Op-Ed: Canada's Supreme Court redefines hate speech

Posted Feb 28, 2013 by Karl Gotthardt
What constitutes freedom of speech and hate speech has often been an emotional debate in Canada. The Supreme Court of Canada (SCC) has redefined the definition as it applies to the Canadian Charter of Rights and Freedoms.
Supreme Court of Canada
Supreme Court of Canada
Wiki Commons
While in the United States freedom of speech seems to trump anything, in Canada hate speech is defined in the Charter of Rights. The fundamental freedoms are freedom of expression, freedom of religion, freedom of thought, freedom of belief, freedom of peaceful assembly, and freedom of association. The Charter limits those rights either through limiting the content or form of expression. Limits on content are where the meaning of the expression is specifically forbidden by the law, such as hate-speech law, and is the most easily identifiable form of limitation. With the Charter's broad guidelines, cases of hate speech often end up in court.
This was the case with a self-professed street preacher, who had distributed four flyers in Regina, Saskatchewan. The first two flyers entitled "Keep homosexuality out of Saskatoon's public schools" and "Sodomites in our public schools," were found to constitute hate speech, while the other two were classified ads with hand written notes stating that they were ads for "men seeking boys."
The Supreme Court found the first two flyers did constitute hate speech and reinstated the Saskatchewan tribunal's finding, including $7,500 in damages against Whatcott that were to be paid to complainants.
It found that it was unreasonable to find the second two flyers "contain expression that a reasonable person … would find as exposing or likely to expose persons of same-sex orientation to detestation and vilification."
"These flyers are potentially offensive but lawful contributions to the public debate on the morality of homosexuality," Justice Marshall Rothstein wrote in the decision.
While upholding key provisions of hate speech of Saskatchewan's Human Rights Code, the Supreme Court of Canada (SCC) struck down provisions of the code that "ridicule, belittle or otherwise affront the dignity of any person or class of persons on the basis of a prohibited ground." It found those words are not rationally connected to the objective of protecting people from hate speech. The court upheld the ban on speech that exposes, or tends to expose, persons or groups to hatred.
The Saskatchewan Human Rights Code prohibits publishing or broadcasting anything 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."
Needless to say when the judicial system gets involved definitions are often garbled and difficult to understand for the layman.
While Bill Whatcott was disappointed with the decision the Saskatchewan Human Rights Commission's chief commissioner, David Arnot said that he was pleased with the decision which he called strong, unambiguous and unanimous.
Whatcott told CTV News he was “profoundly” disappointed by the court’s decision.
“I see today as a dark day, not only for myself personally, but for religious freedom and freedom of speech in Canada,” he said.
Whatcott said he will not tone down his message.
“My faith in Jesus Christ takes precedent over seven liberal justices that clearly don’t know what right or wrong is.”
Saskatchewan Human Rights Commission chief commissioner David Arnot told CTV's Power Play that he was pleased with the decision which he called strong, unambiguous and unanimous.
It's a "very strong judgment outlining what hate speech is, how it's to be analyzed in the future, it's very helpful," he said.
"Hate causes real harm to real people and when hate occurs it needs to be sanctioned," said Arnot.
Conservatives seek to repeal section 13 of the Human Rights Act
While the Charter appears to do what it is supposed to do, Conservative Member of Parliament of the Alberta riding Westlock-St. Paul has introduced a private members bill that would revoke controversial sections of the Human Rights Act. The bill, conservatives say would have the courts play a larger role in handling hate-crime cases. The bill would effectively strip the human rights commission of its ability to rule on cases of hate speech over the phone and Internet.
In a free vote of 153 to 136, the Tory caucus supported a private member’s bill from Alberta Conservative MP Brian Storseth that would scrap Section 13 of the human rights code, which deals with complaints regarding “the communication of hate messages by telephone or on the Internet.”
Storseth argues the current human rights code fails to protect freedom of speech, which is guaranteed under the Charter of Rights and Freedoms, and believes Canadians are better off if the government repeals sections 13 and 54 — the latter section dealing with associated penalties.
The lines between freedom of speech, freedom of religion and hate speech are foggy to say the least. What constitutes the meaning of "incites hate speech?" This is a definition that needs to be left in the courts, but the Human Rights Commission also plays an important role and scrapping the controversial sections of the Human Rights Act doesn't appear to be helpful.