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SUPREME
COURT OF CANADA
Between:
Saskatchewan
Human Rights Commission
Appellant
and
William
Whatcott
Respondent
-
and -
Attorney
General for Saskatchewan, Attorney General of Alberta, Canadian Constitution
Foundation, Canadian Civil Liberties Association, Canadian Human Rights
Commission, Alberta Human Rights Commission, Egale Canada Inc., Ontario Human
Rights Commission, Canadian Jewish Congress, Unitarian Congregation of
Saskatoon, Canadian Unitarian Council, Women’s Legal Education and Action Fund,
Canadian Journalists for Free Expression, Canadian Bar Association, Northwest
Territories Human Rights Commission, Yukon Human Rights Commission, Christian
Legal Fellowship, League for Human Rights of B’nai Brith Canada, Evangelical
Fellowship of Canada, United Church of Canada, Assembly of First Nations,
Federation of Saskatchewan Indian Nations, Métis Nation―Saskatchewan, Catholic Civil
Rights League, Faith and Freedom Alliance and African Canadian Legal Clinic
Interveners
Coram: McLachlin C.J. and LeBel, Deschamps,* Fish, Abella, Rothstein and Cromwell JJ.
Reasons for
Judgment:
(paras. 1 to 207)
|
Rothstein J. (McLachlin C.J. and LeBel, Fish, Abella and
Cromwell JJ. concurring)
|
Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC
11, [2013] 1 S.C.R. 467
Saskatchewan
Human Rights Commission Appellant
v.
William
Whatcott Respondent
and
Attorney General for Saskatchewan,
Attorney General of Alberta,
Canadian Constitution Foundation,
Canadian Civil Liberties Association,
Canadian Human Rights Commission,
Alberta Human Rights Commission,
Egale Canada Inc.,
Ontario Human Rights Commission,
Canadian Jewish Congress,
Unitarian Congregation of Saskatoon,
Canadian Unitarian Council,
Women’s Legal Education and Action Fund,
Canadian Journalists for Free
Expression,
Canadian Bar Association,
Northwest Territories Human Rights
Commission,
Yukon Human Rights Commission,
Christian Legal Fellowship,
League for Human Rights of B’nai Brith
Canada,
Evangelical Fellowship of Canada,
United Church of Canada,
Assembly of First Nations,
Federation of Saskatchewan Indian
Nations,
Métis Nation — Saskatchewan,
Catholic Civil Rights League,
Faith and Freedom Alliance and
African
Canadian Legal Clinic Interveners
Indexed as: Saskatchewan (Human Rights Commission) v.
Whatcott
2013 SCC 11
File No.: 33676.
2011: October 12; 2013: February 27.
Present: McLachlin C.J. and LeBel, Deschamps,
Fish, Abella, Rothstein and Cromwell JJ.
on appeal from the court of appeal for saskatchewan
Constitutional
law — Charter of Rights — Freedom of religion — Hate publications — Whether
provincial human rights legislation prohibiting publications that expose or
tend to expose to hatred, ridicule, belittle or otherwise affront dignity of
persons on basis of prohibited ground infringes guaranteed freedom of religion —
If so, whether infringement justified — Saskatchewan Human Rights Code, S.S.
1979, c. S‑24.1, s. 14(1)(b) — Canadian Charter of Rights and
Freedoms, ss. 1 , 2 (a).
Constitutional
law — Charter of Rights — Freedom of expression — Hate publications — Whether
provincial human rights legislation prohibiting publications that expose or
tend to expose to hatred, ridicule, belittle or otherwise affront dignity of
persons on basis of prohibited ground infringes guaranteed freedom of
expression — If so, whether infringement justified — Saskatchewan Human Rights
Code, S.S. 1979, c. S‑24.1, s. 14(1)(b) — Canadian Charter of Rights and
Freedoms, ss. 1 , 2 (b).
Administrative
law — Appeals — Standard of review — Human rights tribunal finding that hate
publications infringe provincial human rights legislation and that provincial
human rights legislation prohibiting hate publications is constitutional —
Whether decision reviewable on standard of correctness or reasonableness —
Whether tribunal made reviewable error.
Four complaints were filed with the Saskatchewan Human Rights
Commission concerning four flyers published and distributed by W. The
complainants alleged that the flyers promoted hatred against individuals on the
basis of their sexual orientation. The first two flyers were entitled “Keep
Homosexuality out of Saskatoon’s Public Schools!” and “Sodomites in our Public
Schools”. The other two flyers were identical to one another and were a
reprint of a page of classified advertisements to which handwritten comments
were added. A tribunal was appointed to hear the complaints. It held that the
flyers constituted publications that contravened s. 14 of The
Saskatchewan Human Rights Code because they exposed persons to hatred and
ridicule on the basis of their sexual orientation, and concluded that s. 14
of the Code was a reasonable restriction on W’s rights to freedom of
religion and expression guaranteed by s. 2 (a) and (b) of the
Charter . The Court of Queen’s Bench upheld the tribunal’s decision. The
Court of Appeal accepted that the provision was constitutional but held that
the flyers did not contravene it.
Held:
The appeal should be allowed in part.
The
definition of “hatred” set out in Canada (Human Rights Commission) v. Taylor,
[1990] 3 S.C.R. 892, with some modifications, provides a workable approach to
interpreting the word “hatred” as it is used in legislative provisions
prohibiting hate speech. Three main prescriptions must be followed. First,
courts must apply the hate speech prohibitions objectively. The question
courts must ask is whether a reasonable person, aware of the context and
circumstances, would view the expression as exposing the protected group to
hatred. Second, the legislative term “hatred” or “hatred or contempt” must 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. Third, tribunals must focus their analysis on the
effect of the expression at issue, namely whether it is likely to expose the
targeted person or group to hatred by others. The repugnancy of the ideas
being expressed is not sufficient to justify restricting the expression, and
whether or not the author of the expression intended to incite hatred or
discriminatory treatment is irrelevant. The key is to determine the likely
effect of the expression on its audience, keeping in mind the legislative
objectives to reduce or eliminate discrimination. In light of these three
directives, the term “hatred” contained in a legislative hate speech
prohibition should be applied objectively to determine 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 discrimination.
The
statutory prohibition against hate speech at s. 14(1)(b) of the Code
infringes the freedom of expression guaranteed under s. 2 (b) of the
Charter . The activity described in s. 14(1)(b) has expressive
content and falls within the scope of s. 2 (b) protection. The
purpose of s. 14(1)(b) is to prevent discrimination by curtailing certain
types of public expression.
The
limitation imposed on freedom of expression by the prohibition in s. 14(1)(b)
of the Code is a limitation prescribed by law within the meaning of
s. 1 of the Charter and is demonstrably justified in a free and
democratic society. It appropriately balances the fundamental values
underlying freedom of expression 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.
The
objective for which the limit is imposed, namely tackling causes of
discriminatory activity to reduce the harmful effects and social costs of
discrimination, is pressing and substantial. Hate speech is an effort to
marginalize individuals based on their membership in a group. Using expression
that exposes the group to hatred, hate speech seeks to delegitimize group
members in the eyes of the majority, reducing their social standing and
acceptance within society. Hate speech, therefore, rises beyond causing
distress to individual group members. It can have a societal impact. 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.
Section 14(1)(b)
of the Code is proportionate to its objective. Prohibiting
representations that are objectively seen to expose protected groups to hatred
is rationally connected to the objective of eliminating discrimination and the
other harmful effects of hatred. To satisfy the rational connection
requirement, the expression captured under legislation restricting hate speech
must rise to a level beyond merely impugning individuals: it must seek to
marginalize the group by affecting their social status and acceptance in the
eyes of the majority. 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. Similarly, the prohibition does not preclude hate speech
against an individual on the basis of his or her uniquely personal
characteristics, but only on the basis of characteristics that are shared by
others and have been legislatively recognized as a prohibited ground of
discrimination. However, expression 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 are not rationally connected to
the legislative purpose of addressing systemic discrimination of protected
groups and they unjustifiably infringe freedom of expression. Consequently,
they are constitutionally invalid and must be struck from s. 14(1)(b).
Section 14(1)(b)
of the Code meets the minimal impairment requirement. Alternatives
proposed were to allow the marketplace of ideas to arrive at the appropriate
balance of competing rights or to leave the prosecution of hate speech to the
criminal law. However, the prohibition in s. 14(1)(b) is one of the
reasonable alternatives that could have been selected by the legislature. The
words “ridicules, belittles or otherwise affronts the dignity of” in s. 14(1)(b)
are also constitutionally invalid because they do not minimally impair freedom
of expression. Once those words are severed from s. 14(1)(b), the
remaining prohibition is not overbroad, but rather tailored to impair freedom
of expression as little as possible. The modified provision will not capture
all harmful expression, but it is intended to capture expression which, by
inspiring hatred, has the potential to cause the type of harm that the
legislation is trying to prevent.
Not
all expression will be treated equally in determining an appropriate balancing
of competing values under a s. 1 analysis, since different types of
expression will be relatively closer to or further from the core values behind
the freedom, depending on the nature of the expression. Hate speech is at some
distance from the spirit of s. 2 (b) because it does little to
promote, and can in fact impede, the values underlying freedom of expression. Hate
speech can also distort or limit the robust and free exchange of ideas by its
tendency to silence the voice of its target group. These are important
considerations in balancing hate speech with competing Charter rights
and in assessing the constitutionality of the prohibition in s. 14(1)(b)
of the Code.
Framing
speech as arising in a moral context or within a public policy debate does not
cleanse it of its harmful effect. Finding that certain expression falls within
political speech does not close off the enquiry into whether the expression
constitutes hate speech. Hate speech may often arise as a part of a larger
public discourse but it is speech of a restrictive and exclusionary kind. Political
expression contributes to our democracy by encouraging the exchange of opposing
views. Hate speech is antithetical to this objective in that it shuts down
dialogue by making it difficult or impossible for members of the vulnerable
group to respond, thereby stifling discourse. Speech that has the effect of
shutting down public debate cannot dodge prohibition on the basis that it
promotes debate. Section 14 of the Code provides an appropriate
means by which to protect almost the entirety of political discourse as a vital
part of freedom of expression. It extricates only an extreme and marginal type
of expression which contributes little to the values underlying freedom of
expression and whose restriction is therefore easier to justify.
A
prohibition is not overbroad for capturing expression targeting sexual
behaviour. Courts have recognized a strong connection between sexual
orientation and sexual conduct and where the conduct targeted by speech is a
crucial aspect of the identity of a vulnerable group, attacks on this conduct
stand as proxy for attacks on the group itself. If expression targeting
certain sexual behaviour is framed in such a way as to expose persons of an
identifiable sexual orientation to what is objectively viewed as detestation
and vilification, it cannot be said that such speech only targets the behaviour.
It quite clearly targets the vulnerable group.
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. Systemic discrimination is more widespread than intentional
discrimination and the preventive measures found in human rights legislation
reasonably centre on effects, rather than intent. The difficulty of
establishing causality and the seriousness of the harm to vulnerable groups
justifies the imposition of preventive measures that do not require proof of
actual harm. The discriminatory effects of hate speech are part of the
everyday knowledge and experience of Canadians. As such, the legislature is
entitled to a reasonable apprehension of societal harm as a result of hate speech.
The lack of defences is not fatal to the constitutionality of the provision. Truthful
statements can be presented in a manner that would meet the definition of hate
speech, and not all truthful statements must be free from restriction. Allowing
the dissemination of hate speech to be excused by a sincerely held belief would
provide an absolute defence and would gut the prohibition of effectiveness.
The
benefits of the suppression of hate speech and its harmful effects outweigh the
detrimental effect of 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 in a manner that is conciliatory and remedial. The protection of
vulnerable groups from the harmful effect emanating from hate speech is of such
importance as to justify the minimal infringement of expression.
Section 14(1)(b)
of the Code also infringes freedom of conscience and religion as
guaranteed under s. 2 (a) of the Charter . An infringement of
s. 2 (a) will be established where: (1) the claimant sincerely
holds a belief or practice that has a nexus with religion; and (2) the
provision at issue interferes with the claimant’s ability to act in accordance
with his or her religious beliefs. To the extent that an individual’s choice
of expression is caught by the definition of “hatred” in s. 14(1)(b), the
prohibition will substantially interfere with that individual’s ability to
disseminate his or her belief by display or publication of those
representations.
For
the same reasons set out in the s. 1 analysis in the case of freedom of
expression, the words “ridicules, belittles or otherwise affronts the dignity
of” are not rationally connected to the legislative purpose of addressing
systemic discrimination of protected groups, nor tailored to minimally impair
freedom of religion. The remaining prohibition of any representation “that
exposes or tends to expose to hatred” any person or class of persons on the
basis of a prohibited ground is a reasonable limit on freedom of religion and
is demonstrably justified in a free and democratic society.
While
the standard of review of the tribunal’s decision on the constitutionality of
s. 14 of the Code is correctness, the standard of review of the
tribunal’s decision that the flyers contravene that provision must be
reasonableness. The tribunal did not unreasonably fail to give proper weight
to the importance of protecting expression that is part of an ongoing debate on
sexual morality and public policy. Nor was it unreasonable in isolating
certain excerpts from the flyers for examination, or in finding that the flyers
criticize sexual orientation and not simply sexual behaviour. That the rights
of a vulnerable group are a matter of ongoing discussion does not justify
greater exposure by that group to hatred and its effects. The only expression
which should be caught by s. 14(1)(b) of the Code is hate‑inspiring
expression that adds little value to the political discourse or to the quest
for truth, self‑fulfillment, and an embracing marketplace of ideas. The
words and phrases in a publication cannot properly be assessed out of context,
and the expression must be considered as a whole, to determine the overall
impact or effect of the publication. However, it is also legitimate to proceed
with a closer scrutiny of those parts of the expression which draw nearer to
the purview of s. 14(1)(b) of the Code. 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
its publication in its current form.
The
tribunal’s conclusions with respect to the first two flyers were reasonable. Passages
of these flyers combine many of the hallmarks of hatred identified in the case
law. The expression portrays the targeted group as a menace that threatens the
safety and well‑being of others, makes reference to respected sources in
an effort to lend credibility to the negative generalizations, and uses
vilifying and derogatory representations to create a tone of hatred. The
flyers also expressly call for discriminatory treatment of those of same‑sex
orientation. It was not unreasonable for the tribunal to conclude that this
expression was more likely than not to expose homosexuals to hatred.
The
tribunal’s decision with respect to the other two flyers was unreasonable and
cannot be upheld. The tribunal erred by failing to apply s. 14(1)(b) to
the facts before it in accordance with the proper legal test. It cannot
reasonably be found that those flyers contain expression that a reasonable
person, aware of the relevant context and circumstances, would find as exposing
or likely to expose persons of same‑sex orientation to detestation and
vilification. The expression, while offensive, does not demonstrate the hatred
required by the prohibition.
Cases Cited
Referred
to: R. v. Keegstra, [1990] 3 S.C.R. 697; R. v. Andrews,
[1990] 3 S.C.R. 870; R. v. Krymowski, 2005 SCC 7, [2005] 1 S.C.R.
101; Canada (Human Rights Commission) v.
Taylor, [1990] 3 S.C.R. 892; Human
Rights Commission (Sask.) v. Bell (1994), 120 Sask. R. 122; Owens v.
Human Rights Commission (Sask.), 2002 SKQB 506, 228 Sask. R. 148, rev’d
2006 SKCA 41, 267 D.L.R. (4th) 733; Kane v. Alberta Report, 2001
ABQB 570, 291 A.R. 71; Elmasry v. Rogers Publishing Ltd. (No. 4),
2008 BCHRT 378, 64 C.H.R.R. D/509; Nealy v. Johnston (1989), 10 C.H.R.R.
D/6450; Warman v. Kouba, 2006 CHRT 50 (CanLII); Citron v. Zündel (No. 4)
(2002), 41 C.H.R.R. D/274; Warman v. Tremaine (No. 2), 2007 CHRT 2,
59 C.H.R.R. D/391; Payzant v. McAleer (1994), 26 C.H.R.R. D/271, aff’d (1996),
26 C.H.R.R. D/280; Warman v. Northern Alliance, 2009 CHRT 10 (CanLII); Center
for Research‑Action on Race Relations v. www.bcwhitepride.com, 2008
CHRT 1 (CanLII); Warman v. Winnicki (No. 2), 2006 CHRT 20, 56
C.H.R.R. D/381; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1
S.C.R. 927; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Canadian Broadcasting Corp. v. Canada (Attorney General), 2011 SCC 2, [2011] 1 S.C.R. 19; R. v. Butler, [1992] 1 S.C.R. 452; R. v. Sharpe,
2001 SCC 2, [2001] 1 S.C.R. 45; R. v. Oakes, [1986] 1 S.C.R.
103; Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R.
825; Mugesera v. Canada (Minister of Citizenship and Immigration), 2005
SCC 40, [2005] 2 S.C.R. 100; Thomson Newspapers Co. v. Canada (Attorney
General), [1998] 1 S.C.R. 877; Canada (Attorney General) v. JTI‑Macdonald
Corp., 2007 SCC 30, [2007] 2 S.C.R. 610; R. v. Edwards Books and Art Ltd.,
[1986] 2 S.C.R. 713; Withler v. Canada (Attorney General), 2011 SCC 12,
[2011] 1 S.C.R. 396; Human Rights Commission (Sask.) v. Engineering
Students’ Society, University of Saskatchewan (1989), 72 Sask. R. 161; Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567; Abrams v. United States, 250 U.S. 616
(1919); Zurich Insurance Co. v. Ontario (Human Rights Commission),
[1992] 2 S.C.R. 321; R. v. Khawaja, 2012 SCC 69, [2012] 3 S.C.R. 555; Kempling
v. College of Teachers (British Columbia), 2005 BCCA 327, 43 B.C.L.R. (4th)
41; Snyder v. Phelps, 131 S. Ct. 1207 (2011); Rocket v. Royal College
of Dental Surgeons of Ontario, [1990] 2 S.C.R. 232; Trinity Western
University v. British Columbia College of Teachers, 2001 SCC 31, [2001] 1
S.C.R. 772; Egan v. Canada, [1995] 2 S.C.R. 513; R. v. Big M Drug
Mart Ltd., [1985] 1 S.C.R. 295; Multani v. Commission scolaire
Marguerite‑Bourgeoys, 2006 SCC 6, [2006] 1 S.C.R. 256; B. (R.)
v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315; Syndicat
Northcrest v. Amselem, 2004 SCC 47, [2004] 2 S.C.R. 551; Smith v.
Alliance Pipeline Ltd., 2011 SCC 7, [2011] 1 S.C.R. 160; Alberta
(Information and Privacy Commissioner) v. Alberta Teachers’ Association,
2011 SCC 61, [2011] 3 S.C.R. 654.
Statutes and Regulations Cited
Bill C-304, An Act to amend the Canadian Human Rights Act
(protecting freedom), 1st Sess., 41st Parl., June 6, 2012.
Canadian Charter of Rights and Freedoms,
ss. 1 , 2 , 15 .
Canadian Human Rights Act, S.C. 1976‑77,
c. 33 [now R.S.C. 1985, c. H-6 ], s. 13(1) .
Criminal Code, R.S.C. 1985, c. C‑46 .
Saskatchewan Human Rights Code, S.S. 1979, c. S‑24.1, ss. 2(1)(m.01)(vi), 3, 4, 5, 14, 31(4)
[rep. 2011, c. 17, s. 15], 31.4(a), (b), 32(1).
Saskatchewan Human Rights Code Amendment Act, 2000, S.S. 2000, c. 26.
Saskatchewan Human Rights Code Amendment Act, 2011, S.S. 2011, c. 17.
Authors Cited
Canada. Special
Committee on Hate Propaganda in Canada. Report of the Special Committee on
Hate Propaganda in Canada. Ottawa: Queen’s Printer, 1966.
Cardozo, Benjamin N. The Nature of
the Judicial Process. New Haven, Conn.: Yale University Press, 1921.
Dworkin, Ronald. “Foreword”, in Ivan Hare and James Weinstein,
eds., Extreme Speech and Democracy. New York: Oxford University Press,
2009, v.
McNamara, Luke. “Negotiating the Contours of Unlawful Hate Speech:
Regulation Under Provincial Human Rights Laws in Canada” (2005), 38 U.B.C. L.
Rev. 1.
Moon, Richard. Report to the Canadian Human Rights Commission
Concerning Section 13 of the Canadian Human Rights Act and the Regulation
of Hate Speech on the Internet. Ottawa: Canadian Human Rights Commission,
2008.
Moon, Richard. The Constitutional Protection of Freedom of
Expression. Toronto: University of Toronto Press, 2000.
Oxford
English Dictionary (online: www.oed.com), “calumny”,
“emotion”.
Sumner, L. W. The Hateful and the Obscene: Studies in the
Limits of Free Expression. Toronto: University of Toronto Press, 2004.
APPEAL
from a judgment of the Saskatchewan Court of Appeal (Sherstobitoff, Smith and
Hunter JJ.A.), 2010 SKCA 26, 346 Sask. R. 210, 477 W.A.C. 210, 317 D.L.R.
(4th) 69, 218 C.R.R. (2d) 145, [2010] 4 W.W.R. 403, [2010] S.J. No. 108
(QL), 2010 CarswellSask 109, setting aside a decision of Kovach J., 2007 SKQB
450, 306 Sask. R. 186, 61 C.H.R.R. D/401, [2007] S.J. No. 672 (QL), 2007
CarswellSask 836, upholding a decision of the Saskatchewan Human Rights
Tribunal (2005), 52 C.H.R.R. D/264, 2005 CarswellSask 480. Appeal allowed in
part.
Grant J.
Scharfstein, Q.C., and Deidre L.
Aldcorn, for the appellant.
Thomas A.
Schuck, Iain Benson, John Carpay and Daniel
Mol, for the respondent.
Thomson
Irvine, for the intervener the Attorney General for
Saskatchewan.
David N.
Kamal, for the intervener the Attorney General of
Alberta.
Mark A.
Gelowitz and Jason MacLean, for the
intervener the Canadian Constitution Foundation.
Andrew K.
Lokan and Jodi Martin, for the intervener the
Canadian Civil Liberties Association.
Philippe
Dufresne and Brian Smith, for the intervener
the Canadian Human Rights Commission.
Audrey
Dean and Henry S. Brown, Q.C.,
for the intervener the Alberta Human Rights Commission.
Cynthia
Petersen and Christine Davies, for the
intervener Egale Canada Inc.
Anthony D.
Griffin, for the intervener the Ontario Human
Rights Commission.
Mark J.
Freiman, for the intervener the Canadian Jewish
Congress.
Arif
Chowdhury, for the interveners the Unitarian
Congregation of Saskatoon and the Canadian Unitarian Council.
Kathleen E.
Mahoney and Jo‑Ann R. Kolmes, for
the intervener the Women’s Legal Education and Action Fund.
M. Philip
Tunley and Paul J. Saguil, for the
intervener the Canadian Journalists for Free Expression.
David
Matas, for the intervener the Canadian Bar
Association.
Written submissions only by Shaunt Parthev, Q.C., and Ashley M.
Smith, for the interveners the Northwest Territories Human Rights
Commission and the Yukon Human Rights Commission.
Derek J.
Bell, Ranjan K. Agarwal and Ruth A. M.
Ross, for the intervener the Christian Legal Fellowship.
Marvin
Kurz, for the intervener the League for Human
Rights of B’nai Brith Canada.
Donald E. L.
Hutchinson and André Schutten, for the
intervener the Evangelical Fellowship of Canada.
Ben
Millard, for the intervener the United Church of
Canada.
Written submissions only by David M. A. Stack, for
the interveners the Assembly of First Nations, the Federation of Saskatchewan
Indian Nations and the Métis Nation — Saskatchewan.
Ryan D. W.
Dalziel and Micah B. Rankin, for the
interveners the Catholic Civil Rights League and the Faith and Freedom
Alliance.
Sunil
Gurmukh and Moya Teklu for the intervener the
African Canadian Legal Clinic.
The
judgment of the Court was delivered by
Rothstein J. —
I. Introduction
[1]
All rights guaranteed under the Canadian
Charter of Rights and Freedoms are subject to reasonable limitations. This
balancing of rights and limitations gives rise to a tension between freedom of
expression constitutionally guaranteed under s. 2 (b) of the Charter and
legislative provisions prohibiting the promotion of hatred or the publication
of hate speech. That tension has been considered by this Court in the context
of the Criminal Code, R.S.C. 1985, c. C-46 (R. v.
Keegstra, [1990] 3
S.C.R. 697; R. v. Andrews, [1990] 3 S.C.R. 870; and R. v. Krymowski, 2005 SCC 7, [2005] 1 S.C.R. 101) and in
the context of human rights legislation (Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892). It is in this latter context that the Court is asked to revisit the
matter in the present appeal. We are also asked to decide whether the
statutory prohibition at issue infringes freedom of religion as guaranteed by
s. 2 (a) of the Charter .
[2]
The Saskatchewan legislature included a
provision in its human rights legislation prohibiting hate publications. While
emphasizing the importance of freedom of expression in a subsection of the
provision, the intent of the statute is to suppress a certain type of
expression which represents a potential cause of the discriminatory practices
the human rights legislation seeks to eliminate. Our task is to determine
whether the legislature’s approach is constitutional.
[3]
Four complaints were filed with the Saskatchewan
Human Rights Commission (“Commission”) concerning four flyers published and
distributed by the respondent, William Whatcott. The flyers were distributed to
the public and targeted homosexuals and were challenged by the complainants on
the basis that they promoted hatred against individuals because of their sexual
orientation. The Saskatchewan Human Rights Tribunal (“Tribunal”) held that the
flyers constituted publications that contravened s. 14 of The Saskatchewan
Human Rights Code, S.S. 1979, c. S-24.1 (“Code”) as they
exposed persons to hatred and ridicule on the basis of their sexual orientation:
(2005), 52 C.H.R.R. D/264. Section 14(1)(b) of the Code prohibits the
publication or display of any representation “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 Code lists
“sexual orientation” as a prohibited ground (s. 2(1)(m.01)(vi)). All statutory
provisions referred to in these reasons are reproduced in Appendix A.
[4]
The Saskatchewan Court of Queen’s Bench upheld
the Tribunal’s decision: 2007 SKQB 450, 306 Sask. R. 186. That decision was
reversed by the Saskatchewan Court of Appeal (2010 SKCA 26, 346 Sask. R. 210 (“Whatcott
(C.A.)”). The appellate court accepted that s. 14(1)(b) was constitutional
but held that the flyers at issue did not meet the test for hatred and were not
prohibited publications within the meaning of s. 14(1)(b) of the Code.
[5]
Two issues arise in this appeal. The first is
whether s. 14(1)(b) of the Code is constitutional. If so, a second
issue arises as to whether the Tribunal’s application of that provision in the
context of this case should have been upheld.
[6]
I conclude that although s. 14(1)(b) of
the Code infringes Mr. Whatcott’s rights under both ss. 2 (a) and
2 (b) of the Charter , the infringement is justified under
s. 1 of the Charter . This Court’s approach in Keegstra
and Taylor, with some modification, sets out an acceptable method
for determining how to balance the competing rights and interests at play.
[7]
In my respectful view, the Saskatchewan Court of
Appeal erred, in part, in overturning the decision of the Tribunal. I would
therefore allow the appeal and reinstate the decision of the Tribunal with
respect to two of the flyers. I would dismiss the appeal in regard to the
other two.
II. Facts
[8]
In 2001 and 2002, Mr. Whatcott distributed four
flyers in Regina and Saskatoon on behalf of the Christian Truth Activists. Two
of the flyers, marked as exhibits D and E at the Tribunal hearing, were
entitled “Keep Homosexuality out of Saskatoon’s Public Schools!” (“Flyer D”)
and “Sodomites in our Public Schools” (“Flyer E”), respectively. The other two
flyers, marked as exhibits F and G, were identical, and were a reprint of a
page of classified advertisements to which handwritten comments were added
(“Flyer F” and “Flyer G”). The flyers are reproduced in Appendix B.
[9]
Four individuals, who received these flyers at
their homes, filed complaints with the Commission. They alleged that the
material promoted hatred against individuals because of their sexual
orientation, thereby violating s. 14 of the Code. The Commission
appointed a human rights tribunal to hear the complaints.
[10]
Relying on Human Rights Commission (Sask.) v.
Bell (1994), 120 Sask. R. 122 (C.A.) (“Bell”),
and on the Court of Queen’s Bench decision in Owens v. Human Rights
Commission (Sask.), 2002 SKQB 506, 228 Sask. R. 148, rev’d 2006 SKCA
41, 267 D.L.R. (4th) 733, the Tribunal concluded that s. 14 of the Code
was a reasonable restriction on Mr. Whatcott’s rights to freedom of religion
and expression as guaranteed by s. 2 (a) and (b) of the Charter .
With respect to the issue of whether the materials distributed by Mr. Whatcott
constituted a breach of s. 14 of the Code, the Tribunal isolated certain
passages from each of the flyers and concluded that the material contained in
each flyer could objectively be viewed as exposing homosexuals to hatred and
ridicule.
[11]
The Tribunal issued an
order prohibiting Mr. Whatcott and the Christian Truth Activists from
distributing the flyers or any similar materials promoting hatred against
individuals because of their sexual orientation. It also ordered Mr. Whatcott
to pay compensation in the amount of $2,500 to one complainant and $5,000 to
each of the remaining three complainants.
III. Relevant
Statutory Provisions
[12]
At issue is s. 14 of the Code. It
provides:
14. (1) No person shall publish or display, or cause or permit to
be published or displayed, on any lands or premises or in a newspaper, through
a television or radio broadcasting station or any other broadcasting device, or
in any printed matter or publication or by means of any other medium that the
person owns, controls, distributes or sells, any representation,
including any notice, sign, symbol, emblem, article, statement or other
representation:
(a) tending
or likely to tend to deprive, abridge or otherwise restrict the enjoyment by
any person or class of persons, on the basis of a prohibited ground, of any
right to which that person or class of persons is entitled under law; or
(b) 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.
(2) Nothing in
subsection (1) restricts the right to freedom of expression under the law upon
any subject.
IV. Judicial
History
A. Saskatchewan
Court of Queen’s Bench, 2007 SKQB 450,
306 Sask. R. 186
[13]
Kovach J. concluded that s. 14(1)(b) of the Code
must be interpreted in accordance with the standard of hatred and contempt set
out in Taylor so as to prohibit only “communication that involves
extreme feelings and strong emotions of detestation, calumny and vilification”
(para. 21). He upheld the Tribunal’s conclusion that the flyers contravened the
provision, largely on the basis that the flyers equated homosexuals with
pedophiles and child abusers.
[14]
With respect to the constitutionality of s. 14(1)(b),
he held that while the provision may violate Mr. Whatcott’s freedom of
religion, the limit was justifiable.
B. Saskatchewan
Court of Appeal, 2010 SKCA 26, 346 Sask. R.
210
[15]
The Saskatchewan Court of Appeal issued
concurring judgments by Smith and Hunter JJ.A., with Sherstobitoff J.A.
concurring in both. Hunter J.A. reaffirmed that s. 14(1)(b) of the Code must
be interpreted and applied so as to only prohibit communications involving
extreme feelings and strong emotions of detestation, calumny and vilification.
She cautioned that language used to debate the morality of an individual’s
behaviour must attract a relatively high degree of tolerance.
[16]
Hunter J.A. found that the Tribunal and Court of
Queen’s Bench had failed to take the moral context of the flyers properly into
account and had also failed to balance the limitation on freedom of expression
in s. 14(1)(b) with the confirmation of the importance of expression set
out in s. 14(2). In her view, the Tribunal and Kovach J. had erred in selecting
specific phrases from the flyers, rather than dealing with the content and
context of each flyer as a whole.
[17]
She held that the words and phrases isolated by
the Tribunal from Flyer D would not meet the definition of “hatred” set out in Taylor
and that, in the context of a debate about the school curriculum, the entire
flyer could not be considered a hate publication. She found that Flyer E was
part of the ongoing debate about teaching homosexuality in public schools, and
that the comment “Sodomites are 430 times more likely to acquire Aids & 3
times more likely to sexually abuse children!” was merely hyperbole and did not
taint the entire publication. Finally, she found that the ambiguity of the
handwritten statements in Flyers F and G made it difficult to conclude from an
objective perspective that the publication exposed homosexuals to hatred. She
concluded that the flyers were not prohibited publications.
[18]
Smith J.A. agreed that the flyers did not offend
the prohibition at s. 14(1)(b) of the Code against hate publications.
She found it significant that it was the activity (a type of sexual conduct)
rather than the individuals (those of same-sex orientation) to which the flyers
were directed. Questions of sexual morality, being linked to both public
policy and individual autonomy, lay at the heart of protected speech. She
concluded that “where, on an objective interpretation, the impugned expression
is essentially directed to disapprobation of same-sex sexual conduct in a
context of comment on issues of public policy or sexual morality, its
limitation is not justifiable in a free and democratic society” (para. 138).
V. Issues
[19]
The issues on appeal are whether s. 14(1)(b) of
the Code infringes s. 2 (a) and/or s. 2 (b) of the Charter
and, if so, whether the infringement is demonstrably justified under s. 1 of
the Charter . If s. 14(1)(b) is found to survive the constitutional
challenge, the issue will be whether the Tribunal’s decision should have been
upheld on appeal under s. 32(1) of the Code.
VI. The
Definition of “Hatred”
[20]
The Saskatchewan courts have consistently
followed the approach to defining “hatred” set out in Taylor when
interpreting and applying s. 14(1)(b) of the Code.
Before embarking on a constitutional analysis of that provision, it will be
useful to consider the Taylor definition of “hatred” and whether, in
light of the criticisms of it, the definition should be rejected or modified.
A. Summary
of the Decision in Canada (Human Rights Commission) v. Taylor
[21]
Taylor was part
of a trilogy of hate speech cases considered by this Court in 1990, along with Keegstra
and Andrews. The main issue facing the Court in those cases was whether s. 13(1)
of the Canadian Human Rights Act, S.C. 1976-77, c. 33 (“CHRA”)
(now R.S.C. 1985, c. H-6 ), violated freedom of expression guaranteed under s.
2 (b) of the Charter , by restricting telephonic communications of
matters likely to expose persons who are identifiable on the basis of a
prohibited ground of discrimination, to hatred or contempt. The case
arose from complaints regarding a telephone message service offering
pre-recorded messages alleging, inter alia, a conspiracy by Jews to
control Canadian society.
[22]
Dickson C.J., writing for the majority, held
that Mr. Taylor’s freedom of expression was breached by s. 13(1) of the CHRA.
However, the infringement was justified under s. 1 of the Charter .
[23]
He found that s. 13(1) was a limitation
“prescribed by law” (p. 916) and that Parliament’s objective behind s. 13(1)
(preventing the harms caused by hate propaganda) was of pressing and
substantial importance sufficient to justify some limitation on freedom of
expression. Dickson C.J. also reiterated his comment in Keegstra (at p.
766) that, contextually, hate propaganda strays some distance from the spirit
of s. 2 (b) of the Charter , and reconfirmed that its suppression
does not severely curtail the values underlying freedom of expression. He
reasoned that, when conjoined with the remedial provisions of the CHRA,
s. 13(1) operates to suppress hate propaganda and its harmful effects, and is
thereby rationally connected to Parliament’s objective. He rejected the
argument that there could be no rational connection because it was
questionable whether s. 13(1) actually reduces the incidence of hate propaganda.
In Dickson C.J.’s view, the process of hearing a complaint and, if
substantiated, issuing a cease and desist order, “reminds Canadians of our
fundamental commitment to equality of opportunity and the eradication of racial
and religious intolerance” (p. 924).
[24]
In assessing whether s. 13(1) minimally impairs
freedom of expression, Dickson C.J. rejected the submission that it was
overbroad and excessively vague. In his view, there was no conflict between
providing a meaningful interpretation of s. 13(1) and protecting freedom
of expression “so long as the interpretation of the words ‘hatred’ and
‘contempt’ is fully informed by an awareness that Parliament’s objective is to
protect the equality and dignity of all individuals by reducing the incidence
of harm-causing expression” (p. 927). Dickson C.J. concluded that s. 13(1) “refers
to unusually strong and deep-felt emotions of detestation, calumny and
vilification” (p. 928 (emphasis added)). In his view, as long as tribunals
required the ardent and extreme nature of feeling described by “hatred or
contempt”, there was “little danger that subjective opinion as to offensiveness
will supplant the proper meaning of the section” (p. 929).
[25]
Finally, Dickson C.J. concluded that the effects
of s. 13(1) on freedom of expression were not so deleterious as to make it an
unacceptable abridgement of freedom of expression. The Court held that,
although s. 13(1) infringed s. 2 (b) of the Charter , it was
justified under s. 1 as an infringement justifiable in a free and democratic
society.
B. Criticisms
of the Taylor Definition of Hatred
[26]
The conclusion in Taylor about
legislation similar to what is at issue in this case is not, however,
determinative. Mr. Whatcott challenges the constitutionality of a different
legislative provision, interpreted and applied over 20 years later, and in the
context of a different prohibited ground.
[27]
Mr. Whatcott and some interveners argue that
there are a number of problems with the Taylor interpretation of
“hatred” and with prohibiting hate speech generally. The criticisms tend to
fall within two general categories, relating to either subjectivity or overbreadth.
Criticisms concerning subjectivity are that the definition
1.
leads to arbitrary and inconsistent results
because it captures expression that an arbitrator or judge subjectively finds
offensive or repugnant;
2.
is a vague, emotive concept that is inherently
subjective and unworkable; and
3.
infringes freedom of expression in irrational
ways not tied to the legislative objectives.
[28]
Criticisms relating to overbreadth are that the
definition or a particular legislative prohibition
1.
is overreaching and captures more expression
than is intended or necessary;
2.
has a chilling effect on public debate,
religious expression and media coverage of issues about moral conduct and
social policy;
3.
does not give legislative priority to freedom of
expression;
4.
restricts private communications;
5.
should require intention;
6.
should require proof of actual harm or
discrimination; and
7.
should provide for defences, such as a defence
of truth.
[29]
Some of these criticisms are directed to the
manner in which a specific legislative prohibition is formulated. To the
extent that they apply to s. 14(1)(b) of the Code, they will be
addressed in the course of analyzing the constitutionality of that provision.
[30]
However, I will first consider whether, in light
of the criticisms, the definition of “hatred” established in Taylor
remains valid, or should be modified or rejected.
C. Subjectivity
[31]
In my view, the criticisms point to two
conceptual challenges to achieving a consistent application of a prohibition
against hate speech. One is how to deal with the inherent subjectivity of the
concept of “hatred”. Another is a mistaken propensity to focus on the ideas
being expressed, rather than on the effect of the expression.
[32]
Criticisms about the inherent subjectivity of
“hatred” can be broken into two separate concerns. The first is that the
prohibition will lead to arbitrary and inconsistent results, depending on the
subjective views of judges and arbitrators. The second is that a prohibition
predicated on “hatred” is too vague and inherently subjective to ever be
applied objectively. The resulting uncertainty about its application will have
a chilling effect on expression. I will deal with each of these concerns in
turn.
(1) The
Reasonable Person
[33]
Subjectivity is not unique to the application of
standards within human rights legislation. As long as human beings act in the
role of judge or arbitrator, there will be a subjective element in the
application of any standard or test to a given fact situation. In the words of
Cardozo J.: “. . . the traditions of our
jurisprudence commit us to the objective standard. I do not mean, of course,
that this ideal of objective vision is ever perfectly attained” but rather,
inescapably, that “[t]he perception of objective right takes the color of the
subjective mind”: The Nature of the Judicial Process (1921), at pp. 106
and 110.
[34]
In response to this reality, courts develop
legal principles for the purpose of providing a method of dealing with similar
issues consistently. They follow precedent by looking to the manner in which a
principle or standard was applied in comparable fact situations. Where the
applicable standard or test is an objective one, courts and tribunals apply it
on the basis of how a reasonable person in the same position or circumstances
would act or think.
[35]
In the present context, the courts have
confirmed that when applying a prohibition based on
hatred, the outcome does not depend on the subjective views of the publisher or
of the victim of the alleged hate publication, but rather on an objective application
of the test: see Owens (C.A.), at paras. 58-59; Kane v. Alberta Report, 2001 ABQB
570, 291 A.R. 71, at para. 125; Elmasry v. Rogers Publishing Ltd. (No. 4),
2008 BCHRT 378, 64 C.H.R.R. D/509, at paras. 79-80; and
Whatcott (C.A.), at para. 55. The courts pose the question of
whether, “when considered objectively by a reasonable person aware of the
relevant context and circumstances, the speech in question would be understood
as exposing or tending to expose members of the target group to hatred”: Owens
(C.A.), at para. 60. In the course of this assessment, a judge or
adjudicator is expected to put his or her personal views aside and to base the
determination on what he or she perceives to be the rational views of an
informed member of society, viewing the matter realistically and practically.
[36]
Even Cardozo J., despite his acknowledgement of
the inherent subjectivity involved in the judicial process, concedes that the
objective ideal “is one to be striven for within the limits of our capacity”
and warns that “[a] jurisprudence that is not constantly brought into relation
to objective or external standards incurs the risk of degenerating into
. . . a jurisprudence of mere sentiment or feeling” (p. 106).
Although developing legal principles, following precedent and applying
objective standards will not completely eliminate subjectivity from the
adjudicative process, these common law traditions reflect an awareness of the
problem and provide a ground for appeal in cases of unjustifiable departure.
(2) Dealing
With the Inherent Subjectivity of the Emotion of Hatred
[37]
Nonetheless, is the emotion “hatred” too
inherently subjective to be capable of an objective or consistent application?
The argument, as I understand it, is that our perception and understanding of
hatred, like any emotion, will depend in part on our different, personal
experiences. Emotion is an “instinctive feeling as distinguished from reasoning
or knowledge” and is therefore subjective: Oxford English Dictionary
(online). Therefore, a test predicated on a vague emotion makes subjective
application inevitable.
[38]
In Taylor, Dickson C.J. reasoned that the
subjectivity and arbitrariness of a prohibition based on “hatred” could be
reduced by giving full effect to the legislative intent. His reasoning
suggests that this can be achieved in two ways: by adhering to the proper
meaning of the words chosen by the legislature; and by applying the prohibition
in a manner that is consistent with its legislative objectives. Because of the
centrality of both the meaning of “hatred” and the legislative objectives, further
elaboration will be useful.
(a) The
Meaning of “Hatred or Contempt”
[39]
In order to adhere to the legislative choice of
the words “hatred or contempt”, Dickson C.J. emphasized the importance of
interpreting them in a manner that did not include emotions of lesser
intensities. In his view, prohibitions of hate speech should not be triggered
by lesser gradations of disapprobation, so as to capture offensive comments or
expressions of dislike. Interpreting “hatred or contempt” to include feelings
of dislike would expand their meaning beyond what was contemplated by the
legislature and could capture expression which, while derogatory, does not
cause the type of harm that human rights legislation seeks to eliminate. As
long as a tribunal is aware of the purpose behind s. 13(1) of the CHRA
and “pays heed to the ardent and extreme nature of feeling described in the
phrase ‘hatred or contempt’”, Dickson C.J. reasoned that “there is little
danger that subjective opinion as to offensiveness will supplant the proper meaning
of the section”: Taylor, at p. 929.
[40]
Dickson C.J. analyzed the meaning of the words
“hatred or contempt” as they are used in s. 13(1). He discussed with approval
the approach of the human rights tribunal in Nealy v. Johnston (1989),
10 C.H.R.R. D/6450 (C.H.R.T.), at p. D/6469, which acknowledged that while
those words “have a potentially emotive content” that could vary for each
individual, there is “an important core of meaning in both”: Taylor, at
p. 928. The tribunal found that “hatred” involves detestation, extreme
ill-will and the failure to find any redeeming qualities in the target of the
expression. “Contempt” involves looking down on someone or treating them as
inferior. Dickson C.J. found that, according to the tribunal, s. 13(1) refers
to “unusually strong and deep-felt emotions of detestation, calumny and
vilification”: Taylor, at p. 928. The legislative prohibition should
therefore only apply to expression of an unusual and extreme nature.
[41]
In my view, “detestation” and “vilification”
aptly describe the harmful effect that the Code seeks to eliminate.
Representations that expose a target group to detestation tend to inspire
enmity and extreme ill-will against them, which goes beyond mere disdain or
dislike. Representations vilifying a person or group will seek to abuse,
denigrate or delegitimize them, to render them lawless, dangerous, unworthy or
unacceptable in the eyes of the audience. Expression exposing vulnerable
groups to detestation and vilification goes far beyond merely discrediting,
humiliating or offending the victims.
[42]
On the other hand, the reference in the Taylor
definition to calumny is unnecessary. “Calumny” is defined as a “[f]alse
and malicious misrepresentation of the words or actions of others, calculated
to injure their reputation; libellous detraction, slander”: Oxford English
Dictionary (online). 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. In light
of the general disuse of the word “calumny” in everyday vocabulary, in my view
its inclusion in the definition is unnecessary.
[43]
Not all prohibitions of hate speech include the
word “contempt”, and s. 14(1)(b) of the Code does not. The
tribunal in Nealy noted that the concept of “hatred” does not mandate a
particular motive for the emotion, and that the word “contempt” added an
element of looking down on or treating the object as inferior. While I agree
with the tribunal that it is possible to hate someone one considers “superior”,
in my view the term “hatred” in the context of human rights legislation
includes a component of looking down on or denying the worth of another. The
act of vilifying a person or group connotes accusing them of disgusting
characteristics, inherent deficiencies or immoral propensities which are too
vile in nature to be shared by the person who vilifies. Even without the word
“contempt” in the legislative prohibition, delegitimizing a group as unworthy,
useless or inferior can be a component of exposing them to hatred. Such
delegitimization reduces the target group’s credibility, social standing and
acceptance within society and is a key aspect of the social harm caused by hate
speech.
[44]
In the years following Taylor, there has
been considerable human rights jurisprudence and academic commentary about what
constitutes hate speech. The types of expression and devices used to expose
groups to hatred were summarized as the “hallmarks of hate” enumerated in Warman
v. Kouba, 2006 CHRT 50 (CanLII), at paras. 24-81. Hate speech often
vilifies the targeted group by blaming its members for the current problems in
society, alleging that they are a “powerful menace” (para. 24); that they are
carrying out secret conspiracies to gain global control (Citron v. Zündel
(No. 4) (2002), 41 C.H.R.R. D/274 (C.H.R.T.)); or plotting to destroy western
civilization (Taylor). Hate speech also further delegitimizes the
targeted group by suggesting its members are illegal or unlawful, such as by
labelling them “liars, cheats, criminals and thugs” (Citron, at para.
140); a “parasitic race” or “pure evil”: Warman v. Tremaine (No. 2),
2007 CHRT 2, 59 C.H.R.R. D/391, at para. 136.
[45]
Exposure to hatred can also result from
expression that equates the targeted group with groups traditionally reviled in
society, such as child abusers, pedophiles (Payzant v. McAleer (1994),
26 C.H.R.R. D/271 (C.H.R.T.), aff’d (1996), 26 C.H.R.R. D/280 (F.C.T.D.)), or
“deviant criminals who prey on children”: Warman v. Northern Alliance,
2009 CHRT 10 (CanLII), at para. 43. One of the most extreme forms of
vilification is to dehumanize a protected group by describing its members as
animals or as subhuman. References to a group as “horrible creatures who ought
not to be allowed to live” (Northern Alliance, at para. 43);
“incognizant primates”, “genetically inferior” and “lesser beasts” (Center
for Research-Action on Race Relations v. www.bcwhitepride.com, 2008
CHRT 1 (CanLII), at para. 53); or “sub-human filth” (Warman v. Winnicki (No.
2), 2006 CHRT 20, 56 C.H.R.R. D/381, at para. 101) are examples of
dehumanizing expression that calls into question whether group members qualify
as human beings.
[46]
As these examples illustrate, courts have been
guided by the Taylor definition of hatred and have generally identified
only extreme and egregious examples of delegitimizing expression as hate
speech. This approach excludes merely offensive or hurtful expression from the
ambit of the provision and respects the legislature’s choice of a prohibition
predicated on “hatred”.
(b) The Legislative Objectives
[47]
As to giving effect to the legislative
objectives behind the prohibition, Dickson C.J. stated that there should be “no
conflict between providing a meaningful interpretation of s. 13(1) and
protecting the s. 2 (b) freedom of expression” guaranteed by the Charter ,
provided that “the interpretation of the words ‘hatred’ and ‘contempt’ is fully
informed by an awareness that Parliament’s objective is to protect the equality
and dignity of all individuals by reducing the incidence of harm-causing
expression”: Taylor, at p. 927. Linking the test for hate speech to the
specific legislative objectives is key to minimizing both subjectivity and
overbreadth. Preventive measures should only prohibit the type of expression
expected to cause the harm targeted. Since the decision in Taylor,
courts have confirmed that the “harm” these legislative prohibitions seek to
prevent is more than hurt feelings, humiliation or offensiveness: Owens
(C.A.), at paras. 52-53 and 58-60; and Elmasry, at paras. 79, 147
and 150.
[48]
A prohibition of hate speech will not eliminate
the emotion of hatred from the human experience. Employed in the context of
human rights legislation, these prohibitions aim to eliminate 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. 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. This ties the analysis to the
legislative purpose and works to prevent the prohibition from capturing more
expressive activity than is necessary to achieve that objective.
D. Focusing
on the Effects of Hate Speech
[49]
A separate but related conceptual challenge that
impedes the proper application of hate speech prohibitions is a mistaken
propensity to focus on the nature of the ideas expressed, rather than on the
likely effects of the expression. The repugnant content of expression may
sidetrack litigants from the proper focus of the analysis.
[50]
As explained in Irwin Toy Ltd. v. Quebec
(Attorney General), [1989] 1 S.C.R. 927, at p. 968, freedom of
expression was guaranteed in the Charter “so as to ensure that everyone
can manifest their thoughts, opinions, beliefs, indeed all expressions of the
heart and mind, however unpopular, distasteful or contrary to the mainstream”.
If the repugnancy or offensiveness of an idea does not exclude it from Charter
protection under s. 2 (b), it cannot, in itself, be sufficient to justify
a limitation on expression under a s. 1 analysis. A blanket prohibition on the
communication of repugnant ideas would offend the core of freedom of expression
and could not be viewed as a minimal impairment of that right.
[51]
The distinction between the expression of
repugnant ideas and expression which exposes groups to hatred is crucial to
understanding the proper application of hate speech prohibitions. Hate speech
legislation is not aimed at discouraging repugnant or offensive ideas. It does
not, for example, prohibit expression which debates the merits of reducing the
rights of vulnerable groups in society. It only restricts the use of
expression exposing them to hatred as a part of that debate. It does not target
the ideas, but their mode of expression in public and the effect that this mode
of expression may have.
[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? This assessment will depend largely on the context and
circumstances of each case.
[53]
For example, 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.
[54]
Dickson C.J. emphasized this need to focus on the
effects of the expression in his reasons in Taylor. He noted that
“the purpose and impact of human rights codes is to prevent discriminatory
effects rather than to stigmatize and punish those who discriminate” (p.
933 (emphasis added)). The focus of the prohibition against hate propaganda in
s. 13(1) of the CHRA is “solely upon [its] likely effects” (p. 931).
Dickson C.J. reasoned that the preoccupation with the discriminatory effects
was understandable, given that systemic discrimination is more widespread than
intentional discrimination. Tribunals must focus on the likely effects of
impugned expression in order to achieve the preventive goals of
anti-discrimination statutes.
E. Confirming
a Modified Definition of “Hatred”
[55]
As will be apparent from the preceding
discussion, in my view the Taylor definition of “hatred”, with some
modifications, provides a workable approach to interpreting the word “hatred”
as it is used in prohibitions of hate speech. The guidance provided by Taylor
should reduce the risk of subjective applications of such legislative
restrictions, provided that three main prescriptions are followed.
[56]
First, courts are directed to apply the hate
speech prohibitions objectively. In my view, the reference in Taylor
to “unusually strong and deep-felt emotions” (at p. 928) 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.
[57]
Second, the legislative term “hatred” or “hatred
or 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.
[58]
Third, tribunals must focus their analysis on
the effect of the expression at issue. 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”. Similarly, it is irrelevant whether the
author of the expression intended to incite hatred or discriminatory treatment
or other harmful conduct towards the protected group. The key is to determine
the likely effect of the expression on its audience, keeping in mind the
legislative objectives to reduce or eliminate discrimination.
[59]
In light of these three principles, where the
term “hatred” is used in the context of a prohibition of expression in human
rights legislation, it should be applied objectively to determine 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 discrimination.
[60]
I turn now to the constitutionality of s. 14(1)(b)
of the Code.
VII. Standard
of Review in Constitutional Questions
[61]
The standard of review on the constitutionality
of s. 14(1)(b) of the Code is correctness: see Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 58.
VIII. Constitutional
Analysis
A. Whether
Section 14(1)(b) Infringes Freedom of Expression Under Section 2(b) of the
Charter
[62]
Applying the framework most recently described
by this Court in Canadian Broadcasting Corp. v. Canada (Attorney General),
2011 SCC 2, [2011] 1 S.C.R. 19 (“CBC”), I agree with the concession by
the Commission that the statutory prohibition against
hate speech infringes the freedom of expression
guaranteed under s. 2 (b) of the Charter . The activity described
in s. 14(1)(b) — the publication or display of certain types of expression —
has expressive content and falls within the scope of s. 2 (b) protection.
The purpose of s. 14(1)(b) is to prevent discrimination by curtailing certain
types of public expression.
B. Section
1 — Whether the Infringement Is Demonstrably Justified in a Free and Democratic
Society
[63]
Having found that the provision infringes s. 2 (b)
of the Charter , I turn to whether it may be saved under s. 1 .
(1) The
Approach to Freedom of Expression Under Section 1
[64]
Freedom of expression is central to our
democracy. Nonetheless, this Court has consistently found that the right to freedom of expression is not absolute and limitations
of freedom of expression may be justified under s. 1: see Irwin Toy;
Keegstra; Taylor; R. v. Butler, [1992] 1 S.C.R. 452; R. v. Sharpe, 2001 SCC 2,
[2001] 1 S.C.R. 45; and CBC. Section 1 both “guarantees and limits Charter
rights and freedoms by reference to principles fundamental in a free and
democratic society”: Taylor, at p. 916, per Dickson C.J.
[65]
The justification of a limit on freedom of
expression under s. 1 requires a contextual and purposive approach. The values
underlying freedom of expression will inform the context of the violation: see Taylor,
Keegstra and Sharpe. McLachlin C.J., writing for the majority in Sharpe,
explained succinctly the values underlying freedom of expression first
recognized in Irwin Toy, being “individual self-fulfilment, finding the
truth through the open exchange of ideas, and the political discourse
fundamental to democracy” (para. 23).
[66]
We are therefore required to balance 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: s. 15 of the Charter and R. v. Oakes,
[1986] 1 S.C.R. 103, at p. 136; Ross v. New Brunswick School District No. 15,
[1996] 1 S.C.R. 825, at para. 78; and Taylor, at pp. 916 and 920.
[67]
The balancing of competing Charter rights
should also take into account Canada’s international obligations with respect
to international law treaty commitments: Taylor, at p. 916, per
Dickson C.J. Those commitments reflect an international recognition that
certain types of expression may be limited in furtherance of other fundamental
values: Taylor, at pp. 919-20, per Dickson C.J.
[68]
It is in the context of balancing these Charter
rights that the Saskatchewan legislature has chosen to suppress expression of a
certain kind. The prohibition set out under s. 14(1)(b)
of the Code is clearly a “limit[ation] prescribed by law” within the
meaning of s. 1 of the Charter . The issue is whether the infringement of
s. 2 (b) is demonstrably justified: Oakes; CBC, at para.
64.
(2) Is the Objective for Which
the Limit Is Imposed Pressing and Substantial?
[69]
Following the Oakes test, the first step
is to determine whether the objective of s. 14(1)(b)
advances concerns that are of sufficient importance to warrant overriding the
constitutional guarantee of freedom of expression.
[70]
The objective of s. 14(1)(b) may be ascertained
directly from the Code in which it is found. Section 3 states that the
objectives of the Code are
(a) to
promote recognition of the inherent dignity and the equal inalienable rights of
all members of the human family; and
(b) to
further public policy in Saskatchewan that every person is free and equal in
dignity and rights and to discourage and eliminate discrimination.
[71]
Hate speech is, at its core, an effort to
marginalize individuals based on their membership in a group. Using expression
that exposes the group to hatred, hate speech seeks to delegitimize group
members in the eyes of the majority, reducing their social standing and
acceptance within society. When people are vilified as blameworthy or
undeserving, it is easier to justify discriminatory treatment. The objective
of s. 14(1)(b) may be understood as reducing the harmful effects and social
costs of discrimination by tackling certain causes of discriminatory activity.
[72]
The majority in Keegstra and Taylor
reviewed evidence detailing the potential risks of harm from the dissemination
of messages of hate, including the 1966 Report of the Special Committee on
Hate Propaganda in Canada, commonly known as the Cohen Committee. The
Cohen Committee wrote at a time when the experiences of fascism in Italy and
National Socialism in Germany were in recent memory. Almost 50 years later, I
cannot say that those examples have proven to be isolated and unrepeated at our
current point in history. One need only look to the former Yugoslavia,
Cambodia, Rwanda, Darfur, or Uganda to see more recent examples of attempted
cleansing or genocide on the basis of religion, ethnicity or sexual
orientation. In terms of the effects of disseminating hateful messages, there
is today the added impact of the Internet.
[73]
In Keegstra, at pp. 746-47, Dickson C.J.
found that two types of harm were of a pressing and substantial concern.
First, he referred to the grave psychological and social consequences to
individual members of the targeted group from the humiliation and degradation
caused by hate propaganda. Second, he noted the harmful effects on society at
large by increasing discord and by affecting a subtle and unconscious
alteration of views concerning the inferiority of the targeted group.
[74]
Hate speech, therefore, rises beyond causing
emotional distress to individual group members. It can have a societal impact.
If a group of people are considered inferior, subhuman, or lawless, it is
easier to justify denying the group and its members equal rights or status. As
observed by this Court in Mugesera v. Canada (Minister of Citizenship and
Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100, at para. 147, the findings
in Keegstra suggest “that hate speech always denies fundamental
rights”. 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: see Taylor and Keegstra.
[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.
[77]
This Court has recognized the harm caused by
hate speech in a number of subsequent cases including Ross, Sharpe,
and Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R.
877. I therefore have no difficulty in determining that the purpose of
the legislation is pressing and substantial.
(3) Proportionality
[78]
It is next necessary to consider whether s.
14(1)(b) of the Code is proportionate to its objective. Here perfection
is not required. Rather the legislature’s chosen approach must be accorded
considerable deference. As McLachlin C.J. explained in Canada (Attorney General) v. JTI-Macdonald Corp., 2007 SCC 30, [2007] 2 S.C.R. 610 (“JTI”), at para. 41, “[e]ffective answers to complex social problems . . . may
not be simple or evident. There may be room for debate about what will work
and what will not, and the outcome may not be scientifically measurable.” We
must ask whether Parliament has chosen one of several reasonable alternatives: R.
v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713, at pp. 781-83; Irwin
Toy, at p. 989; JTI, at para. 43.
(a) Is the Limit Rationally Connected to the Objective?
(i) Societal Versus
Individual Harm
[79]
As determined with respect to s. 15(1) of the
Charter in Withler v. Canada (Attorney General), 2011 SCC 12, [2011]
1 S.C.R. 396, at paras. 35-36, the objective of eliminating discrimination and
substantive inequality generally focuses on reducing the perpetuation of
prejudice and disadvantage to members of a group on the basis of statutorily
enumerated (or analogous) personal characteristics, or on the perpetuation of
stereotyping that does not correspond to the actual circumstances and
characteristics of the claimant group. When hate speech pertains to a
vulnerable group, the concern is that it will perpetuate historical prejudice,
disadvantage and stereotyping and result in social disharmony as well as harm
to the rights of the vulnerable group.
[80]
Therefore, the question of whether a restriction
on hate speech is rationally connected to the legislative goal of reducing
discrimination must 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. Hate speech seeks to marginalize individuals based on their
group characteristics. As such, in order to satisfy the rational connection
requirement, the expression captured under legislation restricting hate speech
must rise to a level beyond merely impugning individuals: it must seek to
marginalize the group by affecting its social status and acceptance in the eyes
of the majority.
[81]
This is not to diminish the harm that might
occur to individuals through attacks on their group. As Dickson C.J. noted in Keegstra,
at p. 746, “[a] person’s
sense of human dignity and belonging to the community at large is closely
linked to the concern and respect accorded the groups to which he or she
belongs (see I. Berlin, ‘Two Concepts of Liberty’, in Four Essays on Liberty
(1969), 118, at p. 155).” However, in the context of hate speech, this harm
is derivative of the larger harm inflicted on the group, rather than purely individual.
[82]
Societal harm flowing from hate speech must be
assessed as objectively as possible. The feelings of the publisher or victim
are not the test: Owens (C.A.), at paras. 58-60. While the emotional
damage from hate speech is indeed troubling, protecting the emotions of an
individual group member is not rationally connected to the overall purpose of
reducing discrimination. While it would certainly be expected that hate speech
would prompt emotional reactions from members of the targeted group, in the
context of hate speech legislation, these reactions are only relevant as a
derivative effect of the attack on the group. As a derivative effect, these
are not sufficient to justify an infringement of s. 2 (b). 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.
[83]
Section 14(1)(b) of the Code reflects
this approach. The prohibition only limits the display or publication of
representations, such as through newspapers or other printed matter, or through
television or radio broadcasting. In other words, it only prohibits public
communications of hate speech. The Saskatchewan legislature does not restrict
hateful expression in private communications between individuals. While one
would expect private expressions of hateful messages might inflict significant
emotional harm, they do not impact the societal status of the protected group.
[84]
Similarly, the prohibition does not preclude
hate speech against an individual on the basis of his or her uniquely personal
characteristics, but only on the basis of characteristics that are shared by
others and have been legislatively recognized as a prohibited ground of
discrimination. Although human rights legislation prohibits discrimination of
both majority and minority subgroups identifiable by an enumerated
characteristic, historical and jurisprudential experience demonstrates that
hate speech is virtually always aimed at the minority subgroup. A prohibition
of hate speech will only be rationally connected to the objective if its ambit
is limited to expression publicly directed at a protected group, or at an
individual on the basis that he or she is a member of that group.
(ii) Wording of Section
14(1)(b) of the Code
[85]
The wording of s. 14(1)(b) of the Code has
been criticized for prohibiting not only publications with
representations exposing the target group to “hatred”, but any representation
which “ridicules, belittles or otherwise affronts the dignity of” any person or
class of persons on the basis of a prohibited ground. The words “ridicules”,
“belittles” or “affronts the dignity of” are said to lower the threshold of the
test to capture “hurt feelings” and “affronts to dignity” that are not tied to
the objective of eliminating discrimination. To the extent that they do, they
are said to infringe freedom of expression in ways not rationally connected to
the legislative objectives.
[86]
In actual fact, the additional words in s.
14(1)(b) have not explicitly been used to lower its threshold below what was
set in Taylor. Even before this Court’s decision in Taylor, the
Saskatchewan Court of Appeal narrowly applied the wording in s. 14(1)(b): Human
Rights Commission (Sask.) v. Engineering Students’ Society, University of
Saskatchewan (1989), 72 Sask. R. 161; see also L. McNamara, “Negotiating
the Contours of Unlawful Hate Speech: Regulation Under Provincial Human Rights
Laws in Canada” (2005), 38 U.B.C. L. Rev. 1, at p. 57.
[87]
Since the decision in Taylor, the
Saskatchewan Court of Appeal has interpreted s. 14(1)(b) of the Code,
including the words “ridicules, belittles or otherwise affronts the dignity
of”, to prohibit only those publications involving unusually strong and
deep-felt emotions of detestation, calumny and vilification: see Bell, at para. 31; Owens, at para. 53;
and Whatcott (C.A.), at paras. 53-55.
[88]
Although the expansive words “ridicules, belittles or otherwise affronts the dignity of” have essentially been ignored when applying s.
14(1)(b), it is a matter of concern to some interveners that “the legislation
has never been amended, and no declaration has ever been made to read down the
impugned law” (Christian Legal Fellowship factum, at para. 22), and that the
express wording of the provision contributes to its chilling effect: Canadian
Journalists for Free Expression factum, at para. 5.
[89]
In my view, expression that “ridicules, belittles
or otherwise affronts the dignity of” does not rise to the level of ardent and
extreme feelings that were found essential to the constitutionality of s. 13(1)
of the CHRA in Taylor. Those words are not synonymous with
“hatred” or “contempt”. Rather, they refer to expression which is derogatory
and insensitive, such as representations criticizing or making fun of protected
groups on the basis of their commonly shared characteristics and practices, or
on stereotypes. As Richards J.A. observed in Owens, at para. 53:
Much speech which is self-evidently
constitutionally protected involves some measure of ridicule, belittlement or
an affront to dignity grounded in characteristics like race, religion and so
forth. I have in mind, by way of general illustration, the editorial cartoon
which satirizes people from a particular country, the magazine piece which
criticizes the social policy agenda of a religious group and so forth. Freedom
of speech in a healthy and robust democracy must make space for that kind of
discourse . . . .
[90]
I agree. Expression criticizing or creating
humour at the expense of others can be derogatory to the extent of being
repugnant. Representations belittling a minority group or attacking its dignity
through jokes, ridicule or insults may be hurtful and offensive. However, for
the reasons discussed above, offensive ideas are not sufficient to ground a
justification for infringing on freedom of expression. While such expression
may inspire feelings of disdain or superiority, it does not expose the targeted
group to hatred.
[91]
There may be circumstances where expression that
“ridicules” members of a protected group goes beyond humour or satire and risks
exposing the person to detestation and vilification on the basis of a
prohibited ground of discrimination. In such circumstances, however, the risk
results from the intensity of the ridicule reaching a level where the target
becomes exposed to hatred. While ridicule, taken to the extreme, can
conceivably lead to exposure to hatred, in my view, “ridicule” in its ordinary
sense would not typically have the potential to lead to the discrimination that
the legislature seeks to address.
[92]
Thus, in order to be rationally connected to the
legislative objective of eliminating discrimination and the other societal
harms of hate speech, s. 14(1)(b) must only prohibit expression that is likely
to cause those effects through exposure to hatred. I find that the words
“ridicules, belittles or otherwise affronts the dignity of” in s. 14(1)(b) are
not rationally connected to the legislative purpose of addressing systemic
discrimination of protected groups. The manner in which they infringe freedom
of expression cannot be justified under s. 1 of the Charter and,
consequently, they are constitutionally invalid.
[93]
It remains to determine whether the words
“ridicules, belittles or otherwise affronts the dignity of” can be severed from
s. 14(1)(b) of the Code, or whether their removal would transform the
provision into something which was clearly outside the intention of the
legislature. It is significant that in the course of oral argument before this
Court, the Attorney General for Saskatchewan endorsed
the manner in which the words “ridicules, belittles or otherwise affronts the
dignity of” were read out in Bell. I accept his view that the offending
words can be severed without contravening the legislative intent.
[94]
Given my determination that these words are
unconstitutional, it is time to formally strike out those words from s. 14(1)(b)
of the Code. The provision would therefore read:
(b) that exposes or tends to expose to
hatred any person or class of persons on the basis of a prohibited ground.
[95]
Accordingly, I will proceed on the basis that
the only word in issue on this appeal is “hatred”. Interpreting that term in
accordance with the modified Taylor definition of “hatred”, the
prohibition under s. 14(1)(b) of the Code is applied by inquiring
whether, in the view of a reasonable person aware of the context and
circumstances, the representation exposes or tends to expose any person or
class of persons to detestation and vilification on the basis of a prohibited
ground of discrimination.
(iii) Effectiveness
[96]
Mr. Whatcott contends that s. 14(1)(b) is not
rationally connected to its objective because its effect runs counter to that
objective. While the legislative objective is to stop hate speech, he submits
that the effect of the prohibition has been to (a) allow the Commission to
discriminate against religious speech on sexual behaviour; (b) grant those
found in contravention of s. 14(1)(b) an audience before which to promote their
martyrdom; (c) increase hate crimes, as acknowledged by the Commission; and (d)
increase hatred against Christian people due to their demonization by the
Commission.
[97]
As will be discussed more fully below, the
extent to which s. 14(1)(b) has a discriminatory effect on religious speech by
precluding certain types of expression is, in my view, minimal and reasonably
justified. Freedom of religious speech and the freedom to teach or share religious
beliefs are unlimited, except by the discrete and narrow requirement that this
not be conveyed through hate speech.
[98]
As to effectiveness, Dickson C.J. indicated, at
pp. 923-24 of Taylor, that one should not be quick to assume that
prohibitions against hate speech are ineffectual. In his view, the process of
hearing a complaint and, if necessary, of issuing a cease and desist order,
“reminds Canadians of our fundamental commitment to equality of opportunity”
and the eradication of intolerance. The failure of the prohibition to render
hate speech extinct or stop hate crimes is not fatal. As McLachlin C.J. noted
for the majority in Alberta v.
Hutterian Brethren of Wilson Colony,
2009 SCC 37, [2009] 2 S.C.R. 567, “[t]he government
must show that it is reasonable to suppose that the limit may further the goal,
not that it will do so” (para. 48).
(iv) Conclusion in Respect of
Rational Connection
[99]
In my view, prohibiting representations that are
objectively seen to expose protected groups to “hatred” is rationally connected
to the objective of eliminating discrimination and the other harmful effects of
hatred. Prohibiting expression which “ridicules, belittles or otherwise
affronts the dignity of” protected groups is not rationally connected to
reducing systemic discrimination against vulnerable groups. Those words
unjustifiably infringe s. 2 (b) of the Charter and are
constitutionally invalid.
[100]
Having severed the words “ridicules, belittles
or otherwise affronts the dignity of” from s. 14(1)(b) of the Code, it
remains to consider whether the balance of the prohibition can be demonstrably
justified.
(b) Minimal Impairment
[101]
The second test in the proportionality analysis
is whether the limit minimally impairs the right. It is the role of the
legislature to choose among competing policy options. There are often different
ways to deal with a particular problem, and various parties argued before this
Court that civil hate prohibitions should be rejected in favour of other
methods, which I will briefly summarize. However, I am mindful that while it
may “be possible to imagine a solution that impairs the right at stake less
than the solution Parliament has adopted” there is often “no certainty as to
which will be the most effective”: JTI, at para. 43, per McLachlin
C.J. Provided the option chosen is one within a range of reasonably
supportable alternatives, the minimal impairment test will be met: Edwards
Books, at pp. 781-83.
(i) Alternative Methods of
Furthering the Legislature’s Objectives
[102]
Two alternatives have been suggested that would
better serve the goal of eradicating hate speech than the provisions of the Code.
One is that trust should be placed in the “marketplace of ideas” to arrive at
the appropriate balancing of competing rights and conflicting views. The other
is that the prosecution of hate speech ought to be left to the criminal law.
[103]
The notion of leaving the regulation of hate
speech to the “marketplace of ideas” has long been advocated by critics of the
regulation of hate speech: see Abrams v. United States, 250 U.S. 616 (1919), at p. 630, per Holmes J., dissenting;
R. Dworkin, “Foreword”, in I. Hare and J. Weinstein, eds., Extreme
Speech and Democracy (2009), v; and R. Moon, The Constitutional
Protection of Freedom of Expression (2000). In the context of racial and
religious discrimination, Dickson C.J. describes this approach as one that
argues that “discriminatory
ideas can best be met with information and education programmes extolling the
merits of tolerance and cooperation between racial and religious groups”: Keegstra, at p. 784. Under this theory, unfettered debate
is the most effective way for rational beings to attain the truth, thus
accomplishing one of the three purposes of freedom of expression.
[104]
I do not say that the marketplace of ideas may
not be a reasonable alternative, and where a legislature is so minded, it will
not enact hate speech legislation. However, in Keegstra, Dickson C.J.
set out a compelling rationale for why Parliament’s preference to regulate hate
speech through legislation rather than to trust it to the hands of the
marketplace was also reasonable. He noted that “the state should not be
the sole arbiter of truth, but neither should we overplay the view that
rationality will overcome all falsehoods in the unregulated marketplace of
ideas” (p. 763). In his view, paradoxically, hate speech undermines the
principles upon which freedom of expression is based and “contributes little to
the . . . quest for truth, the promotion of individual self-development or the
protection and fostering of a vibrant democracy where the participation of all
individuals is accepted and encouraged” (p. 766). That is because a common
effect of hate speech is to discourage the contributions of the minority. While
hate speech may achieve the self-fulfillment of the publisher, it does so by
reducing the participation and self-fulfillment of individuals within the
vulnerable group. These drawbacks suggest that this alternative is not without
its concerns.
[105]
Others suggest that to minimally impair
expression, hate speech should be dealt with through criminal law prohibitions
or other prohibitions restricting only speech which threatens, advocates or
justifies violence: see R. Moon, Report to the Canadian Human Rights
Commission Concerning Section 13 of the Canadian Human Rights Act and the
Regulation of Hate Speech on the Internet (2008), at p. 26. Still, others
suggest that when legislators seek to limit freedom of expression, the
justificatory threshold should be raised to require actual evidence of harm as
opposed to mere reasonable belief in the risk of harm: see L. W. Sumner, The
Hateful and the Obscene: Studies in the Limits of Free Expression (2004),
at pp. 180-81 and 202. On the other side, the Attorney General for Saskatchewan
argues that the imposition of remedial measures rather than punitive sanctions
is far less intrusive on the constitutional values protected by s. 2 , and
therefore more acceptable under s. 1 of the Charter : factum, at para.
58. The Commission argues that the Criminal Code provisions regulate
only the most extreme forms of hate speech, advocating genocide or inciting a
“breach of the peace”: A.F., at para. 85. In contrast, human rights
legislation “provides accessible and inexpensive access to justice” for
disadvantaged victims to assert their right to dignity and equality: A.F., at
para. 83. Aboriginal interveners say that only a civil remedy that is not
dependent on state prosecution will provide an effective mechanism to address
discriminatory speech. As noted by Sopinka J. in Zurich Insurance Co. v.
Ontario (Human Rights Commission), [1992] 2 S.C.R. 321, at p. 339, human
rights legislation is “often the final refuge of the disadvantaged and the
disenfranchised”. Therefore, this alternative may reduce impairment at the
cost of effectiveness.
[106]
Having canvassed the proposed alternatives to
the civil law remedy, I cannot say that any one represents such a superior
approach as to render the others unreasonable. Section 14(1)(b) of the Code
is within the range of reasonable alternatives that was available to the
legislature.
(ii) Overbreadth
[107]
Section 14(1)(b) is alleged to be overreaching,
so that it captures more expression than is necessary to satisfy the
legislative objectives, and thereby fails to minimally impair the right to
freedom of expression. It is also criticized for having a chilling effect on
expression (including religious expression), public debate and media coverage
on issues about moral conduct and social policy.
1. Wording of Section 14 of the Code
[108]
Having concluded that the words “ridicules,
belittles or otherwise affronts the dignity of” in s. 14(1)(b) are not
rationally connected to the objective of prohibiting speech which can lead to
discrimination, I also find them constitutionally invalid because they do not
minimally impair freedom of expression.
[109]
Restricting expression because it may offend or
hurt feelings does not give sufficient weight to the role expression plays in
individual self-fulfillment, the search for truth, and unfettered political
discourse. Prohibiting any representation which “ridicules, belittles or otherwise
affronts the dignity of” protected groups could capture a great deal of
expression which, while offensive to most people, falls short of exposing its
target group to the extreme detestation and vilification which risks provoking
discriminatory activities against that group. Rather than being tailored to
meet the particular requirements, such a broad prohibition would impair freedom
of expression in a significant way.
[110]
The Saskatchewan legislature recognized the
importance of freedom of expression through its enactment of s. 14(2) of the Code.
To repeat, that provision confirms that “[n]othing in subsection (1) restricts
the right to freedom of expression under the law upon any subject.” The
objective behind s. 14(1)(b) is not to censor ideas or to legislate morality.
The legislative objective of the entire provision is to address harm from hate
speech while limiting freedom of expression as little as possible.
[111]
In my view, once the additional words are
severed from s. 14(1)(b), the remaining prohibition is not overbroad. A
limitation predicated on expression which exposes groups to hatred tries to
distinguish between healthy and heated debate on controversial topics of
political and social reform, and impassioned rhetoric which seeks to incite
hatred as a means to effect reform. The boundary will not capture all harmful
expression, but it is intended to capture expression which, by inspiring hatred,
has the potential to cause the type of harm that the legislation is trying to
prevent. In that way, the limitation is not overbroad, but rather tailored to
impair freedom of expression as little as possible.
2. Nature of the Expression
[112]
Violent expression and expression that threatens
violence does not fall within the protected sphere of s. 2 (b) of the Charter :
R. v. Khawaja, 2012 SCC 69, [2012] 3 S.C.R. 555, at para. 70.
However, apart from that, not all expression will be treated equally in
determining an appropriate balancing of competing values under a s. 1
analysis. That is because different types of expression will be relatively
closer to or further from the core values behind the freedom, depending on the
nature of the expression. This will, in turn, affect its value relative to
other Charter rights, the exercise or protection of which may infringe
freedom of expression.
[113]
Dickson C.J. emphasized the special nature of
hate propaganda at p. 766 of Keegstra, and again in Taylor, at
p. 922:
. . . I am of the opinion that hate
propaganda contributes little to the aspirations of Canadians or Canada in
either the quest for truth, the promotion of individual self-development or the
protection and fostering of a vibrant democracy where the participation of all
individuals is accepted and encouraged. While I cannot conclude that hate
propaganda deserves only marginal protection under the s. 1 analysis, I can
take cognizance of the fact that limitations upon hate propaganda are directed
at a special category of expression which strays some distance from the spirit
of s. 2 (b), and hence conclude that “restrictions on expression of this
kind might be easier to justify than other infringements of s. 2 (b)” ([Rocket
v. Royal College of Dental Surgeons of Ontario, [1990] 2 S.C.R. 232], at p.
247).
[114]
Hate speech is at some distance from the spirit
of s. 2 (b) because it does little to promote, and can in fact impede,
the values underlying freedom of expression. As noted by Dickson C.J. in Keegstra,
expression can be used to the detriment of the search for truth (p. 763). As
earlier discussed, hate speech can also distort or limit the robust and free
exchange of ideas by its tendency to silence the voice of its target group. It
can achieve the self-fulfillment of the publisher, but often at the expense of
that of the victim. These are important considerations in balancing hate
speech with competing Charter rights and in assessing the
constitutionality of the prohibition in s. 14(1)(b) of the Code.
3. Political Discourse
[115]
While hate speech constitutes a type of
expression that lies at the periphery of the values underlying freedom of
expression, political expression lies close to the core of the guarantee: see Sharpe,
at para. 23, per McLachlin C.J. Mr. Whatcott submits that the
expression in his flyers relates to the discovery of truth and sexual politics,
and is therefore at the core of protected expression. He submits that Flyers D
and E are his commentary on a social policy debate about whether homosexuality
should be discussed as part of the public school curriculum or at university
conferences. The question here is how the prohibition in s. 14(1)(b) of the Code
interplays with legitimate expression on matters of public policy or morality.
If the restriction is overbroad, it will not minimally impair expression.
[116]
The purpose of hate speech legislation is to
restrict the use of representations likely to expose protected groups to hatred
and its harmful effects. The expression captured under hate speech laws is of
an extreme nature. Framing that speech as arising in a “moral” context or
“within a public policy debate” does not cleanse it of its harmful effect.
Indeed, if one understands an effect of hate speech as curtailing the ability
of the affected group to participate in the debate, relaxing the standard in
the context of political debate is arguably more rather than less damaging to
freedom of expression. As argued by some interveners, history demonstrates
that some of the most damaging hate rhetoric can be characterized as “moral”,
“political” or “public policy” discourse.
[117]
Finding that certain expression falls within
political speech does not close off an enquiry into whether the expression
constitutes hate speech. Hate speech may often arise as a part of a larger
public discourse but, as discussed in Keegstra and Taylor, it is
speech of a restrictive and exclusionary kind. Political expression contributes
to our democracy by encouraging the exchange of opposing views. Hate speech is
antithetical to this objective in that it shuts down dialogue by making it
difficult or impossible for members of the vulnerable group to respond, thereby
stifling discourse. Speech that has the effect of shutting down public debate
cannot dodge prohibition on the basis that it promotes debate.
[118]
For example, in Kempling v. College of
Teachers (British Columbia), 2005 BCCA 327, 43 B.C.L.R. (4th) 41, Lowry
J.A. acknowledged that Mr. Kempling’s published writings included a legitimate
political element, as portions formed “a reasoned discourse, espousing his
views as to detrimental aspects of homosexual relationships” (para. 76). Lowry
J.A. reasoned that although Mr. Kempling’s views may be unpopular, “he was, in
his more restrained writings, engaged in a rational debate of political and
social issues; such writing is near the core of the s. 2 (b) expression” (para. 76).
However, Lowry J.A. found that at times the writings “clearly crossed the line
of reasoned debate into discriminatory rhetoric” (para. 76), and judged
homosexuals on the basis of stereotypical notions. As a result, he found that
the writings, taken as a whole, were not deserving of a high level of
constitutional protection.
[119]
The polemicist may still participate on
controversial topics that may be characterized as “moral” or “political”.
However, words matter. In the context of this case, Mr. Whatcott can express
disapproval of homosexual conduct and advocate that it should not be discussed
in public schools or at university conferences. Section 14(1)(b) only prohibits
his use of hate-inspiring representations against homosexuals in the course of
expressing those views. As stated by Alito J. in dissent in Snyder v.
Phelps, 131 S. Ct. 1207 (2011), at p. 1227:
. . . I fail to see why actionable
speech should be immunized simply because it is interspersed with speech that
is protected.
[120]
In my view, s. 14 of the Code provides an
appropriate means by which to protect almost the entirety of political
discourse as a vital part of freedom of expression. It extricates only an
extreme and marginal type of expression which contributes little to the values
underlying freedom of expression and whose restriction is therefore easier to
justify: see Keegstra, at p. 761; Rocket v. Royal College of
Dental Surgeons of Ontario, [1990] 2 S.C.R. 232, at p. 247. This
suggests that, at least in this respect, the provision is not overbroad in its
application.
4. Sexual
Orientation Versus Sexual Behaviour
[121]
Mr. Whatcott argues that the publications at
issue in this case were critical of same-sex behaviour, as distinct from sexual
orientation, and therefore did not contravene s. 14(1)(b) of the Code.
If s. 14(1)(b) restricts criticisms of the behaviour of others, it is overbroad
and unconstitutional. Mr. Whatcott also submits that comment on the sexual
behaviour of others has always been allowed as part of free speech, and part of
freedom of conscience and religion. He argues that the law must allow diversity
of viewpoints on whether sexual matters are moral or immoral.
[122]
I agree that sexual orientation and sexual
behaviour can be differentiated for certain purposes. However, in instances
where hate speech is directed toward behaviour in an effort to mask the true
target, the vulnerable group, this distinction should not serve to avoid s.
14(1)(b). One such instance is where the expression does not denigrate certain
sexual conduct in and of itself, but only when it is carried out by same-sex
partners. Another is when hate speech is directed at behaviour that is integral
to and inseparable from the identity of the group.
[123]
L’Heureux-Dubé J. in Trinity
Western University v. British Columbia College of Teachers, 2001 SCC 31,
[2001] 1 S.C.R. 772, in dissent (though not on this point), emphasized this
linkage, at para. 69:
I am
dismayed that at various points in the history of this case the argument has
been made that one can separate condemnation of the “sexual sin” of “homosexual
behaviour” from intolerance of those with homosexual or bisexual orientations.
This position alleges that one can love the sinner, but condemn the sin. . . .
The status/conduct or identity/practice distinction for homosexuals and bisexuals
should be soundly rejected, as per Madam Justice Rowles: “Human rights
law states that certain practices cannot be separated from identity, such that
condemnation of the practice is a condemnation of the person” (para. 228). She
added that “the kind of tolerance that is required [by equality] is not so
impoverished as to include a general acceptance of all people but condemnation
of the traits of certain people” (para. 230). This is not to suggest that
engaging in homosexual behaviour automatically defines a person as homosexual
or bisexual, but rather is meant to challenge the idea that it is possible to
condemn a practice so central to the identity of a protected and vulnerable
minority without thereby discriminating against its members and affronting their
human dignity and personhood.
See also Egan v. Canada, [1995] 2 S.C.R. 513, at para. 175,
and Owens (C.A.), at para. 82.
[124]
Courts have thus recognized that there is a
strong connection between sexual orientation and sexual conduct. Where the
conduct that is the target of speech is a crucial aspect of the identity of the
vulnerable group, attacks on this conduct stand as a proxy for attacks on the
group itself. If expression targeting certain sexual behaviour is framed in
such a way as to expose persons of an identifiable sexual orientation to what
is objectively viewed as detestation and vilification, it cannot be said that
such speech only targets the behaviour. It quite clearly targets the vulnerable
group. Therefore, a prohibition is not overbroad for capturing expression of
this nature.
(iii) Intent, Proof, and Defences
[125]
Critics of s. 14(1)(b) of the Code claim
that it is also overbroad because (i) it does not require intent by the
publisher; (ii) it does not require proof of harm; and (iii) it does not
provide for any defences.
1. Intent
[126]
In Taylor, Dickson C.J. justified the
lack of a legislative requirement to prove intent by emphasizing that systemic
discrimination is more widespread than intentional discrimination and that the
focus of the legislation should be on effects and not intent (pp. 931-32):
The preoccupation with effects, and not
with intent, is readily explicable when one considers that systemic
discrimination is much more widespread in our society than is intentional
discrimination. To import a subjective intent requirement into human rights
provisions, rather than allowing tribunals to focus solely upon effects, would
thus defeat one of the primary goals of anti-discrimination statutes. At the
same time, however, it cannot be denied that to ignore intent in determining
whether a discriminatory practice has taken place according to s. 13(1)
increases the degree of restriction upon the constitutionally protected freedom
of expression. This result flows from the realization that an individual open
to condemnation and censure because his or her words may have an unintended
effect will be more likely to exercise caution via self-censorship. [Emphasis
in original.]
[127]
The preventive measures found in human rights
legislation reasonably centre on effects, rather than intent. I see no reason
to depart from this approach.
2. Proof of Harm
[128]
I have already addressed the notion of harm in
the context of whether the objective of s. 14(1)(b) is pressing and
substantial.
[129]
In answer to the specific criticism that a
prohibition against hate speech lacked a requirement to prove actual harm,
Dickson C.J. argued in Keegstra (at p. 776) that both the difficulty of
establishing a causal link between an expressive statement and the resulting
hatred, and the seriousness of the harm to which vulnerable groups are exposed
by hate speech, justifies the imposition of preventive measures that do not
require proof of actual harm.
[130]
Critics argue that the deference to the
legislature shown by this Court in Keegstra, Taylor, Butler
and Sharpe is an abdication of its duty to require that limitations on Charter
rights be “demonstrably justified” under the s. 1 analysis: Sumner, at pp. 83
and 202-3. The Court’s “deferential approach under section 1 to state
restrictions on expression”, has been said to erode the constitutional
protection for freedom of expression: Moon (2000), at p. 37. The basic nature
of the criticism is that it is an unacceptable impairment of freedom of
expression to allow its restriction to be justified by the mere likelihood or
risk of harm, rather than a clear causal link between hate speech and harmful
or discriminatory acts against the vulnerable group.
[131]
Such an approach, however, ignores the
particularly insidious nature of hate speech. The end goal of hate speech is
to shift the environment from one where harm against vulnerable groups is not
tolerated to one where hate speech has created a place where this is either
accepted or a blind eye is turned.
[132]
This Court has addressed such criticism in a
number of situations involving the applicability of s. 1 and has adopted a
“reasonable apprehension of harm” approach. This approach recognizes that a
precise causal link for certain societal harms ought not to be required. A
court is entitled to use common sense and experience in recognizing that
certain activities, hate speech among them, inflict societal harms.
[133]
In Thomson Newspapers Co., this Court
recognized that a reasonable apprehension of harm test should be applied in
cases where “it has been suggested, though not proven, that the very nature of
the expression in question undermines the position of groups or individuals as
equal participants in society” (para. 115). Such an approach is warranted
“when it is difficult or impossible to establish scientifically the type of
harm in question” (para. 115). As the Court reasoned, at para. 116:
While courts should not use common
sense as a cover for unfounded or controversial assumptions, it may be
appropriately employed in judicial reasoning where the possibility of harm is
within the everyday knowledge and experience of Canadians, or where factual
determination and value judgments overlap. Canadians presume that expressions
which degrade individuals based on their gender, ethnicity, or other personal factors
may lead to harm being visited upon them because this is within most people’s
everyday experience. . . . Common sense reflects common understandings. In
these cases dealing with pornography and hate speech, common understandings
were accepted by the Court because they are widely accepted by Canadians as
facts, and because they are integrally related to our values, which are the
bedrock of any s. 1 justification. As a result, the Court did not demand a
scientific demonstration or the submission of definitive social science
evidence to establish that the line drawn by Parliament was perfectly drawn.
[134]
In Irwin Toy, this Court noted that the
government was “afforded a margin of appreciation to form legitimate objectives
based on somewhat inconclusive social science evidence” (p. 990). In her
dissent in Keegstra, McLachlin J. acknowledged that “it is simply not
possible to assess with any precision the effects that expression of a
particular message will have on all those who are ultimately exposed to it” (p.
857). In Butler, Sopinka J., for the majority, agreed with the view
that Parliament should be “entitled to have a ‘reasoned apprehension of harm’
resulting from the desensitization of individuals exposed to materials which
depict violence, cruelty, and dehumanization in sexual relations” (p. 504) and
noted that “[w]hile a direct
link between obscenity and harm to society may be difficult, if not impossible,
to establish, it is reasonable to presume that exposure to images bears a
causal relationship to changes in attitudes and beliefs” (p. 502). Again in Sharpe, McLachlin C.J., writing for the majority,
applied the reasonable apprehension of harm test and stated, at para. 89:
The lack of unanimity in scientific
opinion is not fatal. Complex human behaviour may not lend itself to precise
scientific demonstration, and the courts cannot hold Parliament to a higher
standard of proof than the subject matter admits of.
[135]
As was clear from Taylor, and reaffirmed
through the evidence submitted by interveners in this appeal, the
discriminatory effects of hate speech are part of the everyday knowledge and
experience of Canadians. I am of the opinion that the Saskatchewan legislature
is entitled to a reasonable apprehension of societal harm as a result of hate
speech.
3. Lack of Defences
[136]
In the context of civil liability for
contravening a limitation on a certain type of expression such as defamation,
the types of defences that are generally raised relate to the truth of the
factual statements made. The legislature of Saskatchewan has not provided a
defence of truth or any other defence as a basis upon which to avoid being
found in contravention of s. 14(1)(b) of the Code (other than that
private communications are not included in the prohibition).
[137]
The majority in Taylor held that the lack
of defences was not fatal to finding s. 13(1) of the CHRA
constitutional. Dickson C.J. was of the view that the Charter did not
mandate an exception for truthful statements in the context of human rights
legislation (p. 935). He drew upon his reasoning in Keegstra on this
point, where he stated, at p. 781:
The way in which I have
defined the s. 319(2) offence, in the context of the objective sought by
society and the value of the prohibited expression, gives me some doubt as to
whether the Charter mandates that truthful statements communicated with
an intention to promote hatred need be excepted from criminal
condemnation. Truth may be used for widely disparate ends, and I find it
difficult to accept that circumstances exist where factually accurate
statements can be used for no other purpose than to stir up hatred against a
racial or religious group. It would seem to follow that there is no reason why
the individual who intentionally employs such statements to achieve harmful
ends must under the Charter be protected from criminal censure.
[Emphasis in original.]
[138]
Although Dickson C.J. refers to intentionally
employing truthful statements in the criminal context of Keegstra, he
reconfirmed in Taylor that the use of truthful statements should not
provide a shield in the human rights context (pp. 935-36). Nor did he consider
that a failure to provide a defence for negligent or innocent error would lead
to the provision being held an excessive impairment of freedom of expression: Keegstra,
at p. 782.
[139]
Critics find the absence of a defence of truth
of particular concern, given that seeking truth is one of the strongest
justifications for freedom of expression. They argue that the right to speak
the truth should not be lightly restricted, and that any restriction should be
seen as a serious infringement.
[140]
I agree with the argument that the quest
for truth is an essential component of the “marketplace of ideas” which is,
itself, central to a strong democracy. The search for truth is also an
important part of self-fulfillment. However, I do not think it is inconsistent
with these views to find that not all truthful statements must be free from
restriction. Truthful statements can be interlaced with harmful ones or
otherwise presented in a manner that would meet the definition of hate speech.
[141]
As Dickson C.J. stated in Keegstra, at p.
763, there is “very little chance that statements intended to promote hatred
against an identifiable group are true, or that their vision of society will
lead to a better world”. To the extent that truthful statements are used in a
manner or context that exposes a vulnerable group to hatred, their use risks
the same potential harmful effects on the vulnerable groups that false
statements can provoke. The vulnerable group is no less worthy of protection
because the publisher has succeeded in turning true statements into a hateful
message. In not providing for a defence of truth, the legislature has said
that even truthful statements may be expressed in language or context that
exposes a vulnerable group to hatred.
[142]
Some interveners argued that there should be a
defence of sincerely held belief. In their view, speech that is made in good
faith and on the basis of the speaker’s religious beliefs should be given
greater protection, or constitute an absolute defence to any prohibition. These
arguments anticipate the question still to be considered of whether an
infringement of s. 2 (a) of the Charter by s. 14(1)(b) would be
justified under a s. 1 analysis. It is sufficient here to say that if the
sincerity of a religious belief would automatically preclude the finding of a
contravention of s. 14(1)(b), the s. 1 analysis would be derailed with no
balancing of the competing rights.
[143]
Apart from that concern, the fact that a person
circulates a hate publication in the furtherance of a sincere religious belief
goes to the question of the subjective view of the publisher, which is
irrelevant to the objective application of the definition of hatred. Allowing
the dissemination of hate speech to be excused by a sincerely held belief
would, in effect, provide an absolute defence and would gut the prohibition of
effectiveness.
[144]
Mr. Whatcott makes the argument that human
rights commissions should not over-analyze speech to the point “where less
sophisticated citizens are unable to participate in debates about morality and
public education without fear of prosecution”: R.F., at para. 57. He submits
that freedom of expression “does not restrict public debate to articulate
elites” (para. 58). With respect, the definition does not require that the
expression be scholarly, rational, objective or inoffensive. The definition of
“hatred” does not differentiate between the literate and illiterate, eloquent
or inarticulate. Whether or not a publisher of hateful expression is sincere
in his or her beliefs, or lacks the sophistication to realize that prohibitions
such as s. 14(1)(b) of the Code exist, the aim of the prohibition remains
the protection of vulnerable groups. Where, objectively, the definition of
hatred is met, s. 14(1)(b) is engaged. However, with mediation available, it should be possible for
inadvertent violations to be rectified so that publications that do not include
hate speech can continue.
(iv) Conclusion on Minimal
Impairment
[145]
The prohibition against hate speech involves
balancing between freedom of expression and equality rights. People are free
to debate or speak out against the rights or characteristics of vulnerable
groups, but not in a manner which is objectively seen to expose them to hatred
and its harmful effects. The only expression that should be suppressed by the
prohibition is that which Dickson C.J. recognized in Keegstra as
straying “some distance from the spirit of s. 2 (b) [of the Charter ]”
(p. 766).
[146]
In my view, s. 14(1)(b) of the Code meets
the minimal impairment requirement. The prohibition, interpreted and applied in
the manner set out in these reasons, is one of the reasonable alternatives that
could have been selected by the legislature. It impairs
freedom of expression “no more than reasonably necessary, having regard
to the practical difficulties and conflicting tensions that must be taken into
account”: Sharpe, at para. 96, per McLachlin C.J. (emphasis in
original).
(c) Whether
the Benefits Outweigh the Deleterious Effects
[147]
The final branch of the proportionality test
requires an assessment of whether the importance of the legislative objective
of s. 14(1)(b) of the Code outweighs the deleterious effects of the
provision in limiting freedom of expression. If the deleterious effects of the
restriction outweigh the benefits to be derived from the provision, that part
of the proportionality test is not met.
[148]
As is apparent from the above analysis, in my
opinion, the benefits of the suppression of hate speech and its harmful effects
outweigh the detrimental effect of 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.
[149]
It was argued before this Court that the imposition
of fines or the requirement to pay compensation to the victims of hate speech
has a detrimental, chilling effect on expression that outweighs the benefits of
reducing “potential harm”. As in tort law, an award of damages made pursuant
to the Code is characterized as compensatory, not punitive, and is
directed at compensating the victim. However, the circumstances in which a
compensation award will be merited should be rare and will often involve repeat
litigants who refuse to participate in a conciliatory approach.
[150]
The Attorney General for Saskatchewan pointed
out amendments that were made to the Code in 2000 (S.S. 2000, c. 26) to
strengthen its civil nature. Those amendments eliminated any possibility for
imprisonment for a breach of the Code, strengthened the mediation and
settlement aspects of the Code and gave the Chief Commissioner the duty
to screen cases before they proceed. Contravening a substantive provision of
the Code is no longer an offence, and will not result in the imposition
of any fines, unless imposed for contempt of an order. Amendments brought since
the tribunal hearing in this case (S.S. 2011, c. 17) again strengthen the
mediation option and screening of cases, and provide that new complaints will
be heard by the Court of Queen’s Bench, rather than the Tribunal. These
amendments render unpersuasive the argument that paying fines and compensation
are an effect that outweighs the benefits of s. 14(1)(b).
(d) Conclusion on Section 1 Analysis
[151]
The limitation imposed on freedom of expression
by the prohibition in s. 14(1)(b) of the Code, when properly
defined and understood, is demonstrably justified in a free and democratic
society.
C. Section
2(a) of the Charter
[152]
I now turn to a consideration of whether s.
14(1)(b) infringes the Charter guarantee of freedom of conscience and
religion under s. 2 (a). Mr. Whatcott argues that, to the extent that s.
14(1)(b) of the Code precludes criticism of same-sex conduct or
activity, it infringes freedom of religion under s. 2 (a). He submits
that sexual conduct has long been a topic of religious discussion and debate,
and that “[o]bjection to same-sex sexual activity is common among religious
people. They object because they believe this conduct is harmful; and many
religious people also believe that they are obligated to do good and warn
others of the danger”: R.F., at para. 78. Mr. Whatcott contends that s. 2 (a)
protects his right to proclaim this aspect of his religion.
[153]
The Commission argues that the publication of
hateful religious beliefs of the type that would meet the Taylor definition
is harmful, and would therefore be outside the scope of guarantee under s. 2 (a)
of the Charter . In support of its position of narrowing the scope of s.
2 (a) protection, it relies in part on the reasoning of Dickson J. (as he
then was) in R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, where he
stated, at p. 346:
The values that underlie our
political and philosophic traditions demand that every individual be free to
hold and to manifest whatever beliefs and opinions his or her conscience
dictates, provided inter alia only that such manifestations do not
injure his or her neighbours or their parallel rights to hold and
manifest beliefs and opinions of their own. [Emphasis added by the
Commission; A.F., at para. 99.]
The Commission also
relies on the comments of LeBel J. in Multani v. Commission scolaire
Marguerite-Bourgeoys, 2006 SCC 6, [2006] 1 S.C.R. 256, at para. 149, that
this Court “has not ruled out the possibility of reconciling or delimiting
rights before applying s. 1 ”.
[154]
With respect to the Commission’s position, in my
view, the present case falls within the general rule, rather than the
exception. Just as the protection afforded by freedom of expression is
extended to all expression other than violence and threats of violence, in my
view, the protection provided under s. 2 (a) should extend broadly. As
stated by La Forest J., writing also on behalf of Gonthier and McLachlin JJ. in
B. (R.) v. Children’s Aid Society of Metropolitan Toronto, [1995] 1
S.C.R. 315, at para. 109, “[t]his Court has consistently refrained from
formulating internal limits to the scope of freedom of religion in cases where
the constitutionality of a legislative scheme was raised; it rather opted to
balance the competing rights under s. 1 of the Charter ; see R. v.
Jones, [[1986] 2 S.C.R. 284]”. Given the engagement of freedom of
expression, freedom of religion and equality rights in the present context, a
s. 1 analysis is the appropriate procedural approach under which to
evaluate their constitutional interplay.
[155]
An infringement of s. 2 (a) of the Charter
will be established where: (1) the claimant sincerely holds a belief or
practice that has a nexus with religion; and (2) the provision at issue
interferes with the claimant’s ability to act in accordance with his or
her religious beliefs: Hutterian Brethren of Wilson
Colony, at para. 32; Syndicat
Northcrest v. Amselem, 2004 SCC 47, [2004] 2 S.C.R.
551, at paras. 46 and 56-59; and Multani, at para. 34. The interference must be more than trivial
or insubstantial, so that it threatens actual religious beliefs or conduct.
[156]
It was not in dispute that Mr. Whatcott
sincerely believes that his religion requires him to proselytize homosexuals.
To this end, he appears to employ expression of an extreme and graphic nature
to make his point more compelling. To the extent that his choice of expression
is caught by the hatred definition in s. 14(1)(b), the prohibition will
substantially interfere with Mr. Whatcott’s ability to disseminate his belief
by display or publication of those representations. Section 14(1)(b) of the Code
infringes freedom of conscience and religion as guaranteed under s. 2 (a)
of the Charter .
[157]
However, concluding that alleged hate speech can
be protected under s. 2 (a) of the Charter and that s. 14(1)(b)
of the Code infringes s. 2 (a), does not end the matter. A s. 1
analysis must be undertaken to determine whether the infringement of freedom of
religion in this context is reasonably justified in a free and democratic
society.
D. Section
1 Analysis
[158]
The s. 1 analysis with respect to the
infringement of s. 2 (a) of the Charter by s. 14(1)(b) of the Code
raises similar considerations to that carried out in the context of s. 2 (b).
[159]
Preaching and the dissemination of
religious beliefs is an important aspect of some religions. As stated by Dickson J. in Big M Drug
Mart, at p. 336, “[t]he essence of the concept of freedom of religion is
the right to entertain such religious beliefs as a person chooses, the right to
declare religious beliefs openly and without fear of hindrance or reprisal, and
the right to manifest religious belief by worship and practice or by
teaching and dissemination” (emphasis added). Section 4 of the Code
confirms that every person enjoys the right to “freedom of conscience, opinion
and belief and freedom of religious association, teaching,
practice and worship”.
[160]
Mr. Whatcott asserts that the prohibition of
speech of the type contained in his flyers will force people like himself to
choose between following their conscience by preaching about same-sex sexual
practices or following the law. The Christian Legal Fellowship argues that
punishing Mr. Whatcott for this speech “limits the free expression of every
religious adherent whose beliefs on sexuality or other controversial topics do
not conform to those of mainstream society and allows those with minority views
to be silenced through the operation of law”: factum, at para. 12.
[161]
As discussed in the s. 1 analysis of the
infringement of freedom of expression by s. 14(1)(b) of the Code, s. 1
both guarantees and limits Charter rights. When reconciling Charter
rights and values, freedom of religion and the right to equality accorded all
residents of Saskatchewan must co-exist.
[162]
In Ross, La Forest J. recognized that
there could be circumstances in which the infringement of an exercise of
freedom of religion, like that of freedom of expression, could merit only an
attenuated level of s. 1 justification. La Forest J. noted that the respondent’s religious views in that
case sought to deny Jews respect for dignity and equality. He went on to state, at para. 94, that “[w]here the manifestations of an individual’s
right or freedom are incompatible with the very values sought to be upheld in
the process of undertaking a s. 1 analysis, then, an attenuated level of s. 1
justification is appropriate.”
[163]
For the purposes of the application of s.
14(1)(b) of the Code, it does not matter whether the expression at issue
is religiously motivated or not. If, viewed objectively, the publication involves representations that
expose or are likely to expose the vulnerable group to detestation and vilification, then
the religious expression is captured by the legislative prohibition. In other words,
Mr. Whatcott and others are free to preach against same-sex activities, to urge
its censorship from the public school curriculum and to seek to convert others
to their point of view. Their freedom to express those
views is unlimited, except by the narrow requirement that they not be conveyed
through hate speech.
[164]
For the same reasons set out earlier in the s. 1
analysis in the case of freedom of expression, in my view, the words
“ridicules, belittles or otherwise affronts the dignity of” are not rationally
connected to the legislative purpose of addressing systemic discrimination of
protected groups, nor tailored to minimally impair freedom of religion. I find
the remaining prohibition of any representation “that exposes or tends to
expose to hatred” any person or class of persons on the basis of a prohibited
ground to be a reasonable limit on freedom of religion and demonstrably
justified in a free and democratic society.
IX. Application
of Section 14(1)(b) to Mr. Whatcott’s Flyers
[165]
After this lengthy discussion of the interpretation
of the definition of “hatred” and the constitutionality of s. 14(1)(b) of the Code,
I turn to whether the Tribunal’s decision that Mr. Whatcott’s flyers contravene
s. 14(1)(b) should be upheld on appeal.
A. Standard
of Review of Tribunal Decision
[166]
The Court of Queen’s Bench and the Court of
Appeal both adopted a correctness standard in this case, based on the reasoning
of Richards J.A. in Owens. Richards J.A. had concluded that a standard
of correctness was appropriate, given the absence of a statutory privative
clause, the lack of any special expertise by the tribunal in human rights
issues, the fact that the findings in the case had been arrived at through a
formal adjudicative process, and that the issue raised turned on important
points of law, including the interpretation of the Constitution.
[167]
The decision in Owens predates this
Court’s decision in Dunsmuir, which now governs the standard of review. Dunsmuir
confirmed that “[d]eference will usually result where a tribunal is
interpreting its own statute or statutes closely connected to its function,
with which it will have particular familiarity”: para. 54; see also Smith v.
Alliance Pipeline Ltd., 2011 SCC 7, [2011] 1 S.C.R. 160, at para. 28, per
Fish J. In Alberta (Information and Privacy Commissioner) v. Alberta
Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654, the Court
summarized the Dunsmuir approach, at para. 30:
This principle [of deference] applies
unless the interpretation of the home statute falls into one of the categories
of questions to which the correctness standard continues to apply, i.e.,
“constitutional questions, questions of law that are of central importance to
the legal system as a whole and that are outside the adjudicator’s expertise,
. . . ‘[q]uestions regarding the jurisdictional lines between two or
more competing specialized tribunals’ [and] true questions of jurisdiction or
vires” (Canada (Canadian Human Rights Commission) v. Canada (Attorney
General), 2011 SCC 53, [2011] 3 S.C.R. 471, at para. 18, per LeBel
and Cromwell JJ. . . .).
[168]
In this case, the decision was well within the
expertise of the Tribunal, interpreting its home statute and applying it to the
facts before it. The decision followed the Taylor precedent and
otherwise did not involve questions of law that are of central importance to
the legal system outside its expertise. The standard of review must be
reasonableness.
B. Context
[169]
The broader context in which the flyers were
published included, among other things, a history of discrimination against
those of same-sex orientation and the relatively recent recognition of their
equality rights and protection as a vulnerable group; public policy debates
about the appropriate content of public school curriculum; and ongoing
religious and public interest debates about the morality of same-sex conduct.
[170]
Before reviewing the Tribunal’s decision, I
would comment on three concerns raised by the Court of Appeal in relation to
how the Tribunal and the Court of Queen’s Bench dealt with the context of the
case. Unlike the appellate court, I do not find that the Tribunal unreasonably
failed to give proper weight to the importance of protecting expression that is
part of an ongoing debate on sexual morality and public policy. Nor do I find
the Tribunal’s approach unreasonable in isolating certain excerpts from the
flyers for examination, or in finding that the flyers criticize sexual
orientation and not simply sexual behaviour.
[171]
As discussed, that the rights of a vulnerable
group are a matter of ongoing discussion does not justify greater exposure by
that group to hatred and its effects. This is because the only expression
which should be caught by s. 14(1)(b) of the Code is hate-inspiring
expression that adds little value to political discourse or to the quest for
truth, self-fulfillment, and an embracing marketplace of ideas.
[172]
Once the appellate court in the present case
determined that Mr. Whatcott’s flyers were a polemic on public policy issues,
it essentially precluded any finding that the expression in question
constituted hate speech. This was especially so when the court rejected the
relevancy of the inflammatory nature of the language used. In my respectful
view, this approach was in error.
[173]
The appellate court also expressed concern
about the manner in which the Tribunal isolated certain excerpts from
Mr. Whatcott’s flyers and then proceeded to determine that they evidenced a
contravention of s. 14(1)(b) of the Code. The court warned that it was
not enough that particular words or phrases might be considered to meet the
definition of hatred.
[174]
I agree that the words and phrases in a
publication cannot properly be assessed out of context. The expression must be
considered as a whole, to determine the overall impact or effect of the
publication. However, it is also legitimate to proceed with a closer scrutiny
of those parts of the expression which draw nearer to the purview of s. 14(1)(b)
of the Code. In most cases, the overall context of the expression will
affect the presentation, tone, or meaning of particular phrases or excerpts.
However, a dissertation on public policy issues will not necessarily cleanse
passages within a publication that would otherwise contravene a hate speech
prohibition: Kempling; Snyder.
[175]
In my view, it was not unreasonable for the
Tribunal in this case 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.
[176]
Finally, unlike the Court of Appeal, I do not
accept Mr. Whatcott’s submission 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. They do not deal with the same sexual acts when
carried out by heterosexual partners. For example, the word “sodomy” in the
flyers is not used in relation to sexual acts in general, but only the sexual
act as between men. This is clear by Mr. Whatcott’s reference to “sodomites
and lesbians” and “learning how wonderful it is for two men to sodomize each
other” (Flyer D).
[177]
Genuine comments on sexual activity are not
likely to fall into the purview of a prohibition against hate. 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.
C. The
Tribunal’s Decision
[178]
The Tribunal acknowledged the approach mandated
by the Saskatchewan Court of Appeal in Bell to restrict the application
of s. 14(1)(b) to the Taylor definition of hatred. The application of
the hatred definition, as modified by these reasons, questions whether a
reasonable person, aware of the relevant context and circumstances, would view
the representations as exposing or likely to expose a person or class of
persons to detestation or vilification on the basis of a prohibited ground of
discrimination. The application must also take the objectives of the Code
into account.
[179]
In my view, the Tribunal was aware that the test
to be applied was an objective one. Although it devoted considerable
time to summarizing evidence on the impact of the flyers on the various
complainants, this was relevant to the issue of compensation to be provided
pursuant to s. 31.4(a) and (b) of the Code. After summarizing the evidence
of expert witnesses and of Mr. Whatcott, the Tribunal acknowledged that Mr.
Whatcott’s intention in distributing the flyers was irrelevant. Noting that the
application of an objective test by the Board of Inquiry in Owens had
been confirmed by the Court of Queen’s Bench in that case, the Tribunal
went on to hold, in respect of each flyer, that it had no hesitation in
concluding “that the material contained therein can objectively be viewed as
exposing homosexuals to hatred and ridicule” (paras. 51-53).
[180]
The Tribunal was also aware that the legislative
objectives of the Code must be kept in mind in applying the
prohibition in s. 14(1)(b). It noted Dickson C.J.’s observation, at p. 930 of Taylor,
that clauses confirming the importance of freedom of expression, like s. 14(2)
of the Code, indicate to tribunals “the necessity of balancing the
objective of eradicating discrimination with the need to protect free
expression” (para. 55).
[181]
It remains to determine whether the Tribunal
applied s. 14(1)(b) in a manner consistent with the ardent and extreme nature
of feelings constituting “hatred” that was emphasized in Taylor.
[182]
The Tribunal isolated certain passages from each
of the flyers. In regard to Flyer D, it found that the combined references in
six phrases “clearly exposes or tends to expose [homosexuals] to hatred,
ridicules, belittles or otherwise affronts their dignity on the basis of their
sexual orientation” (para. 51):
. . . children
. . . learning how wonderful it is for two men to sodomize each
other;
Now the homosexuals want to
share their filth and propaganda with Saskatchewan’s children;
degenerated into a filthy
session where gay and lesbian teachers used dirty language to describe lesbian
sex and sodomy to their teenage audience;
ex-Sodomites and other types
of sex addicts who have been able to break free of their sexual bondage and
develop wholesome and healthy relationships;
sodomites and lesbians who
want to remain in their lifestyle and proselytize vulnerable young people that
civil law should discriminate against them;
Our children will pay the price
in disease, death, abuse . . .
if we do not say no to the sodomite desire to socialize
your children into accepting something that is clearly wrong.
[183]
The Tribunal made an identical finding with
respect to the following passages from Flyer E (para. 50):
Sodomites are 430 times more
likely to acquire Aids and 3 times more likely to sexually abuse children!;
Born Gay? No Way! Homosexual
sex is about risky and addictive behaviour!;
If Saskatchewan’s sodomites
have their way, your school board will be celebrating buggery too!;
Don’t kid your selves;
homosexuality is going to be taught to your children and it won’t be the media
stereotypes of two monogamous men holding hands;
The Bible is clear that
homosexuality is an abomination;
Sodom and Gomorrah was given
over completely to homosexual perversion and as a result destroyed by God’s
wrath;
Our acceptance of homosexuality
and our toleration of its promotion in our school system will lead to the early
death and morbidity of many children.
[184]
Finally, the Tribunal found that Flyers F and G
also exposed homosexuals to hatred and ridicule based on the following two
phrases (para. 53):
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.
[185]
The Tribunal indicated that it considered evidence
as a pattern or practice of disregard of rights under s. 31(4) of the Code.
It held that in distributing the materials in Saskatchewan between
September 2001 and April 2002, Mr. Whatcott had shown a clear pattern or
practice of disregard for protected rights. The Tribunal added that it would
have reached the same conclusion taking the flyers individually.
[186]
In my view, whether applying the Taylor
definition of “hatred” or the definition as modified by these reasons, the
Tribunal’s conclusions with respect to Flyers D and E were reasonable.
[187]
Passages of Flyers D and E 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: see Kouba, at paras. 24-81.
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]
Some of the examples of the hate-inspiring
representations in Flyers D and E are phrases such as: “Now the homosexuals
want to share their filth and propaganda with Saskatchewan’s children”;
“degenerated into a filthy session where gay and lesbian teachers used dirty
language to describe lesbian sex and sodomy to their teenage audience”;
“proselytize vulnerable young people”; “ex-Sodomites and other types of sex
addicts”; and “[h]omosexual sex is about risky & addictive behaviour!” 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. Examples of this
in Flyers D and E would include: “Our children will pay the price in disease,
death, abuse . . .”; “Sodomites are 430 times more likely to acquire
Aids & 3 times more likely to sexually abuse children!”; and “[o]ur
acceptance of homosexuality and our toleration [sic] of its promotion in
our school system will lead to the early death and morbidity of many children.”
[190]
Whether or not Mr. Whatcott intended his
expression to incite hatred against homosexuals, in my view it was reasonable
for the Tribunal to hold that, by equating homosexuals with carriers of
disease, sex addicts, pedophiles and predators who would proselytize vulnerable
children and cause their premature death, Flyers D and E would objectively be
seen as exposing homosexuals to detestation and vilification.
[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, Flyers D and E expressly
call for discriminatory treatment of those of same-sex orientation. Flyer D
urges that the rights of homosexuals and lesbians should be reduced by
stating: “We also believe that for sodomites and lesbians who want to remain
in their lifestyle and proselytize vulnerable young people that civil law
should discriminate against them” (emphasis added). Flyer E urges: “Our acceptance
of homosexuality and our toleration of its promotion in our school system
will lead to the early death and morbidity of many children” (emphasis added).
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.
[193]
I would therefore allow the appeal, overturn the
Court of Appeal’s conclusion on this point, and reinstate the Tribunal’s
decision as to Flyers D and E.
[194]
However, in my view, the Tribunal’s decision
with respect to Flyers F and G was unreasonable. The Tribunal erred by failing
to apply s. 14(1)(b) in accordance with the Taylor directive (requiring
feelings of an ardent and extreme nature so as to constitute hatred), or in
accordance with the interpretation of s. 14(1)(b) prescribed in Bell
(essentially reading out the words “ridicules, belittles or otherwise affronts
the dignity of”). By failing to apply the proper legal test to the facts before
it, the Tribunal’s determination that those flyers contravened s. 14(1)(b) was
unreasonable and cannot be upheld.
[195]
Flyers F and G are identical, and are comprised
mainly of a reprint of a page of the classified advertisements from a
publication called Perceptions. Printed by hand in bold print at the top
of the page are the words “Saskatchewan’s largest gay magazine allows ads for
men seeking boys”. Although there were conflicting views expressed on
whether the references in the ads in question to “any age”; “boys/men”; or
“[y]our age . . . is not so relevant” were in fact a reference to men
seeking children (as Mr. Whatcott meant to imply by his additional biblical
reference), the true purpose and meaning of the personal ads are, for our
purposes, irrelevant. Mr. Whatcott also added the handwritten words: “‘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!”
[196]
In my view, it cannot reasonably be found that
Flyers F and G contain expression that a reasonable person, aware of the
relevant context and circumstances, would find as exposing or likely to expose
persons of same-sex orientation to detestation and vilification. 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 underaged 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.
[197]
With respect to the purported excerpt from the
Bible, I would agree with the comments of Richards J.A., at para. 78 of Owens,
that
it is apparent that a human rights
tribunal or court should exercise care in dealing with arguments to the effect
that foundational religious writings violate the Code. While the courts
cannot be drawn into the business of attempting to authoritatively interpret
sacred texts such as the Bible, those texts will typically have characteristics
which cannot be ignored if they are to be properly assessed in relation to s.
14(1)(b) of the Code.
[198]
Richards J.A. found that objective observers
would interpret excerpts of the Bible with an awareness that it contains more
than one sort of message, some of which involve themes of love, tolerance and
forgiveness. He also found that the meaning and relevance of the specific Bible
passages cited in that case could be assessed in a variety of ways by different
people.
[199]
In my view, these comments apply with equal
force to the biblical passage paraphrased in Flyers F and G that “[i]f 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”. Whether or not Mr.
Whatcott meant this as a reference that homosexuals who seduced young boys
should be killed, the biblical reference can also be interpreted as suggesting
that anyone who harms Christians should be executed. The biblical passage, in
and of itself, cannot be taken as inspiring detestation and vilification of
homosexuals. 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.
[200]
The Tribunal did not find fault with the
handwritten words: “This shouldn’t be legal in Saskatchewan!” It is unclear
whether these words refer to the ads or to homosexuality itself. However, 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.
[201]
The Tribunal may have been misguided by its
approach of considering “the evidence as a pattern or practice of disregard of
rights secured under the Code as permitted by s. 31(4)” (para. 54).
Evidence of a person’s pattern or practice of disregard for protected rights cannot
render a publication offside the prohibition under s. 14(1)(b), if that
publication would not have been found to be so on an individual basis. Such an
interpretation of the legislation would be an unacceptable restriction on
freedom of expression. Although the Tribunal indicated that it would have
reached the same view if it had taken each flyer individually, in my respectful
view, it could not reasonably have reached that result by applying the proper
legal test. A reasonable person, aware of the context and circumstances and
making an individual assessment of Flyers F and G would not conclude that they
expose homosexuals to detestation and vilification.
[202]
Having found the Tribunal’s decisions with
respect to Flyers F and G unreasonable, I would uphold the Court of Appeal’s
conclusion that those two flyers do not contravene s. 14(1)(b) of the Code.
D. Remedy
[203]
The Tribunal awarded compensation of $2,500 to
Guy Taylor and $5,000 to each of James Komar, Brendan Wallace, and Kathy Hamre.
The Tribunal awarded James Komar, Brendan Wallace, and Kathy Hamre double the
compensation of Guy Taylor because their complaints fell under legislation
introduced after Mr. Taylor had submitted his complaint. This new legislation
doubled the limit on compensation and the Tribunal thus thought it appropriate
to double the compensation of those three complainants.
[204]
From my reading of the Tribunal’s reasons, it
awarded compensation based on the harm caused by the receipt of the flyers by
the individuals. The Agreed Statement of Facts filed with the Tribunal
indicates that Guy Taylor received Flyer D, James Komar Flyer E, Brendan
Wallace Flyer F, and Kathy Hamre Flyer G.
[205]
Given my finding that Flyers F and G do not
constitute hate speech under s. 14(1)(b) of the Code and the fact that
the compensation was based on the receipt of the flyers, I would not reinstate
the compensation awarded to Brendan Wallace and Kathy Hamre. The compensation
awards of $2,500 to Guy Taylor and $5,000 to James Komar, as well as the
prohibition on further distribution of Flyers D and E, are reinstated.
X. Conclusion
[206]
Section 14(1)(b) is a reasonable limit on
freedom of expression and freedom of religion, demonstrably justified in a free
and democratic society. I would therefore answer the constitutional questions
as presented in the January 5, 2011 order of the Chief Justice as follows:
1.
Does s. 14(1)(b) of The Saskatchewan Human
Rights Code, S.S. 1979, c. S-24.1, infringe s. 2 (a) of the Canadian
Charter of Rights and Freedoms ?
Answer: Yes.
2.
If so, is the infringement a reasonable limit
prescribed by law as can be demonstrably justified in a free and democratic
society under s. 1 of the Canadian Charter of Rights and Freedoms ?
Answer: A prohibition
of any representation that “ridicules, belittles or otherwise affronts the
dignity of” any person or class of persons on the basis of a prohibited ground
is not a reasonable limit on freedom of religion. Those words are
constitutionally invalid and are severed from the statutory provision in
accordance with these reasons. The remaining prohibition of any representation
“that exposes or tends to expose to hatred” any person or class of persons on
the basis of a prohibited ground is a reasonable limit and demonstrably
justified in a free and democratic society.
3.
Does s. 14(1)(b) of The Saskatchewan Human
Rights Code, S.S. 1979, c. S-24.1, infringe s. 2 (b) of the Canadian
Charter of Rights and Freedoms ?
Answer: Yes.
4.
If so, is the infringement a reasonable limit
prescribed by law as can be demonstrably justified in a free and democratic
society under s. 1 of the Canadian Charter of Rights and Freedoms ?
Answer: A prohibition
of any representation that “ridicules, belittles or otherwise affronts the
dignity of” any person or class of persons on the basis of a prohibited ground
is not a reasonable limit on freedom of expression. Those words are
constitutionally invalid and are severed from the statutory provision in
accordance with these reasons. The remaining prohibition of any
representation “that exposes or tends to expose to hatred” any person or class
of persons on the basis of a prohibited ground is a reasonable limit and
demonstrably justified in a free and democratic society.
[207]
I would therefore allow the appeal in part, and
reinstate the Tribunal’s decision as to Flyers D and E. I would dismiss the
appeal with respect to Flyers F and G. Given that Mr. Whatcott was found in
contravention of the Code, the Commission is awarded costs throughout,
including costs of the application for leave to appeal in this Court.
APPENDIX A
Relevant Statutory Provisions
The Saskatchewan Human Rights Code, S.S. 1979, c. S-24.1
2. (1) In this Act:
. . .
(m.01) “prohibited
ground” means:
. . .
(vi) sexual
orientation;
. . .
3. The objects of this Act are:
(a) to
promote recognition of the inherent dignity and the equal inalienable rights of
all members of the human family; and
(b) to
further public policy in Saskatchewan that every person is free and equal in
dignity and rights and to discourage and eliminate discrimination.
4. Every person and every class of persons shall enjoy the right to
freedom of conscience, opinion and belief and freedom of religious association,
teaching, practice and worship.
5. Every person and every class of persons shall, under the law,
enjoy the right to freedom of expression through all means of communication,
including, without limiting the generality of the foregoing, the arts, speech,
the press or radio, television or any other broadcasting device.
14. (1) No person shall publish or display, or cause or permit
to be published or displayed, on any lands or premises or in a newspaper,
through a television or radio broadcasting station or any other broadcasting
device, or in any printed matter or publication or by means of any other medium
that the person owns, controls, distributes or sells, any representation,
including any notice, sign, symbol, emblem, article, statement or other
representation:
(a) tending
or likely to tend to deprive, abridge or otherwise restrict the enjoyment by
any person or class of persons, on the basis of a prohibited ground, of any
right to which that person or class of persons is entitled under law; or
(b) 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.
(2) Nothing in
subsection (1) restricts the right to freedom of expression under the law upon
any subject.
31. . . .
(4) Without restricting
the generality of subsection (2), a human rights tribunal shall, on an inquiry,
be entitled to receive and accept evidence led for the purpose of establishing
a pattern or practice of resistance to or disregard or denial of any of the
rights secured by this Act, and the human rights tribunal shall be entitled to
place any reliance that it considers appropriate on the evidence and on any
pattern or practice disclosed by the evidence in arriving at its decision.
32. (1) Any party
to a proceeding before a human rights tribunal may appeal on a question of law
from the decision or order of the human rights tribunal to a judge of the Court
of Queen’s Bench by serving a notice of motion, in accordance with The
Queen’s Bench Rules, within 30 days after the decision or order of the
tribunal, on:
(a) the
human rights tribunal;
(b) the
commission; and
(c) the other parties in the proceeding before the
human rights tribunal.
Canadian Human Rights Act, S.C. 1976-77, c. 33 (now R.S.C. 1985, c. H-6 )
13. (1) It is a discriminatory practice for a person or a group of
persons acting in concert to communicate telephonically or to cause to be so
communicated, repeatedly, in whole or in part by means of the facilities of a
telecommunication undertaking within the legislative authority of Parliament, any
matter that is likely to expose a person or persons to hatred or contempt by
reason of the fact that that person or those persons are identifiable on the
basis of a prohibited ground of discrimination.
(This section will be repealed by Bill
C-304, An Act to amend the Canadian Human Rights Act (protecting freedom),
1st Sess., 41st Parl., June 6, 2012, which has not yet received Royal Assent.)
Canadian Charter of Rights and
Freedoms
1. 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.
2. Everyone has the following fundamental freedoms:
(a)
freedom of conscience and religion;
(b)
freedom of thought, belief, opinion and expression, including freedom of the
press and other media of communication;
. . .
15. (1)
Every individual is equal before and under the law and has the right to the
equal protection and equal benefit of the law without discrimination and, in
particular, without discrimination based on race, national or ethnic origin,
colour, religion, sex, age or mental or physical disability.
APPENDIX B
Appeal
allowed in part.
Solicitors for the
appellant: Scharfstein Gibbings Walen Fisher, Saskatoon;
Saskatchewan Human Rights Commission, Saskatoon.
Solicitors for the
respondent: Nimegeers, Schuck, Wormsbecker & Bobbitt, Weyburn,
Saskatchewan; Iain Benson, Toronto; John Carpay, Calgary; Mol Advocates,
Edmonton.
Solicitor for the intervener
the Attorney General for Saskatchewan: Attorney General for Saskatchewan, Regina.
Solicitor for the
intervener the Attorney General of Alberta: Attorney General of
Alberta, Edmonton.
Solicitors for the
intervener the Canadian Constitution Foundation: Osler, Hoskin &
Harcourt, Toronto.
Solicitors for the
intervener the Canadian Civil Liberties Association: Paliare Roland
Rosenberg Rothstein, Toronto.
Solicitor for the
intervener the Canadian Human Rights Commission: Canadian Human
Rights Commission, Ottawa.
Solicitor for the
intervener the Alberta Human Rights Commission: Alberta Human Rights
Commission, Edmonton.
Solicitors for the
intervener Egale Canada Inc.: Sack Goldblatt Mitchell, Toronto.
Solicitor for the
intervener the Ontario Human Rights Commission: Ontario Human Rights
Commission, Toronto.
Solicitors for the
intervener the Canadian Jewish Congress: Lerners, Toronto.
Solicitors for the
interveners the Unitarian Congregation of Saskatoon and the Canadian Unitarian
Council: Fasken Martineau DuMoulin, Calgary.
Solicitors for the
intervener the Women’s Legal Education and Action Fund: Jo‑Ann R.
Kolmes, Edmonton; University of Calgary, Calgary.
Solicitors for the
intervener the Canadian Journalists for Free Expression: Stockwoods,
Toronto.
Solicitor for the
intervener the Canadian Bar Association: David Matas, Winnipeg.
Solicitors for the
interveners the Northwest Territories Human Rights Commission and the Yukon
Human Rights Commission: MacPherson Leslie & Tyerman, Saskatoon.
Solicitors for the
intervener the Christian Legal Fellowship: Bennett Jones, Toronto.
Solicitors for the
intervener the League for Human Rights of B’nai Brith Canada: Dale
Streiman & Kurz, Brampton.
Solicitor for the
intervener the Evangelical Fellowship of Canada: Evangelical
Fellowship of Canada, Ottawa.
Solicitors for the
intervener the United Church of Canada: Symes & Street, Toronto.
Solicitors for the
interveners the Assembly of First Nations, the Federation of Saskatchewan
Indian Nations and the Métis Nation —Saskatchewan: McKercher,
Saskatoon.
Solicitors for the
interveners the Catholic Civil Rights League and the Faith and Freedom Alliance: Bull,
Housser & Tupper, Vancouver.
Solicitors for the
intervener the African Canadian Legal Clinic: African Canadian Legal
Clinic, Toronto; University of Toronto, Toronto.