03/01/2013 04:08 EST | Updated 05/01/2013 05:12 EDT

Will Saskatchewan Strike a Balance Between Freedoms and Rights?

In 1947, the Saskatchewan Legislature passed The Saskatchewan Bill of Rights Act, and the difficult task of balancing freedoms and rights began. The Supreme Court of Canada's decision concerning Bill Whatcott's anti-gay campaign is just the latest example. But it is nothing new.

Saskatchewan's Bill of Rights was the first statute of its kind in Canada -- in the world, in fact -- and it predated the United Nations Universal Declaration of Human Rights by one year. Saskatchewan's Bill guaranteed the familiar democratic freedoms -- freedom of expression and association, freedom from arbitrary imprisonment and the right to vote. In addition, it guaranteed access to all of what we think of as public "goods" -- employment, property and accommodation, membership in professional and trade associations, education, public services -- without discrimination on the basis of "race, creed, religion, colour or ethnic or national origin."

The important and revolutionary thing about this legislation was that it was not just about the relationship between the government and the individual citizen. It was also about relationships among individual citizens and relationships between corporations and people. As long as you were acting in the public sphere, you were prohibited by law from discriminating against your fellow citizens. In the privacy of your own home, you could believe that Eastern European Catholics should be sent back where they came from, but you couldn't refuse to serve them in your shoe store. It was about getting along. It was about the way we treat one another and the way we all wanted to be treated.

The original Bill of Rights recognized a tension between the potentially competing human rights values of freedom of speech and freedom from discrimination. Because you were prohibited from discriminating on the basis of race, religion and ethnicity, it follows pretty logically that you were not allowed to SAY that you were going to discriminate on the basis of race, religion or ethnicity. So, you couldn't put up a sign on your restaurant door that declared you wouldn't serve Jews or Asians; you couldn't advertise in the newspaper that you wouldn't rent an apartment to Germans or Catholics; you couldn't write in a job application form that people of Aboriginal or African descent need not apply. The fact that you could not express those particular preferences was, obviously, a restriction on your freedom of expression.

Subsection 14(1) of the original Bill of Rights prohibited the use of signs or ads or other publications that expressed an intention to discriminate. And, to demonstrate that the drafters knew what they were about, subsection (2) said "Nothing in subsection (1) restricts the right to freedom of expression under the law on any subject." Thus, the provision signaled to those called upon to interpret the scope of the prohibition on discriminatory expression that they had to be mindful of the need to balance competing interests.

In the sixty-six years since Saskatchewan's Bill of Rights was enacted, despite change and expansion and resistance and backlash, the essential task of balancing competing rights and freedoms has remained. All the provinces and territories and the federal government now have human rights legislation. The list of prohibited grounds of discrimination has grown and now includes sex, sexual orientation,family status and others grounds, depending on the jurisdiction in which you live.

Saskatchewan's prohibition on expressing an intention to discriminate also expanded dramatically and appears to have lost its way. It morphed into a seemingly full-blown statutory enforcement of our mothers' wise counsel, "If you don't have anything nice to say, don't say anything at all" - otherwise known as a "hate-speech" provision. Section 14 of The Saskatchewan Human Rights Code now prohibits any expression that "exposes or tends to expose to hatred, ridicules, belittles, or otherwise affronts the dignity of any person or class of persons on the basis of a prohibited ground." And, subsection (2) continues to read, seemingly without irony, that "Nothing in subsection (1) restricts the right to freedom of expression under the law on any subject." Good luck with that.

Our Human Rights Commission and our Courts have always recognized that this provision, as written, is unreasonably broad and have, essentially, ignored the words "ridicules, belittles, or otherwise affronts the dignity of". When the inevitable Charter challenge to section 14 arose in the early nineties, I was the lawyer who defended the provision on behalf of the Saskatchewan Government. We relied upon the then-recent decision of the Supreme Court in Taylor which had upheld the federal Human Rights Act hate provision and we enthusiastically jettisoned that nonsense about ridicule, beliittling and affronting dignity, in an effort to save the section from sinking entirely. This provision was, and is, about "hate" and the impact hateful expression can have on the enjoyment of the right to make one's way in life free from discrimination.

Our Court of Appeal upheld the provision in 1994, very much along the same lines that the Supreme Court upheld it this week. The Taylor case, upon which both decisions rely, was released by the Supreme Court in 1990. So, despite all of the hand-wringing and wailing we can expect from those who fuss about our fragile freedoms, we have been living with this balance of competing values for a generation. Somehow, we have managed to stumble along fairly well.

In other words, this week's Supreme Court decision did not alter the status quo. This is, I would guess, a disappointment to those who style themselves "free speech advocates". I have mixed feelings.

Hopefully, the Saskatchewan legislature will amend the Code to get rid of the parts of the provision that the Court found to be "overbroad". Those words have not ever been given effect, which is good, but they continue to mislead the casual reader of the statute. Section 14 appears to be exactly what its critics accuse it of being: a right not to be offended. A sop to the hypersensitive. And, when the legislature is cleaning it up, perhaps there will be a debate about whether we need a hate provision at all.

It is not a law that is used very much. I don't know how many complaints the Commission receives, but they've only proceeded with a handful in the history of the section. It's probably not terribly effective. Bill Whatcott has announced that he has no intention of abiding by it and will not be paying the damages that were awarded to the complainants in his case. And, if the Commission makes strenuous efforts to enforce the judgement it will just make Whatcott more of a martyr for his creepy anti-sodomy cause than he already is.

But, I will make a couple of points that are not made often enough on this subject. First, hate provisions in human rights legislation are not instances of the government directly imposing limits on your freedom of expression. If any limits are imposed, it is at the behest of your fellow citizens, because human rights standards are generally enforced by individual complaints. Human Rights Codes are not criminal or otherwise penal statutes. They don't create "offenses", they create remedies for those who are affected by the discriminatory actions of others. When you use your freedom of speech to threaten the rights of a class of people to non-discriminatory treatment, you may find yourself accountable - not to the government, but to them.

Second, while the Courts are criticized every time they uphold one of these hate-law provisions, that criticism is misplaced. The Courts are just doing the job given to them by the legislatures. If provisions like section 14 of The Saskatchewan Human Rights Code are so dangerous to freedom, then the solution lies in political action. That, in fact, was what happened to the hate provision of the federal Act - a private member's Bill repealed it. If you don't want the Courts to do this job, don't complain: organize.

Human rights legislation expresses our fundamental values of freedom and equality. No matter what we do, those values will conflict from time to time. It is the unavoidable consequence of any human enterprise. And the Courts will be called upon to attempt, in a consistent and principled way, to resolve the conflicts that arise. No matter what, someone will be unhappy with the result. That's democracy.