MEDIA STATEMENT - "Words matter" - Supreme Court of Canada Upholds Human Rights Protection of Marginalized Groups from Harmful Effects of Hate Speech

TORONTO, Feb. 27, 2013 /CNW/ - The African Canadian Legal Clinic ("ACLC") categorically applauds the Supreme Court of Canada (SCC) for its definitive recognition of the harmful effects of hate speech on historically marginalized groups, such as African Canadians, and its affirmation of the importance of human rights legislation that protects these groups from public dissemination of speech that exposes them to 'hatred', 'contempt', 'detestation' or 'vilification'.

The SCC released its unanimous decision today in Saskatchewan (Human Rights Commission) v. William Whatcott, 2013 SCC 11, in which it upheld (in part) the Saskatchewan Human Rights Commission's finding that Mr. Whatcott violated section 14 of the Saskatchewan Human Rights Code by distributing flyers that expose persons to hatred and ridicule on the basis of their sexual orientation.  Section 14 provides inter alia that "no person shall publish or display … 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."  Mr. Whatcott challenged the Commission's finding on the basis that section 14 violates his rights to freedom of religion and freedom of expression protected by sections 2(a) and 2(b) of the Canadian Charter of Rights and Freedoms.

The ACLC intervened in the case, and argued that the widespread presence of anti-Black racism in Canadian society and the fact that almost half of the few cases that have proceeded under s.14 have involved hate propaganda targeting the Black community underlie the importance of a contextual analysis that takes into account the social realities and vulnerability of the African Canadian community.  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 SCC acknowledged that the Court was required in this case to balance the fundamental values underlying freedom of expression and freedom of religion with competing Charter rights and other values essential to a free and democratic society, including a commitment to equality and respect for group identity and the inherent dignity owed to all human beings as codified in section 15 of the Charter and Canada's legal obligations with respect to international treaty commitments.

The Court stated that "[h]ate speech is, at its core, an effort to marginalize individuals based on their membership in a group. … Hate speech, therefore, rises beyond causing emotional distress to individual group members. It can have a societal impact. If a group of people are considered inferior, sub-human, or lawless, it is easier to justify denying the group and its members equal rights or status. … Hate speech lays the groundwork for later, broad attacks on vulnerable groups. These attacks can range from discrimination, to ostracism, segregation, deportation, violence and, in the most extreme cases, to genocide …"

Ultimately, the SCC found that section 14 does limit Mr. Whatcott's freedom of religion and expression, but that a limitation on public religious or political expression that rises to the level of hatred is justifiable in a free and democratic society, as provided for in section 1 of the Charter.  The Court held that "[p]olitical expression contributes to our democracy by encouraging the exchange of opposing views. Hate speech is antithetical to this objective in that it shuts down dialogue by making it difficult or impossible for members of the vulnerable group to respond… s. 14 of the Code provides an appropriate means by which to protect almost the entirety of political discourse as a vital part of freedom of expression. It extricates only an extreme and marginal type of expression which contributes little to the values underlying freedom of expression … "

SOURCE: African Canadian Legal Clinic

Virginia Nelder
[phone]
www.aclc.net