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John McKiggan Q.C.
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Supreme Court of Canada Rules on Hate Speech vs. Free Speech: Saskatchewan v. Whatcott

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Last week the Supreme Court of Canada released its reasons in Saskatchewan (Human Rights Commission) v. Whatcott. The decision concerned an appeal from the Saskatchewan Court of Appeal relating to a decision of the Saskatchewan Human Rights Commission.

The defendant William Whatcott published and distributed leaflets which contained hateful statements about homosexuals, referring to homosexuals as sodomites and pedophiles

A complaint was filed with Saskatchewan Human Rights Commission alleging Whatcott was promoting hatred against individuals based on their sexual orientation. The Human Rights Tribunal held the publications contravened s.14 of the Saskatchewan Human Rights Code on the basis that Whatcott’s views exposed persons to hatred and ridicule on the basis of their sexual orientation.

The Saskatchewan Human Rights Code prohibits discrimination on the basis of sexual orientation. Similar provisions are contained in the Nova Scotia Human Rights Act.

Whatcott appealed to the Saskatchewan Court of Queen’s Bench which upheld the Human Rights Tribunal decision.

Free Speech and Freedom of Religion

Whatcott argued that the statements contained in the leaflets did not meet the test for hate comments as defined under the Code. The SCC had no problem ruling that such statements promoted hatred of homosexuals.

Whatcott also argued that he was entitled to make the statements based on his constitutional protected right to freedom of expression and freedom of religion. Justice Marshall Rothstein wrote that Canadians rights to freedom of speech and freedom of religion are unlimited:

"…except by the discrete and narrow requirement that this not be conveyed through hate speech.”

Whatcott also argued that the section of the Human Rights Code was unconstitutional since it limited his right to free speech and freedom of religion.

Ridiculing or Belittling Someone is Protected

The Supreme Court of Canada found that certain parts of the Human Rights Code that prohibited the statements that ridiculed or belittled persons on the basis of a prohibited ground of discrimination were not constitutionally protected and did violate the Canadian Charter of Rights and Freedoms.

Hate Speech is Not Protected

However, the Supreme Court of Canada confirmed that the sections of the Human Rights Code that prohibited hatred against persons based on a prohibited ground of discrimination was constitutional and was not protected on the basis of freedom of expression or freedom of religion.

Rothstein J. explained the difference between legitimate debate and prohibited conduct, and provided examples of how Whatcott could have expressed his views without violating the Human Rights Act.

Justice Rothstein described hate speech as states describing:

"…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 negative generalizations, and uses vilifying and derogatory representations to create a tone of hatred.”

A Fine Line

The Supreme Court of Canada has clearly stated that hateful comments based on prohibited grounds of discrimination cannot be protected by freedom of expression or freedom of religion.

However, the Court has struck a fine line between distinguishing statements that merely belittle or expose them to ridicule as opposed to actually promoting hatred against individuals.

The Court has balanced the right to freedom of expression and freedom of religion in stating that persons may have to bear the brunt of statements that ridicule or belittle them.

However, the Court has drawn a line against any statements designed to promote hatred.

You can read the full decision here.

3 Comments

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  1. Abel jamir says:
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    Rome also fell after endorsing homosexuality

  2. Evan Burchfield says:
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    Rome was endorsing homosexuality for centuries before Christianity took over. The fall occurred after all of this. Gibbon blames elitist Christianity’s interaction with rural pagans for the fall, among other (much more complicated) factors.

  3. John McKiggan says:
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    Thanks for your comments. The issue is not what caused the fall of an empire 2000 years ago. Although something that I am sure could give rise to an interesting debate. Rather when does free speech become hate speech? Should there ever be limits on free speech? The Supreme Court says yes. Do you agree?