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The Supreme Court of Canada. (Sean Kilpatrick/THE CANADIAN PRESS)
The Supreme Court of Canada. (Sean Kilpatrick/THE CANADIAN PRESS)

Supreme Court ruling upholds limits on free speech in case involving anti-gay proselytizer Add to ...

Canada’s highest court has upheld the nation’s hate-speech laws as a reasonable limit on freedom of expression.

In a 6-0 decision, the Supreme Court of Canada ruled that some flyers distributed by Bill Whatcott, a resident of Weyburn, Sask., promoted hatred against gays and lesbians – a decision that reaffirms existing laws as a debate rages over the right to free speech and the rights of minorities to be free of discrimination and hatred.

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But the court also reined in the ruling that was under appeal. The Saskatchewan Human Rights Tribunal had ordered Mr. Whatcott to pay $17,500 to people who complained about four flyers he distributed in the province in 2001 and 2002 and banned him from distributing similar material. It declared that the first two flyers promoted hatred but that the remaining two did not rise to that level, although it still deemed them “offensive.”

The ruling follows high-profile controversies in recent years over complaints to human-rights tribunals, which critics call a chill on free speech. Some argue that people with views society finds repugnant should be ignored, or countered through free debate, not prosecuted. Groups opposing racism and homophobia say hate speech does real harm to vulnerable groups.

Civil liberties groups and Mr. Whatcott’s lawyer had also asked the court to strike down a key ruling from 1990 that legally defined hatred and affirmed the right of provincial human-rights tribunals to penalize people for hate speech, a move that would likely have forced tribunals in Saskatchewan, Alberta and B.C. and for the federal government to stop policing hate speech. The Supreme Court declined to do so.

“The tribunal’s conclusions with respect to the first two flyers were reasonable. Passages of these flyers combine many of the hallmarks of hatred identified in the case law,” the court said in its ruling. “The expression portrays the targeted group as a menace that threatens the safety and well-being of others, makes reference to respected sources in an effort to lend credibility to the negative generalizations, and uses vilifying and derogatory representations to create a tone of hatred.”

The Supreme Court also ruled that vague wording in Saskatchewan’s hate law, which bans speech that “ridicules, belittles or otherwise affronts the dignity of,” was constitutionally invalid. It said that the province’s law should apply only to the Supreme Court’s previous definition of hate: “strong and deep-felt emotions of detestation, calumny and vilification.” This echoes previous Saskatchewan court rulings.

The court, however, decided to strike “calumny” from its definition, saying it was unnecessary because hate speech need not be false, and that the word is rare in “everyday vocabulary.”

Reached at his home in Weyburn on Wednesday, Mr. Whatcott, a born-again Christian who says he found religion after an early adulthood of drugs, crime and homosexuality, vowed to produce more pamphlets “taking issue” with the Supreme Court’s ruling and spreading his other views. And he offered no apology for the pamphlets at the centre of the case, one of which warned that homosexuals were aiming to spread “filth” in public schools.

“Certainly in the court of heaven, which is where I am looking now, that stands,” he said. “The fact that this court has said that it’s illegal to say that stuff, they’re wrong.”

In the decision, written by Mr. Justice Marshall Rothstein, the Supreme Court clearly upheld limits on free speech meant to shield vulnerable groups from discrimination and violence.

“The objective for which the limit is imposed, namely tackling causes of discriminatory activity to reduce the harmful effects and social costs of discrimination, is pressing and substantial,” the decision reads. “Hate speech is an effort to marginalize individuals based on their membership in a group. Using expression that exposes the group to hatred, hate speech seeks to de-legitimize group members in the eyes of the majority, reducing their social standing and acceptance within society. Hate speech, therefore, rises beyond causing distress to individual group members. It can have a societal impact.”

“Hate speech lays the groundwork for later, broad attacks on vulnerable groups that can range from discrimination, to ostracism, segregation, deportation, violence and, in the most extreme cases, to genocide.”

But the court cautioned tribunals to ensure they pursue true hate speech, not just offensive language. saying “the term ‘hatred’ contained in a legislative hate speech prohibition should be applied objectively to determine whether a reasonable person, aware of the context and circumstances, would view the expression as likely to expose a person or persons to detestation and vilification on the basis of a prohibited ground of discrimination.”

Gay rights and Jewish groups called the ruling balanced. Lucas Lung, a lawyer with Lerners LLP in Toronto who acted for the Canadian Jewish Congress as an intervenor in the case, said he was still studying the ruling but praised it for upholding the definition of hate. He said the discussion of free speech threatened to overshadow the effect of Mr. Whatcott’s words on the rights of gays and lesbians to be treated equally: “We can’t lose sight of the fact that there are victims here whose equality rights have been infringed.”

Free-speech advocates criticized the decision. Andrew Lokan, a lawyer for the Canadian Civil Liberties Association, another intervenor, said the ruling does offer guidance on what kind of expression can be considered hate, but fails to resolve the fundamental vagueness of Canada’s hate laws.

“The last 20 years of guidance from the courts have not solved these problems, and there is little reason to believe that another mixed salad of adjectives and admonitions from the court is going to make any real difference,” he said. “The line marking prohibited speech remains unclear, and inevitably, expression will be chilled because citizens won’t want to take the risk of crossing it.”

In a statement, the Saskatchewan Human Rights Commission welcomed the ruling.

“We are very pleased that the Supreme Court of Canada affirmed the validity of our human rights legislation, recognizing it strikes the proper balance between freedom of expression and freedom from the fear that comes with hate-filled speech,” chief commissioner David Arnot said.

Follow on Twitter: @jeffreybgray

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