Saskatchewan Human Rights Commission v Whatcott
Saskatchewan Human Rights Commission v Whatcott is a Canadian constitutional law case concerning the constitutionality of the hate speech provision in Saskatchewan's human rights legislation. Background Four complainants brought an application to the Saskatchewan Human Rights Commission after receiving flyers entitled "Keep Homosexuality out of Saskatoon's Public Schools!" and "Sodomites in our Public Schools" from Christian anti-homosexual activist Bill Whatcott. The complainants alleged a violation of section 14 of The Saskatchewan Human Rights Code (SHRC), which prohibits "publication or display of any representation that exposes or tends to expose to hatred, ridicules, belittles or otherwise affronts the dignity of any person or class of persons on the basis of a prohibited ground". Sexual orientation was one such prohibited ground. A Saskatchewan human rights tribunal heard the case, holding that the contents of each flyer objectively contravened section 14 of the SHRC, and that the provision did not unreasonably restrict Whatcott's section 2(b) Charter rights. The Tribunal prohibited Whatcott from further distributing the flyers and awarded compensation to the complainants. Upon appeal to the Saskatchewan Court of Queen's Bench in 2007, the appeals judge upheld the Tribunal's findings with respect to the violation of section 14 of the SHRC and its constitutionality. In 2010, the case was appealed to the Saskatchewan Court of Appeal. The court held that the tribunal and the trial judge had erred by considering only certain phrases from the flyers and that the flyers were not a prohibited hate publication. Reasons of the SCC Twenty-six third parties acted as interveners during oral hearings in 2011. Rothstein J wrote the reasons for a unanimous Supreme Court. Defining "hatred" Rothstein J began by considering the definition of "hatred" as contemplated in R v Taylor, where the Supreme Court had found that "hatred" as used in the Canadian Human Rights Act "refers to unusually strong and deep-felt emotions of detestation, calumny and vilification". Rothstein J identified two primary difficulties arising alongside the Taylor hatred doctrine; namely, that hatred is inherently subjective, which could conflict with the court's attempt at objectivity, and that it could lead to a "mistaken propensity to focus on the ideas being expressed, rather than on the effect of the expression". In response to these criticisms, Rothstein J adapted the Taylor standard by holding that it should be conducted objectively, that "hatred" should be interpreted as "extreme manifestations of the emotion described by the words 'detestation' and 'vilification'", a threshold which would not include merely repugnant or offensive expression, and that tribunals should consider the effect of the expression, not its inherent offensiveness. Freedom of expression analysis Rothstein J next analyzed the constitutionality of section 14(1)(b) of the SHRC, applying the correctness standard of review. Rothstein J held that the expression was protected by section 2(b) of the Charter, and proceeded to conduct a section 1 Oakes test. Rothstein J described the purpose of the legislation as "reducing the harmful effects and social costs of discrimination by tackling certain causes of discriminatory activity", noting its emotional and