The SCC’s Whatcott Decision Explores The Meaning Of “Hatred’ While Continuing The Subjective/Objective Debate

As discussed in previous blog postings, the Supreme Court of Canada appears to be moving towards the objective standard in criminal law – a standard in antithesis to the subjective standard which requires the trier of fact to determine the accused’s perception of the facts in deciding upon guilt or innocence. The objective standard found in objective mens rea offences and used as a standard of assessment in many defences, relies upon the seemingly objective perception of the reasonable person – a legal construct endowed with the standard of a standard citizen from a standard community.

Now, with the release of Whatcott, this objective/subjective debate has moved into the human rights arena. In this case, the Court struggles with the meaning of the emotion – hatred – and whether or not the concept or emotion of hatred can properly form the basis of a rule of law. Interestingly, the Court has had less difficulty with other emotive and therefore subjective words used in the Charter context, such as “life” and “liberty” in section 7. Even the term “freedom,” which is found throughout the Charter and is the defining word, perhaps even the objective (of course with the due limitations) of the legislation, is applied with ease by the Court.

No doubt, these terms are reflective of our society’s fundamental values. By describing them as value-based terms, we are already suggesting the subjective and emotional nature of these terms. It is these words, with such a depth of personal meaning, which are difficult to articulate and describe. An individual’s understanding of the term becomes personal and the use of the word is imbued with this personal meaning when utilized in any concrete context.

For example, I know what liberty means – it means the ability to be free from restraint and constraints imposed by others. However, “liberty” also has a visual meaning to me taken from my knowledge and world experience, which creates a more robust version of the words I have just written down. Therefore, “liberty” is the Statue of, “liberty” is also the poem by Tupac entitled “Liberty Needs Glasses,” as well as the Delacroix painting “Liberty Leading The People” hanging in the Louvre. “Liberty” is the panoply of past, present, and future human struggles, which we have studied and to which we are still bearing witness. Finally, “liberty” has the legal meaning as circumscribed by case law as not “mere freedom from physical restraint” but

In a free and democratic society, the individual must be left room for personal autonomy to live his or her own life and to make decisions that are of fundamental personal importance.

So too in Whatcott the Court imbues the word “hatred” with the legislative objective of the Saskatchewan Human Rights Code. Thus, an emotion becomes a standard to be applied by the tribunal. “Hatred,” therefore, is to mean something beyond dislike and must reflect a standard of behaviour beyond the norm or, as Justice Rothstein explains, be an “expression of an unusual and extreme nature.” The standard of assessment, in order to minimize the emotive perception of “hatred” must be based on an objective standard evoking the perception of the reasonable person. The question to be asked by the tribunal becomes a seemingly simple and standardized approach: “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”.

Even so, Justice Rothstein seems to be crafting a definition of “hatred” that is very personal: “hatred” is not “calumny” but includes “contempt” and may dehumanize an individual or a group of individuals. This concept of “dehumanization” is consistent with universal human rights principles, which evolved out of the atrocities of World War II and is related to the Nazi Germany objective, as evidenced by their laws and actions, to strip Jews, Gypsies, Homosexuals, and other minority groups of their humanity. The converse of this is the well-entrenched Charter value of “human dignity.” This definition of hatred, according to Justice Rothstein, taken from case law principles, provides an objective, clear, and identifiable standard to be imposed, which “excludes merely offensive or hurtful expression” but includes “extreme and egregious examples of delegitimizing expression as hate speech.”

In the end, the SCC by carving out a definition of hate speech consistent with the approved authorities and by excising meanings which were not consistent with the standard of hatred, created an “emotionless” template for tribunals and courts. As discussed in my previous blog on the SCC’s recent decision on duress, which approved of the objectification of the test for duress despite cogent arguments by legal theorist George Fletcher to embrace individualization, this “shoe-horning” of value-laden terms into the objective category may not be a true reflection of society’s values and may, in the end, diminish the deeply personal meaning of such values in favour of the rule of law.

Blog Update: The Spy and the Pamphleteer

In previous postings, I have discussed two very different cases now before Canadian courts. The first case concerns William Whatcott, a persistent anti-gay pamphleteer, who is before two different courts connected to his pamphleteering activities. The second case is of Jeffery Delisle, the first person charged with spying under the newly enacted Security of Information Act. Although the two cases are completely unrelated, court decisions in both of these cases were handed down on March 30, 2012.

The first Whatcott case, which is still on reserve before the Supreme Court of Canada, involves the Saskatchewan Human Rights Tribunal’s finding that Whatcott’s anti-gay pamphlets amounted to hate speech. The other Whatcott case, decided on March 30, 2012, is an appeal of the quashing of Whatcott’s trespass charge when he was on University of Calgary lands to hand out his anti-gay literature. The original decision to quash the charge by Provincial Court Judge Bascom can be accessed here.

Just as a refresher, the Supreme Court of Canada Whatcott case is a vitally important decision for the ability of human rights tribunals to uphold the tenants of human rights legislation. It also raises the difficult issue of conflicting Charter rights: in this case the freedom of expression under s.2(b) and freedom of religion under s.2(a) in the context of competing Charter values as found under s.15, which promote respect and tolerance of others in our community.

Although the SCC Whatcott case concerns the constitutionality of the hate speech provision in the Saskatchewan Human Rights Code, the ultimate issue in the case will decide whether or not provincial laws on hate speech must conform with the more stringent hate speech section in the Criminal Code. If so, provincial human rights codes could be essentially redundant, leaving the more difficult to prove Criminal Code sections to safeguard society from the harmful effects of hate speech. Some of the factums filed in support of the SCC argument can be found here.

This SCC decision is of particular interest in Alberta, where provincial election campaigning has touched on the controversy surrounding the Alberta Human Rights Commission and its enforcement of provincial hate speech legislation. The Boisson v. Lund case, also discussed in a previous posting, shares similar issues with the SCC Whatcott. The Alberta Court of Appeal has not as yet released a decision on this case. The controversy in Alberta over this case and the high profile Alberta Human Rights case against journalist Ezra Levant for re-publishing the infamous Dutch “Muslim Cartoon,” has brought repeated calls for abolishing the Alberta Human Rights Commission. The Wildrose Party is campaigning on a platform, which includes abolishing the Commission, instead creating a new Human Rights Division in the Provincial Court of Alberta.

In the other Whatcott case of trespassing on University lands, the case has been so far decided in favour of protecting freedom of expression. In a previous posting, I discussed Alberta Provincial Court Judge Bascom’s stay of trespassing charges against Whatcott on the basis of s.2(b) expression rights under the Charter. On March 30, 2012, the appeal of the decision was heard before Alberta Queen’s Bench Justice Paul Jeffery, who summarily dismissed the Crown appeal and upheld Judge Bascom’s decision. The written reasons for the decision have not, as yet, been released.

Unlike Mr. Whatcott, Jeffery Delisle did not receive a favourable decision on March 30, 2012. Mr. Delisle was refused bail by Nova Scotia Provincial Court Judge Beach and ordered to stay in custody pending his trial. A ban on publication was imposed at the bail hearing and therefore the reasons for dismissing the bail application is unknown. Although Mr. Delisle’s lawyer stated he was “disappointed” albeit not surprised with the decision, there is no word whether or not he will be reviewing the decision in superior court. In the meantime, Mr. Delisle will return to court on May 8, presumably to set a date for trial. Delisle’s lawyer has commented on the case, indicating Delisle is not accused of endangering military troops as a result of his alleged espionage. There is some suggestion Delisle, at the time of the commission of the offence, was heavily into online gaming and had a “computer addiction,” which may have lead to monetary difficulties. For further discussion, read my Spy vs. Spy blog and my blog entitled Let’s Talk About: Diplomatic Immunity. For further reading on the Whatcott cases, read my blogs Law, Literature, and Inherit The Wind, The Road Taken By The Supreme Court of Canada, A Message of Tolerance, Limits of Expression, and Whatcott in The Courts Again.

Whatcott In The Courts Again

Last Fall, I discussed the cases of William Whatcott in previous blog postings. I say cases, as William Whatcott is before the Courts in two different, yet related matters.

On October 12, 2011, the Supreme Court of Canada reserved decision on the Whatcott case, which raised the issue of the constitutionality of the hate speech section of the Saskatchewan Human Rights Code. Whatcott, a prolific pamphleteer, was found in violation of the Saskatchewan provisions for delivering his pamphlets at various homes in Regina and Saskatchewan. People complained about the pamphlets some of which were entitled “Keep Homosexuality out of Saskatoon’s Public Schools!” and "Sodomites In Our Public Schools." As a result, Whatcott was fined for violating s. 14(1)(b) of the Code on the basis the pamphlets “promotes hatred against individuals because of their sexual orientation.”

The Saskatchewan Court of Appeal overturned the Tribunal finding, but not on the basis of Whatcott's Charter claim. Justice Hunter, after analyzing the pamphlets and the freedom of expression protections found within the Saskatchewan Human Rights Code, namely s. 5 and s. 14(2), found the pamphlets were not hate speech under the Code. Although Justice Smith agreed with the analysis, she but did so mainly on the basis of the relationship between the hate speech provisions and the constitutional values of freedom of expression as entrenched in the Charter. The Saskatchewan Human Rights Tribunal appealed the decision to the Supreme Court of Canada.

The other case, presently in the news, relates to Whatcott's pamphleteering efforts in Alberta on the University of Calgary campus in 2008. At the time, Whatcott was banned from the property and was served with a trespass notice for being in violation. Alberta Provincial Court Judge Bascom stayed the proceedings on the rationale the notice violated s.2(b) of the Charter. The Crown has now appealed this decision, which will be heard on March 30, 2012 at the Alberta Court of Queen's Bench. 

Read my previous postings on the issue here:

The Road Taken By The Supreme Court of Canada

A Message of Tolerance

Blog Update: The Limits Of Expression

Law, Literature, And Inherit The Wind