It took 16 months for the Supreme Court to release its unanimous decision in Whatcott
. Though, predictably, reactions split both ways. Here’s the bottom line from a somewhat disappointed Jonathan Kay
: The Supreme Court of Canada’s decision in the case of Saskatchewan Human Rights Commission v. Whatcott can’t be considered a win for free-speech champions — especially religious conservatives. But nor is it an outright victory for human-rights censors. By reaffirming that human rights commissions cannot punish speech that merely “ridicules, belittles or otherwise affronts the dignity of” an alleged victim group, the Court struck a measured blow against political correctness. Charlie Gillis
writes that the compromise was inevitable. And yet:To me, their decision to stand-pat represents a missed opportunity to erect robust legal protections around a bedrock Canadian value. And yes, my employer has a stake in this. But if we learned anything from the Maclean’s-Ezra Levant human-rights fiascos, it’s that the rights process is too blunt, too one-sided an instrument to deal with such a sensitive issue as speech.
A couple of other thoughts: all eyes should now turn to the provinces that have anti-hate speech provisions in their human rights codes, some of whose leaders have echoed the above-stated qualms. They’ve been sitting on the sidelines to see whether Whatcott would give them the cover needed to do the right thing, and now the onus is on them. Emmett McFarlane
also takes a dim view:The argument that hate speech is “insidious” doesn’t appear to give sufficient weight to free expression. In fact, the “reasonable apprehension of harm” approach seems to act in direct contradiction to the Court’s stated position that the standard of review should be based on the effects of the speech rather than the ideas contained within.
It is highly likely that the Court took so long to render a decision in this case because the judges had to work hard to come up with unanimous reasons everyone could agree on. (A rare 6-0 judgment, the result of the retirement of Justice Deschamps, who took part in the hearing but retired more than six months before the decision was rendered and so could not sign on). The result is a bit of a messy compromise, where the standard laid out for lower courts to follow ultimately boils down to “some hateful ideas are okay, but not the really hateful ones that a reasonable person thinks might cause discrimination or harm.Pearl Eliadis
calls the decision "reasonable and balanced":The Whatcott ruling should provide comfort to those concerned about being found liable for “offending” others. The court said that one must look at the objectively verifiable effects of the speech, and not whether a person is merely affronted or offended.Ranjan Agarwal
probably has the clearest breakdown of the decision, and calls the decision “anti-climactic in hindsight":The real effect on hate speech law in Canada remains to be seen. Bill C-304, which repeals the hate speech provision in the Canadian Human Rights Act, has passed the House of Commons and is being debated in the Senate. In October 2012, the Federal Court found that same provision largely constitutional. In Alberta, Premier Alison Redford promised during her leadership campaign to repeal the equivalent Alberta provision. This decision may embolden proponents of hate speech laws to argue that this type of legislation has a role to play in prohibiting discrimination and may quell some of the debate on this issue.
Since proponents of free speech were quicker to get their reactions out, we'll give the last word to Dr. Dawg
, who applauds the court’s clarity and rejection of hate speech, as he puts it in “religious or policy garb.” Quoting the decision he writes:"Speech that has the effect of shutting down public debate cannot dodge prohibition on the basis that it promotes debate."The Speech Warriors™—here I’m referring to the honest ones without hate agendas of their own—never take that last part into account. They ignore unequal power relations entirely, pretending that we have a societal level playing field.