Supreme Court Upholds Canada’s Hate Speech Laws in Case Involving Anti-Gay Crusader

Joseph Brean, National Post, February 27, 2013

Canada’s human rights hate speech laws are a constitutionally valid limit on freedom of expression, the Supreme Court has unanimously ruled in a landmark judgment.

The judgment in the case of William Whatcott of Saskatchewan reaffirms the Canadian approach to free speech, that it can be limited by law to address the problem of hate speech, unlike the American approach, in which speech cannot be limited except in the most extreme circumstances.

In upholding a definition of hatred first crafted by the Supreme Court in 1991, the current justices ruled that the hate speech section of Saskatchewan’s Human Rights Code addresses a pressing and substantial issue, and is proportional to its objective of “tackling causes of discriminatory activity to reduce the harmful effects and social costs of discrimination.”

The court struck out some strange language in the law, which bans speech that “ridicules, belittles or otherwise affronts the dignity of” identifiable groups—language that the Saskatchewan Human Rights Commission said was already ignored in practice.

But it upheld the controversial legal concept of speech that is “likely to expose” certain groups to hatred.

The Saskatchewan law, which is similar to others in Alberta, B.C., the Northwest Territories and federally, “appropriately balances the fundamental values underlying freedom of expression with competing Charter rights and other values essential to a free and democratic society, in this case a commitment to equality and respect for group identity and the inherent dignity owed to all human beings,” wrote Mr. Justice Marshall Rothstein for the court.

“Framing speech as arising in a moral context or within a public policy debate does not cleanse it of its harmful effect,” the judges decided.

The judges reinstated Mr. Whatcott’s conviction by a hate speech tribunal in the case of two anti-gay fliers he distributed, but overturned it in the case of two others.

As advice to future hate tribunals, the judges offered three main pieces of guidance.

First, these laws must be applied objectively, which is difficult in the case of subjective emotion, though not impossible, the judges ruled. The key is to focus on the effects of hate speech, not the intent of the speaker.

Second, hate must be understood to be the extreme manifestations of the emotion described by the words “detestation” and “vilification,” but nothing less.

“This filters out expression which, while repugnant and offensive, does not incite the level of abhorrence, delegitimization and rejection that risks causing discrimination or other harmful effects,” they wrote.

Third, tribunals must focus their analysis on the effect of the expression at issue, namely whether it is likely to expose the targeted person or group to hatred by others.

“The repugnancy of the ideas being expressed is not sufficient to justify restricting the expression, and whether or not the author of the expression intended to incite hatred or discriminatory treatment is irrelevant. The key is to determine the likely effect of the expression on its audience, keeping in mind the legislative objectives to reduce or eliminate discrimination,” they decided.

“The difficulty of establishing causality and the seriousness of the harm to vulnerable groups justifies the imposition of preventive measures that do not require proof of actual harm,” the judgement reads.

In an interview, Mr. Whatcott said he will continue his activism and pamphleting, knowing the price may be high.

A financial penalty of $17,500 is to be reinstated against him, and disregarding a tribunal order to stop spreading hate speech can lead to contempt of court and jail.

“I’m certainly weighing this, because it’s going to be at great personal cost to me,” Mr. Whatcott said. “I have to follow Christ first. What I have said is true. There’s not a sentence that I retract, so likely future fliers will be more of the same.”

He contrasted “spurious” Holocaust denial, often a target of hate tribunals, with his “medical facts” about homosexuality.

“I think it’s a dark day for freedom of religion, freedom of speech, and more profoundly for me, freedom to speak the truth. It’s a very dark day for Canada,” he said.

He said he expected a split decision.

Mark Freiman, a former deputy Attorney-General of Ontario who argued at the Supreme Court on behalf of the Canadian Jewish Congress, said the ruling was a “reaffirmation” of principles first articulated by the Supreme Court 20 years ago, in the case of hate hotline operator John Ross Taylor.

Those principles—that it is constitutionally valid to limit a fundamental right, in this case limiting speech that exposes people to hatred based on their membership in a group—were often lost in the rancorous debate over hate speech law, he said.

“I think because the debate tends to focus on what group is being maligned, we sometimes don’t actually think through what the implications are. That’s why the court is always very careful to separate the principle from any political debate. What’s involved is not a political debate, what’s involved is an attack on people based on the fact that they are members of a group. It’s not just stereotyping, but it’s demonization,” Mr. Freiman said.

He said Section 13, a similar federal law against internet hate speech, is effectively upheld constitutionally by this ruling, but could still be repealed according to a private member’s bill that is now before the Senate.

“If a government believes that these protections are not necessary, it has the right to revoke them,” he said.

Richard Moon, a University of Windsor constitutional law expert, said the court’s focus on the objective effects of hate speech, rather than the subjective intent of the speaker, is problematic.

“I think it’s still a problem not to talk about intent in this context,” he said.

He said the most extreme forms of hate speech caught by these laws are described in terms of their objective effects on a target group, even though strict proof is not required. But the less extreme forms of speech that should be protected are described in subjective terms, like “offense” or “humiliation.”

That avoids the “line-drawing problem,” he said, and the ruling effectively “pretends that the line [between hate speech and free speech] can be drawn brightly by framing the harm of extreme and less extreme forms of speech in different terms… That just avoids the problem.”

“Any decision maker [at a tribunal] has the same problem they always have,” he said.

“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 Chris Schafer, executive director of the Canadian Constitution Foundation, which intervened in the case.

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  • Daisy

    Coming soon to a theater near you…SCOTUS Chief Maoist Kagan has attacked the First Amendment in pre-supreme court decisions. Heil Kagan!

  • Stentorian_Commentator

    What’s hate? Whatever leftists say it is, sucka, and they in charge! Facts = hate. Ugh.

  • Lewis33

    Just like our Supreme Court, somebody is over-represented…”Moldaver will join Rosalie Abella, Morris Fish and Marshall Rothstein on the nine-justice court – an unprecedented number of Jewish judges, and more than even in the United States, which currently has three on its Supreme Court.” – See more at: http://www.cjnews.com/news/canada/toronto-judge-joins-supreme-court#sthash.1fnSFhqh.dpuf

  • JackKrak

    Funny how the bizarre and often provocative pronouncements of Imams & the like never get finger-waving lectures about what is and what is not protected as free speech.

    • Nathanwartooth

      What is really funny is when Muslims and homosexuals collide. It’s happened a couple of times already and it’s funny because liberals can’t figure out which group they want to side with since there aren’t any White heterosexuals in the equation.

      • Howard W. Campbell

        What will really be funny is when the muslims use the homosexuals to push through hate speech laws. When the followers of Allah gain enough political power, they will start executing their former “useful idiots”. I had the occasion to see a couple of them in an absolute quandary when told that in Afghanistan, they terminated homosexuals with extreme prejudice. (Many of these were cases of wealthy pederasts who were getting some payback, however).

      • David Ashton

        The de facto alliance between secular Leftists and anti-gay Muslims is due to the fact that Christian Nationhood is their shared enemy.

    • NorthernWind

      As long as you aren’t White, Christian, or straight then the “hate speech” laws do not apply to you. There are few to no exceptions of other groups being targeted. These aren’t laws designed to protect anyone but they are laws designed to suppress certain kinds of speech by redefining them as “hate”. The use of the word “hate” is to make them sound more legitimate.

      Free speech shouldn’t be limited except in certain cases such as threats.

  • Nathanwartooth

    Funny in cases like this they hardly ever publish what the hate facts are.

    I’m guessing since he said it was “medical facts” it just talks about the homosexual population having a higher chance of getting STDs like HIV.

    I don’t really understand how people could get so upset about it. People just hate facts that make any protected group look bad.

    • The__Bobster

      Truth is hate to those who hate hearing the truth.

    • sbuffalonative

      What I like to do is cite mainstream sources. Use The Color of Crime to help you find the facts you need but when citing facts, use the original source like the NYTs or other publications.

      If you use TCOC, your opponents will quickly dismiss your comments for citing a ‘racist’ source. But they can’t dismiss them if you use the NYTs.

      For example, I like to use black publicans for citing HIV statistics. Blacks can cite facts about themselves to elicit pity or guilt but the same facts can be used to your advantage.

      http://bjs.ojp.usdoj.gov/content/pub/pdf/htus8008.pdf

  • dd121

    Why can’t a person express his opinion that homosexuality is immoral and a crime before nature and God, without being censored for “hate” as the Marxists have redefined it?

    • bigone4u

      Because you said the word God, you have proven yourself unworthy to live in our cultural Marxist paradise. Off to the firing squad with you.

  • bigone4u

    The US now has “hate crime” laws, which I detest. “Hate speech” laws cannot be far behind, and I would not expect the current Supreme Court to rule them unconstitutional. I would guess that Mayor Bloomburg, the soda-Nazi mayor of NYC, would be quite interested in promoting hate speech legislation.

    • MikeofAges

      As appealing as the idea sometime seems, there is no place for “hate crime” enhancements to criminal laws. Criminal law suppose an improper motive for the action in question. Even without hate crime laws, it is already illegal to assault or kill someone, vandalize, steal or destroy their property, terrorize them in some other way or whatever else may be covered. If any of these action is undertaken with a proper motive (i.e. self defense), then these are not crimes.

  • Ulick

    The scary thing is that, for many hate speech laws, truth of what’s said is not a defense. Further, for many of these laws there is not an objective test of whether the statements were offensive. It simply matters that someone was offended. If so, you’re sent to the gulag for your dissenting opinion.

    • Wayne

      How true. Now what will be interesting to see how this is in fact a one-way street, just like PC, namely that conservative ideas will in no way be protected. We will see that only conservatives can hate, leftist will be found to only hold “righteous indignation” or some other baloney

  • Ulick

    ENOCH POWELL: “Have you ever wondered, perhaps, why opinions which the majority of people quite naturally hold are, if anyone dares express them publicly, denounced as ‘controversial, ‘extremist’, ‘explosive’, ‘disgraceful’, and overwhelmed with a violence and venom quite unknown to debate on mere political issues? It is because the whole power of the aggressor depends upon preventing people from seeing what is happening and from saying what they see.”

  • Ulick

    GEORGE ORWELL: “At any given moment there is an orthodoxy, a body of ideas which it is assumed that all right-thinking people will accept without question. It is not exactly forbidden to say this, that or the other, but it is ‘not done’ to say it, just as in mid-Victorian times it was ‘not done’ to mention trousers in the presence of a lady. Anyone who challenges the prevailing orthodoxy finds himself silenced with surprising effectiveness. A genuinely unfashionable opinion is almost never given a fair hearing.”

    • Unperson

      Thank you, Ulick, for sharing this quote, and also the Enoch Powell one. Mighty white of you.

      I’m pretty familiar with both Orwell and “Good Old Enoch”, yet both these extracts were new to me. I have just copy/pasted the Orwell quote into my email settings so it will now appear at the bottom of all my emails as my “signature.” I wasn’t sure if my email server would accept such a long quote as a signature (it’s definitely too long for a tweet), but it fit just fine.

  • Luca

    During the pre-Revolutionary War days there were citizens openly voicing their displeasure with taxation and King George III. They carried signs of protest and burned the King in effigy. I suppose you could say they too were engaging in hate speech.

    Canada just got a little more psychotic and a little more liberally and politically correct at the expense of truth, freedom and liberty.

    These are dangerous times, indeed. Long live freedom of speech!

  • Slightly OT and a bit dated

    Mark Steyn (often sits in for Rush) lampoons Canada’s “Pink T-Shirt” movement:

    http://fullcomment.nationalpost.com/2012/04/11/mark-steyn-pink-is-now-the-colour-of-conformity/

  • cecilhenry

    I want my freedom. And I want my freedom to form a country based on my interests and the freedom to associate with whom I choose.

    This decision is disgusting doublespeak.

    I want out.

  • Bon, From the Land of Babble

    unlike the American approach, in which speech cannot be limited except in the most extreme circumstances.

    Extreme circumstances such as this:

    High school coach Bob Grisham was suspended for 10 days without pay after students surreptitiously taped him ranting about “fat butt” Michelle Obama.

    The coach could be heard saying that ‘fat butt Michelle Obama’ is responsible for the lighter, 600-calorie school lunches. “Look at her. She looks like she weighs 185 or 190. She’s overweight.”

    http://www.dailymail.co.uk/news/article-2273836/Bob-Grisham-High-school-coach-suspended-fat-butt-Michelle-Obama-abomination-queers-rant.html#ixzz2MA3xqZ41

    Bon

  • Room101

    It’s always great fun when arguing with Leftists from Canada (Europe too) that they are merely parroting government-mandated opinions that threaten substantial penalties if an individual makes the unwise choice of posting non-government-approved heresies and blasphemies.
    They are thoroughly fenced and hemmed in by what they’re legally allowed to say, or else.

    Before long,

  • Bud

    Will they prohibit airing shows like Law and Order and CSI on the grounds that falsely showing whites as virtually the only criminals in America foments hatred against them? Prohibit “white privilege” lectures? Ban Tim Wise and Bill Maher? Django and A Time To Kill? Anti-racism is a code word for anti-white.

    • bubo

      Those shows are so laughably absurd I can’t imagine grown people with functional brains watching them. NCIS and “white 30 something” Criminal Minds as well.

      It does give white actors a job though.

  • LHathaway

    “tackling causes of discriminatory activity to reduce the harmful effects and social costs of discrimination.”

    This coming from the same government that actively discriminates against whites, and in schools teaches that whites are uniquely evil. . .

  • LHathaway

    “I like to use black publicans for citing HIV statistics. Blacks can cite facts about themselves to elicit pity or guilt but the same facts can be used to your advantage”.

    What statistics? Over 600,000 Americans have died of AIDS. We’ve never, ever, learned the race of those who’ve died.

    Those ding-darn televangelists must have been right after all. AIDS really is different from every other disease. Because sometimes, the racial angle is seemingly the most important information we need to know, and the racial breakdown of ‘new infection rates’ is constantly a focal point of the discussion. Other times, when it comes to 600,000 dead Americans, we don’t need to know their race and in fact this information is more closely guarded than the secret to making weapons of mass destruction.

  • Fr. John+

    Two things. Canada has now come under the CURSE of Almighty God. YHWH is removing His candlestick from Absuristan, one heretical act at a time.

    Gay people have no ‘dignity.’ What is dignified in anal intercourse?

  • Paleoconn

    From what I understand Whatcott spent time with patients dying of AIDS, long after their own boyfriends had abandoned them.