Supreme Court Of Canada Upholds Hate Speech Provision In Saskatchewan Human Rights Code

Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11

On February 27, 2013, the Supreme Court of Canada rendered its decision in Saskatchewan (Human Rights Commission) v. Whatcott.Mr. Justice Rothstein delivered the judgment of a unanimous Court upholding, in part, the finding that Mr. Whatcott had distributed flyers containing hateful language, in contravention of the Saskatchewan Human Rights Code, SS 1979, c S024.1 (the Code). The decision also upheld the constitutionality of the Code in the face of a challenge on the basis of the Charter of Rights And Freedoms, Sections 2(a) and (b), freedom of religion and freedom of expression.

The case began with a Saskatchewan Human Rights Tribunal ruling that found Mr. Whatcott's flyers constituted hateful speech, prohibited Mr. Whatcott from distributing such flyers in the future, and ordered him to pay compensation to the complainants.

Justice Rothstein begins his reasons for judgment with the following sentence:

All rights guaranteed under the Canadian Charter of Rights and Freedoms are subject to reasonable limitations.

By giving away the result in the first sentence, it might be argued that the Court has dispensed with much of the drama of the decision. With reasons that rely heavily on the Court's previous decision in Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892, Justice Rothstein attempts to maintain a balance between the socially deleterious effects of hate speech and the individual rights to free expression and religion.

The Court had no trouble finding that Mr. Whatcott's freedom of expression and freedom of religion had been infringed by the Code. This brought the Court to a Charter Section 1 analysis to determine whether the limit on the freedom created by the law is justified in a free and democratic society, using the test first established in R v. Oakes.

1. Is there a pressing and substantial objective?

   The Court relies on a number of cases including Taylor and R v. Keegstra, as well as the "Cohen Committee" report of 1966, as demonstrating the deleterious effects of hate speech. These negative social effects are well established, although it is interesting to note that the Court is content to rely on evidence from nearly 50 years ago as the basis of its findings, taking judicial notice of mass atrocities around the world as evidence that nothing has changed on this front.

2. Proportionality

   The Court then proceeds to determine whether the limit on...