There was reason to believe that the Supreme Court of Canada might strike a blow yesterday for freedom of speech.
Back in 1990, the high court narrowly upheld the censorship provisions of the Canadian Human Rights Act - in fact, current chief justic Beverly McLachlin wrote the very compelling dissent for the court. Much has changed since the Taylor ruling, and a case involving a Saskatchewan anti-gay crusader gave the court cause to revisit the matter.
William Whatcott had been convicted by the Saskatchewan Human Rights Tribunal over four anti-gay pamphlets he had prepared. The Saskatchewan Court of Appeal overturned those convictions in a rousing defence of free speech noting that even though Whatcott's flyers were " “crude, offensive, and pejorative” they should not be prohibited because "debate will sometimes be polemical and impolite". That's what free speech means.
The Saskatchewan Court of Appeal decision was appealed to the Supreme Court, and yesterday the court came back with a disappointing, albeit a mixed, decision.
In a unanimous decision, the court struck down some language in the provincial code, which cleared Whatcott in connection with two other flyers.
But the other two convictions have been restored.
Here's the confusing part of the ruling: the provisions of the law banning speech which, "ridicules, belittles or otherwise affronts the dignity of" have beebn struck down. Yet provisions banning speech which "might expose individuals or groups to hatred" remain. Is there really a significant different between the two?
Hatred is an emotion, and therefore subjective. The court gives us no way to objectively identify hatred, nor is their any expectation that any harm be demonstrated. The court simply assumes that harm exists, when it may in fact be the opposite. Whatcott's pamphlets may have hurt his cause, and pushed people into the camp of supporting gay rights.
The other problem here is that by trying to censor Bill Whatcott we've given him a much bigger platform. Had he been left alone he would still be a hateful marginal nobody.
The court's ruling even re-publishes Whatcott's flyers, which is supremely ironic given that under the law coourt just upheld, intent is no defence when it comes to publishing hateful material. And it should be noted, truth is no defence either.
There is still a chance for governments to do the right thing. The Supreme Court has upheld these laws, but not declared them to be mandatory.
In order to protect freedom of speech, governments could remove these laws from the books. Ottawa is moving in that direction, and of course Alison Redford once promised to do the same here in Alberta.
Even though the court has failed to stand up for free speech, we can still demand our elected politicians do so.
Further analysis of the court's decision from the Canadian Constitutiuon Foundation, Lorne Gunter, Emmet Macfarlane, Andrew Coyne, John Carpay, Charlie Gillis, and Jonathan Kay. My previous thoughts on the Whatcott case here.
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