In a 6 - 0 decision, the Supreme Court of Canada upheld a ruling by the Saskatchewan Human Rights Commission ("Commission") finding that anti-gay flyers that had been distributed by William Whatcott, contravened section 14 of the Saskatchewan Human Rights Code ("Code") and constituted "hate speech". However, the court also found that the words "ridicules, belittles or otherwise affronts the dignity of" contained in part of the hate speech provisions of the Code, were not rationally connected to legislative purpose of the addressing systemic discrimination of protected groups, nor tailored to minimally impair freedom of religion and should be struck from the Code.
Whatcott is a born-again Christian and an anti-gay activist living in Saskatchewan. Whatcott published and distributed four flyers which the Commission found promoted hatred against individuals on the basis of their sexual orientation. Two of the flyers were entitled "Keep Homosexuality Out Of Saskatoon's Public Schools!" and "Sodomites In Our Public Schools". The other two flyers were identical to one another and contained a reprint of a page of a classified ad to which Whatcott added handwritten comments, "Men Seeking Boys".
After a hearing, the Commission held that the fliers were publications that contravened section 14 of the Code because they exposed persons to hatred and ridicule on the basis of their sexual orientation. The Commission also held that section 14 of the Code was a reasonable restriction on Whatcott's rights to freedom of religion and expression guaranteed by sections 2(a) and 2(b) of the Charter of Rights and Freedoms.
On an appeal from Saskatchewan Court of Appeal, the Supreme Court of Canada held that:
1. First, courts must apply hate speech prohibitions objectively and ask whether a reasonable person, aware of the context and circumstances would view the expression as exposing the protected group to hatred;
2. Second, the term "hatred" must be interpreted as being restricted to those extreme manifestations of the emotion described by the words "detestation" and "vilification"; and
3. Third, tribunals must focus their analysis on the effect of the expression at issue, namely whether it is likely to expose the targeted person or group to hatred by others. The key is to determine the likely effect of the expression on its audience, keeping in mind the legislative objects to reduce or eliminate discrimination.
In upholding the ruling, the Supreme Court acknowledged that while the prohibition against hate speech in the Code infringes the freedom of expression guaranteed under section 2(b) of the Charter, the objective of the hate speech prohibition is "pressing and substantial". Hate speech is an effort to marginalize individuals based on their membership in a group and can have a societal impact. Hate speech lays the ground work for later, broad attacks on vulnerable groups.
The court also found that the section of the Code was proportionate to its objective. It only prohibited public communication of hate speech, did not restrict hateful expression in private communications between individuals.
However, the court struck down the words, "ridicules, belittles or otherwise affronts the dignity of" in the section of the Code and found that they were not rationally connected to the legislative purpose of addressing systemic discrimination of protected groups and unjustifiably infringed on freedom of expression.
On balance, the court found that the benefits of the suppression of hate speech and its harmful effects outweigh the detrimental effect of restricting expression which by its nature does little to promote the values underlying freedom of expression.
Accordingly, the court concluded that the first two flyers constituted hate speech and that it was not unreasonable for the Commission to conclude that the content of the flyers were more likely than not to expose homosexuals to hatred.
With respect to the second two flyers, the court held that it was not reasonable to find that it would expose persons of same sex orientation to detestation and vilification. The handwritten expressions, while offensive, did not demonstrate the hatred required by the publication.