The Supreme Court of Canada has unanimously confirmed that precisely focused legislative prohibitions of hate speech in human rights legislation are consistent with the Canadian Charter of Rights and Freedoms.
In Saskatchewan (Human Rights Commission) v. Whatcott,[1] the Supreme Court held that the Saskatchewan tribunal had acted reasonably in ordering a Saskatchewan man to cease distribution of certain paper fliers about gay persons and pay compensation to the complainants. The tribunal made its orders on the basis of The Saskatchewan Human Rights Code's prohibition of the publication of matter 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" of discrimination.
Rothstein J. readily concluded that the prohibition of hate speech in the human rights legislation infringed the Charter's guarantee of expression, since it is well established that the guarantee generally extends to any form of expression that is not violent or an incitement to violence.[2] Rothstein J. agreed with the government, however, that the legislation was a reasonable limit, demonstrably justified in accordance with section 1 of the Charter. In so doing, Rothstein J. confirmed and elaborated upon the approach to similar federal legislation taken by Chief Justice Dickson for a majority of the Court in Canada (Human Rights Commission) v. Taylor[3] in 1990.
Rothstein J. had "no difficulty in determining that the purpose of the legislation is pressing and substantial" for the purpose of section 1 analysis.[4] Rothstein J. observed that hate speech is, at its core, an effort to marginalize individuals based on their membership in a group, delegitimize them in the eyes of the majority, and reduce their social standing and acceptance.[5] Hate speech promotes a perception of a group as "inferior, sub-human, or lawless", with the result that "it is easier to justify denying the group and its members equal rights or status."[6] Hate speech also prevents targeted persons from participating in democratic society, since it requires them to first "argue for their basic humanity" and defeat the canards of hate speech, before they may contribute to debate on substantive public issues.[7] The legislation thus serves the pressing and substantial purpose of seeking "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".[8]
Throughout the Court's reasons, Rothstein J. emphasized that the legislation is targeted at the effects of hate speech, not its content. He stated that legislative restrictions of hate speech are not designed to "censor ideas or compel anyone to think correctly".[9] The legislation is intended to limit freedom of expression "as little as possible".[10] Thus, valid legislation against hate speech is restricted to a narrow class of speech, "extreme manifestations of detestation and vilification" on the basis of a prohibited ground of discrimination, which incite a "level of abhorrence, delegitimization and rejection that risks causing discrimination or other harmful effects".[11]
Whether this standard has been met on the facts of any case is to be assessed on an objective basis. The question courts must ask is whether a reasonable person, aware of the context and circumstances surrounding the expression, would view it as exposing persons to hatred on the basis of a prohibited ground of discrimination.[12]
Further guidance was provided as to speech which will not be caught by valid restrictions. First, speech will not be restricted unless it rises beyond impugning individuals and seeks to marginalize a group.[13] Second, it must be public, since private expressions of hateful messages "do not impact the societal status of the protected group", even though they may inflict significant emotional harm.[14] Third, hate speech does not include "merely offensive or hurtful expression",[15] or satire, offensive jokes, ridicule or insults which may be repugnant but do not expose the targeted group to hatred.[16] All of these limits on the restriction of hate speech serve the overriding principle that, "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."[17] Rothstein J. made clear that ordinary reports in news media about hate speech are not restricted by the legislation.[18]
Given the narrow basis for the constitutionality of legislation restricting hate speech, Rothstein J. held that additional language of the Saskatchewan Code extending to expression that "ridicules, belittles or otherwise affronts the dignity" of persons on the basis of a prohibited ground was not justified under s. 1 of the Charter, and thus of no force and effect.[19]
On the facts of Whatcott, Rothstein J. found the Saskatchewan tribunal had acted reasonably in concluding that two fliers properly were prohibited hate speech. They portrayed gay people as "a menace that could threaten the safety and well-being of others"[20] by equating them with carriers of disease, sex addicts, pedophiles and predators who would proselytize vulnerable children and cause their premature death.[21] They also urged that the rights of gay people be reduced.[22] Rothstein J. found that two other fliers in issue, proclaiming that the province's "largest gay magazine allows ads for men seeking boys", did not go so far as to express "detestation or vilification in a manner that delegitimizes homosexuals" as a group.[23]
[1] 2013 SCC 11, released February 27, 2013.
[2] 2013 SCC 11 at paras. 62, 112, per Rothstein J.
[3] [1990] 3 S.C.R. 892.
[4] 2013 SCC 11 at para. 77, per Rothstein J.
[5] 2013 SCC 11 at para. 71, per Rothstein J.
[6] 2013 SCC 11 at para. 74, per Rothstein J.
[7] 2013 SCC 11 at paras. 75-76, 117, per Rothstein J.
[8] 2013 SCC 11 at para. 48, per Rothstein J.
[9] 2013 SCC 11 at paras. 58, 110, per Rothstein J.
[10] 2013 SCC 11 at para. 110, per Rothstein J.
[11] 2013 SCC 11 at paras. 51, 57, 82, 92, 144, per Rothstein J.
[12] 2013 SCC 11 at paras. 56, 59, 178, per Rothstein J.
[13] 2013 SCC 11 at para. 80, per Rothstein J.
[14] 2013 SCC 11 at para. 83, per Rothstein J.
[15] 2013 SCC 11 at paras. 46, 90, per Rothstein J.
[16] 2013 SCC 11 at para. 90, per Rothstein J.
[17] 2013 SCC 11 at para. 145, per Rothstein J.
[18] 2013 SCC 11 at para. 53, per Rothstein J.
[19] 2013 SCC 11 at paras. 92, 99, per Rothstein J.
[20] 2013 SCC 11 at para. 187, per Rothstein J.
[21] 2013 SCC 11 at para. 189, per Rothstein J.
[22] 2013 SCC 11 at para. 192, per Rothstein J.
[23] 2013 SCC 11 at paras. 196, 200, per Rothstein J.
