The Supreme Court of Canada released its much-anticipated
decision in Saskatchewan Human Rights Commission v
Whatcott today (they are all "much-anticipated"
but this decision was on reserve for 16 months, a long time for the
Supreme Court). The Court, in a unanimous 6-0 decision, held that
the hate speech prohibition in the Saskatchewan Human Rights Code was
largely constitutional. We acted for an intervener on the
The facts of the case are notorious. William Whatcott
distributed flyers in Regina and Saskatoon that condemned
homosexuality using very strong (and, as the Court ultimately
found, hateful) language. The Saskatchewan Human Rights Tribunal
found that that Whatcott's actions were a breach of section
14(1)(b) of the Code, which prohibits the publication of
printed matter that "exposes or tends to expose to hatred,
ridicules, belittles or otherwise affronts the dignity of any
person or class of persons" because of sexual orientation.
Whatcott argued that the hate speech provision violates his
freedom of expression under the Canadian Charter of Rights and
Freedoms. The Saskatchewan Court of Appeal held that the
provision was constitutional but found that Whatcott's flyers
did not rise to the level of hatred prohibited by the
Code. The Supreme Court agreed that the provision is
constitutional and some of Whatcott's flyers do not constitute
The Supreme Court of Canada's decision is important for
1. The Court adopted a modified definition of hatred for human
rights proceedings. In an earlier decision, the Court held that hatred
"refers to unusually strong and deep-felt emotions and
detestation, calumny and vilification". In Whatcott,
the Court reframes the test as follows: "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
The test now emphasizes three factors: (a) the test of hatred
has to be applied objectively (i.e., the reasonable person
aware of the relevant context and circumstances), not based on the
subjective views of the publisher or the victim; (b)
"hatred" involves two concepts—detestation and
vilification, which enforce the legislative objectives of
anti-discrimination laws; and (c) hate speech laws should focus on
the effects of the expression not the content of the expression.
Critics argued that "calumny" was hard to define.
"Detestation and vilification" will likely suffer the
2. The prohibition on ridicule, belittlement or affronts to
dignity do not meet constitutional muster. According to the Court,
these words are not synonymous with hatred and such expression does
not give rise to the "ardent and extreme feelings".
Though the Saskatchewan courts had, in obiter dicta, read
down these words in previous decisions, the Court made clear that
it is unconstitutional to prohibit speech that something less than
detestation and vilification.
3. Finally, the Court held that the freedom of religion
(Whatcott argued that his flyers were motivated by his sincere
religious beliefs) and religious speech has broad protection like
the freedom of expression. But, at the same time, that speech
cannot expose vulnerable groups to detestation and vilification,
even if it is sincerely-held.
In the lead-up to the decision, there was much debate online
about what the Court's delay meant: Was the Court hopelessly
divided? Would it significantly reframe or recast the test for hate
speech? Was the Court going to overturn its earlier decisions? The
decision was probably anti-climactic in hindsight.
The real effect on hate speech law in Canada remains to be seen.
Bill C-304, which repeals the hate speech provision in the Canadian Human Rights Act, has passed
the House of Commons and is being debated in the Senate. In October
2012, the Federal Court found that same provision largely
constitutional. In Alberta, Premier Alison Redford promised during
her leadership campaign to repeal the equivalent Alberta provision.
This decision may embolden proponents of hate speech laws to argue
that this type of legislation has a role to play in prohibiting
discrimination and may quell some of the debate on this issue.
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