little difficulty in finding that s. 14 offends both ss. 2(a) and (b) of the Charter.  The types of statements in issue, while repugnant, nonetheless have expressive content that brings them within the freedom of expression guarantee.  To the extent that such expression is motivated by sincerely held beliefs, it will fall within the guarantee of freedom of religion and conscience in s. 2(a).

The issue thus fell to be decided under s. 1 of the Charter.  The section 1 analysis requires the government, in seeking to justify an otherwise offensive law, to establish that it is a proportionate response to a pressing and substantial societal concern.  As did the courts below, the Supreme Court found that section 14 could be saved, subject to one exception that I will return to below.

The Court found that the objective of the legislation is pressing and substantial in that it is aimed at addressing the causes of discriminatory activity in order to reduce the harmful effects and social costs of such discrimination.  The Court also held that the legislation is a proportionate response to that objective in that it only prohibits public communication of hate speech, rather than private expressions, and it only applies to speech that rises to the level of subjecting a whole group or class of persons to hatred rather than simply impugning an individual. 

Further, the Court noted the distinction between the type of speech in issue and other forms of speech, for example political speech, that lies closer to the core of what the freedom expression guarantee is intended to protect:

“Political expression contributes to our democracy by encouraging the exchange of opposing views.  Hate speech is antithetical to this objective in that it shuts down dialogue by making it difficult or impossible for members of the vulnerable group to respond, thereby stifling discourse.”

The one exception found by the Court was that the phrase “ridicules, belittles or otherwise affronts the dignity of” as found in s. 14 could not be saved in that such language did not rise to the same level as language that promotes hatred.

On the strength of its findings on the constitutional issues, the Supreme Court restored the tribunal’s decision with respect to the first two flyers but found that, with respect to the second two flyers, while the statements made were offensive they did not rise to the level of promoting hatred.

Critics of the hate speech legislation will no doubt be unhappy with the Court’s decision in that it maintains certain limits on free expression which they consider wholly unacceptable.  Certainly, there is some merit to the view that the decision does not adequately make clear what types of expression will cross the line from being merely offensive to constituting prohibited hate speech nor does it clarify how the alleged harm resulting from impugned speech will be measured.  Further, the Courts’ ruling that the sincerity of the underlying beliefs, including religious beliefs, that give rise to the offensive speech will not constitute a defence has also caused considerable consternation amongst free speech advocates.

That said, the Court has addressed one of the most significant criticisms of the legislation namely that it prohibits speech that has the effect of merely offending sensibilities or hurting people’s feelings.  At a minimum, by striking out the references to “ridicule” and to “affronts to dignity” the Court has attempted to narrow the scope of the legislation and to restrict its application to instances in which the offending speech is likely to result in actual hatred towards vulnerable groups.