Wednesday, February 27, 2013

Hate speech

Today’s decision in Saskatchewan (Human Rights Commission) v. Whatcott,
2013 SCC 11 upholds stringent hate speech legislation.  The Court goes so far as to hold ‘truthful statements can be presented in a manner that would meet the definition of hate speech, and not all truthful statements must be free from restriction.’ 

Accordingly, even truthful statements can fall within the ambit of hate crime.  Some might ask whether the power to censor truthful speech is properly held by an administrative tribunal? 

In any event, the Court makes a statement regarding the importance of freedom of expression and its justified limits which is worth considering.

[64]                          Freedom of expression is central to our democracy.  Nonetheless, this Court has consistently found that the right to freedom of expression is not absolute and limitations of freedom of expression may be justified under s. 1: see Irwin Toy; Keegstra; Taylor; R. v. Butler, [1992] 1 S.C.R. 452; R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45; and CBC.  Section 1 both “guarantees and limits Charter rights and freedoms by reference to principles fundamental in a free and democratic society” (Taylor, at p. 916, per Dickson C.J.).

[65]                          The justification of a limit on freedom of expression under s. 1 requires a contextual and purposive approach.  The values underlying freedom of expression will inform the context of the violation (see Taylor, Keegstra and Sharpe).  McLachlin C.J., writing for the majority in Sharpe, explained succinctly the values underlying freedom of expression first recognized in Irwin Toy, being: “individual self-fulfilment, finding the truth through the open exchange of ideas, and the political discourse fundamental to democracy” (para. 23).

[66]                          We are therefore required to balance the fundamental values underlying freedom of expression (and, later, freedom of religion) in the context in which they are invoked, with competing Charter rights and other values essential to a free and democratic society, in this case, a commitment to equality and respect for group identity and the inherent dignity owed to all human beings: s. 15 of the Charter and R. v. Oakes, [1986] 1 S.C.R. 103, at p. 136; Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825, at para. 78; and Taylor, at pp. 916 and 920.

[67]                          The balancing of competing Charter rights should also take into account Canada’s international obligations with respect to international law treaty commitments (Taylor, at p. 916, per Dickson C.J.).  Those commitments reflect an international recognition that certain types of expression may be limited in furtherance of other fundamental values (Taylor, at pp. 919 and 920, per Dickson C.J.).

[68]                          It is in the context of balancing these Charter rights that the Saskatchewan legislature has chosen to suppress expression of a certain kind.  The prohibition set out under s. 14(1)(b) of the Code is clearly a “limit[ation] prescribed by law” within the meaning of s. 1 of the Charter. The issue is whether the infringement of s. 2(b) is demonstrably justified: Oakes; CBC, at para. 64.


Anonymous said...

12 years for this?

What a farce.

Rotterdam said...

A chilling decision. Hate, like love is a feeling,and one can be charged with having this feeling. When the Taliban threw acid on a girl going to school I felt hate. Will a future human rights committee charge me? This is Orwellian.

The Rat said...

Some might ask whether the power to censor truthful speech is properly held by an administrative tribunal?"

When truth is censored, no matter how good the intentions, evil wins. I don't use the word 'evil' lightly.

Censorship is a slippery slope, cliche or not, and all one has to do is listen to anyone even slightly to the left of the CPC. Yesterdau Simi Sara, a host on CKNW radio, called for Internet pornography to be censored because it is demeaning to women. She went so far as to state that we needed to stop this form of speech because teenage boys would start asking their girlfriends to perform deviant acts on them.

First, I say good luck with that! Second, we now have people calling for the censorship of legal activities over the medium of the Internet. We have Liberals cheering the relegation of truth as a defence to the rubbish bin. The western world is becoming a very dangerous place to hold non-state sanctioned opinions.

The Rat said...

ps. and I should add, enjoy non-gay related sexual peccadilloes. But of course saying that, truthful though it may be, might constitute hate speech.

Stephen Downes said...

I am more in favour of the court's decision than I m opposed. My own view is that speech should be used freely to express opinion, but that a law should be drawn when it is used to cause harm - the difference, in other words, between expression of opinion, and speech acts.

This is consistent with what the court says, excerpted here, and in particular, with the need to preserve "values essential to a free and democratic society, in this case, a commitment to equality and respect for group identity and the inherent dignity owed to all human beings."

Stephen Downes said...

... and reading the decision itself I see the Supreme Court draws the line even more explicitly where I would, determining "whether a reasonable person, aware of the context and circumstances, would view the expression as likely to expose a person or persons to detestation and vilification on the basis of a prohibited ground of discrimination."

(I had to look it up, you didn't post a link, it's here: )

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