So concluded the Supreme Court Wednesday in a ruling that upholds Canada’s civil hate speech laws. More than 20 years after the court first struggled to reconcile the guarantees of freedom of expression in the Charter with the need to protect vulnerable groups from persecution, the judges have unanimously decided that they were right the first time: that hate speech can be defined and legislated against, if a provincial or federal government so wishes.
Because you are a decent human being, you will never commit this offence. It’s hard to do. Your act must be public, not private. It must target a vulnerable group. It must be so vile that a reasonable person will conclude that your speech “exposes or tends to expose any person or class of person to detestation and vilification on the basis of a prohibited ground of discrimination,” as the court affirmed.
In the latest case, which has been working its way through the system for more than a decade, William Whatcott of Saskatchewan distributed pamphlets, two of which were entitled: “Keep Homosexuality out of Saskatoon’s Public Schools” and “Sodomites in our Public Schools.”
The pamphlets claim that gays and lesbians “want to share their filth and propaganda with Saskatchewan’s children,” among other things.
A Saskatchewan human rights tribunal and a lower court ruled the pamphlets were hate speech under the Saskatchewan Human Rights Code. The appellate court went the opposite way, saying the language wasn’t extreme enough to qualify as hate speech.
The Supreme Court cleaned up some of the wording of the provincial code and of previous decisions, but essentially affirmed both the tribunal and its own precedents.
That affirmation is controversial, said Bruce Ryder, who specializes in Charter issues at Osgoode Hall Law School.
“It was a bit of a surprise to see the court united, and also to see it affirm so completely the approach it took in 1990,” he said. Many observers expected the court would narrow the scope of what qualifies as hate speech, but the essence of the law remains intact.
Many journalists – including the editorial board of this newspaper – and free-speech advocates were disappointed by the decision, arguing (among other things) that the definition of hate is vague, subjective, and free-speech chilling.
Most provinces have no statutes banning hate speech in their human rights codes. A federal law is about to be repealed, thanks to a private member’s bill supported by the Harper government.
Still, the fact that such laws can exist, if legislatures choose to pass them, marks Canada as a very different place than the nation next door, where First Amendment rights are sacrosanct.
The ruling affirms that Canadians “are more concerned with equality and social harmony than our neighbours to the south,” said Prof. Ryder. “A broad, libertarian interpretation of our Charter rights doesn’t have as much purchase here.”
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