You've Been Robbed By the Supreme Court's Whatcott Decision

02/27/2013 12:47 EST | Updated 04/29/2013 05:12 EDT

Dear Supreme Court of Canada,

You have unanimously ruled that the majority of the hate speech provisions of the Saskatchewan Human Rights Code are a constitutionally valid limit on Canadians' freedom of expression and religion. And you have reinstated the Human Rights Tribunal's conviction of William Whatcott for the distribution of two anti-gay flyers, as a result. (You did not reinstate his previously overturned conviction for two other flyers.)

While I personally find Mr. Whatcott's message repugnant, I am nonetheless in favour of his being able to peacefully express his religious and political opinion on teachings about homosexuality in public schools, without being silenced by the government and forced to pay tens of thousands of dollars in damages. (I'm a little like Voltaire that way, though your decision has moved me to blog rather than to put my life on the line.)

Given your decision to uphold the ban on speech "likely to expose" particular groups to "hatred," I have to ask how you can expect even the most well-meaning of judges to make objective classifications about what is, at the core, an emotion that lives in people's hearts? I know, you've tried to get around this troublesome point -- to make us forget that you are ultimately criminalizing a sentiment -- in a number of ways. First, you have explained that hatred "must be interpreted as being restricted to those extreme manifestations of the emotion described by the words 'detestation' and 'vilification.'" Indeed "detestation" and "vilification" are apt enough synonyms for "hatred" and they could, it might be argued (and this seems to be your point), be considered even stronger forms of the word. But changing the terminology does not change the fact that making a determination here still requires the judges to engage in prospectively reading the hearts and minds of the general public. This is an exercise in speculation, and one that I would suggest is far better suited to psychics and pundits than it is to arbiters of justice who have the power to restrict an individual's liberty based on their conclusions.

I know, you're trying to be fair, and to avoid the perception that you're censoring unpopular ideas. "The repugnancy of the ideas being expressed is not sufficient to justify restricting the expression, and whether or not the author of the expression intended to incite hatred or discriminatory treatment is irrelevant," you say.

But that doesn't quite save you, does it? For consider the logical consequences of your decision. Suppose there were an incredibly disturbing but indisputably true fact about a protected group -- a fact that would be likely to make people think ill of that group (to detest it, if you prefer). You have now created a situation where an individual who wrote a newspaper article reporting that truth could logically and legally be convicted of a hate crime.

The biggest loser here is not Mr. Whatcott. It is Canada, which will lose more in the breadth and honesty of public expression and debate as a result of your opinion than you seem to realize.

I'm not disputing that expression can lead to harm. But listen to yourselves for a moment. You say, "The difficulty of establishing causality and the seriousness of the harm to vulnerable groups justifies the imposition of preventive measures that do not require proof of actual harm." Does this not sound like the makings of a Minority Report-like dystopia, in which people who have committed no crimes are thrown in prison to prevent expected future harms?

You can't change your decision now, so please do the next best thing. Interpret your own caveats on the use of these speech limits as strictly as possible. You've robbed us of a significant freedom, but you still have the power to minimize the damage.


Marni Soupcoff

Formerly a constitutional lawyer, always an advocate of free speech

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