This is kind of a follow-up to my Slaw post, Canadian Human Rights Commission’s Controversial “Anti-hate” Policy from last month.
In the wake of much public debate over the anti-hate provisions of human rights legislation, the Saskatchewan Human Rights Commission applied to the Supreme Court of Canada for leave to appeal the February 2010 Saskatchewan Court of Appeal decision, William Whatcott v. Saskatchewan Human Rights Tribunal.
The aim of the appeal to the Supreme Court is to obtain direction on the proper balance between the right to free expression and the right to freedom from the harmful effects of publications that incite discriminatory actions or contain extreme discriminatory words and images.
Judge David Arnot, Chief Commissioner of the SHRC, stated,
“The Commission and the public need guidance from the Supreme Court on when, if ever, extreme speech could constitute a violation of human rights legislation”.
The commission believes that, because of the Whatcott decision, its current ability to accept hate speech complaints is very limited.
When announcing the commission’s decision to appeal, the commissioner further stated that,
“The Supreme Court of Canada generally limits its hearings to cases having national significance. The Commission hopes to learn by the end of the summer whether its application will be granted.”
The outcome of this case may also have an impact on the Canadian Human Rights Commission’s anti-hate policy; and, the federal and other human rights commissions might intervene.
In our increasingly connected world, where individuals and groups can freely post speeches on the Internet and spread their messages via social media—and alongside the growth of intolerant factions of society—if the issues of freedom of expression and the right to be free from the harm of hate speech are not of national significance, I do not know what is.
Summary of Decision Being Appealed
The Saskatchewan Court of Appeal overturned the Human Rights Tribunal decision that Mr. Whatcott violated section 14(1)(b) of the Saskatchewan Human Rights Code when he circulated flyers using extreme speech directed against gay men.
This section of the Code prohibits speech that exposes or tends to expose a person or class of persons to hate because of gender, ancestry, sexual orientation or other prohibited grounds of discrimination. The Code also protects religious freedom and freedom of expression.
The commission believes that Mr. Whatcott’s comments were so extreme as to be irreconcilable with the Code’s general objectives of promoting equality and eliminating discrimination. The flyers in question referred to homosexual men as “sodomites” and “pedophiles” and called same-sex relationships “filthy”.
After Whatcott was sentenced the first time, he stated:
“I believe homosexuality activity is a sin, … To give me a $17,500 fine and say I can’t say that is quite frankly garbage and is not something I am going to abide by. If I have to sit in jail for the rest of my life, I am not going to be quiet.” And he hasn’t been.