In Saskatchewan (Human Rights Commission) v Whatcott 2013 SCC 11 Canada’s Supreme Court considered the balance between equality rights and rights to freedom of expression and religion. It upheld the central “hate speech” provisions in the Saskatchewan Human Rights Code, although struck down some of the code’s wording in a case prompted by flyers handed out by a religious anti-gay activist, Bill Whatcott.
Mr Whatcott complained that his rights to freedom of religion and expression had been breached when he was restrained by the Saskatchewan Human Rights Tribunal from distributing flyers entitled “Keep Homosexuality out of Saskatoon’s Public Schools!” and “Sodomites in our Public Schools”, together with classified ads with hand written comments thereon, and was ordered to pay total compensation of Can$7,500 to four complainants.
The flyers alleged, inter alia, that teachers in elementary schools were instructing children “how wonderful it is for two men to sodomize each other” and that “the homosexuals want to share their filth and propaganda with Saskatchewan’s children” and referred to “sexual politics of a perverted type”, to “sick desires”, and to “Saskatchewan’s sodomites”. One included the statement that “Sodomites are 430 times more likely to acquire Aids & 3 times more likely to sexually abuse children!” The classified ads were annotated with the hand-written words “Saskatchewan’s largest gay magazine allows ads for men seeking boys”; “‘If you cause one of these little ones to stumble it would be better that a millstone was tied around your neck and you were cast into the sea’ Jesus Christ” and “[t]he ads with men advertising as bottoms are men who want to get sodomized. This shouldn’t be legal in Saskatchewan!”.
Saskatchewan’s Human Rights Tribunal had concluded that the flyers and annotated classified ads contravened the Saskatchewan Human Rights Code. Section 2 of the Code having listed a number of “prohibited grounds” including, inter alia, religion, creed and sexual orientation, s14(1)(b) of the Code then prohibits the publication of material “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 Tribunal concluded that the flyers exposed persons to hatred and ridicule on the basis of their sexual orientation.
Mr Whatcott complained that s14(1)(b) of the Saskatchewan Human Rights Code breached his rights under s2 of Canada’s Charter of Rights to freedom of religion and expression which provides that “Everyone has the following fundamental freedoms”, these freedoms including
“(a) freedom of conscience and religion [and] (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication”.
Section 2, in common with all the other Charter rights, is subject to s1 which provides that “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”. The Saskatchewan Court of Queen’s Bench upheld the Human Rights Tribunal’s decision. The Saskatchewan Court of Appeal ruled that, although the relevant provision of the provincial Code was compatible with s2 of the Charter, the flyers did not contravene s14(1)(b). On the Human Rights Tribunal’s appeal the Supreme Court ruled that the flyers did contravene s14(1)(b) and that the infringement of the Claimant’s rights to freedom of expression and religion were justified under s1 of the Charter.
Rothstein J, who delivered the judgment of the Court, ruled that “hatred” for the purposes of s14(1)(b) was properly interpreted to capture (§48) “the most extreme type of expression that has the potential to incite or inspire discriminatory treatment against protected groups on the basis of a prohibited ground” and that “In applying hate prohibitions, courts must assess whether the impugned expression is likely to expose a protected group to hatred and potentially lead to the activity that the legislature seeks to eliminate”. Further (§52) “An assessment of whether expression exposes a protected group to hatred must therefore include an evaluation of the likely effects of the expression on its audience. Would a reasonable person consider that the expression vilifying a protected group has the potential to lead to discrimination and other harmful effects?” Thus (§53) “in the normal course of events, 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. Representations made in private settings would also not be captured by provisions prohibiting publication, display or broadcast of the expression, such as in s. 14(1)(b) of the Code. It may also make a difference whether the expression contains a singular remark that comes close to violating the prohibition, or contains a multitude of or repeated, delegitimizing attacks”.
The approach of the Supreme Court in Whatcott to “hatred” modifies that previously taken by the Supreme Court in Canada (Human Rights Commission) v Taylor  3 S.C.R. 892 in rejecting “calumny” as an element of the test and in emphasizing the objective nature of that test. Rothstein J emphasised in Whatcott (§56) that
“the reference in Taylor to ‘unusually strong and deep-felt emotions’ should not be interpreted as imposing a subjective test or limiting the analysis to the intensity with which the author of the expression feels the emotion. The question courts must ask is whether a reasonable person, aware of the context and circumstances surrounding the expression, would view it as exposing the protected group to hatred” () …. Is the expression likely to expose the targeted person or group to hatred by others? The repugnancy of the ideas being expressed is not, in itself, sufficient to justify restricting the expression. The prohibition of hate speech is not designed to censor ideas or to compel anyone to think “‘correctly’” ().
Rothstein J ruled that “the legislative term ‘hatred’ or ‘hatred and contempt’ is to 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”. And (§42),
“While hate speech often uses the device of inflammatory falsehoods and misrepresentations to persuade and galvanize its audience, the use of such tools is not necessary to a finding that the expression exposes its targeted group to hatred. Nor would false misrepresentations, alone, be sufficient to constitute hate speech”.
Turning to the question of constitutionality, Rothstein J accepted that, the statutory prohibition on hate speech catching publications with “expressive content”, it therefore infringed freedom of expression (§62). It also infringed Mr Whatcott’s freedom of conscience, the Claimant’s belief that his religion “require[d] him to proselytize homosexuals” not being in dispute and the restriction on the nature of the expression he was permitted to employ in such proselytising substantially interfering with his ability to disseminate his belief (§156). Whether such infringements were saved by s1 depended (§66) on a balancing of “the fundamental values underlying freedom of expression (and, later, freedom of religion) in the context in which they are invoked, 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” and with Canada’s international treaty obligations.
The purpose of Sasketchewan’s Human Rights Code was (s3) “to promote recognition of the inherent dignity and the equal inalienable rights of all members of the human family; and to further public policy in Saskatchewan that every person is free and equal in dignity and rights and to discourage and eliminate discrimination” while (§71)“[h]ate speech is, at its core, an effort to marginalize individuals based on their membership in a group [and] … to delegitimize group members in the eyes of the majority, reducing their social standing and acceptance within society”. The dissemination of messages of hate was in part responsible for the events in Nazi Germany, fascist Italy, “the former Yugoslavia, Cambodia, Rwanda, Darfur, [and] Uganda” (§72), the effects of hate speech not being limited to the “grave psychological and social consequences to individual members of the targeted group from the humiliation and degradation caused by hate propaganda” but including societal effects of “increasing discord and by affecting a subtle and unconscious altercation of views concerning the inferiority of the targeted group” (§§73-74, citing Dickson CJ in Keegstra  3 S.C.R. 697).
74… As the majority becomes desensitized by the effects of hate speech, the concern is that some members of society will demonstrate their rejection of the vulnerable group through conduct. Hate speech lays the groundwork for later, broad attacks on vulnerable groups. These attacks can range from discrimination, to ostracism, segregation, deportation, violence and, in the most extreme cases, to genocide …
75 Hate speech is not only used to justify restrictions or attacks on the rights of protected groups on prohibited grounds. As noted by Dickson C.J. at p. 763 of Keegstra, hate propaganda opposes the targeted group’s ability to find self-fulfillment by articulating their thoughts and ideas. It impacts on that group’s ability to respond to the substantive ideas under debate, thereby placing a serious barrier to their full participation in our democracy. Indeed, a particularly insidious aspect of hate speech is that it acts to cut off any path of reply by the group under attack. It does this not only by attempting to marginalize the group so that their reply will be ignored: it also forces the group to argue for their basic humanity or social standing, as a precondition to participating in the deliberative aspects of our democracy.
76 To use an example related to the present case, the suggestion that homosexual conduct should not be discussed in schools because homosexuals are pedophiles requires the protected group to first defeat the absolutist position that all homosexuals are pedophiles in order to justify a level of societal standing that would then permit participation in the larger debate of whether homosexual conduct should be discussed in schools. In this way, the expression inhibits the protected group from interacting and participating in free expression and public debate.
The prohibition by s14(1)(b) of any publication which “ridicules, belittles or otherwise affronts the dignity of” any person or class of persons on the basis of a prohibited ground” was not saved by s1 because it failed the first test which required a rational connection between ends and means. This aspect of s14(1)(b) was (§92) “not rationally connected to the legislative purpose of addressing systemic discrimination of protected groups”, but it would could (and would) be severed from the remainder of the section without contravening the legislative intent. The offending words would be formally struck out and s14(1)(b) would prohibit only the publication of material “that exposes or tends to expose to hatred any person or class of persons on the basis of a prohibited ground.
The Supreme Court accepted that, thus pared down and interpreted as above, s14(1)(b) was saved by s1. Firstly, there was a rational connection between means and end which in the context of hate speech (§80) required a “focus on the group rather than on the individual and depends on demonstrating that the likely harm is to the group rather than an individual alone”, this because hate speech “seeks to marginalize individuals based on their group characteristics”. The harm focused upon must, in the Court’s view, be that to society rather than the victims of hate speech because (§82) “protecting the emotions of an individual group member is not rationally connected to the overall purpose of reducing discrimination… Instead, 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. Ultimately, it is the need to protect the societal standing of vulnerable groups that is the objective of legislation restricting hate speech”.
Secondly, in the view of the Court, s14(1)(b) was proportionate in that it minimally impaired the right to freedom of expression. Parliament was not obliged to leave these matters to the marketplace of ideas, or to limit its intervention to criminal prohibitions on threats, advocacy or justification of violence. Finally, the importance of the legislative objective of s 14 outweighed the deleterious effects of the provision in (§148):
“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 and its harmful effects on both the vulnerable group and on society as a whole, in a manner that is conciliatory and remedial. In cases such as the present, the process under the legislation can provide guidance to individuals like Mr. Whatcott, so that they can continue expressing their views in a way that avoids falling within the narrow scope of expression captured by the statutory prohibition. The protection of vulnerable groups from the harmful effects emanating from hate speech is of such importance as to justify the minimal infringement of expression that results from the restriction of materials of this kind“.
Finally, on the question whether the material at issue breached s14(1)(b) of the Saskatchewan Code, properly interpreted, Rothstein J accepted that the Tribunal had been entitled (§175) “to isolate the phrases it considered to be in issue. 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 publication of the flyer in its current form”. He further ruled (§176) that “the flyers targeted sexual activities, rather than sexual orientation. While the publications at issue may appear to engage in the debate about the morality of certain sexual behaviour, they are only aimed at that sexual activity when it is carried out by persons of a certain sexual orientation”:
177… If Mr. Whatcott’s message was that those who engage in sexual practices not leading to procreation should not be hired as teachers or that such practices should not be discussed as part of the school curriculum, his expression would not implicate an identifiable group. If, however, he chooses to direct his expression at sexual behaviour by those of a certain sexual orientation, his expression must be assessed against the hatred definition in the same manner as if his expression was targeted at those of a certain race or religion.
The Tribunal had correctly applied an objective test and directed itself on the need to “balanc[e] the objective of eradicating discrimination with the need to protect free expression”. Its findings in respect of the flyers were reasonable (§186) “whether applying the Taylor definition of ‘hatred’ or the definition as modified by these reasons”:
187 Passages of [the] Flyers … combine many of the “hallmarks” of hatred identified in the case law. The expression portrays the targeted group as a menace that could threaten the safety and well-being of others, makes reference to respected sources (in this case the Bible) to lend credibility to the negative generalizations, and uses vilifying and derogatory representations to create a tone of hatred… It delegitimizes homosexuals by referring to them as filthy or dirty sex addicts and by comparing them to pedophiles, a traditionally reviled group in society.
188… The repeated references to “filth”, “dirty”, “degenerated” and “sex addicts” or “addictive behaviour” emphasize the notion that those of same sex orientation are unclean and possessed with uncontrollable sexual appetites or behaviour. The message which a reasonable person would take from the flyers is that homosexuals, by virtue of their sexual orientation, are inferior, untrustworthy and seek to proselytize and convert our children.
189 The flyers also seek to vilify those of same-sex orientation by portraying them as child abusers or predators…
191… Part of assessing whether expression contravenes s. 14(1)(b) of the Code, is whether the expression not only exposes or tends to expose the vulnerable group to detestation and vilification, but also, when viewed objectively and in its context, has the potential to lead to discriminatory treatment of the targeted group. Overt advocacy of discriminatory treatment is neither necessary nor sufficient to establish that expression exposes a protected group to hatred. However, it can be an important factor in assessing the context of the expression and its likely effects.
192 In the instant case, [the] Flyers … expressly call for discriminatory treatment of those of same-sex orientation… Mr. Whatcott therefore combined expression exposing homosexuals to hatred with expression promoting their discriminatory treatment. In my view, it was not unreasonable for the Tribunal to conclude that this expression was more likely than not to expose homosexuals to hatred.
The Supreme Court disagreed, however, with the Tribunal’s findings on the hand-annotated classified ads (§196): “Reproduction of the ads themselves, and the statement as to how the ads could be interpreted as ‘men seeking boys’, do not manifest hatred. The implication that the ads reveal men seeking under-aged males, while offensive, is presented as Mr. Whatcott’s interpretation of what the ads mean. He insinuates that this is a means by which pedophiles can advertise for victims, but the expression falls short of expressing detestation or vilification in a manner that delegitimizes homosexuals. The expression, while offensive, does not demonstrate the hatred required by the prohibition”. As to the Biblical extract: “While use of the Bible as a credible authority for a hateful proposition has been considered a hallmark of hatred, it would only be unusual circumstances and context that could transform a simple reading or publication of a religion’s holy text into what could objectively be viewed as hate speech (§199). And the handwritten words: “This shouldn’t be legal in Saskatchewan!”, with which the Tribunal “did not find fault” (§200) might have referred to the ads or to homosexuality but “even if, viewed objectively, the words were to be interpreted as calling for homosexuality to be illegal, the statement is not combined with any representations of detestation and vilification delegitimizing those of same-sex orientation. Rather, as the Court of Appeal determined, these flyers are potentially offensive but lawful contributions to the public debate on the morality of homosexuality”.
The decision in Whatcott has generated much critical comment, not least because of the ruling that untruth was not a necessary ingredient of hate speech. Whatcott’s Blog, “FreeNorthAmerica”, suggested that the decision was “specious and fantastical at best, or dishonest and totalitarian at worst”. A glance at the website would suggest that his enthusiasm for campaigning against homosexuals is undiminished.