Politics of Hate

Canadian human rights tribunals and their hate speech provisions are a subject of debate this month largely due to the controversial Supreme Court case of anti-gay activist Bill Whatcott.

Whatcott is accusing human rights tribunals of being unfair. “I don’t see them as judicial or even handed. I want them to lose their ability to censor.” said Whatcott, who was penalized by the Saskatchewan Human Rights Tribunal (SHRT) for hate speech.

Four complaints were made to the Saskatchewan Human Rights Commission (SHRC) in 2002 after Whatcott distributed pamphlets in Regina and Saskatoon that called homosexuals sodomites, filthy and pedophiles.

The SHRT found him in violation of section 14 of their human rights code, which prohibits the display of material exposing or intending to expose hatred because of race or religion. The tribunal fined him $17,500, but the decision was overturned by the Saskatchewan Court of Appeal in February 2010.  The commission then took the case to the Supreme Court of Canada.

Earlier this month, Whatcott and the SHRC appeared before the Supreme Court of Canada.  The court’s final ruling will affect more than just Whatcott, because if the Supreme Court rules that section 14 of the Saskatchewan Human Rights Code is unconstitutional, it would mean change for similar hate speech provisions in other provincial tribunals, according to University of Windsor law professor, Richard Moon.

“It doesn’t mean [other provincial hate speech provisions] are automatically unconstitutional, but certainly their constitutionality would be open to question,” explained Moon.

Moon speculates that If section 14 is struck down, other provincial legislatures will either repeal their hate speech provisions, verify the constitutionality of their provisions with their court of appeal or they just won’t enforce them.

Whatcott is hoping that the result of his court case will do more than than that.  He hopes human rights tribunals would be abolished all together, but he admits that probably won’t happen.

Unlike Whatcott, Moon believes tribunals still have an important role. “We still need a mechanism that is accessible to people to deal with discrimination complaints. We have not yet reached the point where we are somehow a discrimination free society,” said Moon.

Hate speech provisions in the Canadian Human Rights Act (CHRA) are also being challenged at the federal level. Conservative backbencher Brian Storseth introduced a private member’s bill on Sept. 30 to amend section 13 of the CHRA that prohibits hate speech on the Internet and on the telephone. Section 13 is a controversial clause that Storseth believes infringes on the freedom of speech.

Both Whatcott’s case and Storseth’s bill have turned into a national discussion of where to draw the line between freedom of expression and hate speech.

For Whatcott, the answer is obvious, “I wouldn’t draw the line anywhere except where it is in the Criminal Code: murder and threatening violence.  Other than that, leave the rest to adults to debate.”

David Arnot, the chief commissioner of the SHRC, believes otherwise. In a statement issued by Arnot, he said, “William Whatcott’s words and behaviour have crossed the line between critical speech and hateful speech – the type of extreme speech that has the potential to cause harm to others, that challenges their safety and human dignity and actively promotes discrimination.”

Whatcott won’t find out the Supreme Court’s decision for another six to nine months.  So until then, he plans to keep doing what he’s doing, “posting his views on his website and communicating them freely.”