The Supreme Court of Canada struck down a part of Saskatchewan’s hate legislation, but left intact the section that makes it an offence to promote hatred against identifiable groups.
In a unanimous 6-0 decision released last week, the court ruled that a section of the Saskatchewan Human Rights Code that prohibited expression that “ridicules, belittles or otherwise affronts the dignity” of protected groups is invalid. It “does not rise to the level of ardent and extreme feeling constituting hatred required to uphold the constitutionality of a prohibition of expression in human rights legislation,” wrote Justice Marshall Rothstein for the court.
The judges ruled, however, that once those words were struck, the remaining section of the code remained valid, even though it infringed the Charter’s Section 2 right to freedom of expression. Restricting that right was demonstrably justifiable in a free society as a means of preventing hate speech and protecting minority groups, the Supreme Court ruled.
The decision arose out of a case involving William Whatcott, who was brought before the Saskatchewan Human Rights Commission (SHRC) after four complaints alleged he distributed flyers in 2001 and 2002 that promoted hatred against homosexuals.
The SHRC was appealing a 2010 ruling by the Saskatchewan Court of Appeal that overturned a human rights tribunal finding against Whatcott.
The Supreme Court threw out complaints based on two of the flyers, while upholding the other two. He was ordered to pay penalties amounting to $7,500, down from $17,500 ordered by a provincial human rights tribunal.
The court’s decision was applauded by Jewish organizations that have long advocated retention of provincial anti-hate laws. (The ruling did not affect the Criminal Code’s anti-hate provisions.)
B’nai Brith Canada’s League for Human Rights, which was an intervener in the case, said the court “struck the right balance between freedom of speech and hateful speech – the first is to be respected, the latter is to be condemned when it crosses the line.”
Canadian Jewish Congress, which also intervened in the case, is now defunct, but its successor organization, the Centre for Israel and Jewish Affairs (CIJA), also supported the decision.
The Supreme Court “narrowed the definition of actionable speech,” said CIJA CEO Shimon Fogel.
“They confirmed that there’s speech that leads to vilification and hatred of particular groups, which have to be protected, but they narrowed the definition of what constitutes that speech,” Fogel said.
“I think it’s an important development. We support the proposition that there are limits to free speech and there is a connection between physical harm directed against a particular community and language used to vilify them,” he said.
A very different perspective was offered by Sun News broadcaster Ezra Levant.
“The Supreme Court of Canada has weakened freedom of religion and freedom of speech in favour of the counterfeit human right not to be offended,” Levant told The CJN.
“This Supreme Court case is a dangerous step backwards for personal freedom, and it opens the door wider to the political abuse of Canada’s erratic human rights commissions. The fact that three of the six judges in the case were Jewish is an extra disappointment for the Jewish and pro-Israel community that has recently been victimized by these censorship laws,” Levant said.
“This ruling is like a starter pistol for a dozen more nuisance suits attacking writers like Mark Steyn and me for criticizing radical Islam – a view that could have pro-Israel activists hauled before courts for the crime of ‘hate.’”
Levant, former publisher of the defunct Western Standard magazine, was brought before the Alberta Human Rights Commission in 2008 after he published pictures of the Islamic prophet Mohammed. He has been a fierce critic of human rights commissions and the legislation that establishes them.
Referring to the Whatcott case, he said, “This ruling is especially frightening, given that it confirms that traditional legal defences – like truth, fair comment, religious belief and public interest – do not apply to hate speech cases.”
In the judgment, the Supreme Court addressed the argument that speech was being restricted, even though no actual harm or discrimination was demonstrable. “Such an approach ignores the particularly insidious nature of hate speech,” the court ruled. “The end goal of hate speech is to shift the environment from one where harm against vulnerable groups is not tolerated to one where hate speech has created a place where this is either accepted or a blind eye is turned.”
“A court is entitled to use common sense and experience in recognizing that certain activities, hate speech among them, inflict societal harms.”
And in rejecting the defence of truthful expression, the court stated, “Not all truthful statements must be free from restriction. Truthful statements can be interlaced with harmful ones or otherwise presented in a manner that would meet the definition of hate speech.”
Editorialists at Canada’s influential newspapers were critical of the decision, with the National Post calling it “censorship by any other name.” The Toronto Star stated that society should impose the fewest restrictions on free speech and that only courts, and not human rights tribunals, should sanction speech issues.
The Globe and Mail said the court had set dangerously vague standards by which to regulate speech and “the marketplace of ideas, not human-rights commissions, should be where bad ideas, even hateful ones (short of those advocating or inciting violence), are beaten back.”
Despite supporting the decision, CIJA continued to call for changes to provincial human rights legislation. They should be amended to permit the awarding of costs to successful parties, to deter frivolous actions; the punitive aspect of the legislation should be removed and its educational aspect stressed; evidentiary rules need to change, and provincial attorneys general should consult and create a consistent approach to human rights in Canada, Fogel said.