A Golden Opportunity to Kill Human-Rights Censorship

Civil libertarians are jumping for joy at news released Thursday by the Supreme Court of Canada. The court has agreed to hear an appeal that will allow it to reconsider some 20-year-old jurisprudence that free speech advocates consider very bad law.

The case under appeal is The Saskatchewan Human Rights Commission v. William Whatcott.  Back in 2001 and 2002, Whatcott distributed flyers in Regina and Saskatoon bearing headings such as “Keep Homosexuality out of Saskatoon’s Public Schools” and “Sodomites in our Public Schools”.

He was hauled before the Saskatchewan Human Rights Commission for having “exposed to hatred, ridiculed, belittled or affronted the dignity” of gays and lesbians and was ordered to pay compensation totaling $17,500 to four complainants.  That decision was upheld on its first appeal to the Saskatchewan Court of Queen’s Bench in 2007.  But in February, 2010 three members of the Saskatchewan Court of Appeal overturned it.

While the Court of Appeal’s decision was a victory, of sorts, for free speech, the court had to twist itself into contortions to reach it.  On any objective reading of Whatcott’s flyers,  he did ridicule and belittle gays—and he probably even exposed them to hatred.  What rankles free-speechers is the question:  why should this be against the law?  After all, don’t we have a Charter of Rights that guarantees freedom of thought, belief, opinion and expression?

But the Court of Appeal declined to strike down the offending portions of the Saskatchewan Human Rights Code as inconsistent with the Charter.  The problem lay in the fact that in 1990, the Supreme Court of Canada had considered similar human rights legislation and had decided that those censorship provisions were permissible despite the Charter’s free-expression guarantee.  

That case, known as Taylor, attempted to set some guidelines or standards as to when censorship laws designed to deter “hate speech” would be acceptable.  Hatred or contempt, wrote the then Chief Justice Dickson, “…refers only to unusually strong and deep-felt emotions of detestation, calumny and vilification.”

Then, with inexplicable confidence in the niceness of the universe, the judge opined that so long as human rights tribunals paid heed to the extreme degree of hatred necessary to justify censorship, there would be “little danger that subjective opinion as to offensiveness" would trump free speech.

But events over the last few years have demonstrated that the danger characterized by Justice Dickson as “little” is anything but.  Accusations of anti-Muslim hate-mongering have been leveled against Macleans magazine for Mark Steyn’s  commentary on immigration policy; and against Western Standard magazine and its publisher Ezra Levant merely for printing the notorious “Mohamed cartoons” as part of its news coverage.

Even the B’nai Brith, a Jewish organization known for supporting the anti-hate provisions of human rights legislation, has been hit with a complaint.

While the complaints against Macleans and Levant were ultimately dismissed, the accused parties had to spend hundreds of thousands of dollars upholding their innocence—money they’ll never get back.  Worse yet is the chilling impact those prosecutions have had on less stalwart souls than Steyn and Levant.  The risk of being put through such an ordeal, even if one is ultimately vindicated, has undoubtedly diverted many a commentator into less hazardous topics of discussion.

Even the history of the Whatcott decision itself demonstrates how subjective Justice Dickson’s test is. Of those who have sat in judgment on Mr. Whatcott’s comments to date, two have said he violated the law while three have said he didn’t.  That’s hardly a demonstration that the standards are crystal clear. 

Justice Dickson’s confidence in the discretion of human rights tribunals now appear to have been hopelessly misplaced.

The Whatcott appeal presents an opportunity for the Supreme Court to reconsider its Taylor decision with the benefit of 20/20 hindsight.  It’s encouraging to note that the Taylor rationale itself had just squeaked by in a 4-to-3 decision.  The only judge on that 7-member Taylor panel who remains on the bench today is Beverley McLachlin, now the Chief Justice.  In 1990, she was one of the 3-member dissenting team who said that the human rights law then under consideration was not “reasonable and justifiable in a free and democratic society.”

It will be interesting to see whether her opinion remains the same, and whether she can now persuade a majority of her colleagues.

Karen Selick is the Litigation Director of the Canadian Constitution Foundation, which intervened in favour of freedom of expression at the Saskatchewan Court of Appeal.

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