On Wednesday, the Supreme Court of Canada decided that the hate propaganda provisions in the Saskatchewan Human Rights Code are a reasonable limit on freedom of expression. The unanimous judgment was a rare and, indeed, surprising result in a decades-long battle between the permissibility of state censorship, and the damage done to our society by hateful expressions directed at minority groups.
In 2001 and 2002, William Whatcott distributed four flyers to neighbourhoods in Regina and Saskatoon. The flyers bore such titles as “Keep Homosexuality out of Saskatoon’s Public Schools!” and “Sodomites in our Public Schools”. Complaints were launched using the Saskatchewan Human Rights Code, which prohibits the publication of material that “exposes or tends to expose to hatred, ridicules, belittles or otherwise affronts the dignity of” particular groups, including gays and lesbians. Whatcott argued that his flyers were not “hateful” but motivated by sincere concern over important public issues, and that the Human Rights Code itself is unconstitutional.
The lower courts reached differing conclusions on the nature of the flyers. On the issue of whether the Code violates the Canadian Charter of Rights and Freedoms, they considered themselves bound by two 1990 Supreme Court of Canada decisions in which narrow majorities upheld both criminal and human-rights restrictions on hate speech.
In its decision yesterday, the Court acknowledged the challenges in using state mechanisms to combat hateful expression. For example, how can a determination of “hatred” avoid descending into a subjective morass? Are the motivations of the speaker ever relevant? How can we be satisfied that any harms of particular expression are borne out in particular circumstances? These criticisms reflect a concern about overbreadth: the risk that the law will stray too far off track and punish or chill legitimate expression.
Yesterday, the Supreme Court relied on two important anchors from those 1990 decisions. The first is that hate speech directed at certain groups (identified by race or religion, for example) is deeply harmful. The harm is experienced at not only the individual but the societal level. Hateful expression, the Court said, cheapens debate and public discourse, and it threatens the very ideals– respect, equality and democratic participation – on which our society depends.
The second anchor is that, in order to achieve a balance between limiting harm and respecting freedom of expression, “hatred” must be construed narrowly. In Whatcott, this meant that the Code’s use of the words “ridicules, belittles or otherwise affronts the dignity of” could not stand. It is not enough that an individual or group might feel ridiculed or belittled. Rather, the material must arouse extreme feelings of “detestation or vilification”. The Court gave, as examples, materials that “dehumanize a protected group by describing its members as animals or as sub-human.” The speaker’s motivation is largely irrelevant.
One of the most interesting aspects of the Court’s decision is its insistence that hate speech laws are “not aimed at discouraging repugnant or offensive ideas.” This seems to defy intuition, since elsewhere in the decision the Court takes issue precisely with particular expressions about minority groups. The point seems to be that such laws are targeted at particular forms of expression. When an expression suggests that certain groups are not worthy of respect or equal participation in society, it crosses the line from legitimate discourse to fomentation of societal conflict. It is also noteworthy that, while hate propaganda may be part of a broader political discourse, the Court concluded that, because such expression tends to curtail the ability of affected groups to respond, it is antithetical to the very purpose of such discourse which is to encourage debate and the exchange of ideas.
These are dramatic and, for many, controversial conclusions. What makes the Whatcott decision so striking is the Court’s now unanimous adoption of them, including by the current Chief Justice who in 1990 wrote vigorous dissents. It is highly unlikely that the Whatcott decision will end the debate over the propriety of hate speech laws. But in its decision yesterday, the Supreme Court has given them a powerful imprimatur, signalling that further debate will be confined to the political sphere.
Carissima Mathen is associate professor of law at the University of Ottawa.