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Posted by on Mar 2, 2013 in Law | 2 comments

Important Canadian case on freedom of speech

This is a heads-up about an important case that has recently been heard by the Supreme Court of Canada relating to freedom of speech and the legitimacy of hate speech legislation under the Canadian Charter of Rights and Freedoms. The case, Saskatchewan (Human Rights Commission) v. Whatcott, concerned vilification of homosexuals in certain pamphlets that fell afoul of hate speech legislation.

As described in the judgment, Whatcott distributed four flyers on behalf of an organisation called the Christian Truth Activists. Two of the were entitled, respectively, “Keep Homosexuality out of Saskatoon’s Public Schools!” and “Sodomites in our Public Schools”. The other two (which were actually identical) reprinted a page of classified advertisements, to which were added handwritten comments. I think it’s fair to say that Whatcott was engaged in something of a propaganda campaign against homosexuals, especially in the Saskatoon school system.

In the upshot, the Supreme Court has held that the relevant hate speech law is too broad and partly breaches the Canadian Charter. It has found that the first two flyers were in breach of the law, as read down against the Charter, but the second two were not.

This is a very long judgment (over 200 pages) and I certainly have not had time to read much of it. However, it includes copies of the actual flyers, so you can judge for yourself whether a legal line between the second two (legal) and the first two (not legal) makes good sense.

From what I’ve been able to absorb of the judgment, I’m not entirely out of sympathy with its reasoning, but I’m struggling to see that the first two flyers were so virulent that they should have been, in effect, banned. They are pretty dreadful in their homophobia, and obviously highly offensive, but I can think of even higher levels of virulence than that. At some point, I might take a different view and support some kind of very finely focused law.

I’m also struggling to see a terribly clear distinction between the first two flyers and the scribbled words on the page of advertising.

As always, your mileage may vary.

There was also a freedom of religion aspect to the case, but from my viewpoint the freedom of speech aspect is critical. The relevant laws were enacted on secular grounds and were of general application to both religious and non-religious hate speech. I wouldn’t be interested, if I were on the court, in striking them down as a breach of freedom of religion. But freeedom of speech is another matter. Where do you draw the line, if you’re going to ban some speech?