Canadian Supreme Court Upholds Key Part of Saskatchewan's Hate Speech Law

In Saskatchewan Human Rights Commission v. Whatcott, (Sup. Ct. Canada, Feb. 27, 2013), the Supreme Court of Canada, in a 116-page opinion, upheld the constitutionality of a key provision in the Saskatchewan Human Rights Code, Sec. 14.  However it invalidated a portion of the statute's language.  At issue in the case were 4 flyers critical of homosexuality published and  distributed by William Whatcott. The Supreme Court concluded that 2 of the flyers violated the Saskatchewan ban, while two other flyers did not.

Sec. 14 in part bars publication of any statement

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 court held that while this provision imposes limitations on freedom of expression and conscience, the limitations are permissible under Sec. 1 of the Charter of Rights and Freedoms that allows "reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." The Court said in part:

[H]ate speech seeks to delegitimize group members in the eyes of the majority, reducing their social standing and acceptance within society.... 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....

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....

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.... [T]he preventive measures found in human rights legislation reasonably centre on effects, rather than intent.

However, the court found that some of the prohibitions in Sec. 14 go too far:

[E]xpression 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 ... unjustifiably infringe freedom of expression.... and must be struck from s. 14(1)(b)....

 The Globe and Mail and AFP report on the decision.