You might recall that I was very
pleased when the move was made to remove sec. 13 from the
Canadian Human Rights Act last year.
Well, I was even more pleased when I learned today that the Supreme Court of Canada (SCC) has now
weighed in on the wording of a similar provision in Saskatchewan's
Human Rights Code.
The facts of the case are notorious. After William Whatcott distributed flyers condemning homosexuality using very strong language, the Saskatchewan Human Rights Tribunal found that that his actions breached sec. 14(1)(b) of the
Code, which prohibits the publication of printed matter that “
exposes or tends to expose to hatred, ridicules, belittles or otherwise affronts the dignity of any person or class of persons” because of sexual orientation.
Although the SCC upheld part of that provision as constitutional and not a violation of Whatcott's freedom of expression under the
Canadian Charter of Rights and Freedoms, it found that
the prohibition against ridicule, belittlement or affronts to dignity did not meet constitutional muster.
The Court held that those words are not synonymous with hatred, which was defined as “
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”. Thus,
the Court made clear that it is unconstitutional to prohibit speech that is something less than detestation and vilification.
Finally, the SCC held that although freedom of religion (Whatcott argued that his flyers were motivated by his sincere religious beliefs) and religious speech have broad protection like the freedom of expression, at the same time, that speech cannot expose vulnerable groups to detestation and vilification, even if it is sincerely-held.
Although it will fall to the politicians to ultimately (hopefully) remove remaining "hate speech" provisions from Canadian human rights legislation, the SCC decision at least clarifies that
- the test of hatred must be applied objectively (i.e., the reasonable person aware of the relevant context and circumstances), not based on the subjective views of the publisher or the victim; and
- “hatred” involves two concepts—detestation and vilification, which enforce the legislative objectives of anti-discrimination laws.
I guess all we can do now is await the political process.
Bill C-304, which would repeal the hate speech provision in the
Canadian Human Rights Act (and which provision the Federal Court found largely constitutional in October, 2012), has passed the House of Commons and is currently being debated in the Senate.
In Alberta, Premier Redford promised during her leadership campaign to repeal the equivalent Alberta provision.
Any other Province care to step forward and be heard?
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By the by, writing this post got me to thinking about our good friend (term used loosely), Rev. Stephen Boissoin, whose case (
last we checked) was winding its way through the courts.
I am pleased to say that the good Reverend (again, using the term loosely) was
successful, both in Alberta's Court of Queen Bench and the Court of Appeal, where the Court held that “m
atters of morality, including the perceived morality of certain types of sexual behavior, are topics for discussion in the public forum,” and “
freedom of speech does not just protect polite speech.”
In the words of Jonathan Kay, "Just so".
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You see, the calendar (and my darling daughter, herself) tells me, in no uncertain terms, that my oldest is 
