Hate Speech v. Freedom of Expression in a 'Pleasantly Authoritarian Country' (aka Canada)

The United States is something of an outlier in the world when it comes to hate speech.  Whereas laws prohibiting hate speech in the U.S. are simply unconstitutional (barring the various unprotected exceptions like obscenity, incitement, etc.), the majority of Western countries ban hate speech outright.  Of course, those same countries also generally protect freedom of speech.  The natural tension between hate speech bans and free speech rights can make for some interesting cases, one of which is now playing out in Canada.

Yesterday, Canada's Supreme Court heard arguments in the case of William Whatcott, an "anti-gay activist" in Saskatchewan, who in 2005 was found guilty of promoting hate by the  Saskatchewan Human Rights Tribunal and ordered to pay the complainants $17,500.  The Saskatchewan Court of Appeal overturned the ruling in 2010, and the Canadian Supreme Court agreed to hear the case.

Now, Whatcott does not appear to be a particularly pleasant fellow.  As he described himself to the Montreal Gazette, he is a reformed drug addict who once traded sexual favors to his (male) drug dealer to feed his addiction.  He notes to the Gazette that "It's a little inaccurate to say I was gay"; rather, he claims, "if you have no moral boundaries, you can try anything."  

Gay or no, Whatcott gained control of his addiction to become a self-proclaimed "pro-life, pro-family, pro-father, pro-gun alternative," who also happens to be vocally anti-gay.  Though he has not espoused violence against gays, he does argue in his fliers that "homosexuals want to share their filth and propaganda." [Editor's note: The original version of this post incorrectly described an additional statement by Whatcott.  Reference to that statement has been removed.]

It's this sort of anti-gay rhetoric that prompted the Saskatchewan Human Rights Tribunal to find Whatcott guilty of violating the Saskatchewan Human Rights Code.  The particular statute in question appears to be Section 14(1)(b), "Prohibition against publications," which states in relevant part that:

No person shall publish or display . . . in any printed matter or
publication . . . , any representation, including any notice, sign, symbol, emblem, article, statement or other 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.

Section 2(1)(m.01)(vi) of the Code states that "sexual orientation" is a "prohibited ground."  But, paradoxically, Section 14(2) says that "Nothing in subsection (1) restricts the right to freedom of expression under the law upon any subject."

(Whatcott has also argued that his right to freedom of religion, guaranteed under Section 2(a) of the Charter, is being violated by the Tribunal's ruling, but I suspect that the Supreme Court will spend more time on the right to expression.  Whatcott's expression may be religiously motivated, but the code does not bar any religious activity other than expression of his beliefs - suggesting that the right to free expression, not freedom of religion, is the nub here.)

It is this apparent conflict between hate speech, banned under Section 14(1)(b) of the Human Rights Code, and freedom of expression, guaranteed under Section 2(b) of the Canadian Charter of Rights and Freedoms, that is the core of the Whatcott case.  Despite Section 14(2)'s language, one could quite reasonably argue that everything in subsection (1) restricts the right to freedom of expression.  By prohibiting any publication that "exposes or tends to expose" a person or people to hatred, ridicule, and the like on the basis of a prohibited ground, the Code has cut a vast swathe of possible expression out of legally permissible speech.  To be sure, most of that speech is either unpleasant, rude, or out-and-out vile.  But to say it doesn't restrict the freedom of expression is to either render subsection (1) moot or to redefine freedom of expression so as to mean something completely different than it is commonly understood to be.

Now, it's important to note that freedom of expression in Canada is not absolute, thanks to Section 1 of the Charter of Rights and Freedoms, which states that the Charter "guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." (emphasis added)  The emphasized clause gives the Canadian Supreme Court a way to trump freedom of expression by ruling that the hate speech ban can be "demonstrably justified." Perhaps they will do so here, in order to maintain what Alan Borovoy, general counsel of the Canadian Civil Liberties Association, once called a "pleasantly authoritarian country."

But the tide in Canada does seem to be turning away from government censorship of hate speech and towards a broader concept of protected expression.  The Ottawa Citizen, The Edmonton Journal, and The Globe and Mail all feature columns calling for a ruling in favor of Whatcott, however hateful his speech might be.  And the Citizen notes in its editorial that the House of Commons has a bill before it that would repeal Section 13 of the Canadian Human Rights Act, which contains a similar provision to the Saskatchewan code, but addressing telecommunications at the federal level rather than in-province publications.  (The hate speech ban has its advocates though. David Akin writes in the Toronto Sun that Whitcott "is deserving of the same sanctions" that Canadian courts have levied against anti-Semites and anti-aboriginals in the past.)

It will likely be months before the Supreme Court makes its decision on the Whatcott case, but Akin notes that the case has already drawn "what is believed to be the largest number of intervenors for a Supreme Court hearing." This will be an important one to watch, both for its impact on our northern neighbors and for whatever hints it might provide about how cases that pit hate speech bans against freedom of expression may play out in Europe and elsewhere abroad.

Arthur is the research attorney and editor for the Citizen Media Law Project at the Berkman Center and a part-time international editor at The Christian Science Monitor.

(Image of Toronto gay pride parade in 2006 courtesy of Flickr user Lone Primate licensed under a CC BY-NC-SA 2.0 license.)


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