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Woulda, Coulda, Shoulda in WhatcottWoulda, Coulda, Shoulda in Whatcott

Woulda, Coulda, Shoulda in Whatcott

The Supreme Court’s recent ruling on hate speech could have been better — but it also could have been a whole lot worse, say Albertos Polizogopoulos and André Schutten.

9 minute read

In February, the Supreme Court of Canada released its decision in the case of Saskatchewan (Human Rights Commission) v. Whatcott. William Whatcott is a controversial public figure notorious for his methods of criticizing public policy matters related to abortion and LGBT issues.

Whatcott had distributed four flyers criticizing the inclusion of LGBT-related materials in public education and criticizing the advertising standards of an LGBT magazine. The magazine ran classified ads allegedly designed to facilitate same-sex encounters between men and underage boys.

Four individuals who received the flyers filed complaints with the Saskatchewan Human Rights Commission, and the matter proceeded to a hearing before the tribunal. The tribunal found that Whatcott had violated the hate-speech provision of the Saskatchewan Human Rights Code and ordered him to stop promoting and distributing similar materials and to pay compensation totalling $17,500 to the four complainants.

The decision was appealed and, after two rulings by lower courts, was heard by the Supreme Court of Canada. The Supreme Court decided, in a 6-0 decision, to partially uphold the tribunal's decision, finding that two of the four flyers constituted hate speech. (Generally, the Supreme Court hears cases with a panel of seven to nine justices. In Whatcott, the panel was composed of seven justices, one of whom retired after the appeal and chose not to participate in the decision. The ruling, therefore, reflects the decision of only six justices. The Whatcott decision, while unanimous, should not be seen as a decision of the entire Court.)

The Court also had to assess whether the hate speech section of the Saskatchewan Human Rights Code was constitutional in and of itself. All parties agreed that it violated the right to freedom of expression. The justices were faced with determining whether violating freedom of expression in that manner was acceptable in a free and democratic society. The Supreme Court found it was. In doing so, it reinforced legal principles set out in its 1990 decision in Canada (Human Rights Commission) v. Taylor dealing with the hate speech provision in the Canadian Human Rights Act.

According to some commentators, with this decision the Supreme Court dramatically curtailed both freedom of expression and freedom of religion and conscience by introducing shocking and novel legal concepts into Canadian jurisprudence. This is not the case. The Whatcott decision, while disappointing, is just another in a line of decisions that appears to hold a low view of freedom of expression in Canada.

This decision is not, in our opinion, groundbreaking. It reinforces the precedent set out in the Taylor case by upholding the constitutionality of hate speech provisions in human rights codes. It attempts to provide further guidance to Canadians in determining what does and does not constitute "hate speech" under human rights legislation. It also reinforces the notion that Holy Scriptures ought not to be considered hate speech, that any limits placed on religious expression must be justified and appropriate, and that the threshold for doing so is a high one.

And yet, the decision is disappointing. The Court ruled that the Code's hate speech prohibition did violate Whatcott's freedom of expression and of religion but found the violations acceptable in their assessment of other considerations in regard to living in a free and democratic society.

We acknowledge that there must be limits on expression. However, those limits ought to be on the types of expression not the beliefs informing the expression or the manner in which they are interpreted. For example, prohibitions should be placed on expression that incites violence, communicates threats, infringes upon copyright, is obscene or defamatory, or is libelous or fraudulent. But we do not support limits on expression based solely on the beliefs informing the expression or the manner in which they are interpreted. And that is the opportunity that was missed with the Whatcott decision.

Critics of the Taylor decision generally argue that the test to determine if expression is hate speech is overly subjective; in a sense, the test pretends that judges could be objective in applying a broad test. In Whatcott, the Court had the opportunity to remedy that situation. Instead, they reworked and reworded the Taylor definition in a manner that leaves us with a subjective definition that masquerades as an objective standard. While the Court appropriately stated that the motives or intent of the author of the expression ought not be considered, it unfortunately concluded that what is at issue is expression that the fictional "reasonable person" would find "likely to expose a person or persons to detestation and vilification." The issue to be considered then is not what the speech was, but rather how a reasonable person believes it would make the targeted person feel.

The term "reasonable person" is a legal one. It finds its roots in tort law (violations against another's person or property) and is often used in cases dealing with negligence. The "reasonable person" test is commonly used to determine if a person's act, or failure to act, is consistent with what a reasonable person might have done. In the Whatcott context, the "reasonable person" test is used to determine if certain types of expression ought to be considered "hate speech." The difficulty with applying the "reasonable person" test to hate speech provisions in human rights legislation is that there is no clear standard or definition of what a "reasonable person" is. The closest thing we have to a definition is the Supreme Court's comments in a 1983 decision on the purpose of the "reasonable person" test. In R. v. Collins, the Supreme Court stated that the "reasonable person" test serves to ensure that judges find within themselves a basis for their decisions while keeping in mind that their "discretion is grounded in community values and, in particular, long-term community values."

The difficulty with the "reasonable person" test, particularly as it is applied in the Whatcott case, is that what a reasonable person might consider "hateful" will differ from year to year, city to city and even neighbourhood to neighbourhood. Just as the Supreme Court found in R. v. Labaye in 2005 that community values change with time and geography, so will what a reasonable person finds to be "hate." "Hate" therefore becomes a moving target.

What has fueled much controversy over the Whatcott decision is the Court's ruling that when faced with an accusation of hate speech, truth is not a defence. Even if a statement is based in fact and truth, it may still be deemed "hate speech." Unfortunately, the Supreme Court was simply reinforcing a principle established 23 years ago in its Taylor decision.

This conclusion is disconcerting, but it is not surprising. Unlike the hate speech provisions found in the Criminal Code, hate speech provisions in human rights codes do not necessarily exist to capture speech that actually incites or is likely to incite hatred. In practice, hate speech provisions in human rights codes capture unpopular or politically incorrect speech. This is precisely why truthfulness of certain speech is relevant and why it is disappointing that Canada's highest court has deemed it to be irrelevant.

In the Whatcott decision, the Supreme Court refers to a trilogy of cases dealing with the constitutionality of section 13 of the Canadian Human Rights Act. This trilogy of cases includes Taylor, Keegstra and Andrews, and while all three cases were heard over three consecutive days, Keegstra and Andrews dealt with the then Criminal Code prohibition on "hate propaganda," not with the Human Rights Act prohibition on hate speech. This distinction between the Taylor case and the Keegstra and Andrews cases is important, and the Taylor case, which addressed hate speech in the human rights context, was the only appropriate analysis to rely on in the Whatcott case. Unfortunately, the Court in Whatcott relied on all three decisions and failed to distinguish between the criminal definitions of hate speech and the human rights definition of hate speech. What we have in Whatcott, then, is a definition that appears to be a refined version of a mash-up of the definitions in Taylor, Keegstra and Andrews.

While the Criminal Code definition of "hate speech" in Keegstra and Andrews is similar to the human rights definitions in Taylor and Whatcott, the important distinction is in their application. For example, in the criminal law context, there were and continue to be explicit defences to accusations of expressions of hate (including truth), as well as a much higher standard of proof. The Criminal Code sets out specific defences: if the statements in question were true, expressed in good faith to establish an opinion on a religious subject, or relevant to a subject of public interest and the accused believed them to be true, then a defence for the accused has been made.

Similarly, to be found guilty of a crime in Canada, the prosecution must prove, beyond a reasonable doubt, two necessary elements of the crime: the act itself and the intent to commit the act. In the criminal context, then, a comment that is not intended to incite hatred ought not to be deemed hate speech. In the human rights context, however, intent is not a precursor to hate speech. In the human rights context, there is no defence to hate speech. The only issue that the adjudicator is called on to consider in a human rights complaint of hate speech is the effect: whether a reasonable person "would view the expression as likely to expose a person or persons to detestation and vilification."

Many free speech advocates were hoping that the Supreme Court of Canada would overturn its earlier decision in Taylor and strike out the hate speech provisions of the Code as being an unconstitutional violation of freedom of expression. This was largely based on the awareness that in Taylor, Chief Justice McLachlin wrote a strong dissenting judgment in a 4-3 decision. (The majority in Taylor was a minority of the nine-member court, and the only person remaining 23 years later is Chief Justice McLachlin.) In her dissent, she condemned the majority's decision to rule out truth as a defence to hate speech. She also wrote dissenting judgments in Keegstra and Andrews in favour of a broad and robust right to freedom of expression.

Her change in position and the unanimity of the Whatcott decision seem to indicate that the window on challenging the constitutionality of hate speech provisions in human rights codes is likely closed for at least the next decade or two.

Despite the disappointing outcome, the Whatcott decision likely will not have a draconian effect on the freedom of expression of Christians, at least not in the short term. The reality is that the Taylor decision, which is not very different from the Whatcott decision, has been the law for 23 years. It is true that during this period we can point to examples where Christians were the subject of frivolous human rights hate speech complaints, but they have been very limited and, for the most part, have resulted in acquittals either at the original hearing or on appeal.

A concern with the Whatcott decision is that it will empower and encourage provincial legislatures whose human rights codes do not contain hate speech provisions to now enact and include them. (Currently, only five jurisdictions contain hate speech provisions in their human rights codes or acts: the Northwest Territories, British Columbia, Alberta, Saskatchewan and the federal government.) While the enactment of hate speech provisions in human rights codes that did not previously contain them will not necessarily result in more "convictions" of Christians before human rights tribunals, if our jurisprudential history has demonstrated anything, we can be sure that it will result in more complaints and costly investigations.

If Christians—or people from other faith communities expressing a perspective informed by their faith—want to avoid violating the hate speech provisions in human rights codes, they are encouraged to abide by the Golden Rule and to speak the truth in love, with grace and respect. While some Christians may agree with the conclusions drawn by William Whatcott, the reality is that most do not agree with or endorse the language and methods he uses to communicate his opinions. Many find his approach both overly confrontational and offensive. Most Christians would not use such hostile language in communicating the Gospel or a faith-informed position.

It is important to remember that the standards set by the Court, although disappointing, are high. The expression concerned must be "likely to expose a person or persons to detestation and vilification," a significant marginalization of the individual or group being at issue. While William Whatcott's chosen method of communication raises questions about what exactly communication in love for the other might look like, if faith-based principles are shared in a respectful and civil manner, it is unlikely that communicating the Gospel or a faith-informed position would be deemed to fit within the definition of "hate speech."

Albertos Polizogopoulos

Albertos Polizogopoulos is a lawyer and founder of The Acacia Group law firm. He has spent much of his career working with and defending physicians’ civil liberties across Canada.

André Schutten

André Schutten is General Legal Counsel with the Association for Reformed Political Action (ARPA) Canada since 2011.

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