Saskatchewan (Human Rights Commission) v. Whatcott

Saskatchewan (Human Rights Commission) v. Whatcott
Collection
Supreme Court Judgments
Date
2013-02-27
Neutral citation
2013 SCC 11
Report
[2013] 1 SCR 467
Case number
33676
Judges
McLachlin, Beverley; LeBel, Louis; Fish, Morris J.; Abella, Rosalie Silberman; Rothstein, Marshall; Cromwell, Thomas Albert
On appeal from
Saskatchewan
Subjects
Administrative law
Constitutional law
Notes
SCC Case Information: 33676
Decision Content
SUPREME COURT OF CANADA
Citation: Saskatchewan (Human Rights Commission) v. Whatcott,
2013 SCC 11, [2013] 1 S.C.R. 467
Date: 20130227
Docket: 33676
Between:
Saskatchewan Human Rights Commission
Appellant
and
William Whatcott
Respondent
- and -
Attorney General for Saskatchewan, Attorney General of Alberta, Canadian Constitution Foundation, Canadian Civil Liberties Association, Canadian Human Rights Commission, Alberta Human Rights Commission, Egale Canada Inc., Ontario Human Rights Commission, Canadian Jewish Congress, Unitarian Congregation of Saskatoon, Canadian Unitarian Council, Women’s Legal Education and Action Fund, Canadian Journalists for Free Expression, Canadian Bar Association, Northwest Territories Human Rights Commission, Yukon Human Rights Commission, Christian Legal Fellowship, League for Human Rights of B’nai Brith Canada, Evangelical Fellowship of Canada, United Church of Canada, Assembly of First Nations, Federation of Saskatchewan Indian Nations, Métis Nation―Saskatchewan, Catholic Civil Rights League, Faith and Freedom Alliance and African Canadian Legal Clinic
Interveners
Coram: McLachlin C.J. and LeBel, Deschamps,* Fish, Abella, Rothstein and Cromwell JJ.
Reasons for Judgment:
(paras. 1 to 207)
Rothstein J. (McLachlin C.J. and LeBel, Fish, Abella and Cromwell JJ. concurring)
Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11, [2013] 1 S.C.R. 467
Saskatchewan Human Rights Commission Appellant
v.
William Whatcott Respondent
and
Attorney General for Saskatchewan,
Attorney General of Alberta,
Canadian Constitution Foundation,
Canadian Civil Liberties Association,
Canadian Human Rights Commission,
Alberta Human Rights Commission,
Egale Canada Inc.,
Ontario Human Rights Commission,
Canadian Jewish Congress,
Unitarian Congregation of Saskatoon,
Canadian Unitarian Council,
Women’s Legal Education and Action Fund,
Canadian Journalists for Free Expression,
Canadian Bar Association,
Northwest Territories Human Rights Commission,
Yukon Human Rights Commission,
Christian Legal Fellowship,
League for Human Rights of B’nai Brith Canada,
Evangelical Fellowship of Canada,
United Church of Canada,
Assembly of First Nations,
Federation of Saskatchewan Indian Nations,
Métis Nation — Saskatchewan,
Catholic Civil Rights League,
Faith and Freedom Alliance and
African Canadian Legal Clinic Interveners
Indexed as: Saskatchewan (Human Rights Commission) v. Whatcott
2013 SCC 11
File No.: 33676.
2011: October 12; 2013: February 27.
Present: McLachlin C.J. and LeBel, Deschamps,* Fish, Abella, Rothstein and Cromwell JJ.
on appeal from the court of appeal for saskatchewan
Constitutional law — Charter of Rights — Freedom of religion — Hate publications — Whether provincial human rights legislation prohibiting publications that expose or tend to expose to hatred, ridicule, belittle or otherwise affront dignity of persons on basis of prohibited ground infringes guaranteed freedom of religion — If so, whether infringement justified — Saskatchewan Human Rights Code, S.S. 1979, c. S‑24.1, s. 14(1)(b) — Canadian Charter of Rights and Freedoms, ss. 1 , 2 (a).
Constitutional law — Charter of Rights — Freedom of expression — Hate publications — Whether provincial human rights legislation prohibiting publications that expose or tend to expose to hatred, ridicule, belittle or otherwise affront dignity of persons on basis of prohibited ground infringes guaranteed freedom of expression — If so, whether infringement justified — Saskatchewan Human Rights Code, S.S. 1979, c. S‑24.1, s. 14(1)(b) — Canadian Charter of Rights and Freedoms, ss. 1 , 2 (b).
Administrative law — Appeals — Standard of review — Human rights tribunal finding that hate publications infringe provincial human rights legislation and that provincial human rights legislation prohibiting hate publications is constitutional — Whether decision reviewable on standard of correctness or reasonableness — Whether tribunal made reviewable error.
Four complaints were filed with the Saskatchewan Human Rights Commission concerning four flyers published and distributed by W. 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. A tribunal was appointed to hear the complaints. It held that the flyers constituted publications that contravened s. 14 of The Saskatchewan Human Rights Code because they exposed persons to hatred and ridicule on the basis of their sexual orientation, and concluded that s. 14 of the Code was a reasonable restriction on W’s rights to freedom of religion and expression guaranteed by s. 2 (a) and (b) of the Charter . The 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.
Held: The appeal should be allowed in part.
The definition of “hatred” set out in Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892, with some modifications, provides a workable approach to interpreting the word “hatred” as it is used in legislative provisions prohibiting hate speech. Three main prescriptions must be followed. First, courts must apply the hate speech prohibitions objectively. The question courts must ask is whether a reasonable person, aware of the context and circumstances, would view the expression as exposing the protected group to hatred. Second, the legislative term “hatred” or “hatred or contempt” must be interpreted as being restricted to those extreme manifestations of the emotion described by the words “detestation” and “vilification”. 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. 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. In light of these three directives, 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.
The statutory prohibition against hate speech at s. 14(1)(b) of the Code infringes the freedom of expression guaranteed under s. 2 (b) of the Charter . The activity described in s. 14(1)(b) has expressive content and falls within the scope of s. 2 (b) protection. The purpose of s. 14(1)(b) is to prevent discrimination by curtailing certain types of public expression.
The limitation imposed on freedom of expression by the prohibition in s. 14(1)(b) of the Code is a limitation prescribed by law within the meaning of s. 1 of the Charter and is demonstrably justified in a free and democratic society. It 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.
The objective for which the limit is imposed, namely tackling causes of discriminatory activity to reduce the harmful effects and social costs of discrimination, is pressing and substantial. Hate speech is an effort to marginalize individuals based on their membership in a group. Using expression that exposes the group to hatred, hate speech seeks to delegitimize group members in the eyes of the majority, reducing their social standing and acceptance within society. Hate speech, therefore, rises beyond causing distress to individual group members. It can have a societal impact. Hate speech lays the groundwork for later, broad attacks on vulnerable groups that can range from discrimination, to ostracism, segregation, deportation, violence and, in the most extreme cases, to genocide. Hate speech also impacts on a protected group’s ability to respond to the substantive ideas under debate, thereby placing a serious barrier to their full participation in our democracy.
Section 14(1)(b) of the Code is proportionate to its objective. Prohibiting representations that are objectively seen to expose protected groups to hatred is rationally connected to the objective of eliminating discrimination and the other harmful effects of hatred. To satisfy the rational connection requirement, the expression captured under legislation restricting hate speech must rise to a level beyond merely impugning individuals: it must seek to marginalize the group by affecting their social status and acceptance in the eyes of the majority. The societal harm flowing from hate speech must be assessed as objectively as possible and the focus must be on the likely effect of the hate speech on how individuals external to the group might reconsider the social standing of the group. Section 14(1)(b) of the Code reflects this approach. The prohibition only prohibits public communication of hate speech; it does not restrict hateful expression in private communications between individuals. Similarly, the prohibition does not preclude hate speech against an individual on the basis of his or her uniquely personal characteristics, but only on the basis of characteristics that are shared by others and have been legislatively recognized as a prohibited ground of discrimination. However, expression that “ridicules, belittles or otherwise affronts the dignity of” does not rise to the level of ardent and extreme feelings constituting hatred required to uphold the constitutionality of a prohibition of expression in human rights legislation. Accordingly, those words in s. 14(1)(b) of the Code are not rationally connected to the legislative purpose of addressing systemic discrimination of protected groups and they unjustifiably infringe freedom of expression. Consequently, they are constitutionally invalid and must be struck from s. 14(1)(b).
Section 14(1)(b) of the Code meets the minimal impairment requirement. Alternatives proposed were to allow the marketplace of ideas to arrive at the appropriate balance of competing rights or to leave the prosecution of hate speech to the criminal law. However, the prohibition in s. 14(1)(b) is one of the reasonable alternatives that could have been selected by the legislature. The words “ridicules, belittles or otherwise affronts the dignity of” in s. 14(1)(b) are also constitutionally invalid because they do not minimally impair freedom of expression. Once those words are severed from s. 14(1)(b), the remaining prohibition is not overbroad, but rather tailored to impair freedom of expression as little as possible. The modified provision will not capture all harmful expression, but it is intended to capture expression which, by inspiring hatred, has the potential to cause the type of harm that the legislation is trying to prevent.
Not all expression will be treated equally in determining an appropriate balancing of competing values under a s. 1 analysis, since different types of expression will be relatively closer to or further from the core values behind the freedom, depending on the nature of the expression. Hate speech is at some distance from the spirit of s. 2 (b) because it does little to promote, and can in fact impede, the values underlying freedom of expression. Hate speech can also distort or limit the robust and free exchange of ideas by its tendency to silence the voice of its target group. These are important considerations in balancing hate speech with competing Charter rights and in assessing the constitutionality of the prohibition in s. 14(1)(b) of the Code.
Framing speech as arising in a moral context or within a public policy debate does not cleanse it of its harmful effect. Finding that certain expression falls within political speech does not close off the enquiry into whether the expression constitutes hate speech. Hate speech may often arise as a part of a larger public discourse but it is speech of a restrictive and exclusionary kind. Political expression contributes to our democracy by encouraging the exchange of opposing views. Hate speech is antithetical to this objective in that it shuts down dialogue by making it difficult or impossible for members of the vulnerable group to respond, thereby stifling discourse. Speech that has the effect of shutting down public debate cannot dodge prohibition on the basis that it promotes debate. Section 14 of the Code provides an appropriate means by which to protect almost the entirety of political discourse as a vital part of freedom of expression. It extricates only an extreme and marginal type of expression which contributes little to the values underlying freedom of expression and whose restriction is therefore easier to justify.
A prohibition is not overbroad for capturing expression targeting sexual behaviour. Courts have recognized a strong connection between sexual orientation and sexual conduct and where the conduct targeted by speech is a crucial aspect of the identity of a vulnerable group, attacks on this conduct stand as proxy for attacks on the group itself. 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. It quite clearly targets the vulnerable group.
The fact that s. 14(1)(b) of the Code does not require intent by the publisher or proof of harm, or provide for any defences does not make it overbroad. Systemic discrimination is more widespread than intentional discrimination and the preventive measures found in human rights legislation reasonably centre on effects, rather than intent. 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 discriminatory effects of hate speech are part of the everyday knowledge and experience of Canadians. As such, the legislature is entitled to a reasonable apprehension of societal harm as a result of hate speech. The lack of defences is not fatal to the constitutionality of the provision. Truthful statements can be presented in a manner that would meet the definition of hate speech, and not all truthful statements must be free from restriction. Allowing the dissemination of hate speech to be excused by a sincerely held belief would provide an absolute defence and would gut the prohibition of effectiveness.
The benefits of the suppression of hate speech and its harmful effects outweigh the detrimental effect of restricting expression which, by its nature, does little to promote the values underlying freedom of expression. Section 14(1)(b) of the Code represents a choice by the legislature to discourage hate speech in a manner that is conciliatory and remedial. The protection of vulnerable groups from the harmful effect emanating from hate speech is of such importance as to justify the minimal infringement of expression.
Section 14(1)(b) of the Code also infringes freedom of conscience and religion as guaranteed under s. 2 (a) of the Charter . An infringement of s. 2 (a) will be established where: (1) the claimant sincerely holds a belief or practice that has a nexus with religion; and (2) the provision at issue interferes with the claimant’s ability to act in accordance with his or her religious beliefs. To the extent that an individual’s choice of expression is caught by the definition of “hatred” in s. 14(1)(b), the prohibition will substantially interfere with that individual’s ability to disseminate his or her belief by display or publication of those representations.
For the same reasons set out in the s. 1 analysis in the case of freedom of expression, the words “ridicules, belittles or otherwise affronts the dignity of” are not rationally connected to the legislative purpose of addressing systemic discrimination of protected groups, nor tailored to minimally impair freedom of religion. The remaining prohibition of any representation “that exposes or tends to expose to hatred” any person or class of persons on the basis of a prohibited ground is a reasonable limit on freedom of religion and is demonstrably justified in a free and democratic society.
While the standard of review of the tribunal’s decision on the constitutionality of s. 14 of the Code is correctness, the standard of review of the tribunal’s decision that the flyers contravene that provision must be reasonableness. The tribunal did not unreasonably fail to give proper weight to the importance of protecting expression that is part of an ongoing debate on sexual morality and public policy. Nor was it unreasonable in isolating certain excerpts from the flyers for examination, or in finding that the flyers criticize sexual orientation and not simply sexual behaviour. That the rights of a vulnerable group are a matter of ongoing discussion does not justify greater exposure by that group to hatred and its effects. The only expression which should be caught by s. 14(1)(b) of the Code is hate‑inspiring expression that adds little value to the political discourse or to the quest for truth, self‑fulfillment, and an embracing marketplace of ideas. The words and phrases in a publication cannot properly be assessed out of context, and the expression must be considered as a whole, to determine the overall impact or effect of the publication. However, it is also legitimate to proceed with a closer scrutiny of those parts of the expression which draw nearer to the purview of s. 14(1)(b) of the Code. If, despite the context of the entire publication, even one phrase or sentence is found to bring the publication, as a whole, in contravention of the Code, this precludes its publication in its current form.
The tribunal’s conclusions with respect to the first two flyers were reasonable. Passages of these flyers combine many of the hallmarks of hatred identified in the case law. The expression portrays the targeted group as a menace that threatens the safety and well‑being of others, makes reference to respected sources in an effort to lend credibility to the negative generalizations, and uses vilifying and derogatory representations to create a tone of hatred. The flyers also expressly call for discriminatory treatment of those of same‑sex orientation. It was not unreasonable for the tribunal to conclude that this expression was more likely than not to expose homosexuals to hatred.
The tribunal’s decision with respect to the other two flyers was unreasonable and cannot be upheld. The tribunal erred by failing to apply s. 14(1)(b) to the facts before it in accordance with the proper legal test. It cannot reasonably be found that those flyers contain expression that a reasonable person, aware of the relevant context and circumstances, would find as exposing or likely to expose persons of same‑sex orientation to detestation and vilification. The expression, while offensive, does not demonstrate the hatred required by the prohibition.
Cases Cited
Referred to: R. v. Keegstra, [1990] 3 S.C.R. 697; R. v. Andrews, [1990] 3 S.C.R. 870; R. v. Krymowski, 2005 SCC 7, [2005] 1 S.C.R. 101; Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892; Human Rights Commission (Sask.) v. Bell (1994), 120 Sask. R. 122; Owens v. Human Rights Commission (Sask.), 2002 SKQB 506, 228 Sask. R. 148, rev’d 2006 SKCA 41, 267 D.L.R. (4th) 733; Kane v. Alberta Report, 2001 ABQB 570, 291 A.R. 71; Elmasry v. Rogers Publishing Ltd. (No. 4), 2008 BCHRT 378, 64 C.H.R.R. D/509; Nealy v. Johnston (1989), 10 C.H.R.R. D/6450; Warman v. Kouba, 2006 CHRT 50 (CanLII); Citron v. Zündel (No. 4) (2002), 41 C.H.R.R. D/274; Warman v. Tremaine (No. 2), 2007 CHRT 2, 59 C.H.R.R. D/391; Payzant v. McAleer (1994), 26 C.H.R.R. D/271, aff’d (1996), 26 C.H.R.R. D/280; Warman v. Northern Alliance, 2009 CHRT 10 (CanLII); Center for Research‑Action on Race Relations v. www.bcwhitepride.com, 2008 CHRT 1 (CanLII); Warman v. Winnicki (No. 2), 2006 CHRT 20, 56 C.H.R.R. D/381; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Canadian Broadcasting Corp. v. Canada (Attorney General), 2011 SCC 2, [2011] 1 S.C.R. 19; R. v. Butler, [1992] 1 S.C.R. 452; R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45; R. v. Oakes, [1986] 1 S.C.R. 103; Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825; Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100; Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877; Canada (Attorney General) v. JTI‑Macdonald Corp., 2007 SCC 30, [2007] 2 S.C.R. 610; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; Withler v. Canada (Attorney General), 2011 SCC 12, [2011] 1 S.C.R. 396; Human Rights Commission (Sask.) v. Engineering Students’ Society, University of Saskatchewan (1989), 72 Sask. R. 161; Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567; Abrams v. United States, 250 U.S. 616 (1919); Zurich Insurance Co. v. Ontario (Human Rights Commission), [1992] 2 S.C.R. 321; R. v. Khawaja, 2012 SCC 69, [2012] 3 S.C.R. 555; Kempling v. College of Teachers (British Columbia), 2005 BCCA 327, 43 B.C.L.R. (4th) 41; Snyder v. Phelps, 131 S. Ct. 1207 (2011); Rocket v. Royal College of Dental Surgeons of Ontario, [1990] 2 S.C.R. 232; Trinity Western University v. British Columbia College of Teachers, 2001 SCC 31, [2001] 1 S.C.R. 772; Egan v. Canada, [1995] 2 S.C.R. 513; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; Multani v. Commission scolaire Marguerite‑Bourgeoys, 2006 SCC 6, [2006] 1 S.C.R. 256; B. (R.) v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315; Syndicat Northcrest v. Amselem, 2004 SCC 47, [2004] 2 S.C.R. 551; Smith v. Alliance Pipeline Ltd., 2011 SCC 7, [2011] 1 S.C.R. 160; Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654.
Statutes and Regulations Cited
Bill C-304, An Act to amend the Canadian Human Rights Act (protecting freedom), 1st Sess., 41st Parl., June 6, 2012.
Canadian Charter of Rights and Freedoms, ss. 1 , 2 , 15 .
Canadian Human Rights Act, S.C. 1976‑77, c. 33 [now R.S.C. 1985, c. H-6 ], s. 13(1) .
Criminal Code, R.S.C. 1985, c. C‑46 .
Saskatchewan Human Rights Code, S.S. 1979, c. S‑24.1, ss. 2(1)(m.01)(vi), 3, 4, 5, 14, 31(4) [rep. 2011, c. 17, s. 15], 31.4(a), (b), 32(1).
Saskatchewan Human Rights Code Amendment Act, 2000, S.S. 2000, c. 26.
Saskatchewan Human Rights Code Amendment Act, 2011, S.S. 2011, c. 17.
Authors Cited
Canada. Special Committee on Hate Propaganda in Canada. Report of the Special Committee on Hate Propaganda in Canada. Ottawa: Queen’s Printer, 1966.
Cardozo, Benjamin N. The Nature of the Judicial Process. New Haven, Conn.: Yale University Press, 1921.
Dworkin, Ronald. “Foreword”, in Ivan Hare and James Weinstein, eds., Extreme Speech and Democracy. New York: Oxford University Press, 2009, v.
McNamara, Luke. “Negotiating the Contours of Unlawful Hate Speech: Regulation Under Provincial Human Rights Laws in Canada” (2005), 38 U.B.C. L. Rev. 1.
Moon, Richard. Report to the Canadian Human Rights Commission Concerning Section 13 of the Canadian Human Rights Act and the Regulation of Hate Speech on the Internet. Ottawa: Canadian Human Rights Commission, 2008.
Moon, Richard. The Constitutional Protection of Freedom of Expression. Toronto: University of Toronto Press, 2000.
Oxford English Dictionary (online: www.oed.com), “calumny”, “emotion”.
Sumner, L. W. The Hateful and the Obscene: Studies in the Limits of Free Expression. Toronto: University of Toronto Press, 2004.
APPEAL from a judgment of the Saskatchewan Court of Appeal (Sherstobitoff, Smith and Hunter JJ.A.), 2010 SKCA 26, 346 Sask. R. 210, 477 W.A.C. 210, 317 D.L.R. (4th) 69, 218 C.R.R. (2d) 145, [2010] 4 W.W.R. 403, [2010] S.J. No. 108 (QL), 2010 CarswellSask 109, setting aside a decision of Kovach J., 2007 SKQB 450, 306 Sask. R. 186, 61 C.H.R.R. D/401, [2007] S.J. No. 672 (QL), 2007 CarswellSask 836, upholding a decision of the Saskatchewan Human Rights Tribunal (2005), 52 C.H.R.R. D/264, 2005 CarswellSask 480. Appeal allowed in part.
Grant J. Scharfstein, Q.C., and Deidre L. Aldcorn, for the appellant.
Thomas A. Schuck, Iain Benson, John Carpay and Daniel Mol, for the respondent.
Thomson Irvine, for the intervener the Attorney General for Saskatchewan.
David N. Kamal, for the intervener the Attorney General of Alberta.
Mark A. Gelowitz and Jason MacLean, for the intervener the Canadian Constitution Foundation.
Andrew K. Lokan and Jodi Martin, for the intervener the Canadian Civil Liberties Association.
Philippe Dufresne and Brian Smith, for the intervener the Canadian Human Rights Commission.
Audrey Dean and Henry S. Brown, Q.C., for the intervener the Alberta Human Rights Commission.
Cynthia Petersen and Christine Davies, for the intervener Egale Canada Inc.
Anthony D. Griffin, for the intervener the Ontario Human Rights Commission.
Mark J. Freiman, for the intervener the Canadian Jewish Congress.
Arif Chowdhury, for the interveners the Unitarian Congregation of Saskatoon and the Canadian Unitarian Council.
Kathleen E. Mahoney and Jo‑Ann R. Kolmes, for the intervener the Women’s Legal Education and Action Fund.
M. Philip Tunley and Paul J. Saguil, for the intervener the Canadian Journalists for Free Expression.
David Matas, for the intervener the Canadian Bar Association.
Written submissions only by Shaunt Parthev, Q.C., and Ashley M. Smith, for the interveners the Northwest Territories Human Rights Commission and the Yukon Human Rights Commission.
Derek J. Bell, Ranjan K. Agarwal and Ruth A. M. Ross, for the intervener the Christian Legal Fellowship.
Marvin Kurz, for the intervener the League for Human Rights of B’nai Brith Canada.
Donald E. L. Hutchinson and André Schutten, for the intervener the Evangelical Fellowship of Canada.
Ben Millard, for the intervener the United Church of Canada.
Written submissions only by David M. A. Stack, for the interveners the Assembly of First Nations, the Federation of Saskatchewan Indian Nations and the Métis Nation — Saskatchewan.
Ryan D. W. Dalziel and Micah B. Rankin, for the interveners the Catholic Civil Rights League and the Faith and Freedom Alliance.
Sunil Gurmukh and Moya Teklu for the intervener the African Canadian Legal Clinic.
The judgment of the Court was delivered by
Rothstein J. —
TABLE OF CONTENTS
I. Introduction
II. Facts
III. Relevant Statutory Provisions
IV. Judicial History
A. Saskatchewan Court of Queen’s Bench, 2007 SKQB 450, 306 Sask. R. 186
B. Saskatchewan Court of Appeal, 2010 SKCA 26, 346 Sask. R. 210
V. Issues
VI. The Definition of “Hatred”
A. Summary of the Decision in Canada (Human Rights Commission) v. Taylor
B. Criticisms of the Taylor Definition of Hatred
C. Subjectivity
(1) The Reasonable Person
(2) Dealing With the Inherent Subjectivity of the Emotion of Hatred
(a) The Meaning of “Hatred or Contempt”
(b) The Legislative Objectives
D. Focusing on the Effects of Hate Speech
E. Confirming a Modified Definition of “Hatred”
VII. Standard of Review in Constitutional Questions
VIII. Constitutional Analysis
A. Whether Section 14(1)(b) Infringes Freedom of Expression Under Section 2(b) of the Charter
B. Section 1 — Whether the Infringement Is Demonstrably Justified in a Free and Democratic Society
(1) The Approach to Freedom of Expression Under Section 1
(2) Is the Objective for Which the Limit Is Imposed Pressing and Substantial?
(3) Proportionality
(a) Is the Limit Rationally Connected to the Objective?
(i) Societal Versus Individual Harm
(ii) Wording of Section 14(1)(b) of the Code
(iii) Effectiveness
(iv) Conclusion in Respect of Rational Connection
(b) Minimal Impairment
(i) Alternative Methods of Furthering the Legislature’s Objectives
(ii) Overbreadth
1. Wording of Section 14 of the Code
2. Nature of the Expression
3. Political Discourse
4. Sexual Orientation Versus Sexual Behaviour
(iii) Intent, Proof, and Defences
1. Intent
2. Proof of Harm
3. Lack of Defences
(iv) Conclusion on Minimal Impairment
(c) Whether the Benefits Outweigh the Deleterious Effects
(d) Conclusion on Section 1 Analysis
C. Section 2(a) of the Charter
D. Section 1 Analysis
IX. Application of Section 14(1)(b) to Mr. Whatcott’s Flyers
A. Standard of Review of Tribunal Decision
B. Context
C. The Tribunal’s Decision
D. Remedy
X. Conclusion
APPENDIX A: Relevant Statutory Provisions
APPENDIX B: Flyers
I. Introduction
[1] All rights guaranteed under the Canadian Charter of Rights and Freedoms are subject to reasonable limitations. This balancing of rights and limitations gives rise to a tension between freedom of expression constitutionally guaranteed under s. 2 (b) of the Charter and legislative provisions prohibiting the promotion of hatred or the publication of hate speech. That tension has been considered by this Court in the context of the Criminal Code, R.S.C. 1985, c. C-46 (R. v. Keegstra, [1990] 3 S.C.R. 697; R. v. Andrews, [1990] 3 S.C.R. 870; and R. v. Krymowski, 2005 SCC 7, [2005] 1 S.C.R. 101) and in the context of human rights legislation (Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892). It is in this latter context that the Court is asked to revisit the matter in the present appeal. We are also asked to decide whether the statutory prohibition at issue infringes freedom of religion as guaranteed by s. 2 (a) of the Charter .
[2] The Saskatchewan legislature included a provision in its human rights legislation prohibiting hate publications. While emphasizing the importance of freedom of expression in a subsection of the provision, the intent of the statute is to suppress a certain type of expression which represents a potential cause of the discriminatory practices the human rights legislation seeks to eliminate. Our task is to determine whether the legislature’s approach is constitutional.
[3] Four complaints were filed with the Saskatchewan Human Rights Commission (“Commission”) concerning four flyers published and distributed by the respondent, William Whatcott. The flyers were distributed to the public and targeted homosexuals and were challenged by the complainants on the basis that they promoted hatred against individuals because of their sexual orientation. The Saskatchewan Human Rights Tribunal (“Tribunal”) held that the flyers constituted publications that contravened s. 14 of The Saskatchewan Human Rights Code, S.S. 1979, c. S-24.1 (“Code”) as they exposed persons to hatred and ridicule on the basis of their sexual orientation: (2005), 52 C.H.R.R. D/264. Section 14(1)(b) of the Code 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”. The Code lists “sexual orientation” as a prohibited ground (s. 2(1)(m.01)(vi)). All statutory provisions referred to in these reasons are reproduced in Appendix A.
[4] The Saskatchewan Court of Queen’s Bench upheld the Tribunal’s decision: 2007 SKQB 450, 306 Sask. R. 186. That decision was reversed by the Saskatchewan Court of Appeal (2010 SKCA 26, 346 Sask. R. 210 (“Whatcott (C.A.)”). The appellate court accepted that s. 14(1)(b) was constitutional but held that the flyers at issue did not meet the test for hatred and were not prohibited publications within the meaning of s. 14(1)(b) of the Code.
[5] Two issues arise in this appeal. The first is whether s. 14(1)(b) of the Code is constitutional. If so, a second issue arises as to whether the Tribunal’s application of that provision in the context of this case should have been upheld.
[6] I conclude that although s. 14(1)(b) of the Code infringes Mr. Whatcott’s rights under both ss. 2 (a) and 2 (b) of the Charter , the infringement is justified under s. 1 of the Charter . This Court’s approach in Keegstra and Taylor, with some modification, sets out an acceptable method for determining how to balance the competing rights and interests at play.
[7] In my respectful view, the Saskatchewan Court of Appeal erred, in part, in overturning the decision of the Tribunal. I would therefore allow the appeal and reinstate the decision of the Tribunal with respect to two of the flyers. I would dismiss the appeal in regard to the other two.
II. Facts
[8] In 2001 and 2002, Mr. Whatcott distributed four flyers in Regina and Saskatoon on behalf of the Christian Truth Activists. Two of the flyers, marked as exhibits D and E at the Tribunal hearing, were entitled “Keep Homosexuality out of Saskatoon’s Public Schools!” (“Flyer D”) and “Sodomites in our Public Schools” (“Flyer E”), respectively. The other two flyers, marked as exhibits F and G, were identical, and were a reprint of a page of classified advertisements to which handwritten comments were added (“Flyer F” and “Flyer G”). The flyers are reproduced in Appendix B.
[9] Four individuals, who received these flyers at their homes, filed complaints with the Commission. They alleged that the material promoted hatred against individuals because of their sexual orientation, thereby violating s. 14 of the Code. The Commission appointed a human rights tribunal to hear the complaints.
[10] Relying on Human Rights Commission (Sask.) v. Bell (1994), 120 Sask. R. 122 (C.A.) (“Bell”), and on the Court of Queen’s Bench decision in Owens v. Human Rights Commission (Sask.), 2002 SKQB 506, 228 Sask. R. 148, rev’d 2006 SKCA 41, 267 D.L.R. (4th) 733, the Tribunal concluded that s. 14 of the Code was a reasonable restriction on Mr. Whatcott’s rights to freedom of religion and expression as guaranteed by s. 2 (a) and (b) of the Charter . With respect to the issue of whether the materials distributed by Mr. Whatcott constituted a breach of s. 14 of the Code, the Tribunal isolated certain passages from each of the flyers and concluded that the material contained in each flyer could objectively be viewed as exposing homosexuals to hatred and ridicule.
[11] The Tribunal issued an order prohibiting Mr. Whatcott and the Christian Truth Activists from distributing the flyers or any similar materials promoting hatred against individuals because of their sexual orientation. It also ordered Mr. Whatcott to pay compensation in the amount of $2,500 to one complainant and $5,000 to each of the remaining three complainants.
III. Relevant Statutory Provisions
[12] At issue is s. 14 of the Code. It provides:
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.
IV. Judicial History
A. Saskatchewan Court of Queen’s Bench, 2007 SKQB 450, 306 Sask. R. 186
[13] Kovach J. concluded that s. 14(1)(b) of the Code must be interpreted in accordance with the standard of hatred and contempt set out in Taylor so as to prohibit only “communication that involves extreme feelings and strong emotions of detestation, calumny and vilification” (para. 21). He upheld the Tribunal’s conclusion that the flyers contravened the provision, largely on the basis that the flyers equated homosexuals with pedophiles and child abusers.
[14] With respect to the constitutionality of s. 14(1)(b), he held that while the provision may violate Mr. Whatcott’s freedom of religion, the limit was justifiable.
B. Saskatchewan Court of Appeal, 2010 SKCA 26, 346 Sask. R. 210
[15] The Saskatchewan Court of Appeal issued concurring judgments by Smith and Hunter JJ.A., with Sherstobitoff J.A. concurring in both. Hunter J.A. reaffirmed that s. 14(1)(b) of the Code must be interpreted and applied so as to only prohibit communications involving extreme feelings and strong emotions of detestation, calumny and vilification. She cautioned that language used to debate the morality of an individual’s behaviour must attract a relatively high degree of tolerance.
[16] Hunter J.A. found that the Tribunal and Court of Queen’s Bench had failed to take the moral context of the flyers properly into account and had also failed to balance the limitation on freedom of expression in s. 14(1)(b) with the confirmation of the importance of expression set out in s. 14(2). In her view, the Tribunal and Kovach J. had erred in selecting specific phrases from the flyers, rather than dealing with the content and context of each flyer as a whole.
[17] She held that the words and phrases isolated by the Tribunal from Flyer D would not meet the definition of “hatred” set out in Taylor and that, in the context of a debate about the school curriculum, the entire flyer could not be considered a hate publication. She found that Flyer E was part of the ongoing debate about teaching homosexuality in public schools, and that the comment “Sodomites are 430 times more likely to acquire Aids & 3 times more likely to sexually abuse children!” was merely hyperbole and did not taint the entire publication. Finally, she found that the ambiguity of the handwritten statements in Flyers F and G made it difficult to conclude from an objective perspective that the publication exposed homosexuals to hatred. She concluded that the flyers were not prohibited publications.
[18] Smith J.A. agreed that the flyers did not offend the prohibition at s. 14(1)(b) of the Code against hate publications. She found it significant that it was the activity (a type of sexual conduct) rather than the individuals (those of same-sex orientation) to which the flyers were directed. Questions of sexual morality, being linked to both public policy and individual autonomy, lay at the heart of protected speech. She concluded that “where, on an objective interpretation, the impugned expression is essentially directed to disapprobation of same-sex sexual conduct in a c