January 2011
The Supreme Court of Canada has agreed to reconsider
20 year-old jurisprudence that limits free speech. The case under appeal is The
Saskatchewan Human Rights Commission vs. William Whatcott.
Back in 2001 and 2002, Whatcott, a social
conservative activist, distributed flyers in Regina and Saskatoon bearing
headings such as “Keep Homosexuality out of Saskatoon’s Public Schools” and
“Sodomites in our Public Schools.”
He was hauled before the Saskatchewan Human Rights
Commission for having “exposed to hatred, ridiculed, belittled or affronted the
dignity” of gays and lesbians, and was ordered to pay compensation totaling
$17,500 to four complainants. That decision was upheld on its first appeal to
the Saskatchewan Court of Queen’s Bench in 2007. But in February, 2010, three
members of the Saskatchewan Court of Appeal overturned it.
While the Court of Appeal’s decision was a victory,
of sorts, for free speech, the court had to twist itself into contortions to
reach it. On any objective reading of Whatcott’s flyers, he did ridicule and
belittle gays — and he probably even exposed them to hatred. What rankles free-speechers
is the more fundamental question: Why should this be against the law? After all,
don’t we have a Charter of Rights that guarantees freedom of thought, belief, opinion and expression?
But the Court of Appeal declined to strike down the
offending portions of the Saskatchewan Human Rights Code as inconsistent with
the Charter. The problem lay in the fact that in 1990, the Supreme Court of
Canada had considered similar human rights legislation and had decided that
those censorship provisions were permissible despite the Charter’s
free-expression guarantee.
That case, known as Taylor, attempted to set some
guidelines or standards as to when censorship laws designed to deter “hate
speech” would be acceptable. Hatred or contempt, wrote then-chief justice
Dickson, “refers only to unusually strong and deep-felt emotions of detestation,
calumny and vilification.”
Then, with inexplicable confidence in the niceness
of the universe, justice Dickson opined that so long as human rights tribunals
paid heed to the extreme degree of hatred necessary to justify censorship, there
would be “little danger that subjective opinion as to offensiveness” would trump
free speech.
But events over the last few years have demonstrated
that the danger characterized by justice Dickson in 1990 as “little” is anything
but. Accusations of anti-Muslim hate-mongering have been levelled against
Maclean’s magazine for Mark Steyn’s commentary on immigration policy; and
against Western Standard magazine and its publisher Ezra Levant merely for
printing the notorious “Muhammad cartoons” as part of its news coverage.
Even B’nai Brith, a Jewish organization known for
supporting the anti-hate provisions of human rights legislation, has been hit
with a complaint.
While the complaints against Maclean’s and Levant
ultimately were dismissed, the accused parties had to spend hundreds of
thousands of dollars upholding their innocence — money they’ll never get back.
Worse yet is the chilling impact those prosecutions have had on less stalwart
souls than Steyn and Levant. The risk of being put through such an ordeal, even
if one is ultimately vindicated, undoubtedly has diverted many a commentator
into less hazardous topics of discussion.
Even the history of the Whatcott decision itself
demonstrates how subjective justice Dickson’s test is. Of those who have sat in
judgment on Mr. Whatcott’s comments to date, two have said he violated the law
while three have said he didn’t. That’s hardly a demonstration that the
standards are crystal clear.
Justice Dickson’s confidence in the discretion of
human rights tribunals now appear to have been hopelessly misplaced.
The Whatcott appeal presents an opportunity for the
Supreme Court to reconsider its Taylor decision with the benefit of 20/20
hindsight. It’s encouraging to note that the Taylor rationale itself just
squeaked by in a four-to-three decision in 1990. The only judge on that
seven-member Taylor panel who remains on the bench today is Beverley McLachlin,
now the Chief Justice. In 1990, she was one of the three-member dissenting team
who said that the human rights law then under consideration was not “reasonable
and justifiable in a free and democratic society.”
It will be interesting to see whether her opinion
remains the same, and whether she can now persuade a majority of her colleagues.
Karen Selick is the litigation director of the
Canadian Constitution Foundation, which intervened in favour of freedom of
expression at the Saskatchewan Court of Appeal.
National Post, November 3, 2010.
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