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March 1, 2013

Supreme Court of Canada accepts arguments made by Millard & Company in landmark hate speech case.

On February 27, 2013, the Supreme Court of Canada released its decision in Saskatchewan (Human Rights Commission) v. Whatcott, a landmark case on hate speech laws in Canada. Millard & Company were counsel for the United Church of Canada, which intervened in the case. Ben Millard appeared and made oral submissions to the SCC at the hearing in October 2011.

The case involved a religious extremist, William Whatcott, who was handing out anti-homosexual fliers in Saskatchewan. Several people who received the fliers complained to the Saskatchewan Human Rights Commission. The Tribunal found that the fliers were “hate speech”, which was contrary to Saskatchewan’s human rights legislation.

Mr. Whatcott appealed, and the Saskatchewan Court of Appeal overturned the Tribunal’s decision. It found that the fliers were not hate speech. Among other things, it found that issues regarding sexual orientation were inherently controversial, so any speech regarding those issues should be protected, no matter how extreme or abhorrent.

The Saskatchewan Human Rights Commission appealed to the SCC. The main question before the Court was whether “hate speech” provisions are allowed under our Constitution. This was the first time in over 20 years that the Court had looked at this question.

In a unanimous decision, the SCC upheld the substance of Saskatchewan’s hate speech provisions. It found that such provisions are reasonable limits on freedom of expression and freedom of religion and that they are justified by the need to prevent the real and lasting harm to minority groups from hate speech. It found that two of Mr. Whatcott’s fliers did constitute hate speech and it restored the Tribunal’s decision and the fines it imposed on Mr. Whatcott regarding those fliers.

The position of the United Church of Canada, which Ben Millard argued at the Court, was that freedom of religion is not absolute. Freedom of religion allows all Canadians to believe anything they want, and to take reasonable actions on the basis of those beliefs, but it does not include the right to say or do things that are so extreme and hateful that they will cause harm to others, and in particular to protected minorities, including the LGBT community. The SCC fully accepted this point and confirmed that it is the law in Canada.



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