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.