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LexView 79.0 - Speaking the Truth with State-Mandated Love

From the Archived "LexView" Series

April 9, 2013

LexView writer Kevin Boonstra finds the recent Supreme Court decision in the Whatcott case "unwelcome" at best, and a significant threat to free speech and religious freedom at worst. While Boonstra agrees the comments social activist William Whatcott directed toward homosexuals were repulsive, he argues that the Court has rendered a confusing ruling that strips away Charter rights to express religious belief freely while at the same time blurring the line between individual rights and group protection. "Post-Whatcott, the difference between the permissible communication of religious doctrine, and impermissibly cloaking hate-speech in religious guise, remains problematically ill-defined," Boonstra writes in Speaking the Truth With State-Mandated Love. "An ordinary Evangelical pastor should be able to look at the legislation and determine what constitutes hate speech without the need to become a Supreme Court jurist. The obvious danger of this approach is its potential to create a further "chilling effect" on free speech."

Kevin Boonstra is a constitutional lawyer with Kuhn and Company in British Columbia. For his previous LexView articles see https://www.cardus.ca/lexview

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Saskatchewan (Human Rights Commission) v. Whatcott
2103 SCC 11
Supreme Court of Canada

Date of Decision: February 27, 2013
Date of Issue: April 9, 2013

In this issue:

  1. Key Terms
  2. Summary of Facts
  3. Significant Issues
  4. Decision and the Court's Reasons
  5. LexView Commentary:
    1. Religiously motivated speech
    2. Emphasis on Instrumental Reasoning
    3. Preemptive Strike at Anticipated Harm
    4. Conclusion

Key Terms:

Freedom of expression; section 2(b); freedom of conscience and religion; section 2(a); homosexuality; hate speech; religious accommodation; section 1; competing rights; justifiable in a free and democratic society; harm.

Summary of Facts:

Subsection 14(1)(b) of the Saskatchewan Human Rights Code, S.S. 1979, c. S-24.1 (the "Code") prohibits publications that expose or tend to expose individuals to hatred on the basis of belonging to certain identifiable groups. Unlike similar, but more narrowly drafted human rights legislation in other provinces, s. 14(1)(b) also prohibited the publication of materials that ridicule, belittle, or affront the dignity of persons included in these protected groups.

Four complaints were referred to the Saskatchewan Human Rights Tribunal (the "Tribunal") under s. 14(1)(b), alleging that Mr. William Whatcott, an evangelical Christian and socially conservative political activist, was contravening the Code by publishing and distributing flyers expressing his extreme moral disapprobation of homosexual behavior. These flyers were delivered by Mr. Whatcott to private residences throughout Regina and Saskatoon in 2001 and 2002. Two of the flyers were critical of what Mr. Whatcott perceived to be an unwarranted introduction of homosexuality into the public school curriculum. These flyers insinuated, inter alia, that homosexual activists were plotting a takeover of the public school system to inculcate acceptance of homosexuality amongst children. He made liberal use of derogatory epithets, associating homosexuals generally with filth, disease and perversion. The other two flyers were reprints of classified advertisements, with comments attached, suggesting that "gay magazines" were being used by homosexual men in search of sex with younger boys.

The flyers were challenged on the basis that they promoted hatred against individuals because of their homosexual orientation, which is identified as a prohibited ground of discrimination under the Code. The Tribunal accepted that the content published in the flyers contravened s. 14 of the Code, ordered that Mr. Whatcott be prohibited from distributing the flyers, or material of a similar nature, and further required him to pay compensation to the four complainants totaling $17, 500.

Although the Tribunal's decision withstood scrutiny by the Court of Queen's Bench, it was overturned at the Saskatchewan Court of Appeal. Hunter J.A. granted Mr. Whatcott's appeal on the basis that the material contained in the flyers did not fall within the ambit of hate speech prohibited under the Code, classifying it instead as an example of "crude and harsh" rhetoric. In the opinion of Smith J.A., Mr. Whatcott's flyers were constitutionally protected as speech directed towards comment on an important matter of public policy, being the morality of same-sex acts. The Court of Appeal's decision was recently appealed to the Supreme Court of Canada and overturned in Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11 ("Whatcott").

(See summary and analysis of previous decisions in LexView 64.0, The State of Free Speech in Saskatchewan.)

Significant Issues:

The significant issue addressed in the Whatcott decision was whether s. 14(1)(b) of the Code unconstitutionally infringed Mr. Whatcott's right to freedom of expression under s. 2(b) of the Canadian Charter of Rights and Freedoms (the "Charter"), and his right to freedom of conscience and religion under Charter s. 2(a). Among the concerning issues raised by the Court's decision are:

(a) The rejection of any special consideration for religiously motivated speech;

(b) An over-emphasis on instrumental reasoning at the expense of individual rights; and

(c) Pre-emptive strike at anticipated harm.

Decision and the Court's Reasons:

The Whatcott decision bears significantly on the future application of freedom of expression and on freedom of conscience and religion. These fundamental rights are given broad protection under the Charter, and like other Charter rights, are subject only to such reasonable limitations prescribed by law as can be demonstrably justified in a free and democratic society.

S. 2(b) of the Charter: Freedom of Expression

Restrictions on hate speech were held, in a trilogy of cases considered by the Supreme Court of Canada in 1990, to be a reasonable limitation to freedom of expression.

In penning the Court's decision in Whatcott, Rothstein J. reviewed, and largely upheld, the widely accepted definition of "hatred" articulated in Canada (Human Rights Commission) v. Taylor.

In Taylor, Chief Justice Dickson upheld the constitutionality of a federal hate speech provision on the basis that the prohibition against hate speech could be narrowly defined to capture only "unusually strong and deep felt emotions of detestation, calumny and vilification." In the opinion of the Chief Justice, so long as Tribunals were mindful of this narrow definition of hate speech, "little danger" existed that the prohibition would be used to censor expression that was merely hurtful or offensive.

Rothstein J. found the reference to "calumny" contained in the original Taylor definition unnecessary. While the spreading of false or malicious misrepresentations might be suggestive of hatred, it was not a necessary precondition. With that exception, the Court upheld the definition of hatred.

The Court accepted that the Code's prohibition on hate speech breaches the Charter's guarantee of freedom of expression. Rothstein J. then proceeded to apply the Oakes test to determine whether the prohibition contained in s. 14(1)(b) was a justifiable limitation on freedom of expression under s. 1 of the Charter. Following the Oakes test, Rothstein J. first considered whether the legislature's purpose in seeking to prevent the expression of hatred is a pressing and substantial objective. The Court accepted that it is based on two principles. The Court reasoned that by marginalizing individuals based on their group identity, hate speech effectively delegitimizes the social standing of minority groups and makes it easier to justify discrimination against them. In a curious illustration, Rothstein J. indicated that the "pressing and substantial nature" of the harm addressed by s. 14 was bolstered by the need to preserve free speech rights for minorities. Among the most "insidious" effects of hate speech was said to be its ability to deprive minorities of the opportunity to effectively participate in substantive democratic discourse. In this way, Rothstein J. reasoned that in order preserve the principles underlying free expression the state was required to limit free speech in practice.

Having found that the prohibition against hate speech addressed the "pressing and substantial objective" of enhancing the status of minority groups in Canada, Rothstein J. went on to consider the second part of the Oakes test, whether the limit found in s. 14(1)(b) was a proportionate approach to achieving this objective. The legislature need not achieve perfect proportionality in drafting constitutionally valid laws. In this case, s. 14(1)(b) was determined to meet all three requirements of the proportionality test, in that the prohibition against hate speech: (i) was rationally connected to the legislature's objective of preventing societal discrimination against minorities; (ii) minimally impaired the rights guaranteed under s. 2(b); and (iii) created a net social benefit outweighing its deleterious effects.

With respect to rational connection, the Court found that a restriction on hate speech was rationally connected to the legislature's goal of reducing discrimination only insofar as it sought to minimize group discrimination. A restriction aimed at speech directed towards individual members of a protected group would not be rationally connected to the legislative goal of eliminating discrimination against protected groups. Here, s. 14(1)(b) was found to apply only to hate speech communicated publicly, which further reinforced the connection between the restriction and the ultimate objective of protecting the societal place of protected groups.

However, Rothstein J. found that, insofar as the section also restricted expression that ridiculed, belittled, or otherwise affronted the dignity of individuals on prohibited grounds, it was not rationally connected to the objective of reducing societal discrimination. As a result, this language was found to be constitutionally invalid and was severed from the section; a hollow victory for Mr. Whatcott as courts had already read this language down to the point of having no practical application.

Subsection 14(1)(b) was also found to minimally impair freedom of expression. Although Rothstein J. considered that alternatives to legislation, such as leaving hate speech to be countered in the marketplace of ideas and/or regulating it only under the Criminal Code, were not without merit, they did not constitute an obviously superior approach in that they would be less effective than a human rights prohibition. Finally, given the marginal social utility of hateful expression, any deleterious effects from limiting its communication were outweighed by the social benefit of protecting vulnerable groups from discrimination.

Section 2(a) of the Charter: Freedom of Conscience and Religion

In addition to its lengthy analysis under s. 2(b), the Court held that s. 14(1)(b) infringed the Charter guarantee to freedom of conscience and religion found in s. 2(a). Rothstein J. accepted that s. 14(1)(b) "substantially interfered" with Mr. Whatcott's freedom of religion, in that it prevented him from engaging in certain forms of communication directed towards proselytizing homosexuals. However, this infringement was found to be constitutionally permissible under s. 1 of the Charter on the same basis as the s. 2(b) infringement.

Unlike the analysis under s. 2(b), the Court's consideration of the s. 2(a) challenge was scantly reasoned. In short, the Court suggested that it was only in rare circumstances that the restriction against hate speech would prevent individuals from exercising their religious freedom. The religiously adherent, when so motivated, could still act in accord with their conscience by preaching against homosexuality and attempting to convert others to their point of view. Only when this proselytization crossed the line into hateful speech would it conflict with s. 14(1)(b). However, in the event that such a conflict arose, Rothstein J. was very clear that sincerely held religious belief provided no defence to allegations of hate speech:

"For the purposes of the application of s. 14(1)(b) of the Code, it does not matter whether the expression at issue is religiously motivated or not. If, viewed objectively, the publication involves representations that expose or are likely to expose the vulnerable group to detestation and vilification, then the religious expression is captured by the legislative prohibition." [Emphasis added]

LexView Commentary:

(a) The rejection of special consideration for religiously motivated speech

It is clear from the reasoning in Whatcott that the Court was concerned with minimizing the potential for religious terminology to act as a smokescreen for hate speech. Presumably, this concern motivated the Court's refusal to read in a requirement that s. 14(1)(b) contain a defence for speech expressing sincerely held religious belief, as was argued by several of the interveners. As Rothstein J. correctly reasoned, if every representation of hate could automatically be cleansed by cloaking it in religious sentiment, the practical utility of s. 14(1)(b) would be nugatory.

However, it does not follow from the proposition that if every hateful communication could be immunized simply by expressing it in religious terminology, thereby negating the effectiveness of the provision, no special considerations should apply in regard to religiously motivated expression. As it stands after Whatcott, religious expression is effectively treated identically with all other forms of speech. This result fails to give sufficient weight to the fact that religious expression is distinguishable from other forms of protected speech in having a distinct source of constitutional protection over and above that generally granted under s. 2(b).

Undoubtedly, practical challenges would arise from trying to carve out a broader test for religious speech in relation to the general prohibition against hate speech. The Court's insistence on the irrelevance of the speaker's subjective intent in analyzing hate speech all but forecloses a defence based strictly on sincerely held religious belief. That being said, there is no reason the Court could not have taken some pains to express additional criteria relevant in determining whether religiously motivated speech is truly hateful. As repeatedly accepted by the courts, the proponent of religious freedom has to establish the sincerity of his or her religious belief. In this way, there is already a limitation on abusive religious liberty built into our law.

It would have been most helpful for the court to provide further guidance on how religious doctrine might be communicated without crossing the boundary into hate speech.

While the definition of "hatred" has been solidified, its application to any particular set of words will always be open to competing interpretations The court specifically adopted the proposition that use of religious texts to give "credible authority" to hateful opinions can be an indicator of hate speech. Although Rothstein J. clarified that only in "unusual circumstances and context" could a simple recitation or publication of Holy Scripture be viewed as expressing hate, it remains unclear the extent to which these same passages might be considered hateful once transformed into homiletic form. For many world religions, including Christianity, the words of Scripture are as much a call to action as an opportunity for inward contemplation. Necessarily, religious texts inform the basis for moral principles, which are expressed in normative form to the faithful through preaching and exposition, and to non-believers through evangelism. As was made clear by Dickson C.J. in R v. Big M. Drug Mart, the Charter protects not only the right to entertain the religious beliefs of one's choosing, but also to spread these beliefs through teaching and dissemination.

Post-Whatcott, the difference between the permissible communication of religious doctrine, and impermissibly cloaking hate-speech in religious guise, remains problematically ill-defined. For example, it seems clear that a simple public reading of biblical passages condemning homosexuality will not be treated as hate speech. It is less clear, however, that these same passages transformed into a colourfully worded sermon about the wickedness of homosexuality would not be viewed as an illegal attempt to convey hate speech through a religious medium. An ordinary Evangelical pastor should be able to look at the legislation and determine what constitutes hate speech without the need to become a Supreme Court jurist. This decision falls short of creating a bright-line test that is readily applied, even by those with legal training. This result will almost certainly be a chilling effect on religiously motivated communication on controversial moral issues. This is precisely what the Charter guarantee of freedom of expression was supposed to avoid.

This lack of clear guidance in the Court's decision is reminiscent of the BC Court of Appeal approach to differentiation between reasoned debate and discriminatory rhetoric in Kempling v. BC College of Teachers (LexView 58.0). It involves theoretical distinctions that are difficult to apply in the real world of controversy, dialogue and debate.

(b) An over-emphasis on instrumental reasoning at the expense of individual rights

In rejecting the availability of a defence of sincere belief, Rothstein J. articulated an approach to the analysis of hate speech that focuses exclusively on the effects of that speech, at the expense of a proper consideration of the motive of the speaker. It should be noted that this "effects-based" approach had, to some extent, already been codified by precedent. In Taylor, Dickson C.J. reasoned that a legislative regime predicated exclusively upon preventing the harmful effects of hate speech was justified, insofar as the systemic nature of discrimination suggested its communication would not always be intentional. Although this approach was prevalent in human rights jurisprudence prior to Whatcott, it was specifically adopted as one of the three criteria that Tribunals are required to consider in applying the "modified definition" of hatred moving forward.

On one hand, the merits of an "effects-based" approach are obvious. If the goal of human rights legislation is the eventual eradication of discrimination against minority groups, the method adopted for achieving this legislative intent should be judged, at least in part, on the degree to which it achieves these intended effects. However, an approach that focuses narrowly on the potential effects of hate speech with no reference whatever to the intention of the speaker displays an over-reliance on instrumental reasoning at the expense of individual rights.

Within their classical formulation, individual rights are treated as rights held by an individual against the coercive dictates of the broader society. They encompass the right of the individual to pursue his or her own ends to the exclusion, and even the detriment, of society at large. Insofar as the prohibition on hate speech is enforced with an exclusive focus on the degree of social harm anticipated by the speaker's expression, the negative rights afforded to each individual citizen to pursue his or her own ends freely becomes sacrificed to a crude utilitarian calculation.

Moreover, the primary focus of this effects-based analysis effectively divorces moral culpability from social censure. The existence of moral culpability as a precondition to state sanction is a concept rooted in both the common law and the Criminal Code. The insistence that punishment should not follow in the absence of individual guilt is reflected in the requirement of many criminal offences that the state demonstrate the presence of a guilty mind as a precondition to a guilty verdict. Similarly, in the civil law of negligence, individuals are not generally held liable, regardless of the extent of damage caused by their actions, unless it is first shown that the harm created is attributable to their failure to exercise a reasonable standard of care. However, the connection between moral culpability and social censure is conspicuously absent from the effects based approach applied in Whatcott, which clearly favours a strict liability regime for regulating speech that might "tend to expose members of the target group to hatred."

The obvious danger of this approach is its potential to create a further "chilling effect" on free speech. The Court gave short shrift to this objection. The deleterious effects on free speech that arise from requiring respondents to compensate "victims" for violations of s. 14(1)(b) was offset by the essentially civil nature of human rights proceedings. That is, "damages" awarded for violation of a human rights statute are intended to be compensatory, rather than punitive.

However, just as classifying certain speech as religious cannot automatically cleanse it of hateful character, the essentially punitive effect of these provisions cannot be undone simply by calling them compensatory. An award of damages implies an involuntary confiscation or loss of personal property or physical harm. Semantic distinctions do not overcome the fundamental objection that private citizens choosing to express their opinions on matters of public importance may find themselves answering to state representatives when they fail to express themselves with sufficient care.

Further, the classification of damages under the Code as being primarily directed towards compensation appears inconsistent with the effects-based approach adopted in the Court's reasons. Rothstein J. specifically states that, just as the objective test applied to hate speech legislation does not require analysis of the speaker's subjective intentions, it ultimately excludes consideration of the effect on individual victims:

"While the emotional damage from hate speech is indeed troubling, protecting the emotions of an individual group member is not rationally connected to the overall purpose of reducing discrimination. While it would certainly be expected that hate speech would prompt emotional reactions from members of the targeted group, in the context of hate speech legislation, these reactions are only relevant as a derivative effect of the attack on the group. As a derivative effect, these are not sufficient to justify an infringement of s. 2(b). Instead, the focus must be on the likely effect of the hate speech on how individuals external to the group might reconsider the social standing of the group. Ultimately, it is the need to protect the societal standing of vulnerable groups that is the objective of legislation restricting hate speech."

If the objective of hate speech legislation is to further a public purpose, namely the protection of social standing for vulnerable groups, it becomes difficult to cast the purpose of damage awards purely in light of victim compensation. Although the victims of hate speech may be the immediate beneficiaries of such a scheme, the primary purpose of compensation is directed towards advancing a broad conception of the public interest. Classifying the objectives furthered through this section as essentially public in nature undermines the notion that human rights laws can somehow be held to a lesser standard in terms of its ultimate effect on individual rights.

(c) Preemptive Strike at Anticipated Harm

Based on the Court's reasoning, to succeed in a human rights complaint for hateful expression, a complainant need not show that that the statement or writing actually exposed a vulnerable group to hatred. He or she need only convince a judge that the expression may "tend to expose" a group to hatred.

The significant harm that the Court acknowledged would be averted by anti-hate provisions of human rights legislation is the desensitization of the majority of citizens to hatred, laying the "groundwork for later, broad attacks on vulnerable groups [that] . . . range from discrimination, to ostracism, segregation, deportation, violence and, in the most extreme cases, to genocide."

There is no question that these ill effects of hatred are vile. That is why they are prohibited by our criminal law, the Charter and other aspects of human rights legislation. Historically, it is undoubtedly accurate to say that racist and hateful propaganda has led to reprehensible actions against vulnerable groups in a wide variety of cultures, societies and countries. Hate speech does allow such a foundation to be laid, but only if the resulting behaviours are permitted by the law of the affected culture.

Even if there is to be a non-criminal prohibition on hate speech, it should be of such a nature that the targeted group is actually impacted, not just that a statement may "tend to expose" a group to hatred. The line has been drawn in the wrong place. Section 1 of the Charter allows limitations on free expression only where they can be "demonstrably justified" in a free and democratic society. We must not lose sight of the fact that we must tolerate expression that we despise in order to preserve our own right to vehemently disagree with others.

The over-reaching nature of the reasoning is shown, in part, by its rejection of the defence of truth to a charge of hate speech. Like the majority in Taylor, the Court did not accept that a non-criminal prohibition on hate speech is overreaching because it can limit the expression of true statements. Despite the fact that the seeking of a truth is key value underlying the guarantee of free expression, the Court stated that:/p>

"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. Allowing the dissemination of hate speech to be excused by a sincerely held belief would provide an absolute defence and would gut the prohibition of effectiveness."

In other words, it may be necessary to restrict the spread of truth to ensure that hate is not permitted to permeate societal dialogue. This goes too far. This was recognized by McLachlin J. (before she become Chief Justice) writing in dissent in Taylor where she stated that "one factor which increases the seriousness of the infringement on freedom of expression is the absence of the defence of truth". Note that Chief Justice McLachlin was one of the judges that adopted and agreed with Rothstein J's reasons in Whatcott.

If we are going to limit fundamental freedoms to prevent hate, we should focus on behavior that clearly and unequivocally results in harm; not on statements, which may be true, that might only have that tendency. Otherwise we risk gutting our collective freedom to avoid gutting "the prohibition of effectiveness".

(d) Conclusion

Whatcott is an unwelcome decision as it unnecessarily restricts the fundamental freedoms of expression and religion guaranteed to all Canadians under the Charter. Of specific concern is the remaining uncertainty over the degree to which various religious doctrines on the morality of certain behaviours, if expressed incautiously, might cross the line into hate speech. Although the Court attempts to provide some assurance that even aggressive proselytizing is permissible, so long as it is not used as a proxy for hateful language, one is left wondering if this distinction is supportable in practice when applied to contentious religious doctrines.

It is to the discredit of people of all religious faiths that the principle of speaking the truth in love has been observed with imperfect consistency, especially, perhaps, in relation to communicating the injunction against homosexual acts common to many religious creeds. When this moral principle, however commendable, becomes enforceable by way of state mandate, not only the church, but society as a whole, becomes the worse for it.


This issue of LexView was researched and written by:
Kevin L. Boonstra, B.A. (Hons.), J.D., of the British Columbia Bar.

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Copyright © 2013 Cardus & Kevin L. Boonstra

LexView is an on-going review of judgments of Canadian courts that have an impact on the complex interrelationships between law, public policy, culture, moral reasoning, and religious belief.

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Topics: Justice, Religion, Media