First, several comments suggest that the case poses a “danger” to free speech, and that the court failed to consider meaningfully the interests of free speech. The reality is that the court held that portions of the hate speech provisions in Saskatchewan’s human rights code did violate free speech rights, and that the violation was an infringement of Charter rights.
But second, the court also pointed out that all rights, including speech rights, are subject to limits. This is perhaps one of the most basic propositions in any civilized legal system that is worthy of that name. It is perhaps a testament to the power and influence of the media’s appetite for one-sided characterization of the issues at stake that commentators are questioning the fundamental and constitutional principles that require the judiciary to assess reasonable limits in any case involving human rights.
Third, speech that advocates violence does not benefit from free speech protections. Moreover, to paraphrase the court, limits are set when speech has the effect of exposing the targeted group to hatred in terms of social vilification and detestation. This is a very clear test and it does not focus on the speech, contrary to what is reported. It properly focuses on the effects of the speech. This is central to the decision and, we believe, to the unanimity of the court. The court sought to ensure the strongest possible protections for free speech, short of the extreme forms of speech that have the venomous effects described in the decision. To assert otherwise is to mislead the public about the content of the decision.
It is also worth noting, as any civil libertarian should note, that if the criminal law were the only tool left in the policy arsenal against hate speech, criminal prosecution with criminal sanctions would be the only available response. Anyone genuinely concerned about civil liberties should applaud the availability of a more conciliatory administrative option.
It was a genuine shock to many human rights lawyers to see the Saskatchewan Court of Appeal (which was overturned by the Supreme Court) suggesting in its ruling that while speech perpetrating hatred based on religion or ethnicity is prohibited discrimination, that speech based on sexual orientation is still controversial and therefore more permissible. The court of appeal had also decided that William Whatcott’s material had condemned homosexuals’ behaviour but not homosexuals themselves. The Supreme Court rejected this specious distinction.
The commentary on the issue of intent must also be addressed head-on. Canadian anti-discrimination law has long focused on effects, not on intent. Indeed, the use of “intent” as a defence to discrimination law served as the basis for segregation under the century-long writ of the “separate but equal” doctrine in the United States. Discrimination law is not criminal law. It relies on objective evidence of effects, and not on subjective evidence of intent, let alone a subjective sensitivity about “being offended” as the measure of harm. This serves as an additional layer of protection for respondents.
The African Canadian Legal Clinic intervened in the case, as did the Canadian Bar Association and many others, in support of the Saskatchewan legislation. Although the Whatcott case involved hate speech against gays and lesbians, other communities are affected as well. Indeed, almost half of the few cases that have proceeded under section 14 of Saskatchewan’s human rights code involved hate propaganda targeting the black community.
The court emphasized the importance of a contextual analysis that takes into account the social realities and vulnerability of targeted groups. Such an analysis will ensure that the freedom of expression and religion guarantees do not become a “constitutional right to be racist” or weapons with which to defend the status quo, and that arguments of hate propagandists, cloaked in terms of freedom of expression or religion, are not permitted to obscure the fact that what is truly at issue is the right of marginalized groups to be treated as equals and to be free from hate.
The Supreme Court of Canada is to be applauded for speaking with one voice on a matter so central to Canada’s democratic project with our bedrock values of inclusiveness, diversity and equality. Further, it has confirmed a test for limiting hate speech that is consistent with Canada’s obligations under the International Covenant on Civil and Political Rights and, in terms of racist hate speech, our commitments to the International Convention to Eliminate All Forms of Racial Discrimination, which was part of the foundation of the Supreme Court’s first hate speech case a generation ago.
Original Article
Source: thestar.com
Author: David Matas Ken Norman and Margaret Parsons
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