William Whatcott distributed flyers in Saskatoon, Saskatchewan, two of which were entitled “Keep Homosexuality out of Saskatoon’s Public Schools!” and “Sodomites in our Public Schools”. Complaints were lodged with the Saskatchewan Human Rights Commission claiming that these flyers promoted hatred against individuals based on their sexual orientation in contravention of section 14 of the Saskatchewan Human Rights Code (“the Code”).
At issue was whether provincial human rights legislation which prohibits publications “that expose or tend to expose to hatred, ridicule, belittle or otherwise affront the dignity of persons on the basis of prohibited grounds” unjustifiably infringe guaranteed freedom of religion and freedom of expression under the Canadian Charter of Rights and Freedoms.
The Human Rights Tribunal and Court of Queen’s Bench found that the flyers violated section 14 of the Code. While Saskatchewan’s Court of Appeal agreed that section 14 of the Code was constitutional, it stated that the flyers did not contravene it.
In a unanimous decision, released in February 2013, the Supreme Court of Canada proclaimed that section 14 is indeed a justifiable limitation on freedom of expression and freedom of religion, and that part of the section that prohibits any representation “that exposes or tends to expose to hatred” any person or class of persons on the basis of a prohibited ground is not overbroad in protecting the intended group of individuals from hate speech. However, the Court stuck out the part of the section that prohibits statements which “ridicules, belittles or otherwise affronts the dignity of” individuals stating that these did not constitute a justifiable limitation on free expression.
The Supreme Court of Canada went on to apply the tests to the content of the flyers. It found that the flyers constitute hate speech, and that any reasonable person, aware of the relevant context and circumstances, would find that these messages would expose or be likely to expose persons of a particular sexual orientation to detestation and vilification.
This case serves as a reminder that human rights violations may not be as clear-cut as they first appear, especially when a violation of freedom of expression is raised as a defence.