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When does free speech trump minority protections?

In a highly charged case, the Supreme Court interjected repeatedly as it grappled with how to protect minorities from expressions of hate without damaging free speech – a decision that could have far-reaching implications for hate laws across the country.

Sharply divergent lines of questioning from the justices Wednesday highlighted the difficulty of enforcing those provisions as the court weighs not merely the most important legal decision on this issue in decades, but one of the most complex.

The judges repeatedly asked lawyers representing a variety of governments and interest groups to help find words that can adequately distinguish legitimate opinion from intolerable hatred.

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Chief Justice Beverley McLachlin led the way, poking holes in a Saskatchewan Human Rights Code provision that curtails free speech in the name of suppressing hatred.

She said that between the code's hate definition and years of evolving jurisprudence, anyone wishing to debate an issue related to a minority group has to cross a verbal minefield.

"It seems to me that an ordinary Lutheran pastor should be able to look at the Act and, without being a Supreme Court scholar, be able to know whether he can say this or that," observed Chief Justice McLachlin, a long-time advocate of free speech.

Madam Justice Rosalie Abella leapt into the fray frequently, as well, volleying tough questions at those who want to strike down the anti-hate provision and once lecturing a lawyer about how cruel epithets and ridicule can pave the way to violence and genocide.

The tension underscored the fact that the appeal is the most important free-speech case the court has heard in two decades. Should the judges opt to strike down the contentious anti-hate provision, it is expected to lead to similar provisions falling in other provinces.

The case revolves around a 43-year-old, anti-gay proselytizer, William Whatcott, who distributed thousands of flyers in Saskatoon harshly criticizing gays and including information about homosexuality in school curricula.

Mr. Whatcott's lawyer, Thomas Schuck, described his client Wednesday as a rough-hewn man whose strong convictions happen to include protecting youth from gay sexual practices.

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"Human-rights commissions should be protecting children; not going after whistleblowers," Mr. Schuck said. "If anything, Mr. Whatcott deserves commendation for putting this out in public."

Chief Justice McLachlin picked up Wednesday where she left off in 1990 – the last time the anti-hate provision was challenged. In that case, she ended up on the losing end of a 4-3 decision that upheld the law.

She noted that the provision remains convoluted and too vague for ordinary people to understand. She also expressed concern about effectively banning a pamphlet that criticizes school curricula because it may contain a single, offensive term.

"What about the democratic expression of how schools should be run?" she said. "It strikes me as wrong to say that overall, it expresses hatred. … It is part of our democratic dialogue to work these things out."

The Chief Justice was joined by Mr. Justice Louis LeBel, who expressed doubts about the wisdom of attempting to define which forms of hatred are tolerable and which are not.

"The court has upheld the use of pretty strong language, " he said. "The thrust of our jurisprudence since the Charter came into effect was to give broad interpretations to freedom of expression."

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Grant Scharfstein, a lawyer for the SHRC, told the court that the instantaneous spread of hateful material through the internet has made it all the more vital for hate-mongers be restrained.

He also said that the pamphlets Mr. Whatcott distributed that vilified gays as "Sodomites" were irredeemably unacceptable: "I would say that is as hateful as saying 'nigger' to a black person," he said.

By prosecuting Mr. Whatcott under its anti-hate provision in 2002 and fining him $17,500, the SHRC effectively silenced his relentless crusade against homosexuality.

The Saskatchewan Court of Appeal later reversed the finding.

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