February 27, 2013
Saskatchewan (Human Rights Commission) v. Whatcott 2013 SCC 11
Four complaints were filed with the Saskatchewan Human Rights Commission concerning four flyers published and distributed by Mr. Whatcott. The complainants alleged that the flyers promoted hatred against individuals on the basis of their sexual orientation. 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 one another and were a reprint of a page of classified advertisements to which handwritten comments were added. The Saskatchewan Human Rights Tribunal held that the flyers constituted publications that contravened s. 14 (1)(b) of The Saskatchewan Human Rights Code:
14(1) No person shall publish or display, or cause or permit to be published or displayed, on any lands or premises or in a newspaper, through a television or radio broadcasting station or any other broadcasting device, or in any printed matter or publication or by means of any other medium that the person owns, controls, distributes or sells, any representation, including any notice, sign, symbol, emblem, article, statement or other representation:
(a) tending or likely to tend to deprive, abridge or otherwise restrict the enjoyment by any person or class of persons, on the basis of a prohibited ground, of any right to which that person or class of persons is entitled under law; or
(b) 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.
(2) Nothing in subsection (1) restricts the right to freedom of expression under the law upon any subject.
The Saskatchewan Court of Queen’s Bench upheld the tribunal’s decision. The Court of Appeal accepted that the provision was constitutional but held that the flyers did not contravene it. The Supreme Court allowed the appeal, in part.
Rothstein J. states that the definition of “hatred” as set out in Taylor, “with some modifications, provides a workable approach to interpreting the word “hatred” as it is used in legislative provisions prohibiting hate speech.” He goes on to state 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 para 51, Rothstein J., states:
The distinction between the expression of repugnant ideas and expression which exposes groups to hatred is crucial to understanding the proper application of hate speech prohibitions. Hate speech legislation is not aimed at discouraging repugnant or offensive ideas. It does not, for example, prohibit expression which debates the merits of reducing the rights of vulnerable groups in society. It only restricts the use of expression exposing them to hatred as a part of that debate. It does not target the ideas, but their mode of expression in public and the effect that this mode of expression may have.
Justice Rothstein goes on to state, at para 53, that “expression that targets a protected group in the context of satire, or news reports about hate speech perpetrated by someone else, would not likely constitute hate speech”.