Hate speech and freedom of expression

Summary In Saskatchewan (Human Rights Commission) v Whatcott, the Supreme Court of Canada upheld the constitutional validity of legislation that limits the freedoms of expression and religion in the context of hate speech.

Facts

Section 14(1)(b) of The Saskatchewan Human Rights Code S.S. 1979, c. S-24 prohibits the publication or display 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”. Sexual orientation is listed as a prohibited ground.

MrWhatcottpublished and distributed four flyers targeting homosexuals in the local community. Two flyers were in the form of open letters to the community entitled, respectively, “Keep Homosexuality out of Sakstoon's Public Schools!” and “Sodomites in our Public Schools”. The others were photocopies of classified advertisements over which Mr Whatcott had written “Saskatchewan's largest gay magazine allows ads for men seeking boys!”.

Complaints were made to the Saskatchewan Human Rights Commission, which then appointed the Saskatchewan Human Rights Tribunal to hear the complaints. Mr Whatcott’s position was that his actions were protected by sections 2(a) and (b) of the Canadian Charter of Rights and Freedoms. Section 2 provides that everyone has the following fundamental freedoms: “(a) freedom of conscience and religion; and (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication”.

The Tribunal held that section 14 of the Code was a reasonable restriction on Mr Whatcott's rights under the Charter. The Saskatchewan Court of Queen's Bench upheld the Tribunal's finding. This finding was reversed by the Saskatchewan Court of Appeal, and that decision was appealed to the Supreme Court of Canada,Canada's highest court.

Issues

The first issue before the Supreme Court was whether section 14(1)(b) of the Code was a reasonable restriction of Mr Whatcott's rights to freedom of religion and expression as guaranteed by sections 2(a) and (b) of the Charter. This turned on section 1 of the Charter, which provides a guarantee of “the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”. If section 14(1)(b) of the Code was valid, then a second question arose as to whether the flyers had violated section 14(1)(b).

Decision

What does “hatred” mean?

A significant part of the judgment focused on the meaning of “hatred” under section 14(1)(b) of the Code. The Court noted that the statute must be applied consistently with legislative objectives, in this case, the elimination of “the most extreme type of expression that has the potential to incite or inspire discriminatory treatment against protected groups on the basis of a prohibited ground”. The Court outlined the following definition of hatred (at [55]–[59]):

  • Hate speech prohibitions are to be applied objectively. Courts must ask whether a reasonable person, aware of the context and circumstances surrounding the expression, would view it as exposing the protected group to hatred.
  • The terms “hatred” and “hatred and contempt” should be interpreted to refer to extreme manifestations of the emotion described by the words “detestation” and “vilification”.
  • The focus of the analysis must be on the effect or likely effect of the expression on the audience, keeping in mind the legislative objective of reducing discrimination.

In outlining the above definition of hatred, the Court rejected Mr Whatcott’s criticisms of the definition of hatred in the earlier decision of Canada (Human Rights Commission) v Taylor [1990] 2 SCR 892. He had argued the Taylor definition was subjective and overly broad in its application.

Does the prohibition under section 14(1)(b) infringe a person’s right to freedom of expression?

It was conceded that section 14(1)(b) infringed the freedom of expression guarantee in section 2(b) of the Charter. Thus, the only issue was whether section 14(1)(b) could be saved by section 1 of the Charter. The Court noted that a contextual and purposive approach must be taken to any analysis under section 1.

The Court began this analysis by determining whether the objective for which section 14(1)(b) was imposed was “pressing and substantial”. The Court had no difficulty in finding that it was.

The Court then turned to proportionality, which required a lengthy and complex assessment. It involved considering whether there was a rational connection between the limit of the prohibition and the objective of the section, as well as whether the requirement of minimal impairment had been met (being that the limit minimally impairs the right). Both of these considerations involved a number of factors.

In relation to the existence of a rational connection between the prohibition and its objective, the wording of section 14(1)(b) received considerable attention. The Court accepted Mr Whatcott's criticism of the words “ridicules, belittles or otherwise affronts the dignity of” in section 14(1)(b). They were found to be constitutionally invalid and were severed from the provision. Thus, the only word in issue was “hatred”.

The Court then turned to the second element in the proportionality analysis, the requirement of minimal impairment. This involved consideration of the following:

  • whether the option chosen by the legislature is one within a range of reasonably supportable alternatives;
  • whether the provision in question is overly broad in its application; and
  • the intent requirement under section 14(1)(b), the standard of proof and availability of defences.

In this instance, section 14(1)(b) was found to be within the range of reasonable alternatives available to the legislature. The Court dismissed the argument that the “marketplace of ideas” was the appropriate place for the balancing of competing rights, noting that courts should not overplay the view that rationality will overcome all falsehoods in the unregulated marketplace of ideas. The Court also rejected the argument that hate speech should be dealt with only by the criminal law.

In considering whether section 14(1)(b) was overbroad, the Court found it to be appropriate as it captures only an extreme and marginal type of expression which contributes little to the values underlying the freedom of expression.

Turning to intent, the Court saw no reason to depart from the focus of human rights legislation on effects rather than intent. Nor did it find a reason to require proof of actual harm, noting the difficulty of establishing a causal link between the impugned statement and the resulting hatred, and the seriousness of the harm to which vulnerable groups are exposed by hate speech.

The Court also rejected the arguments that truth and sincerely held belief should be defences. In relation to the latter, the Court found that to permit sincerity of religious belief to preclude a contravention of section 14(1)(b) would derail the section 1 analysis. Additionally, the presence of sincere belief is a subjective question which is irrelevant to the objective application of the definition of hatred.

The final branch of the proportionality test required the Court to assess whether the benefits of section 14(1)(b) outweighed the deleterious effects arising from limiting freedom of expression. The Court found the protection of vulnerable groups from the harmful effects of hate speech was of such importance that it justified the minimal infringement stemming from section 14(1)(b).

Does the prohibition under section 14(1)(b) infringe a person’s right to freedom of religion?

The Court also considered whether section 14(1)(b) infringed MrWhatcott's right under section 2(a) of the Charter to freedom of religion.MrWhatcott argued that to the extent that section 14(1)(b) precludes criticism of same-sex conduct or activity, it infringed the freedom of religion under section 2(a).

The Court held that section 14(1)(b) infringed Mr Whatcott's rights under section 2(a) to the extent that his choice of expression was caught by the definition of hatred in section 14(1)(b). The Court then considered whether, pursuant to section 1 of the Charter, this infringement was reasonably justified in a free and democratic society. This raised similar considerations to those dealt with in relation to section 2(b) of the Charter.

As was the case under section 2(b), the Court found that the words “ridicules, belittles or otherwise affronts the dignity of” were not rationally connected to the legislative purpose nor did they meet the minimal impairment requirement. However, the remaining prohibition on any representation that “exposes or tends to expose to hatred” was held to be a reasonable limit on the freedom of religion and demonstrably justified in a free and democratic society.

Application of section 14(1)(b) to the respondent's flyers

Having determined the relevant legal principles, the Court considered whether the Tribunal's decision should be upheld, applying a standard of reasonableness. In relation to the open letters the Court held that the Tribunal's conclusions were reasonable and accordingly reinstated the Tribunal's decision. However, the Court held that the Tribunal's decision with respect to the classified advertisement flyers was unreasonable. Justice Rothstein agreed with the Court of Appeal that these flyers were potentially offensive but lawful contributions to the public debate on the morality of homosexuality. For example, the words “This shouldn't be legal inSaskatchewan!” were not combined with any representations of detestation and vilification delegitimising those of same-sex orientation.

Remedies

Given the Court's finding that classified advertisement flyers did not constitute hate speech and the fact that compensation was based on the receipt of the flyers by those particular individuals claiming compensation, the Court reduced the total award of compensation payable by MrWhatcottto $7,500 along with a prohibition on the distribution of the open letter flyers.

Commentary

Saskatchewan v Whatcott is the first Canadian case to have considered hate speech in some time. It clarifies the principles governing the constitutional validity of legislation that seeks to limit the freedom of expression, recognising the importance to society as a whole of the protection of vulnerable groups. The decision confirms that untruth is not a necessary component of hate speech. As Justice Rothstein noted, the fact that the publisher of the material has succeeded in turning a truthful statement into a hateful message does not make the vulnerable group any less worthy of protection. The case also rejects the distinction made by Mr Whatcott between criticism of sexual conduct and sexual orientation on the basis that if “expression targeting certain sexual behaviour is framed in such a way as to expose persons of an identifiable sexual orientation to what is objectively viewed as detestation and vilification, it cannot be said that such speech only targets the behaviour”.

Finally, the judgment is significant in that it highlights that considerable deference should be afforded to the legislature in assessing the effectiveness of legislation that aims to reduce hate speech. Justice Rothstein stated that “one should not be quick to assume that prohibitions against hate speech are ineffectual” and the “government must show that it is reasonable to suppose that the limit may further the goal, not that it will do so”.

Though the above discussion demonstrates the Court's recognition and acceptance of legislation limiting hate speech, it is important to note that Saskatchewan v Whatcott continues to impose a relatively high threshold on alleged hate speech. In order to warrant the restriction of a person’s right to freedom of religion and freedom of expression, the communication in question must amount to “detestation” and/or “vilification”. Provisions that seek to limit those rights in relation to expression that “ridicules, belittles or otherwise affronts the dignity of” will be constitutionally invalid, as was the case in relation to section 14(1)(b) of the Code.

The decision is available at: http://www.canlii.org/en/ca/scc/doc/2013/2013scc11/2013scc11.html.

Anna Pogson is a law graduate at Allens.