Saskatchewan (Human Rights Commission) v.
Whatcott, 2013 SCC 11
On February 27, 2013, the Supreme Court of Canada rendered its
decision in Saskatchewan (Human Rights Commission) v.
Whatcott.Mr. Justice Rothstein delivered the judgment of a
unanimous Court upholding, in part, the finding that Mr. Whatcott
had distributed flyers containing hateful language, in
contravention of the Saskatchewan Human Rights Code, SS 1979, c
S024.1 (the Code). The decision also upheld the constitutionality
of the Code in the face of a challenge on the basis of the Charter
of Rights And Freedoms, Sections 2(a) and (b), freedom of religion
and freedom of expression.
The case began with a Saskatchewan Human Rights Tribunal ruling
that found Mr. Whatcott's flyers constituted hateful speech,
prohibited Mr. Whatcott from distributing such flyers in the
future, and ordered him to pay compensation to the complainants.
Justice Rothstein begins his reasons for judgment with the
All rights guaranteed under the Canadian Charter of Rights and
Freedoms are subject to reasonable limitations.
By giving away the result in the first sentence, it might be
argued that the Court has dispensed with much of the drama of the
decision. With reasons that rely heavily on the Court's
previous decision in Canada (Human Rights Commission) v.
Taylor,  3 S.C.R. 892, Justice Rothstein attempts to
maintain a balance between the socially deleterious effects of hate
speech and the individual rights to free expression and religion.
The Court had no trouble finding that Mr. Whatcott's freedom
of expression and freedom of religion had been infringed by the
Code. This brought the Court to a Charter Section 1 analysis to
determine whether the limit on the freedom created by the law is
justified in a free and democratic society, using the test first
established in R v. Oakes.
1. Is there a pressing and substantial objective?
The Court relies on a number of cases including Taylor and R
v. Keegstra, as well as the "Cohen Committee" report
of 1966, as demonstrating the deleterious effects of hate speech.
These negative social effects are well established, although it is
interesting to note that the Court is content to rely on evidence
from nearly 50 years ago as the basis of its findings, taking
judicial notice of mass atrocities around the world as evidence
that nothing has changed on this front.
The Court then proceeds to determine whether the limit on
freedom of expression is proportional to its objective. This
includes examination of rational connection between the objective
and the limit, whether the law impairs the freedom minimally and
whether the benefits of the limit outweigh its deleterious
The Court found a rational connection between prohibiting hate
speech and protecting vulnerable groups in society on the basis of
an objective examination of the results of hate speech against
identifiable groups in society. It adopted a deferential attitude
towards the Legislature's choice to implement a prohibition on
hate speech, noting that there is no requirement for conclusive
scientific evidence to justify the Legislature's policy choice.
Finally, the Court found that the society benefits of the
prohibition were sufficient to outweigh the effects on freedom of
expression. Justice Rothstein's analysis of the Section 1
issues with respect to Freedom of Religion paralleled this
Having upheld the Code section regarding hate speech, the Court
proceeded to examine the impugned speech made by Mr. Whatcott. It
determined that two of his pamphlets constituted hate speech, and
two did not. As a result, the decision of the Human Rights Tribunal
was upheld with respect to two complaints, and overturned with
respect to two complaints.
The decision comes at a time when human rights codes are under
increased scrutiny in the media. In its unanimous decision, the
Court has upheld the role of the human rights code as a component
of the overall justice system. The decision has further clarified
such codes' position in the context of the continued balancing
of the protection of vulnerable groups and the protection of the
rights to freedom of expression and religion.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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