38:
425:... precludes publication of the flyer in its current form". Rothstein J also held that the Tribunal's application of section 14(1)(b) to two of Whatcott's flyers (Flyers D and E) was reasonable, since those flyers portrayed the targeted group "as a menace that could threaten the safety and well-being of others", objectively depicted them as "inferior untrustworthy", " those of same-sex orientation by portraying them as child abusers or predators", and called for discrimination against the portrayed group.
339:
for a rational connection to exist. Since section 14(1)(b) only captured hate speech communicated in public, and since it applied only to expression based on existing prohibited grounds of discrimination, Rothstein J found that the provision was rationally connected to the legislative objective. However, Rothstein J found that the wording "ridicules, belittles or otherwise affronts the dignity of" contained in section 14(1)(b) of the
221:), which prohibits "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". Sexual orientation was one such prohibited ground. A Saskatchewan human rights tribunal heard the case, holding that the contents of each flyer objectively contravened section 14 of the
330:. Rothstein J described the purpose of the legislation as "reducing the harmful effects and social costs of discrimination by tackling certain causes of discriminatory activity", noting its emotional and societal effects on vulnerable groups and its ability to impede democratic discussion. Thus Rothstein J found that the provision was prescribed by law and that its objective was pressing and substantial.
403:. Rothstein J concluded that section 2(a) had been infringed because Whatcott had a sincere religious belief and since section 14(1)(b) would significantly interfere with his ability to communicate his sincerely held beliefs. However, Rothstein J found that the infringement was justified under section 1 of the
351:
Rothstein J then considered whether the provision minimally impaired the impugned right to freedom of expression. Rothstein J answered affirmatively, holding that alternative measures, including a "marketplace of ideas" and an expanded role for the criminal law in hate speech cases, would not achieve
338:
Next, Rothstein J considered whether the section 14(1)(b) limitation on free expression was rationally connected to the legislation's purpose. Rothstein J wrote that such expression "must seek to marginalize the group by affecting its social status and acceptance in the eyes of the majority" in order
368:
Rothstein J also rejected
Whatcott's submission that his expression was protected because it differentiated between homosexual orientation and activity. Instead, Rothstein J held that "attacks on conduct stand as a proxy for attacks on the group itself". Rothstein J also rejected arguments that the
299:
standard by holding that it should be conducted objectively, that "hatred" should be interpreted as "extreme manifestations of the emotion described by the words 'detestation' and 'vilification'", a threshold which would not include merely repugnant or offensive expression, and that tribunals should
373:
was overbroad because it did not require proof of intent or harm and because it did not offer any defences. Rothstein J instead wrote that the analysis must focus on the effects of the impugned expression, not the communicator's intent, that the legislature is "entitled to a reasonable apprehension
428:
However, Rothstein J found that the
Tribunal's decision with respect to two other flyers (Flyers F and G) was unreasonable, since a reasonable person would not have found them to subject homosexuals to "detestation" and vilification". In particular, Rothstein J noted that a Bible passage that
363:
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
429:
Whatcott had quoted in Flyers F and G was not hateful expression, writing that "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".
208:
Four complainants brought an application to the
Saskatchewan Human Rights Commission after receiving flyers entitled "Keep Homosexuality out of Saskatoon's Public Schools!" and "Sodomites in our Public Schools" from Christian anti-homosexual activist
386:
Rothstein J found that the benefits of the section 14(1)(b) prohibition on hate speech outweighed the "detrimental effect of restricting expression which, by its nature, does little to promote the values underlying freedom of expression".
290:
hatred doctrine; namely, that hatred is inherently subjective, which could conflict with the court's attempt at objectivity, and that it could lead to a "mistaken propensity to focus on the ideas being expressed, rather than on the
421:. Rothstein found that the Tribunal's decision to read certain parts of the flyer in isolation was reasonable, since "even one phrase or sentence... found to bring the publication, as a whole, in contravention of the
352:
the legislative objective, or would only achieve it ineffectively. Rothstein J held also that the provision was not overbroad once the language "ridicules, belittles or otherwise affronts the dignity of" was removed.
457:
a "calamitous decision", criticizing the
Supreme Court's loose definition of "harm" and Rothstein J's finding that "truth may be used for widely disparate ends". Charlie Gillis, writing for
321:
343:
was constitutionally invalid, since the threshold set by that language was too low and thus did not align with the legislation's purpose. The offending words were removed from the section.
226:
252:. The court held that the tribunal and the trial judge had erred by considering only certain phrases from the flyers and that the flyers were not a prohibited hate publication.
856:
286:"refers to unusually strong and deep-felt emotions of detestation, calumny and vilification". Rothstein J identified two primary difficulties arising alongside the
468:, called the decision "reasonable and balanced" and found that it would "provide comfort to those concerned about being found liable for "offending" others".
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was not determinative; truthful statements or sincerely held beliefs do not affect the analysis, which must be undertaken from an objective standpoint.
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Rothstein J held that the standard of review of the
Tribunal's decision was reasonableness, based on the Court's reasoning in
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Rothstein J reinstated the compensation for those complainants who had received flyers which were in contravention of the
355:
Rothstein J rejected
Whatcott's argument that the expression at issue was protected because it was political in nature:
249:
461:, described the decision as a "missed opportunity to erect robust legal protections around a bedrock Canadian value".
233:. The Tribunal prohibited Whatcott from further distributing the flyers and awarded compensation to the complainants.
197:
407:, but again held that the wording "ridicules, belittles or otherwise affronts the dignity of" was unconstitutional.
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417:
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case concerning the constitutionality of the hate speech provision in
Saskatchewan's human rights legislation.
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in 2007, the appeals judge upheld the
Tribunal's findings with respect to the violation of section 14 of the
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857:"Andrew Coyne: Supreme Court twists the Charter of Rights in its haste to limit free speech"
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of societal harm as a result of hate speech", and that the absence of defences in the
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Rothstein J began by considering the definition of "hatred" as contemplated in
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Binnie and
Deschamps took no part in the consideration or decision of the case.
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of the expression". In response to these criticisms, Rothstein J adapted the
496:"Top court upholds key part of Sask. anti-hate law", CBC, February 27, 2013.
324:
316:. Rothstein J held that the expression was protected by section 2(b) of the
308:
Rothstein J next analyzed the constitutionality of section 14(1)(b) of the
909:"Opinion: Supreme Court decision in Whatcott case is fair and balanced"
883:"Whatcott fallout: the Supreme Court upholds protections we don't need"
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consider the effect of the expression, not its inherent offensiveness.
237:
399:
infringed the freedom of religion enshrined in section 2(a) of the
225:, and that the provision did not unreasonably restrict Whatcott's
280:, where the Supreme Court had found that "hatred" as used in the
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and its constitutionality. In 2010, the case was appealed to the
560:"The Whatcott Case: Balancing Free Speech and Social Harmony"
395:
Next, Rothstein J considered whether section 14(1)(b) of the
213:. The complainants alleged a violation of section 14 of
63:
Saskatchewan Human Rights
Commission v William Whatcott
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Reaction to the Supreme Court's decision was mixed.
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508:Saskatchewan (Human Rights Commission) v. Whatcott
268:wrote the reasons for a unanimous Supreme Court.
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194:Saskatchewan Human Rights Commission v Whatcott
31:Saskatchewan Human Rights Commission v Whatcott
18:For the person at the centre of this case, see
115:infringes both sections 2(a) and 2(b) of the
8:
558:Bowal, Peter; McKay, Colin (7 July 2014).
476:
117:Canadian Charter of Rights and Freedoms
27:
7:
881:Gillis, Charlie (27 February 2013).
907:Eliadis, Pearl (27 February 2013).
484:SCC Case Information - Docket 33676
242:Saskatchewan Court of Queen's Bench
855:Coyne, Andrew (27 February 2013).
260:Twenty-six third parties acted as
215:The Saskatchewan Human Rights Code
14:
119:but is saved by section 1 of the
382:Benefits and deleterious effects
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464:Pearl Eliadis, writing for the
304:Freedom of expression analysis
264:during oral hearings in 2011.
113:Saskatchewan Human Rights Code
1:
939:Supreme Court of Canada cases
320:, and proceeded to conduct a
949:Section Two Charter case law
391:Freedom of religion analysis
364:therefore easier to justify.
250:Saskatchewan Court of Appeal
25:Supreme Court of Canada case
312:, applying the correctness
198:Canadian constitutional law
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54:Judgment: 27 February 2013
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944:2013 in Canadian case law
510:, 2013 SCC 11, 1 SCR 467
359:In my view, s. 14 of the
283:Canadian Human Rights Act
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52:Hearing: 12 October 2011
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418:Dunsmuir v New Brunswick
111:Section 14(1)(b) of the
486:Supreme Court of Canada
101:Appeal allowed in part.
74:2013 SCC 11, 1 SCR 467
44:Supreme Court of Canada
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954:Human rights case law
179:Unanimous reasons by
334:Rational connection
347:Minimal impairment
314:standard of review
256:Reasons of the SCC
164:Marshall Rothstein
137:Beverley McLachlin
773:SCC, par. 167–168
692:SCC, par. 102–105
272:Defining "hatred"
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568:. Retrieved
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90:Appeal from
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411:Application
266:Rothstein J
262:interveners
156:Morris Fish
148:Louis LeBel
933:Categories
472:References
278:R v Taylor
204:Background
144:Ian Binnie
79:Docket No.
887:Maclean's
512:, par. 3.
459:Maclean's
322:section 1
182:Rothstein
70:Citations
566:. CLPLEA
455:Whatcott
453:called
405:Charter
401:Charter
318:Charter
240:to the
229:Charter
121:Charter
106:Holding
918:15 May
892:15 May
866:15 May
570:15 May
564:LawNow
445:Impact
433:Remedy
297:Taylor
293:effect
288:Taylor
238:appeal
231:rights
98:Ruling
82:33676
326:Oakes
236:Upon
196:is a
920:2015
894:2015
868:2015
572:2015
439:SHRC
423:Code
397:SHRC
376:SHRC
371:SHRC
361:Code
341:SHRC
328:test
310:SHRC
246:SHRC
223:SHRC
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