Wednesday, February 27, 2013

Whatcott Decision, Condensed

The Saskatchewan Human Rights Code is mostly constitutional:

 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.

Woth noting that in testimony, reps from the Sask. Tribunal said that, in looking at a case, the real weight fell on the clause judge to be constitutional.  So no great loss.

And two of four of Whatcott's pamphlets constituted hate speech; two were merely offensive:

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.

Suck on it Bill!  Suck on it Speechys!

PS.  Also, Bill is out $7,500 and a whole whack for costs.

PPS.  Another good bit, re the issue of whether the speech in question reflects a sincerely held belief:

[143]                      Apart from that concern, the fact that a person circulates a hate publication in the furtherance of a sincere religious belief goes to the question of the subjective view of the publisher, which is irrelevant to the objective application of the definition of hatred. Allowing the dissemination of hate speech to be excused by a sincerely held belief would, in effect, provide an absolute defence and would gut the prohibition of effectiveness.


Harry Abrams said...

This should save or reinstate Section 13 of the Canadian Human Rights Code. Which is a very good thing for Canada. Though parliament saw fit to push a private members' bill through to dismantle it, the final coup de grace has not been given due to leadership shown in the Senate; something we should be grateful for. No doubt those Senators have been waiting to see the outcome of this Whatcott matter..and there's one more decision yet in Warman V. Lemire. The Canadian Bar Association was adamant in preserving S13 and this same "likely to" language as well.

Harry Abrams said...

P.S. ... it's a very good feeling that not only was it a positive decision for our point of view,vindicating the years and years of toil and risk by Richard Warman, but that the Supreme Court judges WERE UNANIMOUS. That makes it a lock. Also with this, there should be a certain lawyer lying on their deathbed on Canada's westcoast, can take with them to their final rest, the great certainty that section 13 and other laws like it will outlive them forever...and that this country's minorities can feel protected at least from the worst of hate expression for a long time to come. I think that doughty tree trimmer Edward Kennedy, with endless erudition more than less represents the "speechy" response at this moment: "...That court is full of shite and they can go to bloody hell where the kool aid runs free right next to the fountain of demon piss. Drink hearty arsewipes...."