Whatcott Case & Section 13 (Federal) Cases PDF

Anti-Hate in Human Rights Legislation SUPREME COURT OF CANADA: WHATCOTT, 2013 (AND RELATED: TAYLOR, ZUNDEL, LEMIRE)  ! Bill Whatcott is a self-proclaimed anti-homosexuality activist who produced and distributed flyers in Regina and Saskatoon (and...

Anti-Hate in Human Rights Legislation SUPREME COURT OF CANADA: WHATCOTT, 2013 (AND RELATED: TAYLOR, ZUNDEL, LEMIRE)  ! Bill Whatcott is a self-proclaimed anti-homosexuality activist who produced and distributed flyers in Regina and Saskatoon (and more recently in BC targeting NDP candidate Morgan Oger, a trans-rights advocate who was targeted while running for office) ! 4 complaints filed with SKHRC alleging hatred against individuals on the basis of their sexual orientation. ! The first 2 flyers entitled “Keep Homosexuality out of Saskatoon’s Saskatchewan Public Schools!” and “Sodomites in our Public Schools” were submitted in evidence Human Rights ! The other two flyers were identical and were a reprint of a page of classified ad (seeking men/boys) to which handwritten comments Commission v. were added. Flyers reprinted in Supreme Court decision as Appendix B Whatcott, 2013: The human rights tribunal ruled that the flyers contravened s. 14 of ! the SKHRC because they exposed persons to hatred and ridicule on the basis of sexual orientation and concluded that s. 14 was a Legal History reasonable restriction on Whatcott’s right to freedom of religion and freedom of expression guarantee by s. 2(a) and (b) of the Charter ! The Court of Queen’s Bench upheld the tribunal decision, and the Court of Appeal accepted that s. 14 was constitutional but held that the flyers did not contravene it (overturned the QB ruling) ! The Appeal court ruling then appealed to the Supreme Court of Canada s. 14(1)(b) SK Human Rights Act ! The purpose of s. 14(1)(b) is to prevent discrimination by curtailing certain types of public expression; ! The clause in the legislation is tailored to demonstrate a commitment to equality and respect for group identity and the inherent dignity owed to all human beings; ! The societal objective of limitation of expression by the prohibition in s. 14(1) (b) is aimed at tackling the causes of discriminatory activity to reduce harmful effects and social costs of discrimination (pressing and substantial objective)  ! The court considered whether the Saskatchewan human rights legislation (provincial) prohibiting publications that expose or tend to expose to hatred, Saskatchewan ridicule, belittle or otherwise affront dignity Human Rights of persons on the basis of prohibited ground infringes guaranteed freedom of religion Commission v. and guaranteed freedom of expression (and if so, whether the infringement is Whatcott, 2013: justified Supreme Court ! Court also discusses the standard of review in administrative law on the question of Ruling whether the decision is reviewable on standard of correctness or reasonableness to determine whether the tribunal made a reviewable error. Saskatchewan Human Rights Commission v. Whatcott, 2013 ! 26 interest groups were granted Intervenor status at the Supreme Court of Canada hearing ! Followed logic in Keegstra but now without dissent (unanimous ruling written by Justice Rothstein) ! Court ruled that s. 14(1)(b) infringed freedom of conscience and religion as guaranteed by s. 2(a) because the claimant’s belief or practice was sincerely held and had a nexus with religion and because the section interfered with the claimant’s ability to act in accordance with his or her religious beliefs. ! “To the extent that an individual’s choice of expression is caught by the definition of “hatred” in s. 14(1)(b) the prohibition will substantially interfere with that individual’s ability to disseminate his or her belief by display or publication of those representations” ! Court ruled that s. 14(1)(b) also infringed Whatcott’s s. 2(b) freedom of expression guarantee but that it was a reasonable limit tailored to a pressing governmental objective Saskatchewan Human Rights Commission v. Whatcott, 2013: Supreme Court Ruling ! The words “ridicules, belittles, or otherwise affronts the dignity of” found in the Act were found to be not rationally connected to the legislative purpose of addressing systemic discrimination of protected groups, nor tailored to minimally impair freedom of religion ! The Court found that the tribunal did not unreasonably give proper weight to the importance of protecting expression that is part of an ongoing debate on sexual morality and public policy. ! The Court also found that the tribunal was not unreasonable in isolating certain excerpts from the flyers or in finding that the flyers criticize sexual orientation and not simply sexual behaviour. That the rights of a vulnerable group are an ongoing discussion does not justify greater exposure of that group to hatred and its effects – the only expression which should be caught by s. 14(1)(b) of the Code is hate-inspiring expression that adds little value to the political discourse or to the quest for truth, self-fulfillment and an embracing of the marketplace of ideas (recall discussion of ‘low value’ speech in Keegstra) ! Limitations on ‘hate speech’ do not severely curtail the values underpinning freedom of expression because it aims to prevent risk of future harmful effects (exclusion from political process / discriminatory conduct)  ! Those flyers containing assertions that gay and lesbian teachers use “dirty language to describe lesbian sex and sodomy to their teenage audience” and that “sodomites are 430 times more likely to acquire Aids and 3 times more likely to sexual abuse Saskatchewan children” were found to constitute hate propaganda (2 of the 4) These were found to contravene the SK Human Rights Act Human Rights ! because they portrayed the targeted group as a societal menace that threatens the safety and well-being of others, made Commission v. reference to respected sources in an effort to lend credibility to the negative generalizations, and used vilifying and derogatory Whatcott, 2013: ! representations to create a tone of hatred. The flyers expressly called for discriminatory treatment of those of Supreme Court same-sex orientation. It was not unreasonable for the tribunal to conclude that this expression was more than likely to expose same-sex attracted individuals to hatred. Ruling ! The unanimous ruling upholding the constitutionality of s. 14(1)(b) came as a surprise to those who were critical of s. 13 of the federal act and who expected a divided decision, like the Taylor court (see below). Key points of the SCC majority ruling ! Definition of hate speech ! Application to Whatcott’s flyers ! Constitutionality of s. 14(1)(b) ! Balancing Charter Rights ! Practical Outcomes Definition of Hate Speech ! The Court modified the definition of “hatred” from earlier jurisprudence, focusing on extreme manifestations like “detestation” and “vilification” ! The subjective intent of the speaker was deemed irrelevant; instead, the impact of the speech on a reasonable audience was emphasized ! Hate speech is an effort to marginalize individuals based on their membership in a group in such a manner so as to delegitimize group members in the eyes of the majority reducing their social standing and acceptance within society (rises beyond causing distress to individual group members) ! Societal impact: hate speech lays the groundwork for later, broad attacks on vulnerable groups that can range from discrimination, to ostracism, segregation, deportation, violence and in extreme cases genocide ! Hate speech also limits a protected group’s ability to respond to substantive ideas under debate by placing a serious barrier to their full participation in democracy ! Court attempts to establish an objective test for hate speech by focusing on the potential effect of the expression on society as a whole (using the reasonable person test) ! The reasonable person approach in this context means that when considering the effects of hate speech they do not depend upon the subjective views of the publisher or the victim of the alleged hate publication Hate Speech Test (Objective Standard) ! The courts pose the question of whether “when considered objectively by a reasonable person aware of the relevant context and circumstances, the speech in question would be understood as exposing or tending to expose members of the target group to hatred” (Whatcott, para 35) ! In the course of this assessment, a judge or adjudicator is expected to put his or her personal views aside and to base the determination on what he or she perceives to be the rational views of an informed member of society, viewing the matter realistically and practically (Whatcott, para 35) ! Although developing legal principles, following precedent and applying objective standards will not completely eliminate subjectivity from the adjudicative process, these common law traditions reflect an awareness of the problem and provide a ground for appeal in cases of unjustifiable departure (Whatcott, para 35) ! Hatred is a subjective emotion – but the legislative intent is to capture not offensive comments or expressions of dislike but to prohibit expression of an unusual and extreme nature (“detestation, calumny and vilification” as described in Taylor) ! Detestation and vilification aptly describe the harmful effect that the Code seeks to eliminate – representations that expose a target group to detestation t inspires enmity and extreme ill-will against them which goes beyond mere disdain or dislike. Representations vilifying a person or group will seek to abuse, denigrate or delegitimize them, to render them lawless, dangerous, unworthy or unacceptable in the eyes of the audience (Whatcott, para 41) Application to Whatcott’s Flyers ! Court notes the broader context in which the flyers were published including a history of discrimination against those of same-sex orientation and the relatively recent recognition of their equality rights, public policy debates about the appropriate content of public school curriculum, and ongoing religious and public interest about the morality of same-sex conduct (para 169) ! The language in the flyers that target sexual orientation (“sodomy” not used in relation to sexual acts in general, but only the sexual act between men) (para 176) – the point here is that one can ”hate” the act, but not the persons to whom the act is selectively applied ! Whatcott’s message was that those who engage in sexual practices not leading to procreation should not be hired as teachers or that such practices should not be discussed as part of the school curriculum (para 177) ! If this criticism was of the sex act only his expression would not implicate an identifiable group (para 177) ! However, if Whatcott’s expression is directed at sexual behaviour by those of a certain sexual orientation his expression must be assessed against the hatred definition in the same manner as if his expression was targeted at those of a certain race or religion (e.g. “Now the homosexuals want to share their filth and propaganda with Saskatchwan’s children”; “Homosexual sex is about risky & addictive behaviour!”) ! Standard of review for the finding of the tribunal is reasonableness Constitutionality of s. 14(1)(b) ! The court found the provision a justified limit on expression to combat the likely effects of hate speech on the audience (listener) and the targeted group; ! However, the phrases “ridicules, belittles or otherwise affronts the dignity of” were struck from the legislation as being overbroad and not rationally connected to its objectives ! The standard of review on the constitutionality of the legislation is correctness Balancing Charter Rights ! The Whatcott court emphasized that hate speech undermines equality and dignity outweighing the minimal impairment of expressive rights captured by the legislation. ! Hate speech was held to have limited value because it has the potential to undermine equality rights because the audience may come to adopt the views expressed and act in discriminatory ways towards the targeted group (risk of harm). Practical Outcomes ! The Court reinstated the tribunal’s decision regarding two of the flyers but dismissed findings against the other two ! Whatcott’s monetary penalties for two successful claims were upheld (remedy) ! The Court refined the words used to define hate speech by focusing instead on whether the complained about words contribute to the “detestation” and “vilification” of the target group protected by human rights legislation  ! Human rights laws, with their broad goal of eliminating discrimination against identifiable groups, relies in part on prohibiting public expressions of hatred. Whether these Federal laws should include prohibitions on hate speech and hate propaganda has been a matter of debate for some time. Human Rights ! The Canadian government adopted the Canadian Legislation, Human Rights Act in 1977 that included s. 13(1) to restrict the dissemination of hate promotion messages by Hate Speech telephone & ! One of the oddest things about Section 13 was that the hate speech did not require a specific victim (unlike Discrimination every other clause). It was enough that published material was “likely to expose” a protected group to “hatred or contempt,” for example on the basis of their race, religion or sex. It didn’t have to actually do this, just make it likely.  ! Truth was no defence, unlike in most other legal contexts such as defamation, to prevent tribunals becoming quasi- scientific inquiries into Holocaust revisionism. Nor were any Federal of the defences found in the hate propaganda section of the Criminal Code adopted into s. 13 (benign intent) Human Rights ! Section 13 made it a “discriminatory practice” to communicate telephonically any matter likely to expose a Legislation, person or a group to hatred or contempt on the basis inter alia, of race or religion. Hate Speech ! later added s. 13(2) to restrict communications over the internet via computer (it did not apply to print publications, & unless posted online) following the Zundel case. Discrimination ! The section was repealed in 2014 but has been re- introduced as part of Bill C-63 the Online Harms Act which among other things seeks to amend the Human Rights Act to include the regulation of social media by allowing the Canadian Human Rights Commission to take action against individual uses “who post hate speech on those services and elsewhere”  Canada (Human Rights Commission) v Taylor, 1990 ! John Ross Taylor publicly distributed cards inviting calls to a phone number that was answered by a recorded message. In 1979, the Canadian Human Rights Commission (CHRC) received complaints about the anti-Semitic content in the message. The CHRC held that the messages were a discriminatory practice under section 13(1) and ordered Taylor to cease the practice. Taylor challenged the constitutionality of section 13(1), arguing that it violated his freedom of expression. ! John Ross Taylor was a white supremacist and anti-Semite who was active in the era prior to WWII (supported fascism) and later became the leader of the Western Guard Party in Canada. The CHRC sentenced the Party to a $5,000 fine and Taylor to one year of imprisonment. The sentence was suspended on the condition that Taylor and the Party cease and desist dissemination of the recorded information. They did not, and the suspension of sentence was vacated. The Party paid the fine and Taylor served his sentence ! In 1983, the CHRC filed a new application with the Federal Court, alleging that further messages were being transmitted and that those messages breached the Tribunal’s Order. The Tribunal sought a new order of committal and another fine of $5,000 against the Party. ! The Western Guard Party could now rely on the Charter of Rights and Freedoms and alleged that s. 13(1) of the Act violated s. 2(b) of the Charter, and that the Tribunal’s previous order should be vacated on that basis. ! The Federal Court rejected the argument, confirmed the contempt, confirmed the fine, and made the committal order for Taylor. ! Appeal to the Federal Court was dismissed ! Supreme Court of Canada heard the appeal on the Charter issue and bias of the Tribunal  Canada (Human Rights Commission) v Taylor, 1990 ! In his decision for the majority, former Chief Justice Dickson concluded again that hate propaganda presents a serious threat to society and that it undermines the dignity and self-worth of target group members and, more generally, contributes to disharmonious relations among various racial, cultural and religious groups, as a result eroding the tolerance and open-mindedness that must flourish in a multicultural society which is committed to the idea of equality. ! The majority therefore found that “[i]n seeking to prevent the harms caused by hate propaganda, the objective behind s. 13(1) is obviously one of pressing and substantial importance sufficient to warrant some limitation upon the freedom of expression.” ! The Court re-iterated what it said about hate propaganda in Keegstra and the justification for limiting freedom of expression ! Later the Court said that the hate propaganda section applied to the internet (Zundel, 2002) ! In 1998, a penalty section was added to Section 13 that allowed fines of up to $10,000, which would later become a major legal problem for the law’s constitutionality in the Lemire case. ! It was the expansion to the internet in 2001 that caused the greatest headaches (the question of whether human rights legislation is remedial or punitive is relevant here – creating such large fines is punitive rather than ‘educative’ or remedial).  Canada (Human Rights Commission) v Taylor, 1990 ! Justice McLachlin dissent (again): ! Canvassed many of the problems with hate speech prohibitions raised in Keegstra ! Problem of subjectivity as the word ‘hatred’ is an ambiguous, emotionally charged term indicating a psychological state capable of a wide range of meanings amongst different people (definition problem) ! Substantially widens the scope of the offence to one in which the feelings of the complainant drive the result (subjectivity problem) ! Human rights legislation lacks any intent or harm requirement – punishment possible for acts never intended to be discriminatory and did not cause harm or actual discrimination (absence of intent and harm – merely read-in) ! Not possible to know beforehand whether any particular expression is illegal or not ! McLachlin described the law as subjectively defined, overbroad, and resulting in punishment for no actual harm or discrimination (the sanctions are imposed in the present for imagined harms in the future) ! Lack of definition in the statute and arguably incapable of sufficiently precise definition, it inevitably functions as a proxy for the personal and political views of the judiciary (“I know it when I see it”) ! As a result, the prohibition found in human rights legislation produces a chilling effect on speech because it is impossible to know beforehand whether any particular expression is illegal or not, and it poses a risk of abuse of complaints process to punish political commentators who case no discrimination or harm.  ! TheCourt concluded that the Taylor definition of hatred with some modifications provided a workable approach to interpreting the word ‘hatred’ as it is used in prohibitions on hate speech found in human rights legislation ! Hatred was to be assessed objectively and not subjectively (reasonable person test) ! The courts must pose the question whether “when considered objectively by a reasonable person aware of the relevant context Approach to and circumstances, the speech in question would be understood as exposing or tending to expose members of the target group to hatred.” “Hatred” in ! During the course of an assessment, the adjudicator is to place his or her personal views aside. Human Rights ! Shifting the analysis away from the speaker’s intent allegedly helps to answer the criticism that “hatred” is an unworkable as a legal test on account of its irremediable subjectivity. Law (Taylor) ! Second, “hatred” must be restricted to only those extreme manifestations of emotion described by the words, “detestation” and “vilification.” ! Expression that exposes vulnerable groups to detestation and vilification must be far more than merely discrediting, humiliating, or offending. It must vilify and seek to abuse, denigrate, or delegitimize a protected group or person as lawless, dangerous, or unacceptable (as was ruled in Whatcott).  Section 13 Controversy ! McLaughin’s dissent in Taylor won wide support, and yet human rights complaints were used by Islamic groups to file complaints against those discussing various political issues in mainstream Canadian publications: ! 2007 Mohamed Elmasry of the Canadian Islamic Conference filed complaints to the Canadian, Ontario, and British Columbia Human Rights Tribunals for publishing allegedly 18 ‘Islamophobic’ articles including a MacLean’s magazine article by political pundit Mark Steyn; ! Between 2006 and 2008 Ezra Levant (lawyer and journalist) was the subject of human rights complaints made by Syed Soharwardy of the Islamic Supreme Council of Canada for publishing the Jyllands-Posten cartoons of Muhammed in his Western Standard magazine; ! {Backstory: The Danish cartoons were commissioned by culture editor Flemming Rose when he learned that the translator of Ayaan Hirsi Ali, the Somali Dutch politician who has been critical if Islam insisted on anonymity and when a Danish author went on record as saying had problems finding illustrators for a book about the life of the Prophet Muhammed (the eventual illustrator insisted on anonymity). To Rose this spoke to the problems of self-censorship and freedom of speech. Rose sought to begin a debate about self- censorship as inhibiting to free speech as official censorship and to protest the climate of intimidation that he saw surrounding Islamic concerns. There was violent worldwide reaction to the cartoons at a time of heightened political and social tensions between Muslim-majority countries and Western countries.}  Section 13 Controversy ! In 2008, Richard Moon released his report commissioned by the CHRC on section 13 recommending that the hate speech prohibition found in s. 13 be repealed and that ways other than censorship must be developed to address expression that stereotypes and defames members of an identifiable group and to hold institutions such as media accountable when they engage in these forms of discrimination inspiring expression (unclear if this is a call for broader restrictions or internal punishment processes to be carried out by institutions themselves against critics) ! In 2009, The CHRC Tribunal refused to apply s. 13 against Mark Lemire for ‘discriminatory comments’ allegedly made by a third party on a website administered by Lemire. ! The Lemire Tribunal held that s. 13 is an unjustifiable violation of freedom of expression because it permits the government to penalize individuals with large monetary fines for merely saying something offensive or unpopular. ! Lemire case rejected on grounds that s. 13 infringed upon s. 2(b) Charter rights and that it was ultra vires because the high fines amounted to the exercise of criminal law powers. ! As a result, the Lemire decision was not binding beyond Lemire. The tribunal suspended further hearings in some active cases pending a higher court ruling.*(see notes below)  Section 13 Controversy ! Various civil liberties organizations (BCCLA, CCLA, CCF) brought the censorship of Canada’s various hate speech provisions as contained in human rights legislation under public scrutiny arguing that free expression was more effective than censorship ! Each provided examples of limitations placed on expression through human rights legislation to demonstrate the anti- democratic nature of the provisions contained in human rights legislation ! In 2014 the Federal Court of Appeal ruled in appeal of Lemire that s. 13 was constitutionally valid and reinstated the penalty section and the CHRT’s cease and desist order against Lemire, but by that time the section had been already been repealed by government. ! In 2019, Warman relied on defamation law to sue Jon Kay (again) and Barbara Kay for libel in response to the 2 journalists linking the Canadian Anti-Hate Network (CAHN), an organization for which Warman served as a Board member, to violent ANTIFA. The 2022 judgement dismissed the claim and noted that based on the evidence disclosed CAHN did in fact assist ANTIFA and that the movement had been violent (in other words, what was printed about CAHN was true). ! The judge went on to condemn Warman for what was described as “using litigation to silence or intimidate those he sees as his critics, or who oppose his methods of prosecuting hate groups” just as Warman had been doing by using s. 13 of the Canadian Human Rights Act years earlier.  ! In the Supreme Court’s opinion, the Keegstra/Taylor standard will permit offensive and repugnant speech provided that it does not incite the high level of abhorrence necessary to satisfy the definition of “hatred.” Hatred in ! Building on this definition, human rights legislation should not be considered to aim at the elimination of the emotion of hatred from human experience. Instead, it aims to eliminate extreme Human Rights forms of expression that have the potential to inspire the illegal discriminatory treatment of protected groups. Law: ! Third, adjudicators should focus on the effect of the expression, that is, whether the impugned expression is likely to expose a protected group to hatred. The repugnancy of the ideas Effort to expressed and the intent of the individual(s) expressing those ideas are not sufficient on their own. articulate ! It is the mode of public expression and the effect that this mode of expression may have — not the ideas themselves — that must concern adjudicators. objective test ! And this is where the correct objective test must be applied: “would a reasonable person consider the expression vilifying a protected group [or individual as having]... the potential to lead to discrimination?”  ! In dealing with the criticism that the impugned prohibition requires no intent to discriminate, Justice Rothstein offered no new analysis and merely quoted a portion of the Taylor decision before dismissing the criticism in two sentences: “The preventative measures found in human rights legislation reasonably centre on effects, rather than intent. I see no reason to depart from this approach.” Regarding the criticism that the Code requires no proof Addressing ! of actual harm, Justice Rothstein held that establishing a causal link between an expressive statement and any criticism resulting hatred suffered is too onerous a burden for a complainant to bear, and as such, preventative measures — like prohibiting speech deemed hateful without proof of harm are justified. ! Regarding the criticism that the Saskatchewan legislature has provided no defences, including that the content of any impugned expression is true, Rothstein, J dismissed the criticism saying that “even truthful statements may be expressed in language or context that exposes a vulnerable group to hatred” Conclusion ! Keegstra & Taylor refine the scope of the statutory language used to prohibit hatred defined as “detestation” and “vilification” of a protected group on the basis of their group characteristics (not on the grounds that ideas or practices are criticized using harsh language that may ridicule or belittle ideas or preferred policies – for example, public debates such as the age appropriateness of sex education materials in schools are protected speech because it is in the public interest to engage in these debates) ! Human rights legislation is much more expansive in nature allowing for political actors to drive complaints about expression, however the narrowing of the category of expression that is ‘hateful’ was intended to limit its use by politically motivated complainants ! Section 13 is repealed because in practice it was used by politically motivated actors to limit criticism of political or religious viewpoints (on the grounds that the speech with which they disagreed was “hate speech” and because the maximum fine of $10,000 was deemed to be a Criminal Code matter rather than an administrative law matter).