Canada’s Supreme Court upholds hate speech laws

(I wrote this post for I-CONnect, the blog of the International Journal of Constitutional Law and ConstitutionMaking.org)

A comparative discussion of North American civil liberties invariably notes that Canada has a more limited scope of protection for freedom of expression than the United States.  Nowhere is this more evident than the treatment of hateful expression.  Since 1970, it has been a criminal offence in Canada to wilfully promote hatred against certain groups.  Many Canadian provinces (and, until recently, the federal government) also touch on hate speech through human rights codes.

In 1990, in the companion cases of Keegstra  and Taylor, the Supreme Court of Canada decided that hate speech laws in both the criminal and human rights context are “reasonable limits” on freedom of expression and, therefore, consistent with the Canadian Charter of Rights and Freedoms.  Both decisions were decided 4-3 – the current Chief Justice of Canada wrote vigorous dissents –  reflecting deep divisions over such issues as vagueness, overbreadth, the significance of the chilling effect on legitimate expression, and the overall effectiveness of such regimes.

In the intervening two decades, the controversy over such laws has not abated.  Some have argued that regulating hate speech creates a dangerous “right not to be offended”, encouraging people in an already over-litigious society to turn to the state every time they encounter something objectionable.  Indeed, in 2012, the federal government moved to repeal the hate speech provision in the Canadian Human Rights Act. (The criminal and provincial human rights provisions remain.)

Interestingly, some critics have fastened onto human rights speech laws as more outrageous than the criminal sanction.  Criminal prosecutions are rare (in part because a hate speech indictment requires the personal consent of the Attorney General).  The human rights process in Canada is administrative and remedial, not punitive.  People are not jailed. The most common outcome is a cease and desist order, followed by an order to pay damages.  But the standard of proof is lower, and the assistance of counsel is not constitutionally guaranteed.

It is difficult to overstate the importance of human rights in Canada.  The Supreme Court of Canada has described them as quasi-constitutional, reflecting values lying at the core of our constitutional culture.   Chief among these is the notion that political and legal equality can never be achieved in a society that permits discrimination, and that current relations of inequality must be addressed proactively.  This is a theory of the state that does not sit well with everyone.  Many opponents of hate speech provisions would prefer that the state get out of the business of enforcing ‘positive rights’ altogether.  And they loathe the idea that administrative tribunals could have anything to say about expression.  These feelings are unlikely to have been assuaged by the Supreme Court’s recent decision in Saskatchewan v. Whatcott.

Bill Whatcott is a conservative Christian activist who distributed flyers to dozens of homes in Regina and Saskatoon.  Bearing such titles as “Keep Homosexuality out of Saskatoon’s Public Schools!” and “Sodomites in our Public Schools”, they reflected Whatcott’s arguments about perceived threats to children including (a) the development of a “homosexual curriculum” in public schools and (b) advertisements in a gay newspaper from “men seeking boys”.    In 2005, the Saskatchewan Human Rights Tribunal decided that the flyers had exposed gays and lesbians to hatred and ordered damages of $17,500.  Whatcott appealed, arguing that his flyers were not hateful and, in any event, that the law prohibiting his expression is unconstitutional.

The Whatcott hearing was marked by vigorous questioning of all parties.  Many people expected a repeat of the earlier division, or even a rejection of hate speech laws altogether.  Instead, the Supreme Court unanimously dismissed Whatcott’s constitutional challenge.[1]

In its ruling, the Court endorsed some key points from the 1990 decisions.  The first is that a free and democratic society can rationally take the view that hateful expression directed at minority groups is a matter of urgent social concern.   Hate speech, the Court said, seeks to marginalize targeted groups, “reducing their social standing and acceptance within society.”  Such speech harms individuals, but the greater concern is that it can effect “a subtle and unconscious altercation of views concerning the inferiority of the targeted group”, making it easier to justify discrimination against them.  Hateful expression thus threatens ideals – including respect and democratic participation – that are essential to Canadian society.

Second, the Court was confident that it could settle on a definition of “hatred” that balances freedom of expression with other Charter values like equality and human dignity.  The Court acknowledged the concern that “hatred” is “too inherently subjective to be capable of an objective or consistent application”.  It held, though, that such concerns can be overcome with a narrow approach focussed on whether a “reasonable person” would conclude that particular expression is likely to expose members to extreme feelings of enmity and ill-will.   It is not enough that an individual or group might feel ridiculed or belittled.  In order to qualify as hateful, the decision-maker must be satisfied that a “reasonable person” would conclude that the expression is likely to arouse feelings of “detestation and vilification”.  Such expression traditionally has borne certain “hallmarks”, such as:  blaming certain groups for current social problems; describing them as part of deep and complex conspiracies; labelling them as “liars, cheats, criminals and thugs”; and dehumanizing them through comparisons with animals and parasites.

The Court also addressed whether the distinction between “identity” and “conduct” matters.  Relying in part on an asserted difference between attacking same-sex activity and attacking gays and lesbians themselves (“love the sinner, hate the sin”), the Saskatchewan Court of Appeal concluded that the flyers were not hateful.  The Supreme Court gave short shrift to that argument.  Because of the “strong connection” between sexual orientation and sexual conduct, “attacks on this conduct stand as a proxy for attacks on the group itself.”  In Canada, equality and human rights does not countenance the “impoverished” sort of “tolerance” that demands “general acceptance of all people but [condemns] some traits of certain people.”

It is difficult to reconcile the critical importance of freedom of expression with the fact that hate speech laws represent the purest form of content regulation.  Whatcott’s sentiments about gays and lesbians, no matter how impolitic and offensive, were directed at issues of social concern (the content of public education; whether law should regulate matters of sexual morality.)  This would seem to be the kind of expression that society should be most reluctant to sanction.  Yet, the Court had little trouble doing so.  It insisted that hate speech laws are “not aimed at discouraging repugnant or offensive ideas”, but at the damaging effects of communicating certain ideas in certain ways.   The point seems to be that hate speech laws target not the expression itself, but its form.  When people suggest (hatefully) that certain groups are not worthy of equal respect, they cross the line from legitimate comment to fomentation of societal conflict.  Hate speech portrays its targets as out of the bounds of civilized society, rendering them appropriate targets of shunning, disapprobation and, even, actual violence.   It seemed especially important to the Court that hate speech “impacts on [a] group’s ability to respond to the substantive ideas under debate, thereby placing a serious barrier to their full participation in our democracy.”  It is not acceptable, in the name of political discourse, to force a group “to argue for their basic humanity or social standing.”

The Court was careful to note that vociferous expression – even polemic – is protected.  Thus, Whatcott could “express disapproval of homosexual conduct and advocate that it should not be discussed in public schools”.  But in so doing, he was not at liberty to use “hate-inspiring representations”.    Ultimately, the Court found that two of the flyers, which linked homosexuals to pedophiles, could reasonably be characterized as hateful.  But two others, which contained only a Biblical quote[2] and criticism of a gay newspaper, could not.

Whatcott is a major moment in Charter jurisprudence.  Whatever one thinks of the practical utility of hate speech regulation, it is hard to be unmoved by its symbolic importance, by the desire to signal that such expression conflicts with Canada’s core social commitments.  Yet, nagging questions remain.  The Court’s judgment rests in large part on the fact that such regulation is, essentially, a prophylactic against actual discrimination.  Given that every jurisdiction in Canada already carries prohibitions against such conduct, the argument is open to challenge.  The Court was content to defer to the legislature’s judgment about the likely effects of hate speech on society as a whole, even though such effects are not amenable to proof in the ordinary sense.    If one accepts that argument, though, it is not entirely clear why one should be able to argue for the lesser worth and status of a particular group as long as one steers of hateful representations.   Is a veil of polite discourse really less likely to cause the harmful social effects the Court has catalogued so carefully?  Can one really argue for the re-criminalization of homosexual sodomy without invoking extreme ill will?   A related point concerns the Court’s rejection of the distinction between conduct and identity where the former is a “crucial aspect” of the latter.  This is a sensible conclusion as regards sexual orientation, but the language could make it challenging to strike the right balance in other contexts.  For example, what are the boundaries for attacking practices that are motivated by religious faith?

The language in Whatcott is powerful. But the decision’s most important feature may well be its posture of judicial restraint.  The Court has given the clearest possible imprimatur to a state choice to regulate hateful expression.   After Whatcott, such laws are now largely beyond the realm of constitutional debate; they remain permissible, and perhaps even encouraged, within Canada’s constitutional framework.  They are not, though, beyond the realm of political debate and it is there, no doubt, that future conversation will turn.