Prof. Michelle Flaherty*
In its recent decision in Saskatchewan (Human Rights Commission) v. Whatcott. 2013 SCC 11, the Supreme Court of Canada contended with a series of competing rights: freedom expression and freedom of religion, on the one hand, and the potential hateful and discriminatory effects of the exercise of those freedoms on the equality rights of others. Ultimately, the Supreme Court tried to strike a balance, one that offered some level of protection for equality rights and allowed for the restriction of only very extreme forms of expression.
Mr. Whatcott, the respondent in the case, had disseminated flyers in Saskatoon and Regina. The flyers prothelesized against homosexuality, particularly among educators in public schools. They also included disparaging remarks about homosexuality.
Some of the individuals who received Mr. Whatcott’s flyers filed complaints against him under the Saskatchewan Human Rights Code, S.S. 1979, c. S 24.1 (“Code”). Section 14 of the Code states that no person shall publish or display 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 complainants argued that Mr. Whatcott’s flyers were discriminatory and violated the s. 14 of the Code because they exposed persons to hatred and ridicule on the basis of a prohibited ground, their sexual orientation. Mr. Whatcott, however, argued that s. 14 of the Code was unconstitutional and invalid because it interfered with his freedom of expression and freedom of religion.
Squarely at issue before the Court, as it tried to balance these competing rights, was whether and to what extent expression and religious freedoms can be restricted. More specifically, the Court had to consider whether and how to distinguish between hate speech and less extreme forms of expression, which may fall short of “hate”, although they ridicule, belittle or affront the dignity of the targeted group or individuals.
Of course, Whatcott is not the first time the Supreme Court has balanced freedom of expression with other rights: see, for example, R. v. Keegstra,  3 S.C.R. 697 and Canada (Human Rights Commission) v. Taylor,  3 S.C.R. 892. The Whatcott case is significant, though, because the Court modifies its approach to balancing freedom of expression with other rights, clarifying what amounts to “hate speech” and the narrow circumstances in which expression and religious freedoms may be limited in the interests of equality.
In Whatcott, the Court held that, even where the expression in question is hateful and although it might incite discrimination, it is protected under s. 2(b) of the Charter. Thus, the provision of the Code that seeks to restrict this type of expression breaches s. 2(b) of the Charter. In this case, however, the Court found that the Code was largely constitutional because the breach was justified in part at s. 1 of the Charter.
The Supreme Court faced the difficult task of distinguishing between forms of expression and the level of constitutional protection they warrant. The Court sought to create an objective test for differentiating between expression that fosters hate (and whose restriction is justified under the Charter) and other forms of expression, which although offensive and perhaps repugnant, cannot reasonably be limited under the Charter.
According to the Court, where equality rights compete with and lead to limits on freedom of expression and religion, the Charter requires that those limits be interpreted restrictively. Thus, only where the expression in question is “hateful” will it justify placing limits on freedoms of expression and religion. The Court creates a high threshold for what will constitute “hate” speech, restricting it to those “extreme manifestations of the emotion described by the words “detestation” and “vilification””.
To distinguish between hate and other less extreme forms of expression, the Court proposes the objective standard of the reasonable person and it focuses on the effect of the expression, rather than the intent of the speaker. In sum, restrictions on expression and the freedom of religion will be constitutional if a reasonable person would conclude that the expression is likely to expose the targeted person or group to hatred by others.
Applying this standard, the Court rejected s. 14’s broader definition of prohibited expression. It held that the words “ridicules, belittles or otherwise affronts the dignity of” in s. 14 are constitutionally invalid and must be read out of the legislation. These words extend beyond hate speech and include less extreme forms of expression, forms that cannot justifiably infringe other Charter rights.
In essence, the distinction between these forms of speech and the constitutionality of the limitations placed upon them becomes a matter of degrees. It can be difficult to make out some of the nuances between what is “hateful” and what is merely “repugnant”. In my view, it is difficult to make this distinction on a purely objective basis. In most cases, deciding whether or not a behaviour or omission amounts to discrimination under human rights legislation will include some consideration of its subjective impact on the complainant.
I think it is also problematic that the Court ultimately strikes down portions of s. 14 because they are not rationally connected to the Code’s legislative purpose. This seems an odd conclusion. After all, the legislation at issue is the Saskatchewan Human Rights Code, whose purpose is to limit discrimination against protected individuals and groups. It seems unreasonable to conclude that the Code’s legislative objective is not rationally connected to the prevention of expression that disparages individuals because of a protected ground.
While it may be appropriate to distinguish between the effects of particular forms expression on vulnerable groups, striking down portions of s. 14 because they are not rationally connected to the legislative purpose of the Code is not a principled way of doing so. Ultimately, the Court appears to be differentiating between expression that is, itself, discriminatory and expression that is discriminatory and likely to incite discriminatory behavior. This can be a difficult distinction to make and one that I believe does not flow from the legislative objectives of the Code. Arguably, limiting both of these forms of expression is not inconsistent with the Code’s legislative objectives of preventing discrimination. Under many human rights statutes across the country, some forms of expression can amount to discrimination, either because they are harassing or because they constitute an announced intention to discriminate. These restrictions on expression need to be considered in terms of Charter rights and, in balancing these rights, it may be appropriate to limit only the most extreme forms of expression. However, it would have been helpful to see a more principled approach to the issue, one that does not rely on a flawed interpretation of the objectives of human rights legislation.
*Appointed to the University of Ottawa’s faculty of law in July 2012, Professor Flaherty teaches labour law, administrative law and human rights.