Canada High Court Rules Anti-Gay Pamphlets Were Hate Speech

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February 28, 2013 10:02 PM EST

In a ruling pitting freedom of expression against freedom of religion, the Supreme Court of Canada on Wednesday upheld Canada's hate speech laws, while striking down part of the Saskatchewan Human Rights Code.

The top court pared down the law, ruling that an expression that "ridicules, belittles or otherwise affronts the dignity of," as the Saskatchewan code sets out, "does not rise to the level of ardent and extreme feelings constituting hatred." That part of Saskatchewan's law goes too far and was ruled unconstitutional.

The case, Saskatchewan Human Rights Commission v. Whatcott, (link.reuters.com/mus36t) involves William Whatcott, a Saskatchewan man who distributed, in 2001 and 2002, four flyers against homosexuality. Four people complained to the Saskatchewan Human Rights Commission, which then sued Whatcott.

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 identical to each other and were a reprint of a page of classified advertisements to which handwritten comments were added, according to the ruling.

In its 6-0 decision, the Supreme Court ruled that two of the flyers constituted hate speech, thereby reinstating Whatcott's conviction by the Saskatchewan Human Rights Tribunal.

"The tribunal's conclusions with respect to the first two flyers were reasonable. Passages of these flyers combine many of the hallmarks of hatred identified in the case law," Justice Marshall Rothstein wrote on behalf of the court.

"The expression portrays the targeted group as a menace that threatens the safety and well-being of others, makes reference to respected sources in an effort to lend credibility to the negative generalizations, and uses vilifying and derogatory representations to create a tone of hatred."

Lucas Lung, a partner at Lerners LLP, says an important point of the ruling is even though freedom of expression was the focal point, one shouldn't lose sight of the fact that there is an important equality right being protected here.

He points to a paragraph from the ruling, which states: "In my view, the criticisms point to two conceptual challenges to achieving a consistent application of a prohibition against hate speech. One is how to deal with the inherent subjectivity of the concept of 'hatred.' Another is a mistaken propensity to focus on the ideas being expressed, rather than on the effect of the expression."

Lung says the court did not depart from its previous rulings involving hate speech.

"The analysis appears to be very similar to the approach that was taken in Taylor.(link.reuters.com/nus36t) It recognizes that hate speech prohibitions are constitutional and they can be read down. It applied the Taylor analysis, modified it slightly, but basically applied that analysis to the Saskatchewan provision," Lung tells Canadian Lawyer.

Following its 1990 ruling in Taylor, the court maintained that "the term 'hatred' contained in a legislative hate speech prohibition should be applied objectively to determine whether a reasonable person, aware of the context and circumstances, would view the expression as likely to expose a person or persons to detestation and vilification on the basis of a prohibited ground of discrimination."

At a press conference, David Arnot, chief commissioner of the Saskatchewan Human Rights Commission, said removing those words "ridicules, belittles or otherwise affronts the dignity of" from the legislation won't have much of an impact since they haven't been applied since they were struck down by the Saskatchewan Court of Appeal (Human Rights Commission) v. Bell in 1994 (canlii.ca/t/1nqr5).

In addition, Arnot says he is extremely pleased with the Supreme Court's decision, adding "words have power, and this power demands that each of us uses this power responsibility and within reasonable limits."

In his analysis (link.reuters.com/sus36t), Bennett Jones partner Ranjan Agarwal said the court "held that the freedom of religion (Whatcott argued that his flyers were motivated by his sincere religious beliefs) and religious speech has broad protection like the freedom of expression. But, at the same time, that speech cannot expose vulnerable groups to detestation and vilification, even if it is sincerely held."

"The SCC (Supreme Court of Canada) seized this opportunity to clarify and narrow the understanding of 'hate speech' as set out in its 1990 decision in the Taylor case," explains Don Hutchinson, vice president and general counsel with The Evangelical Fellowship of Canada, an intervener in the case. "In doing so the court affirmed that Supreme Court of Canada precedent, even a 4-3 split from 20 years ago, remains binding law in Canada. This is vital to the stability of Canadian law."

The right-leaning Canadian Constitution Foundation says the Whatcott decision "slams door shut on free speech" in Canada.

"The Supreme Court missed an excellent opportunity to rein in the power of various human rights commissions and tribunals to censor the expression of unpopular beliefs and opinions," said CCF executive director and lawyer Chris Schafer in a statement after the ruling.

"While the Canadian Constitution Foundation does not take any position on the content of the materials distributed by Mr. Whatcott, it believes that it is the right of every Canadian to freely and peacefully express themselves without fear of censorship or persecution by the state."

Somewhat oddly, the court appended Whatcott's pamphlets to its decision. This caused some commentators on Twitter to call it "supremely ironic" that the top court is redistributing what it deems to be hate speech to an even greater audience than it would have reached before.

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