On February 27, 2013, the Supreme Court of Canada rendered its decision in Saskatchewan (Human Rights Commission) v. Whatcott.  Mr. Justice Rothstein delivered the judgment of a unanimous Court upholding, in part, the finding that Mr. Whatcott had distributed flyers containing hateful language, in contravention of the Saskatchewan Human Rights Code, SS 1979, c S024.1 (the Code). The decision also upheld the constitutionality of the Code in the face of a challenge on the basis of the Charter of Rights And Freedoms, Sections 2(a) and (b), freedom of religion and freedom of expression. 

The case began with a Saskatchewan Human Rights Tribunal ruling that found Mr. Whatcott’s flyers constituted hateful speech, prohibited Mr. Whatcott from distributing such flyers in the future, and ordered him to pay compensation to the complainants. 

Justice Rothstein begins his reasons for judgment with the following sentence:

All rights guaranteed under the Canadian Charter of Rights and Freedoms are subject to reasonable limitations.

By giving away the result in the first sentence, it might be argued that the Court has dispensed with much of the drama of the decision. With reasons that rely heavily on the Court’s previous decision in Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892, Justice Rothstein attempts to maintain a balance between the socially deleterious effects of hate speech and the individual rights to free expression and religion. 

The Court had no trouble finding that Mr. Whatcott’s freedom of expression and freedom of religion had been infringed by the Code. This brought the Court to a Charter Section 1 analysis to determine whether the limit on the freedom created by the law is justified in a free and democratic society, using the test first established in R v. Oakes.

1. Is there a pressing and substantial objective?

The Court relies on a number of cases including Taylor and R v. Keegstra, as well as the “Cohen Committee” report of 1966, as demonstrating the deleterious effects of hate speech. These negative social effects are well established, although it is interesting to note that the Court is content to rely on evidence from nearly 50 years ago as the basis of its findings, taking judicial notice of mass atrocities around the world as evidence that nothing has changed on this front.

2. Proportionality 

The Court then proceeds to determine whether the limit on freedom of expression is proportional to its objective. This includes examination of rational connection between the objective and the limit, whether the law impairs the freedom minimally and whether the benefits of the limit outweigh its deleterious effects.

The Court found a rational connection between prohibiting hate speech and protecting vulnerable groups in society on the basis of an objective examination of the results of hate speech against identifiable groups in society. It adopted a deferential attitude towards the Legislature’s choice to implement a prohibition on hate speech, noting that there is no requirement for conclusive scientific evidence to justify the Legislature’s policy choice. Finally, the Court found that the society benefits of the prohibition were sufficient to outweigh the effects on freedom of expression. Justice Rothstein’s analysis of the Section 1 issues with respect to Freedom of Religion paralleled this analysis.

Having upheld the Code section regarding hate speech, the Court proceeded to examine the impugned speech made by Mr. Whatcott. It determined that two of his pamphlets constituted hate speech, and two did not. As a result, the decision of the Human Rights Tribunal was upheld with respect to two complaints, and overturned with respect to two complaints.

The decision comes at a time when human rights codes are under increased scrutiny in the media. In its unanimous decision, the Court has upheld the role of the human rights code as a component of the overall justice system. The decision has further clarified such codes’ position in the context of the continued balancing of the protection of vulnerable groups and the protection of the rights to freedom of expression and religion.