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.