Whatcott fallout: the Supreme Court upholds protections we don’t need

Canadian tolerance is less fragile than courts and human rights bodies think

Chris Wattie/Reuters

The much-anticipated Whatcott decision has landed, and to some surprise, the Supreme Court of Canada shied from the chance to get human rights commissions out of the business of judging speech.

You can read the decision in its entirety here. In a nutshell, the court struck down a phrase in Saskatchewan’s human rights code banning material that “ridicules, belittles or otherwise affronts the dignity of any person or class of persons,” while upholding the section of prohibiting material that exposes members of identifiable groups to hatred. Those offended can still seek remedy from the province’s human rights commission.

“The protection of vulnerable groups from the harmful effect emanating from hate speech is of such importance as to justify the minimal infringement of expression,” the judges said in their unanimous decision.

Maybe this compromise was inevitable. To get human rights bodies out of the business of supervising speech, the high court would have to overturn its 1990 Taylor decision, which validated the jurisdiction of human rights commissions over speech, and set down a legal test of what constitutes hatred. That’s a lot to ask of any court.

But civil libertarians had hoped the SCC would do just that. Back in ’90, the current Chief Justice, Beverly McLachlin, had written a dissent to Taylor voicing concern that the law could interfere with free expression. She asked pointed questions during the Whatcott hearing about the vagueness of Saskatchewan’s law. There was reason to think she and her bench-mates might make a move.

To me, their decision to stand-pat represents a missed opportunity to erect robust legal protections around a bedrock Canadian value. And yes, my employer has a stake in this. But if we learned anything from the Maclean’s-Ezra Levant human-rights fiascos, it’s that the rights process is too blunt, too one-sided an instrument to deal with such a sensitive issue as speech.

A couple of other thoughts: all eyes should now turn to the provinces that have anti-hate speech provisions in their human rights codes, some of whose leaders have echoed the above-stated qualms. They’ve been sitting on the sidelines to see whether Whatcott would give them the cover needed to do the right thing, and now the onus is on them.

Here’s what Alison Redford told the Rocky Mountain Civil Liberties Association about the relevant section of Alberta’s code when she was running for the provincial PC leadership:

“I want to amend and fine-tune the existing legislation, after consultations with stakeholders, to better define and protect free speech in light of challenges to the statute in recent years. Freedom of expression must be shielded, and Section 3 of the Alberta Human Rights Act should be repealed.”

Over to you, Premier. Need a roadmap?

The decision also reminds me of a conversation I had in the thick of the dispute between Maclean’s and Islamic groups that complained about the writings of Mark Steyn. I was talking to Wayne Sumner, a philosophy professor at the University of Toronto who studies hate speech, and I had raised the operative question: in the Internet era, can we get rid of anti-hate speech provisions in human rights law without giving oxygen to the hard-core hate-mongers, who are undeniably among us?

Sumner was unequivocal:

“The kinds of groups who engage in this sort of nonsense in Canada are so marginal, and regarded as so ridiculous by most people, that it’s hard to see how they have any impact at all. Did the ridiculous things David Ahenakew said in public about Jews running the world actually encourage any acts of anti-Semitism in Canada? Or did we just all laugh at them? So I think there’s a problem with the underlying justification of the law.”

But wait. Isn’t world history replete with examples of hate speech fueling violence and discrimination? Weimar Germany? Rwanda?

The professor’s answer:

“It’s important that we’re speaking specifically about Canada. If I thought there was an enormous reservoir of prejudice bubbling beneath the surface, just waiting to be released, I would think differently. But I don’t think that’s where multicultural Canada is at. The references to history don’t tell us much about our own situation.”

In other words, Canadian tolerance can stand the stress-test. It’s a bedrock value that—freely expressed—offers a better antidote to hatred than any regulatory body staffed by appointees. Time for governments to give it a vote of confidence.




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Whatcott fallout: the Supreme Court upholds protections we don’t need

  1. Uh, dude, your employer and Steyn WON the case. The complaint from the students was made in good faith and you were irresponsible to print Steyn’s tripe, but your freedom of speech wasn’t harmed. The speechies can’t keep switching up the “but it 9sometimes) costs money!” stuff with the “hate speech is somehow an essential value” stuff.

    • We won at enormous expense to our finances and our good name, while the state did the bidding of the complainants. The court can call that reasonable, but I won’t.

      • yes, your people overspent mightily and there was some travel costs involved (and don’t think for a second how I haven’t noticed how you’ve once again done exactly what I pointed out in the last sentence) .

        Please demonstrate how it harmed your reputation. Quite frankly, if it’s been harmed at all it’s because as the press, you did a piss-poor job of pointing out how good commissions are at separating hate speech from non-hate speech, and how well the magazine actually did.

        • You’re dealing with someone who hasn’t got a clue yet like all the others in his trade of opinionating he is well rewarded for encouraging and covering for hateful jackasses.

      • Jeez Mr Gillis. If only you had spoken out against or written a rebuttal of Stynes’ crap all this might have been avoided? I well remember the slap down Wells administered here to Mark on at least two occasions. Were your hands somehow tied?

  2. Has anyone found a human rights decision anywhere in Canada that was based solely on “ridicules, belittles or otherwise affronts the dignity” alone and did not otherwsie meet the standard of hate?

  3. If even only one person read Whatcott’s words that all homosexuals are demonic child rapists and thus supported firing gay teachers, or turned a blind eye on discrimination or violence against gays (which happens every single day in all corners of “tolerant” Canada), the provisions against hate speech in Canadian law would be justified. The only folks who think Canada is a lovely peaceful place where the most extreme forms of hate propaganda have no consequences seem to be the privileged, white straight males who never have to face real violence or discrimination in their lives. They can’t conceive the violence because they simply don’t understand what it’s like to live in fear of it. “What does it matter if 5% of Canadians (or 1.75 million Canadians) think gays should be stoned to death? I’m not gay.”

    • That’s complete and utter bullshit. I’m far more concerned about the popularity of the “soft” fascism stated here then I am about the ignorant ramblings of some religious idiot.. If you think that 1.75 million Canadians think “gays should be stoned to death” then you represent a far more dangerous sentiment than anything spouted by Watcott or his ilk.

      What an alarmingly contemptuous view of your fellow Canadians.

    • You clearly don’t know Canada’s privileged white, straight males very well. I personally don’t think Canadians have as high a susceptibility to words issued on pamphlets. The truth is that ideologies like Whatcott’s are spread by family and community mores. Banning hate speech is no substitute for educating Canada’s youth and endowing them with the ability to think critically.

  4. I take HRC rulings and todays Supreme Court ruling with a grain of salt.

    Try as they might to limit freedom of speech, the only legit courts are criminal and civil!

    I think no beter of this wingnut than the people who filed the complaint.

  5. Like a lot of people i’m torn on this one. My gut tells me you can’t legislate someone’s right to be offended without limiting a another’s free speech rights. But what i hear the good prof saying is it was alright for Styne to peddle his stuff as long as it didn’t incite someone to hurt someone. That depends. It is unlikely in this day and age anyone was influenced by Ahenakew’s crap. But to say this is automatically true of say more topical gay, FNs or Islamic issues is much less clear. Clearly people were hurt by what Styne had to say, and the way he said it. I would be the last person to advocate shutting him up, even though i find him nauseating. But as someone else has pointed out MrG, neither you nor i [ i assume in your case]are gay or of the Muslim faith. I think you should walk a mile in someone’s else’s shoes before you insist on slamming that door.
    edit: For that reason, to the degree i understand it, i like this judgement.

  6. As all laws limit freedom of opinion and expressing them are you suggesting we do away with all laws as a corollary to your point?

    The SCC gave a reasoned rational reply to the evidence before them, the fact you cherry picked what supported your position is a shame. Clearly neither you nor the good professor have experienced getting crap kicked out or you for being different and I’m pleased for you on that score. Racism and homophobia are endemic in Canadian society as you would find out if you traveled a bit more. And these views are protected by political beliefs like religion.

    Leave your tidy little world and do some real research, I thought that was what journalism was about.

    • Then why not take the fight to the people who kicked the crap out of you, instead of a remote crack pot who has never had a direct impact on your life?

      • If only they were remote, that’s the point they aren’t.
        Did you even bother to read my first comment and understand what was written?

  7. Haters trying to disguise themselves as freedom-fighters…..ain’t gonna work thank goodness. And thank the Supreme Court.

    • The disguised as freedom fighters argument is true of some but not all of the speechies.

      • Look at the people screaming ‘free speech’. Levant, Steyn….Whatcott

        • All people you disagree with, probably. –Not a reason to deny them free speech.

          • I disagree with lots of people, but I generally don’t mind if they jabber on. Whatcott is religiously insane. There is no reason I should have to be harassed by him in the street or anywhere else.

  8. It’s interesting to me how many people think that suppression of racism, homophobia, religious bigotry, etc. is a good thing. In the US, the Reverend Fred Phelps and his tiny band of miscreants are greeted with howls of ridicule and derision by everyone. Not just college eggheads and liberal “elites” but by every man, woman and child who runs into them.

    Phelps hasn’t made the US any more hostile or unwelcoming to gays, if anything, he’s had the opposite effect by showing the profound stupidity that lies at the heart of all forms of bigotry. The guy is a walking, talking cancer-scare against homophobia.

    If you think that the great unwashed Canadian public needs to be “protected” from the poisonous ideas of a Fred Phelps or a Whatcott, then your contempt for your peers is – at the very least – the equal of their contempt for gays. And, in my opinion, you are more dangerous then they are. Not because your remedies are more extreme but because your willingness to seek the protection of Big Brother appears to be so widespread.

    They are the outliers, increasingly marginalized, whereas you folks with your passion to have the state oppress “those people” are seemingly becoming the mainstream. Very worrying.

    • No reason we can’t shout down the crazies AND give them small fines and prohibitive orders at commissions.

      • The trouble with petty tyrants is they help smooth the way for the big guys. If you like bondage, tie yourself up in the privacy of your own home, and stay the hell out of my life.

        • But we’ve done an awesome job of human rights commissions that exercise self-restraint – it’s pretty clear you can’t lose without clearly engaging in hate speech. So it’s not like there’s going to a worry about “hate speech creep” and absolutist agruments go out the door with defamation laws.

          • The existence of any government “commission” that sits in judgement of speech is an abomination in a free society. And any self-appointed cheerleader for these odious things should be shunned and reviled just exactly as any homophobe or hate-monger is shunned, ie: naturally, loudly and spontaneously.

            Restrain yourself if you long for restraint.

          • All I can say is that your highly abstract arguments just haven’t been borne out practically and hate speech laws have shown themselves to be valid and appropriate.

          • If that’s “all you can say” then you really ought to think about what you support – and why you support it. You’re not making an argument, you’re just stating a preference. A preference for having people shut up by the power of the state.

            .

          • it happens. if you think the state isn’t shutting you up for defamation and a host of other things, then your definition is far too narrow.

            Look, we’re opposed because i look at things rationally and you theoretically. is there a danger when we make laws which affect freedom of expression? yup. Are we always going to have som?. Certainly, ain’t no one would deny it. so I get practical, I weigh the costs and benefits and make the call. You don’t, you make a theoretical argument and just disagree in the abstract with all who oppose it. maybe you think about other examples, maybe you don’t. It’s not necessarily wrong, and it’s easier. but not necessarily better.

          • - Defamation is a civil matter. It’s not state prohibited speech. Same with slander, fraud, and other matters where misrepresentation is used to commit a crime. Only a gormless moron like Peter Van Loan would try to pass off bold-faced lies as a matter of free speech.

            - We’re talking about the gov’t criminalizing certain ideas and the expression of those ideas. You think that’s hunky-dory and you give it your enthusiastic thumbs up because – after all – it’s not really all that inconvenient for people to have to defend themselves before a government enquiry into their thought crimes. We should all rest assured that you have weighed the costs and benefits and trust in your judgement that the costs are no big deal (although never specified and – naturally – not borne by you) and the benefits are considerable in your considered judgement (though, again, these are not specified.)

            Yeah, you are to be congratulated on your practicality.

          • But if you were intellectually honest the fact that thereare laws against defamation would make you just as livid. Who are we as a society to pass laws saying what one may spread about another? The fact that it’s the law of the state and not the tribunal of the state isn’t relevant. Why are we not letting the marketplace of ideas sort out this horror instead of having the state impose its will?

          • If I were intellectually honest!!? How about you shoot for intellectually coherent. You could not have got anything more ass-backwards if you were designed by a committee.

            Speech that does demonstrable harm to another – things like misrepresentation, slander and libel – are illegal, and immoral, precisely because of the harm they do. Laws which seek to outlaw the expression of ideas or opinions that are repulsive – on the other hand – are far more harmful, in themselves, than any hypothetical distress they might cause in the aggregate.

            Good laws are defined by the clear connection between cause and effect. The more direct the relationship between the two, the more just the law. There is an expression from Economics that would seem to apply: “You can’t push on a string.”

            The courts and the human rights apparatus in this country continue to try to push on a string. They can’t demonstrate any clear connection between the problem and the solution but – regardless of that – they are going to enforce a solution that, maybe, somehow, hopefully, is going to address the problem in some way. In the mean time, their imposed solution comes freighted with a monster of a new problem which is the criminalization of offensive ideas.

          • Maybe you should take a step back from your absolutist rhetoric – at least a bit. Apparently it is ok to make laws the forbid misrepresentation, slander and libel, but not even attempt to deal with the concept of hate speech and its corrosive effects on the victim or society.

            Yes i get it is often next to impossible to prove all this – therefore the Millsian arguments you put forward look irrefutable. But there are times when holocaust denial for instance, denial of the effects of residential schools, or gay bashing can be refuted. Should the state ideally be the one doing this? In the abstract, clearly no. But i don’t see a lot of volunteers getting in the face of guys like this and debating them or shouting them down…perhaps it is all our faults in the end for not confronting these people? I don’t know?
            if we look back over our recent historical conversion to liberalism and the benefits of a wide spread education system[who honestly doesn't know by now that holocaust denial is very wrong?] we don’t have to go back beyond even living memory to find these haters did have an audience. There’s certainly an argument to be made for haters had more public sympathy for their views 40 or 50 years ago, but nowadays they are more marginalized than ever….ergo less need for HRTs…increased likelihood of public shunning for the hater. But lets not pretend that this absolutist devotion to the concept of unlimited free speech has some how always weeded out the crazies and protected the vulnerable in society…history simply doesn’t bear that out. Ask Germans why they have laws against belonging to a nazi organization. Tell them that they really ought to respect free speech a little bit more. You’d be laughed out of any polite conversation…look at our history they’d tell you…the law stays!

          • I’m not a complete Absolutist – though very nearly – so I will concede that the state should have some residual power to limit inflammatory speech in extreme cases. But I think that power should be used with a great deal of caution and a great deal of reluctance. No quasi-judicial body – and certainly no collection of partisan hacks and flunkies – should ever be allowed within 12 football fields of that power. They have shown by repeated example that they haven’t the sense to use it properly.

            If the courts must have such a dangerous power then they should guard it jealously and use it only in extreme cases. They should never farm it out to petty officials and idealogues.

  9. 75 persent judges are gay thats how you get those ruleings

    • And 75 % of the people who hold such opinions are both stupid and illiterate.

      • Only 75%? I’d say your persentage is low by 25 points.

  10. The Supreme’s found two of Whatcott’s four pamphlets met “the criteria that constitute hate speech” and upheld the fines and lower court judgement against him for distributing his pamphlets. Then the Supreme Court published the decision on it’s web site so everybody could admire their fine work.
    The decision contains copys of all four pamphlets and the Supremes distributed them to the whole world via the internet, are they now obliged to find themselfs guilty of distributing hate speech?
    Now in the second paragraph of this article Macleans provides a link to the document containing material found to constitute hate speech. More work for the HRC lawyers?

  11. When the double-edged sword is turned on gay organizations for “hate speech” against Christians, will that convince them free speech is worth it?

  12. How does bullying speech which certainly sounds to me like hate speech fit into hate speech protections?

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