Saskatchewan Human Rights Commission Appellant v. William Whatcott, 2013 SCC 11

SUPREME COURT OF CANADA Citation: Saskatchewan (Human Rights Commission) v.

Whatcott, 2013 SCC 11, [2013] 1 S.C.R. 467 Date: 20130227 Docket: 33676 Between: Saskatchewan Human Rights Commission Appellant and William Whatcott Respondent - and - Attorney General for Saskatchewan, Attorney General of Alberta, Canadian Constitution Foundation, Canadian Civil Liberties Association, Canadian Human Rights Commission, Alberta Human Rights Commission, Egale Canada Inc., Ontario Human Rights Commission, Canadian Jewish Congress, Unitarian Congregation of Saskatoon, Canadian Unitarian Council, Women’s Legal Education and Action Fund, Canadian Journalists for Free Expression, Canadian Bar Association, Northwest Territories Human Rights Commission, Yukon Human Rights Commission, Christian Legal Fellowship, League for Human Rights of B’nai Brith Canada, Evangelical Fellowship of Canada, United Church of Canada, Assembly of First Nations, Federation of Saskatchewan Indian Nations, Métis Nation ― Saskatchewan, Catholic Civil Rights League, Faith and Freedom Alliance and African Canadian Legal Clinic Interveners Coram: McLachlin C.J. and LeBel, Deschamps, * Fish, Abella, Rothstein and Cromwell JJ.

Reasons for Judgment: (paras. 1 to 207) Rothstein J. (McLachlin C.J. and LeBel, Fish, Abella and Cromwell JJ. concurring) Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11, [2013] 1 S.C.R. 467 Saskatchewan Human Rights Commission Appellant v. William Whatcott Respondent and Attorney General for Saskatchewan,

Attorney General of Alberta, Canadian Constitution Foundation, Canadian Civil Liberties Association, Canadian Human Rights Commission, Alberta Human Rights Commission, Egale Canada Inc., Ontario Human Rights Commission, Canadian Jewish Congress, Unitarian Congregation of Saskatoon, Canadian Unitarian Council, Women’s Legal Education and Action Fund, Canadian Journalists for Free Expression, Canadian Bar Association, Northwest Territories Human Rights Commission, Yukon Human Rights Commission, Christian Legal Fellowship, League for Human Rights of B’nai Brith Canada, Evangelical Fellowship of Canada, United Church of Canada, Assembly of First Nations, Federation of Saskatchewan Indian Nations, Métis Nation — Saskatchewan, Catholic Civil Rights League, Faith and Freedom Alliance and African Canadian Legal Clinic Interveners Indexed as: Saskatchewan (Human Rights Commission) v.

Whatcott 2013 SCC 11 File No.: 33676. 2011: October 12; 2013: February 27.

Present: McLachlin C.J. and LeBel, Deschamps, * Fish, Abella, Rothstein and Cromwell JJ. on appeal from the court of appeal for saskatchewan Constitutional law — Charter of Rights — Freedom of religion — Hate publications — Whether provincial human rights legislation prohibiting publications that expose or tend to expose to hatred, ridicule, belittle or otherwise affront dignity of persons on basis of prohibited ground infringes guaranteed freedom of religion — If so, whether infringement justified — Saskatchewan Human Rights Code, S.S. 1979, c.

S-24.1, s. 14(1) (b) — Canadian Charter of Rights and Freedoms, ss. 1 , 2(a) . Constitutional law — Charter of Rights — Freedom of expression — Hate publications — Whether provincial human rights legislation prohibiting publications that expose or tend to expose to hatred, ridicule, belittle or otherwise affront dignity of persons on basis of prohibited ground infringes guaranteed freedom of expression — If so, whether infringement justified — Saskatchewan Human Rights Code, S.S. 1979, c. S-24.1, s. 14(1) (b) — Canadian Charter of Rights and Freedoms, ss. 1 , 2(b) .

Administrative law — Appeals — Standard of review — Human rights tribunal finding that hate publications infringe provincial human rights legislation and that provincial human rights legislation prohibiting hate publications is constitutional — Whether decision reviewable on standard of correctness or reasonableness — Whether tribunal made reviewable error.

Four complaints were filed with the Saskatchewan Human Rights Commission concerning four flyers published anddistributed by W. The complainants alleged that the flyers promoted hatred against individuals on the basis of their sexual orientation. The first two 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 were a reprint of a page of classified advertisements to which handwrittencomments were added. A tribunal was appointed to hear the complaints.

It held that the flyers constituted publications that contraveneds. 14 of The Saskatchewan Human Rights Code because they exposed persons to hatred and ridicule on the basis of their sexualorientation, and concluded that s. 14 of the Code was a reasonable restriction on W’s rights to freedom of religion and expressionguaranteed by s. 2(

a) and (

b) of the Charter. The Court of Queen’s Bench upheld the tribunal’s decision. The Court of Appeal acceptedthat the provision was constitutional but held that the flyers did not contravene it. Held: The appeal should be allowed in part. The definition of “hatred” set out in Canada (Human Rights Commission) v. Taylor, (SCC), [1990] 3 S.C.R.892, with some modifications, provides a workable approach to interpreting the word “hatred” as it is used in legislative provisionsprohibiting hate speech. Three main prescriptions must be followed. First, courts must apply the hate speech prohibitions objectively.

The question courts must ask is whether a reasonable person, aware of the context and circumstances, would view the expression asexposing the protected group to hatred. Second, the legislative term “hatred” or “hatred or contempt” must be interpreted as beingrestricted to those extreme manifestations of the emotion described by the words “detestation” and “vilification”. This filters outexpression which, while repugnant and offensive, does not incite the level of abhorrence, delegitimization and rejection that risks causingdiscrimination or other harmful effects.

Third, tribunals must focus their analysis on the effect of the expression at issue, namelywhether it is likely to expose the targeted person or group to hatred by others. The repugnancy of the ideas being expressed is notsufficient to justify restricting the expression, and whether or not the author of the expression intended to incite hatred or discriminatorytreatment is irrelevant. The key is to determine the likely effect of the expression on its audience, keeping in mind the legislativeobjectives to reduce or eliminate discrimination.

In light of these three directives, the term “hatred” contained in a legislative hate speechprohibition should be applied objectively to determine whether a reasonable person, aware of the context and circumstances, would viewthe expression as likely to expose a person or persons to detestation and vilification on the basis of a prohibited ground of discrimination. The statutory prohibition against hate speech at s. 14(1)(

b) of the Code infringes the freedom of expression guaranteed unders. 2(

b) of the Charter. The activity described in s. 14(1)(

b) has expressive content and falls within the scope of s. 2(

b) protection. Thepurpose of s. 14(1)(

b) is to prevent discrimination by curtailing certain types of public expression. The limitation imposed on freedom of expression by the prohibition in s. 14(1)(

b) of the Code is a limitation prescribed bylaw within the meaning of s. 1 of the Charter and is demonstrably justified in a free and democratic society. It appropriately balances thefundamental values underlying freedom of expression with competing Charter rights and other values essential to a free and democraticsociety, in this case a commitment to equality and respect for group identity and the inherent dignity owed to all human beings.

The objective for which the limit is imposed, namely tackling causes of discriminatory activity to reduce the harmful effectsand social costs of discrimination, is pressing and substantial. Hate speech is an effort to marginalize individuals based on theirmembership in a group. Using expression that exposes the group to hatred, hate speech seeks to delegitimize group members in the eyesof the majority, reducing their social standing and acceptance within society. Hate speech, therefore, rises beyond causing distress toindividual group members. It can have a societal impact.

Hate speech lays the groundwork for later, broad attacks on vulnerable groupsthat can range from discrimination, to ostracism, segregation, deportation, violence and, in the most extreme cases, to genocide. Hatespeech also impacts on a protected group’s ability to respond to the substantive ideas under debate, thereby placing a serious barrier totheir full participation in our democracy. Section 14(1)(

b) of the Code is proportionate to its objective. Prohibiting representations that are objectively seen to exposeprotected groups to hatred is rationally connected to the objective of eliminating discrimination and the other harmful effects of hatred. To satisfy the rational connection requirement, the expression captured under legislation restricting hate speech must rise to a levelbeyond merely impugning individuals: it must seek to marginalize the group by affecting their social status and acceptance in the eyes ofthe majority.

The societal harm flowing from hate speech must be assessed as objectively as possible and the focus must be on the likelyeffect of the hate speech on how individuals external to the group might reconsider the social standing of the group. Section 14(1)(

b) ofthe Code reflects this approach. The prohibition only prohibits public communication of hate speech; it does not restrict hatefulexpression in private communications between individuals. Similarly, the prohibition does not preclude hate speech against anindividual on the basis of his or her uniquely personal characteristics, but only on the basis of characteristics that are shared by others andhave been legislatively recognized as a prohibited ground of discrimination.

However, expression that “ridicules, belittles or otherwiseaffronts the dignity of” does not rise to the level of ardent and extreme feelings constituting hatred required to uphold theconstitutionality of a prohibition of expression in human rights legislation. Accordingly, those words in s. 14(1)(

b) of the Code are notrationally connected to the legislative purpose of addressing systemic discrimination of protected groups and they unjustifiably infringefreedom of expression. Consequently, they are constitutionally invalid and must be struck from s. 14(1)(b). Section 14(1)(

b) of the Code meets the minimal impairment requirement. Alternatives proposed were to allow themarketplace of ideas to arrive at the appropriate balance of competing rights or to leave the prosecution of hate speech to the criminallaw. However, the prohibition in s. 14(1)(

b) is one of the reasonable alternatives that could have been selected by the legislature. Thewords “ridicules, belittles or otherwise affronts the dignity of” in s. 14(1)(

b) are also constitutionally invalid because they do notminimally impair freedom of expression. Once those words are severed from s. 14(1)(b), the remaining prohibition is not overbroad, butrather tailored to impair freedom of expression as little as possible. The modified provision will not capture all harmful expression, but itis intended to capture expression which, by inspiring hatred, has the potential to cause the type of harm that the legislation is trying toprevent.

Not all expression will be treated equally in determining an appropriate balancing of competing values under a s. 1 analysis,since different types of expression will be relatively closer to or further from the core values behind the freedom, depending on thenature of the expression. Hate speech is at some distance from the spirit of s. 2(

b) because it does little to promote, and can in factimpede, the values underlying freedom of expression. Hate speech can also distort or limit the robust and free exchange of ideas by its

tendency to silence the voice of its target group. These are important considerations in balancing hate speech with competing Charter rights and in assessing the constitutionality of the prohibition in s. 14(1) (

b) of the Code . Framing speech as arising in a moral context or within a public policy debate does not cleanse it of its harmful effect. Finding that certain expression falls within political speech does not close off the enquiry into whether the expression constitutes hate speech. Hate speech may often arise as a part of a larger public discourse but it is speech of a restrictive and exclusionary kind. Political 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, thereby stifling discourse. Speech that has the effect of shutting down public debate cannot dodge prohibition on the basis that it promotes debate.

Section 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 and whose restriction is therefore easier to justify. A prohibition is not overbroad for capturing expression targeting sexual behaviour.

Courts have recognized a strong connection between sexual orientation and sexual conduct and where the conduct targeted by speech is a crucial aspect of the identity of a vulnerable group, attacks on this conduct stand as proxy for attacks on the group itself. If expression targeting certain sexual behaviour is framed in such a way as to expose persons of an identifiable sexual orientation to what is objectively viewed as detestation and vilification, it cannot be said that such speech only targets the behaviour. It quite clearly targets the vulnerable group. The fact that s. 14(1) (

b) of the Code does not require intent by the publisher or proof of harm, or provide for any defences does not make it overbroad. Systemic discrimination is more widespread than intentional discrimination and the preventive measures found in human rights legislation reasonably centre on effects, rather than intent. The difficulty of establishing causality and the seriousness of the harm to vulnerable groups justifies the imposition of preventive measures that do not require proof of actual harm. The discriminatory effects of hate speech are part of the everyday knowledge and experience of Canadians.

As such, the legislature is entitled to a reasonable apprehension of societal harm as a result of hate speech. The lack of defences is not fatal to the constitutionality of the provision. Truthful statements can be presented in a manner that would meet the definition of hate speech, and not all truthful statements must be free from restriction. Allowing the dissemination of hate speech to be excused by a sincerely held belief would provide an absolute defence and would gut the prohibition of effectiveness.

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. Section 14(1) (

b) of the Code represents a choice by the legislature to discourage hate speech in a manner that is conciliatory and remedial. 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. Section 14(1) (

b) of the Code also infringes freedom of conscience and religion as guaranteed under s. 2(

a) of the Charter . An infringement of s. 2 (

a) will be established where: (1) the claimant sincerely holds a belief or practice that has a nexus with religion; and (2) the provision at issue interferes with the claimant’s ability to act in accordance with his or her religious beliefs. To the extent that an individual’s choice of expression is caught by the definition of “hatred” in s. 14(1)(b), the prohibition will substantially interfere with that individual’s ability to disseminate his or her belief by display or publication of those representations.

For the same reasons set out in the s. 1 analysis in the case of freedom of expression, the words “ridicules, belittles or otherwise affronts the dignity of” are not rationally connected to the legislative purpose of addressing systemic discrimination of protected groups, nor tailored to minimally impair freedom of religion. The remaining prohibition of any representation “that exposes or tends to expose to hatred” any person or class of persons on the basis of a prohibited ground is a reasonable limit on freedom of religion and is demonstrably justified in a free and democratic society.

While the standard of review of the tribunal’s decision on the constitutionality of s. 14 of the Code is correctness, the standard of review of the tribunal’s decision that the flyers contravene that provision must be reasonableness. The tribunal did not unreasonably fail to give proper weight to the importance of protecting expression that is part of an ongoing debate on sexual morality and public policy. Nor was it unreasonable in isolating certain excerpts from the flyers for examination, or in finding that the flyers criticize sexual orientation and not simply sexual behaviour.

That the rights of a vulnerable group are a matter of ongoing discussion does not justify greater exposure by that group to hatred and its effects. The only expression which should be caught by s. 14(1) (

b) of the Code is hate-inspiring expression that adds little value to the political discourse or to the quest for truth, self-fulfillment, and an embracing marketplace of ideas. The words and phrases in a publication cannot properly be assessed out of context, and the expression must be considered as a whole, to determine the overall impact or effect of the publication. However, it is also legitimate to proceed with a closer scrutiny of those parts of the expression which draw nearer to the purview of s. 14(1)(

b) of the Code . If, despite the context of the entire publication, even one phrase or sentence is found to bring the publication, as a whole, in contravention of the Code , this precludes its publication in its current form. The tribunal’s conclusions with respect to the first two flyers were reasonable. Passages of these flyers combine many of the hallmarks of hatred identified in the case law.

The expression portrays the targeted group as a menace that threatens the safety and well-being of others, makes reference to respected sources in an effort to lend credibility to the negative generalizations, and uses vilifying and derogatory representations to create a tone of hatred. The flyers also expressly call for discriminatory treatment of those of same-sex orientation. It was not unreasonable for the tribunal to conclude that this expression was more likely than not to expose homosexuals to hatred. The tribunal’s decision with respect to the other two flyers was unreasonable and cannot be upheld.

The tribunal erred by failing to apply s. 14(1)(

b) to the facts before it in accordance with the proper legal test. It cannot reasonably be found that those flyers contain expression that a reasonable person, aware of the relevant context and circumstances, would find as exposing or likely to expose persons of same-sex orientation to detestation and vilification. The expression, while offensive, does not demonstrate the hatred required by the prohibition.

Cases Cited Referred to: R. v. Keegstra, (SCC), [1990] 3 S.C.R. 697; R. v. Andrews, (SCC), [1990] 3S.C.R. 870; R. v. Krymowski, 2005 SCC 7, [2005] 1 S.C.R. 101; Canada (Human Rights Commission) v. Taylor, (SCC),[1990] 3 S.C.R. 892; Human Rights Commission (Sask.) v. Bell (1994), (SK CA), 120 Sask. R. 122; Owens v. HumanRights Commission (Sask.), 2002 SKQB 506, 228 Sask. R. 148, rev’d 2006 SKCA 41, 267 D.L.R. (4th) 733; Kane v. Alberta Report,2001 ABQB 570, 291 A.R. 71; Elmasry v. Rogers Publishing Ltd. (No. 4), 2008 BCHRT 378, 64 C.H.R.R. D/509; Nealy v. Johnston(1989), (CHRT), 10 C.H.R.R. D/6450; Warman v.

Kouba, 2006 CHRT 50 ; Citron v. Zündel (No. 4) (2002), (CHRT), 41 C.H.R.R. D/274; Warman v. Tremaine (No. 2), 2007 CHRT 2, 59 C.H.R.R. D/391; Payzant v. McAleer(1994), (CHRT), 26 C.H.R.R. D/271, aff’d (1996), (FC), 26 C.H.R.R. D/280; Warman v. NorthernAlliance, 2009 CHRT 10 ; Center for Research-Action on Race Relations v. www.bcwhitepride.com, 2008 CHRT 1 ;Warman v. Winnicki (No. 2), 2006 CHRT 20, 56 C.H.R.R. D/381; Irwin Toy Ltd. v. Quebec (Attorney General), (SCC),[1989] 1 S.C.R. 927; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Canadian Broadcasting Corp. v.

Canada (AttorneyGeneral), 2011 SCC 2, [2011] 1 S.C.R. 19; R. v. Butler, (SCC), [1992] 1 S.C.R. 452; R. v. Sharpe, 2001 SCC 2, [2001]1 S.C.R. 45; R. v. Oakes, (SCC), [1986] 1 S.C.R. 103; Ross v. New Brunswick School District No. 15, (SCC), [1996] 1 S.C.R. 825; Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100;Thomson Newspapers Co. v. Canada (Attorney General), (SCC), [1998] 1 S.C.R. 877; Canada (Attorney General) v.JTI-Macdonald Corp., 2007 SCC 30, [2007] 2 S.C.R. 610; R. v. Edwards Books and Art Ltd., (SCC), [1986] 2 S.C.R.713; Withler v.

Canada (Attorney General), 2011 SCC 12, [2011] 1 S.C.R. 396; Human Rights Commission (Sask.) v. EngineeringStudents’ Society, University of Saskatchewan (1989), (SK CA), 72 Sask. R. 161; Alberta v. Hutterian Brethren ofWilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567; Abrams v. United States, 250 U.S. 616 (1919); Zurich Insurance Co. v. Ontario(Human Rights Commission), (SCC), [1992] 2 S.C.R. 321; R. v. Khawaja, 2012 SCC 69, [2012] 3 S.C.R. 555; Kemplingv. College of Teachers (British Columbia), 2005 BCCA 327, 43 B.C.L.R. (4th) 41; Snyder v. Phelps, 131 S.

Ct. 1207 (2011); Rocket v.Royal College of Dental Surgeons of Ontario, (SCC), [1990] 2 S.C.R. 232; Trinity Western University v. BritishColumbia College of Teachers, 2001 SCC 31, [2001] 1 S.C.R. 772; Egan v. Canada, (SCC), [1995] 2 S.C.R. 513; R. v.Big M Drug Mart Ltd., (SCC), [1985] 1 S.C.R. 295; Multani v. Commission scolaire Marguerite-Bourgeoys, 2006 SCC6, [2006] 1 S.C.R. 256; B. (R.) v. Children’s Aid Society of Metropolitan Toronto, (SCC), [1995] 1 S.C.R. 315;Syndicat Northcrest v. Amselem, 2004 SCC 47, [2004] 2 S.C.R. 551; Smith v.

Alliance Pipeline Ltd., 2011 SCC 7, [2011] 1 S.C.R. 160;Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654. Statutes and Regulations Cited Bill C-304,

An Act to amend the Canadian Human Rights Act (protecting freedom), 1st Sess., 41st Parl., June 6, 2012. Canadian Charter of Rights and Freedoms, ss. 1, 2, 15. Canadian Human Rights Act, S.C. 1976-77, c. 33 [now R.S.C. 1985, c. H-6], s. 13(1). Criminal Code, R.S.C. 1985, c. C-46. Saskatchewan Human Rights Code, S.S. 1979, c. S-24.1, ss. 2(1)(m.01)(vi), 3, 4, 5, 14, 31(4) [rep. 2011, c. 17, s. 15], 31.4(a), (b), 32(1). Saskatchewan Human Rights Code Amendment Act, 2000, S.S. 2000, c. 26. Saskatchewan Human Rights Code Amendment Act, 2011, S.S. 2011, c. 17. Authors Cited Canada.

Special Committee on Hate Propaganda in Canada. Report of the Special Committee on Hate Propaganda in Canada. Ottawa: Queen’s Printer, 1966. Cardozo, Benjamin N. The Nature of the Judicial Process. New Haven, Conn.: Yale University Press, 1921. Dworkin, Ronald. “Foreword”, in Ivan Hare and James Weinstein, eds., Extreme Speech and Democracy. New York: OxfordUniversity Press, 2009, v. McNamara, Luke. “Negotiating the Contours of Unlawful Hate Speech: Regulation Under Provincial Human Rights Laws in Canada”(2005), 38 U.B.C. L. Rev. 1. Moon, Richard. Report to the Canadian Human Rights Commission Concerning

Section 13 of the Canadian Human Rights Act and theRegulation of Hate Speech on the Internet. Ottawa: Canadian Human Rights Commission, 2008. Moon, Richard. The Constitutional Protection of Freedom of Expression. Toronto: University of Toronto Press, 2000. Oxford English Dictionary (online: www.oed.com), “calumny”, “emotion”. Sumner, L. W. The Hateful and the Obscene: Studies in the Limits of Free Expression. Toronto: University of Toronto Press, 2004. APPEAL from a judgment of the Saskatchewan Court of Appeal (Sherstobitoff, Smith and Hunter JJ.A.), 2010 SKCA 26,346 Sask.

R. 210, 477 W.A.C. 210, 317 D.L.R. (4th) 69, 218 C.R.R. (2d) 145, [2010] 4 W.W.R. 403, [2010] S.J. No. 108 (QL), 2010CarswellSask 109, setting aside a decision of Kovach J., 2007 SKQB 450, 306 Sask. R. 186, 61 C.H.R.R. D/401, [2007] S.J. No. 672(QL), 2007 CarswellSask 836, upholding a decision of the Saskatchewan Human Rights Tribunal (2005), (SK HRT),

52 C.H.R.R. D/264, 2005 CarswellSask 480. Appeal allowed in part. Grant J. Scharfstein , Q.C. , and Deidre L. Aldcorn , for the appellant. Thomas A. Schuck , Iain Benson , John Carpay and Daniel Mol , for the respondent. Thomson Irvine , for the intervener the Attorney General for Saskatchewan. David N. Kamal , for the intervener the Attorney General of Alberta. Mark A. Gelowitz and Jason MacLean , for the intervener the Canadian Constitution Foundation. Andrew K. Lokan and Jodi Martin , for the intervener the Canadian Civil Liberties Association.

Philippe Dufresne and Brian Smith , for the intervener the Canadian Human Rights Commission. Audrey Dean and Henry S. Brown , Q.C. , for the intervener the Alberta Human Rights Commission. Cynthia Petersen and Christine Davies , for the intervener Egale Canada Inc. Anthony D. Griffin , for the intervener the Ontario Human Rights Commission. Mark J. Freiman , for the intervener the Canadian Jewish Congress. Arif Chowdhury , for the interveners the Unitarian Congregation of Saskatoon and the Canadian Unitarian Council. Kathleen E. Mahoney and Jo-Ann R.

Kolmes , for the intervener the Women’s Legal Education and Action Fund. M. Philip Tunley and Paul J. Saguil , for the intervener the Canadian Journalists for Free Expression. David Matas , for the intervener the Canadian Bar Association. Written submissions only by Shaunt Parthev , Q.C. , and Ashley M. Smith , for the interveners the Northwest Territories Human Rights Commission and the Yukon Human Rights Commission. Derek J. Bell , Ranjan K. Agarwal and Ruth A. M. Ross , for the intervener the Christian Legal Fellowship. Marvin Kurz , for the intervener the League for Human Rights of B’nai Brith Canada.

Donald E. L. Hutchinson and André Schutten , for the intervener the Evangelical Fellowship of Canada. Ben Millard , for the intervener the United Church of Canada. Written submissions only by David M. A. Stack , for the interveners the Assembly of First Nations, the Federation of Saskatchewan Indian Nations and the Métis Nation — Saskatchewan. Ryan D. W. Dalziel and Micah B. Rankin , for the interveners the Catholic Civil Rights League and the Faith and Freedom Alliance. Sunil Gurmukh and Moya Teklu for the intervener the African Canadian Legal Clinic.

The judgment of the Court was delivered by Rothstein J. — TABLE OF CONTENTS I. Introduction II. Facts III. Relevant Statutory Provisions IV. Judicial History A. Saskatchewan Court of Queen’s Bench, 2007 SKQB 450, 306 Sask. R. 186 B. Saskatchewan Court of Appeal, 2010 SKCA 26, 346 Sask. R. 210 V. Issues VI. The Definition of “Hatred” A.

Summary of the Decision in Canada (Human Rights Commission) v. Taylor B. Criticisms of the Taylor Definition of Hatred

C. Subjectivity

(1) The Reasonable Person

(2) Dealing With the Inherent Subjectivity of the Emotion of Hatred (

a) The Meaning of “Hatred or Contempt” (

b) The Legislative Objectives D. Focusing on the Effects of Hate Speech E. Confirming a Modified Definition of “Hatred” VII. Standard of Review in Constitutional Questions VIII. Constitutional Analysis A. Whether Section 14(1)(

b) Infringes Freedom of Expression Under

Section 2(

b) of the Charter B.

Section 1 — Whether the Infringement Is Demonstrably Justified in a Free and Democratic Society

(1) The Approach to Freedom of Expression Under Section 1 (2) Is the Objective for Which the Limit Is Imposed Pressing and Substantial?

(3) Proportionality (

a) Is the Limit Rationally Connected to the Objective? (

i) Societal Versus Individual Harm (ii) Wording of Section 14(1)(

b) of the Code (iii) Effectiveness (iv) Conclusion in Respect of Rational Connection (

b) Minimal Impairment (

i) Alternative Methods of Furthering the Legislature’s Objectives (ii) Overbreadth 1. Wording of

Section 14 of the Code 2. Nature of the Expression 3. Political Discourse 4 . Sexual Orientation Versus Sexual Behaviour (iii) Intent, Proof, and Defences 1. Intent 2. Proof of Harm 3. Lack of Defences (iv) Conclusion on Minimal Impairment (

c) Whether the Benefits Outweigh the Deleterious Effects (

d) Conclusion on

Section 1 Analysis C.

Section 2(

a) of the Charter D.

Section 1 Analysis IX. Application of Section 14(1)(

b) to Mr. Whatcott’s Flyers A. Standard of Review of Tribunal Decision

B. Context C. The Tribunal’s Decision D. Remedy X. Conclusion APPENDIX A: Relevant Statutory Provisions APPENDIX B: Flyers I. Introduction [1] All rights guaranteed under the Canadian Charter of Rights and Freedoms are subject to reasonable limitations. This balancing of rights and limitations gives rise to a tension between freedom of expression constitutionally guaranteed under s. 2(

b) ofthe Charter and legislative provisions prohibiting the promotion of hatred or the publication of hate speech. That tension has beenconsidered by this Court in the context of the Criminal Code, R.S.C. 1985, c. C-46 (R. v. Keegstra, (SCC), [1990] 3S.C.R. 697; R. v. Andrews, (SCC), [1990] 3 S.C.R. 870; and R. v. Krymowski, 2005 SCC 7, [2005] 1 S.C.R. 101) and inthe context of human rights legislation (Canada (Human Rights Commission) v. Taylor, (SCC), [1990] 3 S.C.R. 892). Itis in this latter context that the Court is asked to revisit the matter in the present appeal. We are also asked to decide whether thestatutory prohibition at issue infringes freedom of religion as guaranteed by s. 2(

a) of the Charter. [2] The Saskatchewan legislature included a provision in its human rights legislation prohibiting hate publications. While emphasizing the importance of freedom of expression in a subsection of the provision, the intent of the statute is to suppress acertain type of expression which represents a potential cause of the discriminatory practices the human rights legislation seeks toeliminate.

Our task is to determine whether the legislature’s approach is constitutional. [3] Four complaints were filed with the Saskatchewan Human Rights Commission (“Commission”) concerning fourflyers published and distributed by the respondent, William Whatcott.

The flyers were distributed to the public and targeted homosexualsand were challenged by the complainants on the basis that they promoted hatred against individuals because of their sexual orientation.The Saskatchewan Human Rights Tribunal (“Tribunal”) held that the flyers constituted publications that contravened s. 14 of TheSaskatchewan Human Rights Code, S.S. 1979, c. S-24.1 (“Code”) as they exposed persons to hatred and ridicule on the basis of theirsexual orientation: (2005), (SK HRT), 52 C.H.R.R. D/264. Section 14(1)(

b) of the Code prohibits the publication ordisplay of any representation “that exposes or tends to expose to hatred, ridicules, belittles or otherwise affronts the dignity of any personor class of persons on the basis of a prohibited ground”. The Code lists “sexual orientation” as a prohibited ground (s. 2(1)(m.01)(vi)). All statutory provisions referred to in these reasons are reproduced in Appendix A. [4] The Saskatchewan Court of Queen’s Bench upheld the Tribunal’s decision: 2007 SKQB 450, 306 Sask. R. 186. That decision was reversed by the Saskatchewan Court of Appeal (2010 SKCA 26, 346 Sask. R. 210 (“Whatcott (C.A.)”). The appellatecourt accepted that s. 14(1)(

b) was constitutional but held that the flyers at issue did not meet the test for hatred and were not prohibitedpublications within the meaning of s. 14(1)(

b) of the Code. [5] Two issues arise in this appeal. The first is whether s. 14(1)(

b) of the Code is constitutional. If so, a second issuearises as to whether the Tribunal’s application of that provision in the context of this case should have been upheld. [6] I conclude that although s. 14(1)(

b) of the Code infringes Mr. Whatcott’s rights under both ss. 2(

a) and 2(

b) of theCharter, the infringement is justified under s. 1 of the Charter. This Court’s approach in Keegstra and Taylor, with some modification,sets out an acceptable method for determining how to balance the competing rights and interests at play. [7] In my respectful view, the Saskatchewan Court of Appeal erred, in part, in overturning the decision of the Tribunal.I would therefore allow the appeal and reinstate the decision of the Tribunal with respect to two of the flyers. I would dismiss the appealin regard to the other two. II. Facts [8] In 2001 and 2002, Mr.

Whatcott distributed four flyers in Regina and Saskatoon on behalf of the Christian TruthActivists. Two of the flyers, marked as exhibits D and E at the Tribunal hearing, were entitled “Keep Homosexuality out of Saskatoon’sPublic Schools!” (“Flyer D”) and “Sodomites in our Public Schools” (“Flyer E”), respectively. The other two flyers, marked as exhibits Fand G, were identical, and were a reprint of a page of classified advertisements to which handwritten comments were added (“Flyer F”and “Flyer G”).

The flyers are reproduced in Appendix B. [9] Four individuals, who received these flyers at their homes, filed complaints with the Commission. They allegedthat the material promoted hatred against individuals because of their sexual orientation, thereby violating s. 14 of the Code. TheCommission appointed a human rights tribunal to hear the complaints. [10] Relying on Human Rights Commission (Sask.) v. Bell (1994), (SK CA), 120 Sask. R. 122 (C.A.)(“Bell”), and on the Court of Queen’s Bench decision in Owens v. Human Rights Commission (Sask.), 2002 SKQB 506, 228 Sask. R.

148, rev’d 2006 SKCA 41 , 267 D.L.R. (4th) 733, the Tribunal concluded that s. 14 of the Code was a reasonable restriction on Mr. Whatcott’s rights to freedom of religion and expression as guaranteed by s. 2(

a) and (

b) of the Charter . With respect to the issue of whether the materials distributed by Mr. Whatcott constituted a breach of s. 14 of the Code , the Tribunal isolated certain passages from each of the flyers and concluded that the material contained in each flyer could objectively be viewed as exposing homosexuals to hatred and ridicule. [ 11 ] The Tribunal issued an order prohibiting Mr. Whatcott and the Christian Truth Activists from distributing the flyers or any similar materials promoting hatred against individuals because of their sexual orientation. It also ordered Mr.

Whatcott to pay compensation in the amount of $2,500 to one complainant and $5,000 to each of the remaining three complainants. III. Relevant Statutory Provisions [ 12 ] At issue is s. 14 of the Code . It provides: 14.

(1) No person shall publish or display , or cause or permit to be published or displayed, on any lands or premises or in a newspaper, through a television or radio broadcasting station or any other broadcasting device, or in any printed matter or publication or by means of any other medium that the person owns, controls, distributes or sells, any representation , including any notice, sign, symbol, emblem, article, statement or other representation: (

a) tending or likely to tend to deprive, abridge or otherwise restrict the enjoyment by any person or class of persons, on the basis of a prohibited ground, of any right to which that person or class of persons is entitled under law; or (

b) 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 .

(2) Nothing in subsection (1) restricts the right to freedom of expression under the law upon any subject. IV. Judicial History A. Saskatchewan Court of Queen’s Bench, 2007 SKQB 450 , 306 Sask. R. 186 [ 13 ] Kovach J. concluded that s. 14(1) (

b) of the Code must be interpreted in accordance with the standard of hatred and contempt set out in Taylor so as to prohibit only “communication that involves extreme feelings and strong emotions of detestation, calumny and vilification” (para. 21). He upheld the Tribunal’s conclusion that the flyers contravened the provision, largely on the basis that the flyers equated homosexuals with pedophiles and child abusers. [ 14 ] With respect to the constitutionality of s. 14(1) (b), he held that while the provision may violate Mr. Whatcott’s freedom of religion, the limit was justifiable. B.

Saskatchewan Court of Appeal, 2010 SKCA 26 , 346 Sask. R. 210 [ 15 ] The Saskatchewan Court of Appeal issued concurring judgments by Smith and Hunter JJ.A., with Sherstobitoff J.A. concurring in both. Hunter J.A. reaffirmed that s. 14(1) (

b) of the Code must be interpreted and applied so as to only prohibit communications involving extreme feelings and strong emotions of detestation, calumny and vilification. She cautioned that language used to debate the morality of an individual’s behaviour must attract a relatively high degree of tolerance. [ 16 ] Hunter J.A. found that the Tribunal and Court of Queen’s Bench had failed to take the moral context of the flyers properly into account and had also failed to balance the limitation on freedom of expression in s. 14(1) (

b) with the confirmation of the importance of expression set out in s. 14(2). In her view, the Tribunal and Kovach J. had erred in selecting specific phrases from the flyers, rather than dealing with the content and context of each flyer as a whole. [ 17 ] She held that the words and phrases isolated by the Tribunal from Flyer D would not meet the definition of “hatred” set out in Taylor and that, in the context of a debate about the school curriculum, the entire flyer could not be considered a hate publication.

She found that Flyer E was part of the ongoing debate about teaching homosexuality in public schools, and that the comment “Sodomites are 430 times more likely to acquire Aids & 3 times more likely to sexually abuse children!” was merely hyperbole and did not taint the entire publication. Finally, she found that the ambiguity of the handwritten statements in Flyers F and G made it difficult to conclude from an objective perspective that the publication exposed homosexuals to hatred.

She concluded that the flyers were not prohibited publications. [ 18 ] Smith J.A. agreed that the flyers did not offend the prohibition at s. 14(1) (

b) of the Code against hate publications. She found it significant that it was the activity (a type of sexual conduct) rather than the individuals (those of same-sex orientation) to which the flyers were directed. Questions of sexual morality, being linked to both public policy and individual autonomy, lay at the heart of protected speech. She concluded that “where, on an objective

interpretation, the impugned expression is essentially directed to disapprobation of same-sex sexual conduct in a context of comment on issues of public policy or sexual morality, its limitation is not justifiable in a free and democratic society” (para. 138). V. Issues [ 19 ] The issues on appeal are whether s. 14(1) (

b) of the Code infringes s. 2 (

a) and/or s. 2(

b) of the Charter and, if so,

whether the infringement is demonstrably justified under s. 1 of the Charter . If s. 14(1)(

b) is found to survive the constitutional challenge, the issue will be whether the Tribunal’s decision should have been upheld on appeal under s. 32(1) of the Code . VI. The Definition of “Hatred” [ 20 ] The Saskatchewan courts have consistently followed the approach to defining “hatred” set out in Taylor when interpreting and applying s. 14(1) (

b) of the Code . Before embarking on a constitutional analysis of that provision, it will be useful to consider the Taylor definition of “hatred” and whether, in light of the criticisms of it, the definition should be rejected or modified. A.

Summary of the Decision in Canada (Human Rights Commission) v. Taylor [ 21 ] Taylor was part of a trilogy of hate speech cases considered by this Court in 1990, along with Keegstra and Andrews . T he main issue facing the Court in those cases was whether s. 13(1) of the Canadian Human Rights Act , S.C. 1976-77, c. 33 (“ CHRA ”) (now R.S.C. 1985, c. H-6 ), violated freedom of expression guaranteed under s. 2(

b) of the Charter , by restricting telephonic communications of matters likely to expose persons who are identifiable on the basis of a prohibited ground of discrimination, to hatred or contempt . The case arose from complaints regarding a telephone message service offering pre-recorded messages alleging, inter alia , a conspiracy by Jews to control Canadian society. [ 22 ] Dickson C.J., writing for the majority, held that Mr. Taylor’s freedom of expression was breached by s. 13(1) of the CHRA .

However, the infringement was justified under s. 1 of the Charter . [ 23 ] He found that s. 13(1) was a limitation “prescribed by law” (p. 916) and that Parliament’s objective behind s. 13(1) (preventing the harms caused by hate propaganda) was of pressing and substantial importance sufficient to justify some limitation on freedom of expression. Dickson C.J. also reiterated his comment in Keegstra (at p. 766) that, contextually, hate propaganda strays some distance from the spirit of s. 2(

b) of the Charter , and reconfirmed that its suppression does not severely curtail the values underlying freedom of expression. He reasoned that, when conjoined with the remedial provisions of the CHRA , s. 13(1) operates to suppress hate propaganda and its harmful effects, and is thereby rationally connected to Parliament’s objective. He rejected the argument that there could be no rational connection because it was questionable whether s. 13(1) actually reduces the incidence of hate propaganda.

In Dickson C.J.’s view, the process of hearing a complaint and, if substantiated, issuing a cease and desist order, “reminds Canadians of our fundamental commitment to equality of opportunity and the eradication of racial and religious intolerance” (p. 924). [ 24 ] In assessing whether s. 13(1) minimally impairs freedom of expression, Dickson C.J. rejected the submission that it was overbroad and excessively vague. In his view, there was no conflict between providing a meaningful

interpretation of s. 13(1) and protecting freedom of expression “so long as the

interpretation of the words ‘hatred’ and ‘contempt’ is fully informed by an awareness that Parliament’s objective is to protect the equality and dignity of all individuals by reducing the incidence of harm-causing expression” (p. 927). Dickson C.J. concluded that s. 13(1) “ refers to unusually strong and deep-felt emotions of detestation, calumny and vilification ” (p. 928 (emphasis added)).

In his view, as long as tribunals required the ardent and extreme nature of feeling described by “hatred or contempt”, there was “little danger that subjective opinion as to offensiveness will supplant the proper meaning of the section” (p. 929). [ 25 ] Finally, Dickson C.J. concluded that the effects of s. 13(1) on freedom of expression were not so deleterious as to make it an unacceptable abridgement of freedom of expression. The Court held that, although s. 13(1) infringed s. 2(

b) of the Charter , it was justified under s. 1 as an infringement justifiable in a free and democratic society. B. Criticisms of the Taylor Definition of Hatred [ 26 ] The conclusion in Taylor about legislation similar to what is at issue in this case is not, however, determinative. Mr. Whatcott challenges the constitutionality of a different legislative provision, interpreted and applied over 20 years later, and in the context of a different prohibited ground. [ 27 ] Mr. Whatcott and some interveners argue that there are a number of problems with the Taylor

interpretation of “hatred” and with prohibiting hate speech generally. The criticisms tend to fall within two general categories, relating to either subjectivity or overbreadth.

Criticisms concerning subjectivity are that the definition 1. leads to arbitrary and inconsistent results because it captures expression that an arbitrator or judge subjectively finds offensive or repugnant; 2. is a vague, emotive concept that is inherently subjective and unworkable; and 3. infringes freedom of expression in irrational ways not tied to the legislative objectives. [ 28 ] Criticisms relating to overbreadth are that the definition or a particular legislative prohibition 1. is overreaching and captures more expression than is intended or necessary; 2. has a chilling effect on public debate, religious expression and media coverage of issues about moral conduct and social policy;

3. does not give legislative priority to freedom of expression; 4. restricts private communications; 5. should require intention; 6. should require proof of actual harm or discrimination; and 7. should provide for defences, such as a defence of truth. [ 29 ] Some of these criticisms are directed to the manner in which a specific legislative prohibition is formulated. To the extent that they apply to s. 14(1) (

b) of the Code , they will be addressed in the course of analyzing the constitutionality of that provision. [ 30 ] However, I will first consider whether, in light of the criticisms, the definition of “hatred” established in Taylor remains valid, or should be modified or rejected. C. Subjectivity [ 31 ] In my view, the criticisms point to two conceptual challenges to achieving a consistent application of a prohibition against hate speech. One is how to deal with the inherent subjectivity of the concept of “hatred”.

Another is a mistaken propensity to focus on the ideas being expressed, rather than on the effect of the expression. [ 32 ] Criticisms about the inherent subjectivity of “hatred” can be broken into two separate concerns. The first is that the prohibition will lead to arbitrary and inconsistent results, depending on the subjective views of judges and arbitrators. The second is that a prohibition predicated on “hatred” is too vague and inherently subjective to ever be applied objectively. The resulting uncertainty about its application will have a chilling effect on expression.

I will deal with each of these concerns in turn.

(1) The Reasonable Person [ 33 ] Subjectivity is not unique to the application of standards within human rights legislation. As long as human beings act in the role of judge or arbitrator, there will be a subjective element in the application of any standard or test to a given fact situation. In the words of Cardozo J.: “. . . the traditions of our jurisprudence commit us to the objective standard.

I do not mean, of course, that this ideal of objective vision is ever perfectly attained” but rather, inescapably, that “[t]he perception of objective right takes the color of the subjective mind”: The Nature of the Judicial Process (1921), at pp. 106 and 110. [ 34 ] In response to this reality, courts develop legal principles for the purpose of providing a method of dealing with similar issues consistently. They follow precedent by looking to the manner in which a principle or standard was applied in comparable fact situations.

Where the applicable standard or test is an objective one, courts and tribunals apply it on the basis of how a reasonable person in the same position or circumstances would act or think. [ 35 ] In the present context, the courts have confirmed that when applying a prohibition based on hatred, the outcome does not depend on the subjective views of the publisher or of the victim of the alleged hate publication, but rather on an objective application of the test: see Owens (C.A.) , at paras. 58-59; Kane v. Alberta Report , 2001 ABQB 570 , 291 A.R. 71, at para. 125 ; Elmasry v.

Rogers Publishing Ltd. (No. 4) , 2008 BCHRT 378 , 64 C.H.R.R. D/509, at paras. 79-80 ; and Whatcott (C.A.) , at para. 55. The courts pose the question of whether, “when considered objectively by a reasonable person aware of the relevant context and circumstances, the speech in question would be understood as exposing or tending to expose members of the target group to hatred”: Owens (C.A.) , at para. 60.

In the course of this assessment, a judge or adjudicator is expected to put his or her personal views aside and to base the determination on what he or she perceives to be the rational views of an informed member of society, viewing the matter realistically and practically. [ 36 ] Even Cardozo J., despite his acknowledgement of the inherent subjectivity involved in the judicial process, concedes that the objective ideal “is one to be striven for within the limits of our capacity” and warns that “[a] jurisprudence that is not constantly brought into relation to objective or external standards incurs the risk of degenerating into . . . a jurisprudence of mere sentiment or feeling” (p. 106).

Although developing legal principles, following precedent and applying objective standards will not completely eliminate subjectivity from the adjudicative process, these common law traditions reflect an awareness of the problem and provide a ground for appeal in cases of unjustifiable departure.

(2) Dealing With the Inherent Subjectivity of the Emotion of Hatred [ 37 ] Nonetheless, is the emotion “hatred” too inherently subjective to be capable of an objective or consistent application? The argument, as I understand it, is that our perception and understanding of hatred, like any emotion, will depend in part on our different, personal experiences. Emotion is an “instinctive feeling as distinguished from reasoning or knowledge” and is therefore subjective: Oxford English Dictionary (online).

Therefore, a test predicated on a vague emotion makes subjective application inevitable. [ 38 ] In Taylor , Dickson C.J. reasoned that the subjectivity and arbitrariness of a prohibition based on “hatred” could be reduced by giving full effect to the legislative intent. His reasoning suggests that this can be achieved in two ways: by adhering to the proper meaning of the words chosen by the legislature; and by applying the prohibition in a manner that is consistent with its legislative objectives.

Because of the centrality of both the meaning of “hatred” and the legislative objectives, further elaboration will be useful.

(

a) The Meaning of “Hatred or Contempt” [39] In order to adhere to the legislative choice of the words “hatred or contempt”, Dickson C.J. emphasized theimportance of interpreting them in a manner that did not include emotions of lesser intensities. In his view, prohibitions of hate speechshould not be triggered by lesser gradations of disapprobation, so as to capture offensive comments or expressions of dislike.

Interpreting “hatred or contempt” to include feelings of dislike would expand their meaning beyond what was contemplated by thelegislature and could capture expression which, while derogatory, does not cause the type of harm that human rights legislation seeks toeliminate.

As long as a tribunal is aware of the purpose behind s. 13(1) of the CHRA and “pays heed to the ardent and extreme nature offeeling described in the phrase ‘hatred or contempt’”, Dickson C.J. reasoned that “there is little danger that subjective opinion as tooffensiveness will supplant the proper meaning of the section”: Taylor, at p. 929. [40] Dickson C.J. analyzed the meaning of the words “hatred or contempt” as they are used in s. 13(1). He discussedwith approval the approach of the human rights tribunal in Nealy v. Johnston (1989), (CHRT), 10 C.H.R.R. D/6450(C.H.R.T.), at p.

D/6469, which acknowledged that while those words “have a potentially emotive content” that could vary for eachindividual, there is “an important core of meaning in both”: Taylor, at p. 928. The tribunal found that “hatred” involves detestation,extreme ill-will and the failure to find any redeeming qualities in the target of the expression. “Contempt” involves looking down onsomeone or treating them as inferior. Dickson C.J. found that, according to the tribunal, s. 13(1) refers to “unusually strong and deep-feltemotions of detestation, calumny and vilification”: Taylor, at p. 928.

The legislative prohibition should therefore only apply toexpression of an unusual and extreme nature. [41] In my view, “detestation” and “vilification” aptly describe the harmful effect that the Code seeks to eliminate. Representations that expose a target group to detestation tend to inspire enmity and extreme ill-will against them, which goes beyondmere disdain or dislike. Representations vilifying a person or group will seek to abuse, denigrate or delegitimize them, to render themlawless, dangerous, unworthy or unacceptable in the eyes of the audience.

Expression exposing vulnerable groups to detestation andvilification goes far beyond merely discrediting, humiliating or offending the victims. [42] On the other hand, the reference in the Taylor definition to calumny is unnecessary. “Calumny” is defined as a“[f]alse and malicious misrepresentation of the words or actions of others, calculated to injure their reputation; libellous detraction,slander”: Oxford English Dictionary (online).

While hate speech often uses the device of inflammatory falsehoods andmisrepresentations to persuade and galvanize its audience, the use of such tools is not necessary to a finding that the expression exposesits targeted group to hatred. Nor would false misrepresentations, alone, be sufficient to constitute hate speech. In light of the generaldisuse of the word “calumny” in everyday vocabulary, in my view its inclusion in the definition is unnecessary. [43] Not all prohibitions of hate speech include the word “contempt”, and s. 14(1)(

b) of the Code does not. The tribunalin Nealy noted that the concept of “hatred” does not mandate a particular motive for the emotion, and that the word “contempt” added anelement of looking down on or treating the object as inferior. While I agree with the tribunal that it is possible to hate someone oneconsiders “superior”, in my view the term “hatred” in the context of human rights legislation includes a component of looking down onor denying the worth of another.

The act of vilifying a person or group connotes accusing them of disgusting characteristics, inherentdeficiencies or immoral propensities which are too vile in nature to be shared by the person who vilifies. Even without the word“contempt” in the legislative prohibition, delegitimizing a group as unworthy, useless or inferior can be a component of exposing them tohatred.

Such delegitimization reduces the target group’s credibility, social standing and acceptance within society and is a key aspect ofthe social harm caused by hate speech. [44] In the years following Taylor, there has been considerable human rights jurisprudence and academic commentaryabout what constitutes hate speech. The types of expression and devices used to expose groups to hatred were summarized as the“hallmarks of hate” enumerated in Warman v. Kouba, 2006 CHRT 50 , at paras. 24-81.

Hate speech often vilifies the targetedgroup by blaming its members for the current problems in society, alleging that they are a “powerful menace” (para. 24); that they arecarrying out secret conspiracies to gain global control (Citron v. Zündel (No. 4) (2002), (CHRT), 41 C.H.R.R. D/274(C.H.R.T.)); or plotting to destroy western civilization (Taylor). Hate speech also further delegitimizes the targeted group by suggestingits members are illegal or unlawful, such as by labelling them “liars, cheats, criminals and thugs” (Citron, at para. 140); a “parasitic race”or “pure evil”: Warman v.

Tremaine (No. 2), 2007 CHRT 2, 59 C.H.R.R. D/391, at para. 136. [45] Exposure to hatred can also result from expression that equates the targeted group with groups traditionally reviled insociety, such as child abusers, pedophiles (Payzant v. McAleer (1994), (CHRT), 26 C.H.R.R. D/271 (C.H.R.T.), aff’d(1996), (FC), 26 C.H.R.R. D/280 (F.C.T.D.)), or “deviant criminals who prey on children”: Warman v. NorthernAlliance, 2009 CHRT 10 , at para. 43. One of the most extreme forms of vilification is to dehumanize a protected group bydescribing its members as animals or as subhuman.

References to a group as “horrible creatures who ought not to be allowed to live”(Northern Alliance, at para. 43); “incognizant primates”, “genetically inferior” and “lesser beasts” (Center for Research-Action on RaceRelations v. www.bcwhitepride.com, 2008 CHRT 1 , at para. 53); or “sub-human filth” (Warman v. Winnicki (No. 2), 2006CHRT 20, 56 C.H.R.R.

D/381, at para. 101) are examples of dehumanizing expression that calls into question whether group membersqualify as human beings. [46] As these examples illustrate, courts have been guided by the Taylor definition of hatred and have generally identifiedonly extreme and egregious examples of delegitimizing expression as hate speech. This approach excludes merely offensive or hurtfulexpression from the ambit of the provision and respects the legislature’s choice of a prohibition predicated on “hatred”. (

b) The Legislative Objectives [47] As to giving effect to the legislative objectives behind the prohibition, Dickson C.J. stated that there should be “noconflict between providing a meaningful

interpretation of s. 13(1) and protecting the s. 2(

b) freedom of expression” guaranteed by theCharter, provided that “the

interpretation of the words ‘hatred’ and ‘contempt’ is fully informed by an awareness that Parliament’sobjective is to protect the equality and dignity of all individuals by reducing the incidence of harm-causing expression”: Taylor, at p.927. Linking the test for hate speech to the specific legislative objectives is key to minimizing both subjectivity and overbreadth.

Preventive measures should only prohibit the type of expression expected to cause the harm targeted. Since the decision in Taylor, courtshave confirmed that the “harm” these legislative prohibitions seek to prevent is more than hurt feelings, humiliation or offensiveness:Owens (C.A.), at paras. 52-53 and 58-60; and Elmasry, at paras. 79, 147 and 150. [48] A prohibition of hate speech will not eliminate the emotion of hatred from the human experience.

Employed in thecontext of human rights legislation, these prohibitions aim to eliminate the most extreme type of expression that has the potential to inciteor inspire discriminatory treatment against protected groups on the basis of a prohibited ground. In applying hate prohibitions, courtsmust assess whether the impugned expression is likely to expose a protected group to hatred and potentially lead to the activity that thelegislature seeks to eliminate.

This ties the analysis to the legislative purpose and works to prevent the prohibition from capturing moreexpressive activity than is necessary to achieve that objective. D. Focusing on the Effects of Hate Speech [49] A separate but related conceptual challenge that impedes the proper application of hate speech prohibitions is amistaken propensity to focus on the nature of the ideas expressed, rather than on the likely effects of the expression. The repugnantcontent of expression may sidetrack litigants from the proper focus of the analysis. [50] As explained in Irwin Toy Ltd. v.

Quebec (Attorney General), (SCC), [1989] 1 S.C.R. 927, at p. 968,freedom of expression was guaranteed in the Charter “so as to ensure that everyone can manifest their thoughts, opinions, beliefs, indeedall expressions of the heart and mind, however unpopular, distasteful or contrary to the mainstream”. If the repugnancy or offensivenessof an idea does not exclude it from Charter protection under s. 2(b), it cannot, in itself, be sufficient to justify a limitation on expressionunder a s. 1 analysis.

A blanket prohibition on the communication of repugnant ideas would offend the core of freedom of expression andcould not be viewed as a minimal impairment of that right. [51] The distinction between the expression of repugnant ideas and expression which exposes groups to hatred is crucialto understanding the proper application of hate speech prohibitions. Hate speech legislation is not aimed at discouraging repugnant oroffensive ideas. It does not, for example, prohibit expression which debates the merits of reducing the rights of vulnerable groups insociety.

It only restricts the use of expression exposing them to hatred as a part of that debate. It does not target the ideas, but their modeof expression in public and the effect that this mode of expression may have. [52] An assessment of whether expression exposes a protected group to hatred must therefore include an evaluation of thelikely effects of the expression on its audience. Would a reasonable person consider that the expression vilifying a protected group hasthe potential to lead to discrimination and other harmful effects?

This assessment will depend largely on the context and circumstances ofeach case. [53] For example, in the normal course of events, expression that targets a protected group in the context of satire, ornews reports about hate speech perpetrated by someone else, would not likely constitute hate speech. Representations made in privatesettings would also not be captured by provisions prohibiting publication, display or broadcast of the expression, such as in s. 14(1)(

b) ofthe Code. It may also make a difference whether the expression contains a singular remark that comes close to violating the prohibition,or contains a multitude of or repeated, delegitimizing attacks. [54] Dickson C.J. emphasized this need to focus on the effects of the expression in his reasons in Taylor. He noted that“the purpose and impact of human rights codes is to prevent discriminatory effects rather than to stigmatize and punish those whodiscriminate” (p. 933 (emphasis added)). The focus of the prohibition against hate propaganda in s. 13(1) of the CHRA is “solely upon[its] likely effects” (p. 931).

Dickson C.J. reasoned that the preoccupation with the discriminatory effects was understandable, given thatsystemic discrimination is more widespread than intentional discrimination. Tribunals must focus on the likely effects of impugnedexpression in order to achieve the preventive goals of anti-discrimination statutes. E. Confirming a Modified Definition of “Hatred” [55] As will be apparent from the preceding discussion, in my view the Taylor definition of “hatred”, with somemodifications, provides a workable approach to interpreting the word “hatred” as it is used in prohibitions of hate speech.

The guidanceprovided by Taylor should reduce the risk of subjective applications of such legislative restrictions, provided that three mainprescriptions are followed. [56] First, courts are directed to apply the hate speech prohibitions objectively. In my view, the reference in Taylor to“unusually strong and deep-felt emotions” (at p. 928) should not be interpreted as imposing a subjective test or limiting the analysis tothe intensity with which the author of the expression feels the emotion.

The question courts must ask is whether a reasonable person,aware of the context and circumstances surrounding the expression, would view it as exposing the protected group to hatred. [57] Second, the legislative term “hatred” or “hatred or contempt” is to be interpreted as being restricted to those extrememanifestations of the emotion described by the words “detestation” and “vilification”.

This filters out expression which, while repugnantand offensive, does not incite the level of abhorrence, delegitimization and rejection that risks causing discrimination or other harmfuleffects. [58] Third, tribunals must focus their analysis on the effect of the expression at issue. Is the expression likely to exposethe targeted person or group to hatred by others? The repugnancy of the ideas being expressed is not, in itself, sufficient to justifyrestricting the expression.

The prohibition of hate speech is not designed to censor ideas or to compel anyone to think “correctly”.Similarly, it is irrelevant whether the author of the expression intended to incite hatred or discriminatory treatment or other harmfulconduct towards the protected group.

The key is to determine the likely effect of the expression on its audience, keeping in mind thelegislative objectives to reduce or eliminate discrimination. [59] In light of these three principles, where the term “hatred” is used in the context of a prohibition of expression inhuman rights legislation, it should be applied objectively to determine whether a reasonable person, aware of the context and

circumstances, would view the expression as likely to expose a person or persons to detestation and vilification on the basis of aprohibited ground of discrimination. [60] I turn now to the constitutionality of s. 14(1)(

b) of the Code. VII. Standard of Review in Constitutional Questions [61] The standard of review on the constitutionality of s. 14(1)(

b) of the Code is correctness: see Dunsmuir v. NewBrunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 58. VIII. Constitutional Analysis A. Whether Section 14(1)(

b) Infringes Freedom of Expression Under

Section 2(

b) of the Charter [62] Applying the framework most recently described by this Court in Canadian Broadcasting Corp. v. Canada (AttorneyGeneral), 2011 SCC 2, [2011] 1 S.C.R. 19 (“CBC”), I agree with the concession by the Commission that the statutory prohibition againsthate speech infringes the freedom of expression guaranteed under s. 2(

b) of the Charter. The activity described in s. 14(1)(b) — thepublication or display of certain types of expression — has expressive content and falls within the scope of s. 2(

b) protection. Thepurpose of s. 14(1)(

b) is to prevent discrimination by curtailing certain types of public expression. B.

Section 1 — Whether the Infringement Is Demonstrably Justified in a Free and Democratic Society [63] Having found that the provision infringes s. 2(

b) of the Charter, I turn to whether it may be saved under s. 1.

(1) The Approach to Freedom of Expression Under

Section 1 [64] Freedom of expression is central to our democracy. Nonetheless, this Court has consistently found that the right tofreedom of expression is not absolute and limitations of freedom of expression may be justified under s. 1: see Irwin Toy; Keegstra;Taylor; R. v. Butler, (SCC), [1992] 1 S.C.R. 452; R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45; and CBC.

Section 1both “guarantees and limits Charter rights and freedoms by reference to principles fundamental in a free and democratic society”: Taylor,at p. 916, per Dickson C.J. [65] The justification of a limit on freedom of expression under s. 1 requires a contextual and purposive approach. Thevalues underlying freedom of expression will inform the context of the violation: see Taylor, Keegstra and Sharpe.

McLachlin C.J.,writing for the majority in Sharpe, explained succinctly the values underlying freedom of expression first recognized in Irwin Toy, being“individual self-fulfilment, finding the truth through the open exchange of ideas, and the political discourse fundamental to democracy”(para. 23). [66] We are therefore required to balance the fundamental values underlying freedom of expression (and, later, freedomof religion) in the context in which they are invoked, with competing Charter rights and other values essential to a free and democraticsociety, in this case, a commitment to equality and respect for group identity and the inherent dignity owed to all human beings: s. 15 ofthe Charter and R. v.

Oakes, (SCC), [1986] 1 S.C.R. 103, at p. 136; Ross v. New Brunswick School District No. 15, (SCC), [1996] 1 S.C.R. 825, at para. 78; and Taylor, at pp. 916 and 920. [67] The balancing of competing Charter rights should also take into account Canada’s international obligations withrespect to international law treaty commitments: Taylor, at p. 916, per Dickson C.J.

Those commitments reflect an internationalrecognition that certain types of expression may be limited in furtherance of other fundamental values: Taylor, at pp. 919-20, perDickson C.J. [68] It is in the context of balancing these Charter rights that the Saskatchewan legislature has chosen to suppressexpression of a certain kind. The prohibition set out under s. 14(1)(

b) of the Code is clearly a “limit[ation] prescribed by law” within themeaning of s. 1 of the Charter. The issue is whether the infringement of s. 2(

b) is demonstrably justified: Oakes; CBC, at para. 64.

(2) Is the Objective for Which the Limit Is Imposed Pressing and Substantial? [69] Following the Oakes test, the first step is to determine whether the objective of s. 14(1)(

b) advances concerns thatare of sufficient importance to warrant overriding the constitutional guarantee of freedom of expression. [70] The objective of s. 14(1)(

b) may be ascertained directly from the Code in which it is found.

Section 3 states that theobjectives of the Code are (

a) to promote recognition of the inherent dignity and the equal inalienable rights of all members of the human family; and (

b) to further public policy in Saskatchewan that every person is free and equal in dignity and rights and to discourage and eliminatediscrimination. [71] Hate speech is, at its core, an effort to marginalize individuals based on their membership in a group. Usingexpression that exposes the group to hatred, hate speech seeks to delegitimize group members in the eyes of the majority, reducing theirsocial standing and acceptance within society. When people are vilified as blameworthy or undeserving, it is easier to justifydiscriminatory treatment. The objective of s. 14(1)(

b) may be understood as reducing the harmful effects and social costs ofdiscrimination by tackling certain causes of discriminatory activity. [72] The majority in Keegstra and Taylor reviewed evidence detailing the potential risks of harm from the dissemination

of messages of hate, including the 1966 Report of the Special Committee on Hate Propaganda in Canada, commonly known as theCohen Committee. The Cohen Committee wrote at a time when the experiences of fascism in Italy and National Socialism in Germanywere in recent memory. Almost 50 years later, I cannot say that those examples have proven to be isolated and unrepeated at our currentpoint in history. One need only look to the former Yugoslavia, Cambodia, Rwanda, Darfur, or Uganda to see more recent examples ofattempted cleansing or genocide on the basis of religion, ethnicity or sexual orientation.

In terms of the effects of disseminating hatefulmessages, there is today the added impact of the Internet. [73] In Keegstra, at pp. 746-47, Dickson C.J. found that two types of harm were of a pressing and substantial concern. First, he referred to the grave psychological and social consequences to individual members of the targeted group from the humiliationand degradation caused by hate propaganda.

Second, he noted the harmful effects on society at large by increasing discord and byaffecting a subtle and unconscious alteration of views concerning the inferiority of the targeted group. [74] Hate speech, therefore, rises beyond causing emotional distress to individual group members. It can have a societalimpact. If a group of people are considered inferior, subhuman, or lawless, it is easier to justify denying the group and its members equalrights or status. As observed by this Court in Mugesera v.

Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2S.C.R. 100, at para. 147, the findings in Keegstra suggest “that hate speech always denies fundamental rights”. As the majority becomesdesensitized by the effects of hate speech, the concern is that some members of society will demonstrate their rejection of the vulnerablegroup through conduct. Hate speech lays the groundwork for later, broad attacks on vulnerable groups.

These attacks can range fromdiscrimination, to ostracism, segregation, deportation, violence and, in the most extreme cases, to genocide: see Taylor and Keegstra. [75] Hate speech is not only used to justify restrictions or attacks on the rights of protected groups on prohibited grounds.As noted by Dickson C.J., at p. 763 of Keegstra, hate propaganda opposes the targeted group’s ability to find self-fulfillment byarticulating their thoughts and ideas. It impacts on that group’s ability to respond to the substantive ideas under debate, thereby placing aserious barrier to their full participation in our democracy.

Indeed, a particularly insidious aspect of hate speech is that it acts to cut offany path of reply by the group under attack.

It does this not only by attempting to marginalize the group so that their reply will beignored: it also forces the group to argue for their basic humanity or social standing, as a precondition to participating in the deliberativeaspects of our democracy. [76] To use an example related to the present case, the suggestion that homosexual conduct should not be discussed inschools because homosexuals are pedophiles requires the protected group to first defeat the absolutist position that all homosexuals arepedophiles in order to justify a level of societal standing that would then permit participation in the larger debate of whether homosexualconduct should be discussed in schools.

In this way, the expression inhibits the protected group from interacting and participating in freeexpression and public debate. [77] This Court has recognized the harm caused by hate speech in a number of subsequent cases including Ross, Sharpe,and Thomson Newspapers Co. v. Canada (Attorney General), (SCC), [1998] 1 S.C.R. 877. I therefore have nodifficulty in determining that the purpose of the legislation is pressing and substantial.

(3) Proportionality [78] It is next necessary to consider whether s. 14(1)(

b) of the Code is proportionate to its objective. Here perfection isnot required. Rather the legislature’s chosen approach must be accorded considerable deference. As McLachlin C.J. explained in Canada(Attorney General) v. JTI-Macdonald Corp., 2007 SCC 30, [2007] 2 S.C.R. 610 (“JTI”), at para. 41, “[e]ffective answers to complexsocial problems . . . may not be simple or evident.

There may be room for debate about what will work and what will not, and theoutcome may not be scientifically measurable.” We must ask whether Parliament has chosen one of several reasonable alternatives: R. v.Edwards Books and Art Ltd., (SCC), [1986] 2 S.C.R. 713, at pp. 781-83; Irwin Toy, at p. 989; JTI, at para. 43. (

a) Is the Limit Rationally Connected to the Objective? (

i) Societal Versus Individual Harm [79] As determined with respect to s. 15(1) of the Charter in Withler v. Canada (Attorney General), 2011 SCC 12, [2011]1 S.C.R. 396, at paras. 35-36, the objective of eliminating discrimination and substantive inequality generally focuses on reducing theperpetuation of prejudice and disadvantage to members of a group on the basis of statutorily enumerated (or analogous) personalcharacteristics, or on the perpetuation of stereotyping that does not correspond to the actual circumstances and characteristics of theclaimant group.

When hate speech pertains to a vulnerable group, the concern is that it will perpetuate historical prejudice, disadvantageand stereotyping and result in social disharmony as well as harm to the rights of the vulnerable group. [80] Therefore, the question of whether a restriction on hate speech is rationally connected to the legislative goal ofreducing discrimination must focus on the group rather than on the individual and depends on demonstrating that the likely harm is to thegroup rather than an individual alone. Hate speech seeks to marginalize individuals based on their group characteristics.

As such, inorder to satisfy the rational connection requirement, the expression captured under legislation restricting hate speech must rise to a levelbeyond merely impugning individuals: it must seek to marginalize the group by affecting its social status and acceptance in the eyes ofthe majority. [81] This is not to diminish the harm that might occur to individuals through attacks on their group.

As Dickson C.J.noted in Keegstra, at p. 746, “[a] person’s sense of human dignity and belonging to the community at large is closely linked to theconcern and respect accorded the groups to which he or she belongs (see I. Berlin, ‘Two Concepts of Liberty’, in Four Essays on Liberty(1969), 118, at p. 155).” However, in the context of hate speech, this harm is derivative of the larger harm inflicted on the group, ratherthan purely individual. [82] Societal harm flowing from hate speech must be assessed as objectively as possible. The feelings of the publisher orvictim are not the test: Owens (C.A.), at paras. 58-60.

While the emotional damage from hate speech is indeed troubling, protecting theemotions of an individual group member is not rationally connected to the overall purpose of reducing discrimination. While it would

certainly be expected that hate speech would prompt emotional reactions from members of the targeted group, in the context of hatespeech legislation, these reactions are only relevant as a derivative effect of the attack on the group. As a derivative effect, these are notsufficient to justify an infringement of s. 2(b). Instead, the focus must be on the likely effect of the hate speech on how individualsexternal to the group might reconsider the social standing of the group. Ultimately, it is the need to protect the societal standing ofvulnerable groups that is the objective of legislation restricting hate speech. [83] Section 14(1)(

b) of the Code reflects this approach. The prohibition only limits the display or publication ofrepresentations, such as through newspapers or other printed matter, or through television or radio broadcasting. In other words, it onlyprohibits public communications of hate speech. The Saskatchewan legislature does not restrict hateful expression in privatecommunications between individuals.

While one would expect private expressions of hateful messages might inflict significant emotionalharm, they do not impact the societal status of the protected group. [84] Similarly, the prohibition does not preclude hate speech against an individual on the basis of his or her uniquelypersonal characteristics, but only on the basis of characteristics that are shared by others and have been legislatively recognized as aprohibited ground of discrimination. Although human rights legislation prohibits discrimination of both majority and minority subgroupsidentifiable by an enu

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