Supreme Court upholds provincial human rights law against hate speech
Court refuses to apply a different constitutional standard to speech aimed at LGBTQ persons
In Saskatchewan Human Rights Commission v. Whatcott, the Supreme Court of Canada upheld the hate speech law in Saskatchewan’s human rights legislation. The Court refused to apply the law differently to speech aimed at LGBTQ persons than it would to speech aimed at a person’s race or religion.
In 2001 and 2002, William Whatcott published and distributed four flyers. The flyers stated, among other things, that: “homosexuals want to share their filth and propaganda with Saskatchewan’s children”; “Sodomites are 430 times more likely to acquire Aids and 3 times more likely to sexually abuse children!”; “If Saskatchewan’s sodomites have their way, your school board will be celebrating buggery too!”; and “Our children will pay the price in disease, death, abuse…if we do not say no to the sodomite desire to socialize your children into accepting something that is clearly wrong.”
Several individuals who received the flyers at their homes filed human rights complaints. They maintained that the flyers promoted hatred against individuals based on sexual orientation contrary to s. 14(1)(b) of the province’s Human Rights Code. Section 14(1)(b) provides that no person shall publish or display any representation that “exposes or tends to expose to hatred, ridicules, belittles or otherwise affronts the dignity of any person or class of persons on the basis of a prohibited ground”.
The Saskatchewan Human Rights Tribunal held that the flyers exposed homosexuals to hatred and ordered Whatcott to stop distributing them and to pay fines. Whatcott appealed to the Saskatchewan Court of Queen’s Bench, which upheld the Tribunal’s decision.
Whatcott appealed to the Saskatchewan Court of Appeal, which overturned the decision. In its view, the flyers did not expose or tend to expose gay persons to hatred.
The Saskatchewan Human Rights Commission then appealed the decision to the Supreme Court of Canada. The Court was asked to determine whether s. 14(1)(b) of the Code breached the guarantee of freedom of expression and freedom of religion under the Canadian Charter of Rights and Freedoms (a question the Court of Appeal did not address) and, if so, whether the violations could be justified under s. 1 of the Charter.
Egale Canada intervened in the Supreme Court appeal. In keeping with its longstanding commitment to free speech, Egale did not take a position on the constitutionality of the hate speech provision, or whether Whatcott’s flyers violated that provision.
Rather, Egale’s submissions focused on its concern with a suggestion made by one of the judges of the Court of Appeal that a different constitutional standard might apply to publications that targeted individuals based on sexual orientation, rather than race or religion. Egale asked the Supreme Court to reject any such approach, arguing that the hate speech provision of the Code was either constitutional or it was not. It could not be constitutional in respect to hate propaganda based on race or religion, but unconstitutional in respect to hate propaganda based on sexual orientation.
Egale was also concerned that the Court of Appeal had based its decision in part on a finding a distinction should be drawn between sexual activity and sexual orientation, and had suggested that speech focused on sexual “morality” was deserving of greater tolerance. Egale urged the Supreme Court to reject the “conduct-identity” (love the sinner, hate the sin) distinction, pointing out that treating same sex activity as a separate question of morality was itself a key element of the oppression suffered by gays, lesbians and bisexuals. Moreover, it was a false dichotomy that had consistently been rejected by the Supreme Court as well as by other courts and tribunals. Indeed, Egale argued, if the Court were to accept the distinction, it would eviscerate human rights protections based on sexual orientation:
In this regard, this approach would prohibit an employer from firing a gay man for “being” gay, but not for having sex with his male partner. It would permit a hotel operator to deny a room to a lesbian couple, on the basis that the discrimination was based on the “conduct” of two women sharing a bed, as opposed to the sexual orientation of the women. A landlord could refuse to rent an apartment to a family headed by a gay couple, on the basis that discrimination was based on the “conduct” of the two men parenting a child and sharing a home, rather than on their sexual orientation. To avoid liability for a human rights violation, most anti-LGB discriminatory acts could easily be characterized as directed at some form of “conduct”. Acceding to this argument would eviscerate human rights protections for LGBs.
The Supreme Court’s decision
The Supreme Court upheld that part of s. 14(1)(b) that prohibits hate speech as a reasonable limit under s. 1 of the Charter, but struck down that part of the provision that prohibited speech that “ridicules, belittles or otherwise affronts the dignity” of a person as being too broad.
Importantly, from Egale’s point of view, the Supreme Court rejected any suggestion that some groups are less deserving of human rights protections than others. In particular, the Court rejected Whatcott’s argument that his flyers did not contravene s. 14(1)(b) because they targeted sexual behaviour and not sexual orientation. The Court held:
Courts have thus recognized that there is a strong connection between sexual orientation and sexual conduct. Where the conduct that is the target of speech is a crucial aspect of the identity of the vulnerable group, attacks on this conduct stand as a proxy for attacks on the group itself. If expression targeting certain sexual behaviour is framed in such a way as to expose persons of an identifiable sexual orientation to what is objectively viewed as detestation and vilification, it cannot be said that such speech only targets the behaviour. It quite clearly targets the vulnerable group…
In considering whether Whatcott’s flyers breached the Code, the Supreme Court explicitly rejected the Court of Appeal’s conclusion that the flyers targeted only sexual activity and not sexual orientation:
…While the publications at issue may appear to engage in the debate about the morality of certain sexual behaviour, they are only aimed at that sexual activity when it is carried out by persons of a certain sexual orientation. They do not deal with the same sexual acts when carried out by heterosexual partners. For example, the word “sodomy” in the flyers is not used in relation to sexual acts in general, but only the sexual act as between men. This is clear by Mr. Whatcott’s reference to “sodomites and lesbians” and “learning how wonderful it is for two men to sodomize each other”.
Genuine comments on sexual activity are not likely to fall into the purview of a prohibition against hate. If Mr. Whatcott’s message was that those who engage in sexual practices not leading to procreation should not be hired as teachers or that such practices should not be discussed as part of the school curriculum, his expression would not implicate an identifiable group. If, however, he chooses to direct his expression at sexual behaviour by those of a certain sexual orientation, his expression must be assessed against the hatred definition in the same manner as if his expression was targeted at those of a certain race or religion.
In the result, the Court concluded that two of the flyers breached the hate speech provision of the Code by portraying gays and lesbians as carriers of disease, sex addicts, pedophiles and predators who would proselytize to vulnerable children and cause their premature death. The other two flyers, while offensive, did not demonstrate the level of hatred required by the prohibition.