A passerby, right, pauses as William Whatcott (facing at left) protests homosexuality and abortion in 2009.
Ted Jacob, Calgary HeraldSupreme Court set to update legal definition of hate-speech in first ruling of Internet age
Feb 25, 2013 http://news.nationalpost.com/2013/02/25 ... ernet-age/
Canada’s controversial 20-year-old legal definition of hatred is set to be updated or even overturned on Wednesday, as the Supreme Court of Canada rules in the case of William Whatcott, a born-again anti-gay pamphleteer who ran afoul of Saskatchewan’s Human Rights Code.
Pitting freedom of religion and speech against a legal regime that bans the repeated public expression of hate, the Whatcott case could see the legal foundation of several anti-hate laws crumble, including Section 13 of the Canadian Human Rights Act.
Crafted by former Chief Justice Brian Dickson in a 1991 Supreme Court decision about hate-hotline operator John Ross Taylor, the operating definition of hate in Canada is “unusually strong and deep-felt emotions of detestation, calumny and vilification.”
But that decision, which upheld the constitutionality of Section 13 and set the benchmark for all hate speech tribunals, was a narrowly split 4-3 vote, in which current Chief Justice Beverley McLachlin wrote for the dissenting minority, favouring a more robust defence of free speech.
There is speculation that, as chief justice, she now has an opportunity to bring a majority over to her side, despite almost certain dissent by more liberal judges such as Rosalie Abella.
Bruce Ryder, a constitutional law expert at Osgoode Hall law school, said the court will “almost certainly find that the language of the Saskatchewan provision is too broad and imprecise.” It currently prohibits not only hate, but ridicule, belittlement and affront to dignity.
“It will be interesting to see whether a majority of the Court is content to remove or restrict these words so that the provision only prohibits speech that is hateful, narrowly construed, or whether a majority of the Court believes that the provision is so flawed that it has to be declared unconstitutional in its entirety,” Prof. Ryder said.
Richard Moon, a constitutional legal scholar at the University of Windsor and an expert in hate speech, said it would be “an exceptional and extraordinary thing” for the Supreme Court to overturn its own previous decision, though not impossible. If they do, the effects will be wide-ranging.
Narrowly, Wednesday’s ruling is likely to concern only Saskatchewan’s law, he said. “But given the similarity between that and the [human rights hate speech] provisions in Alberta, BC and the Northwest Territories, you would think they would all be… open to serious question,” he said.
Those jurisdictions all have human rights laws against hate in the written word. Other provinces, such as Ontario, have bans on discriminatory signage, but specifically do not deal with printed material.
“‘At risk’ would be too weak a way to put it,” Prof. Moon said. “Any tribunal that was asked to enforce those provisions subsequently would probably have to determine that they were unenforceable.”
In fact, without Taylor as valid precedent, Canada’s most maligned anti-hate law — the federal ban on internet hate speech known as Section 13 — would be further weakened, even though it has already been ruled unconstitutional and a bill to repeal it is moving through the Senate.
Prof. Moon said the Supreme Court could also rule narrowly and simply uphold Saskatchewan’s law, or even rule that Mr. Whatcott did not breach it. “They could sort of evade the issue,” he said.
To judge from the questions posed by the judges when Whatcott’s case was argued in 2011, evasion was not the goal. In a sign the court might be willing to overturn Taylor, Judge McLachlin questioned lawyers about the validity of grasping at a subjective emotion with an objective legal test.Any tribunal that was asked to enforce those provisions subsequently would probably have to determine that they were unenforceable
“We’re told the test [for hate] should be objective,” she said. “Is it possible or contradictory to get into an inquiry about how deeply a speaker felt about a subject matter?”
She also criticized the vagueness of such a serious law.
“It seems to me that an ordinary Lutheran minister or the ordinary citizen should be able to look at this act, and without becoming a Supreme Court of Canada scholar, say, ‘I can say this, but I cannot say that,’” Judge McLachlin said.
Prof. Moon called this the “line-drawing problem,” the risk that drawing a firm line against hate speech might criminalize speech that should be protected, or create a chilling effect.
“[Former Chief Justice] Dickson thought you could define the scope of these provisions so they were sufficiently narrow to catch only extreme speech that could be understood as harmful, and McLachlin thought [hatred, detestation, etc.] are such vague, open concepts that we don’t know what will be caught exactly,” Prof. Moon said.
Chief Justice Dickson’s definition of hatred has been further refined in federal human rights law with a checklist of “hallmarks of hate,” including descriptions of target groups as a powerful menace, predators of the vulnerable, the cause of a current social problem, dangerous or violent by nature, devoid of any redeeming qualities, and requiring banishment, segregation or eradication to save society from harm.
Mr. Whatcott claimed a religious justification for his anti-gay pamphlets and his street corner protesting, for which he has frequently run into conflict with authorities.
“Our children will pay the price in disease, death, abuse and ultimately eternal judgment if we do not say no to the sodomite desire to socialize your children into accepting something that is clearly wrong,” said one flyer. In another, he photocopied a classified ad: “I’m 28, 160#, searching for boys/men for penpals, friendship, exchanging video, pics, magazines & anything more. Your age, look & nationality is not so relevant.” Above it, he wrote, quoting the Bible, “If you cause one of these little ones to stumble, it would be better that a millstone was tied around your neck and you were cast into the sea.”