The Whatcott decision generated a ton of commentary, so we rounded up a few more reactions. Ariane Krol
recognizes that the court struggled to bring clarity to the debate, but the decision, she writes, still leaves plenty of room for interpretation:The trouble is that the Court’s test rests on impressionistic criteria. Could it be the reason why it took the justices 16 months to reach a decision about four pamphlets?
The [hateful] expression must not only inspire violent and extreme sentiments, but must be “likely to expose the targeted person or group to hatred by others.” Following the decision, we must ask ourselves what “a reasonable person, aware of the context and circumstances’ would think. But that won’t change anything. Measuring intensity and evaluating the possible consequences is an inherently subjective exercise. It’s to be expected that the administrative tribunals that will have to apply these criteria will continue to render controversial rulings. (Our translation)
It’s a nuanced and well-crafted decision, according to Michael Plaxton
, but one that forces us to confront difficult questions:The decision in Whatcott forces one to ask just how important it is that matters of private sexual morality be debated in the public sphere. Maybe it’s fair enough to say that the state has no place in the bedrooms of the nation. But does that mean private citizens should not be allowed to express an opinion about what goes on in them? After all, although it may seem a trivial matter for many of us, for others, sexual morality is tied to questions of the highest spiritual significance and urgency. Perhaps a commitment to equality demands that their views be muffled somewhat. If that is true, though, we should be honest about what we are doing. Andrew Coyne
, on the other hand, calls the Court's decision “calamitous,” – presumably for proponents of free speech:It did not choose to begin a ruling on an important freedom of speech case with a ringing affirmation of the importance of free speech, or what an extraordinary thing it is to place restrictions upon it.
Indeed, in its haste to get on with the limiting, it did not even pause to properly quote the section of the Charter that grants the state such authority. The Charter "guarantees" the rights set out in it, Section 1 declares, "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." The limits don't just have to be reasonable. They have to be "demonstrably justified."
Where the court's view of such limits is expansive and approving, the charter is grudging ("only") and cautious ("demonstrably"). That's as it should be. If we accept the bedrock premise of a free society, that government is its servant and not its master, then it is up to the state, always, to ask the citizens' permission before it intrudes on their liberty, and to prove its necessity: it is never the citizen's obligation to show why he may remain unmolested. That spirit is lamentably absent from the court's reasoning
argues that the Supreme Court has made hate speech a political issue:What makes the Whatcott decision so striking is the Court’s now unanimous adoption of them, including by the current Chief Justice who in 1990 wrote vigorous dissents. It is highly unlikely that the Whatcott decision will end the debate over the propriety of hate speech laws. But in its decision yesterday, the Supreme Court has given them a powerful imprimatur, signalling that further debate will be confined to the political sphere. Karen Selick
, none to pleased with the Chief Justice’s position, raises an interesting point by objecting to the awarding of legal costs:They also seemed to have forgotten that they themselves, in the very same decision, had effectively struck several words out of the Saskatchewan Human Rights Code: namely, the vague prohibition on speech that “ridicules, belittles or otherwise affronts the dignity of” individuals without reaching the level of exposing someone to hatred. This rectification of the legislation to comply with the Charter would not have occurred without the efforts of Whatcott, and for that he should have been given credit.