In Whatcott, the Supreme Court of Canada upheld the constitutionality of the prohibition of hate speech in human rights legislation, stating “words matter”. LEAF intervened in this appeal to the SCC, submitting that hate speech causes deep harm to vulnerable groups and to society at large and that hate speech prohibitions in human rights legislation are justified. LEAF’s arguments in this case focused on hate speech as a form of discrimination and the multiple ways that hate speech harms women, especially amplified at the intersection of race, sexual orientation, class, ethnicity or other status.
The facts of the case are as follows. In 2001 and 2002 William Whatcott published four flyers under the name of Christian Truth Activists, which he placed in mailboxes in homes in Saskatoon and Regina. The flyers contained homophobic messages including “Keep Homosexuality out of Saskatoon’s Public Schools!” and “Sodomites in our Public Schools” and referring to LGBTQ persons as “dirty,” “filthy,” “degenerate” and as pedophiles. Four complaints were made to the Saskatchewan Human Rights Commission alleging that the flyers promoted hatred against individuals because of their sexual orientation in violation of s.14(1)(b) of The Saskatchewan Human Rights Code. The Saskatchewan Human Rights Tribunal found that the flyers constituted hate speech. The Saskatchewan Court of Queen’s Bench upheld this finding. The Saskatchewan Court of Appeal, however, held that the flyers did not contravene the Code. The Court of Appeal was of the view that in the context of a debate about policy and morality, the flyers could not be considered a hate publication. The Saskatchewan Human Rights Commission appealed to the SCC. At the Supreme Court level, Whatcott challenged the constitutionality of the hate speech provision in the Code, arguing that the provision breached his freedom of expression and freedom of religion, and could not be justified.
In a unanimous decision, the Supreme Court held that the Saskatchewan hate speech provision (with some words removed because they were overbroad) was justified and constitutional.
The Court considered the definitions of “hatred and contempt,” affirming the analysis of the Court in 1990 in R. v. Keegstra and Taylor v. The Canadian Human Rights Commission, and setting out the approach that courts and tribunals should use in interpreting these terms. The Court explained that they refer to expression of an unusual and extreme nature, involving vilification, dehumanization, and reviling. This interpretation excludes merely offensive expression.
The Court noted that freedom of expression is central to our democracy, but it is not absolute, and limitations may be justified under s. 1 of the Charter. In considering justification for the limit, the Court held that the objective of the legislation is pressing and substantial. The Court recognized the harm caused by hate speech, not only to the targeted group, but also to society at large. “Hate speech lays the groundwork for later, broad attacks on vulnerable groups,” Justice Rothstein wrote. “These attacks can range from discrimination, to ostracism, segregation, deportation, violence and, in the most extreme cases, to genocide.” A “particularly insidious” effect of hate speech is that it inhibits the expression of the targeted group, Justice Rothstein noted.
The Court noted that framing speech as arising in a “moral context” or “within a public policy debate” does not cleanse it of its harmful effect. The Court rejected Whatcott’s argument that the flyers were critical of same-sex behaviour, as distinct from sexual orientation, and therefore did not contravene the legislation. Justice Rothstein wrote that attacks on conduct stand as proxy for attacks on the group itself, and that the distinction between sexual conduct and sexual orientation should not serve to avoid the hate speech prohibition.
The Court went on to hold that the prohibition against hate speech involves balancing between freedom of expression and equality rights. The Court concluded that the limitation on freedom of expression by the prohibition of hate speech, when properly defined and understood, is demonstrably justified in a free and democratic society.
The Court applied the same justification analysis to the infringement of freedom of religion. The Court held that it does not matter whether the expression at issue is religiously motivated or not; if, viewed objectively, it exposes or is likely to expose the vulnerable group to detestation and vilification, then the religious expression is captured by the hate speech prohibition.
The Court went on to conclude that two of Whatcott’s flyers contravened the hate speech prohibition, but two flyers did not. The Court upheld the Tribunal’s remedy relating to the two flyers that contravened the legislation and the Tribunal’s prohibition on further distribution of those flyers.
LEAF had submitted to the Court that hate speech, like sexual harassment, is a practice of discrimination which is properly limited by human rights statutes. LEAF’s factum addressed the gendered harms of hate speech, including the relationship between hate speech and violence against women, like the December 6, 1989 massacre at the Ecole Polytechnique in Montreal, the murder and disappearance of Indigenous women in Canada and targeted violence against lesbians. LEAF argued that the prohibition of hate speech is constitutionally valid. The significant Charter equality, security of the person, freedom of expression and other rights of groups targeted by hate speech are protected and promoted by limits on hate expression. LEAF’s factum focused on the importance of the case from the perspective of access to justice for women.
LEAF has a long history of equality analysis and advocacy with respect to the importance of statutory limitations on freedom of expression. LEAF intervened in the Supreme Court of Canada cases of Keegstra and Taylor in 1990. In December 2009, LEAF made submissions to federal government on the importance of s.13 of the Canadian Human Rights Act which also prohibits hate speech [see link below].