The Supreme Court of Canada and Hate Publications: Saskatchewan Human Rights Commission v. Whatcott

The Supreme Court of Canada and Hate Publications: Saskatchewan Human Rights Commission v. Whatcott Tom Irvine Ministry of Justice, Constitutional Law Branch Human Rights Code Amendments May 5, 2014 Saskatoon

THE SUPREME COURTOF CANADA AND HATE PUBLICATIONS: SASKATCHEWAN HUMAN RIGHTS COMMISSION V. WHATCOTT THOMSON IRVINE * A. INTRODUCTION From 2006 to 2013, I was involved in the Whatcott case as it worked its way through the court system, ultimately resulting in a decision from the Supreme Court of Canada in 2013. 1 I acted on behalf of the Attorney General for Saskatchewan, defending the hate publication provision of The Saskatchewan Human Rights Code 2 from constitutional challenges based on freedom of expression and freedom of religion under the Canadian Charter of Rights and Freedoms. 3 The case illustrates a significant constitutional issue about the scope of freedom of expression and restrictions under hate publication provisions. It also raised several procedural issues under the Code, including the impact of the 2011 amendments. As part of the framework for the case, it was significant that both the Supreme Court and the Saskatchewan Court of Appeal had previously upheld hate publication provisions in human rights laws. In 1990, the Supreme Court had upheld the equivalent provision of the Canadian Human Rights Act in Canada (Human Rights Commission) v. Taylor, finding that the provision infringed freedom of expression, but could be upheld * Senior Crown Counsel, Constitutional Law, Saskatchewan Ministry of Justice. The views expressed in this paper are not necessarily those of the Ministry of Justice. 1 Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11. 2 The Saskatchewan Human Rights Code, S.S. 1979, c. S-24.1, s. 14(1)(b). The text of s. 14(1(b) is attached as the Appendix to this paper. 3 Canadian Charter of Rights and Freedoms, s. 2(b) (freedom of expression); s. 2(a) (freedom of religion).

- 2 - under s. 1 of the Charter. 4 In 1994, the Court of Appeal had previously upheld s. 14(1)(b) itself in Saskatchewan (Human Rights Commission) v. Bell, which had relied on the Supreme Court s decision in Taylor. 5 Since Mr Whatcott was challenging the constitutionality of s. 14(1)(b), the issue of stare decisis was therefore an issue throughout the proceedings. B. PROCEDURAL BACKGROUND The case was triggered when Mr Whatcott distributed pamphlets critical of homosexuality, particularly with respect to educational and hiring policies in the public schools in Saskatoon. The pamphlets triggered four complaints under s. 14(1)(b) of the Saskatchewan Human Rights Code, brought by individuals who found them in their mail boxes. The complaints went through the normal investigation by the Human Rights Commission, but did not settle at that stage. The Commission concluded that the complaints had merit, and referred them to the Saskatchewan Human Rights Tribunal for an inquiry under the Code. At the Tribunal stage, Mr Whatcott argued that the pamphlets did not infringe s. 14(1)(b). He also challenged the constitutionality of the section. The Tribunal, chaired by Anil Pandila, Q.C., found that the complaints were valid. It also dismissed the constitutional challenge as a matter of stare decisis, relying on the Bell decision of the Court of Appeal upholding s. 14(1)(b). On the merits, the Tribunal found that the pamphlets infringed s. 14(1)(b) of the Code. It ordered Mr Whatcott to pay dignity damages to the four complainants, totalling $17,500, and also ordered him to stop publishing and distributing the pamphlets. 6 4 Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892. The Court split on a 4-3 division, with Dickson C.J.C. writing for the majority to uphold. McLachlin J. (as she then was) wrote the dissenting decision, which would have struck down the provision. 5 Saskatchewan (Human Rights Commission) v. Bell, [1994] 5 W.W.R. 458 (Sask. C.A.). 6 Wallace v. Whatcott (2005), 52 C.H.R.R. D/264 (Sask. H.R.T.).

- 3 - Mr Whatcott then appealed to the Saskatchewan Queen s Bench. Justice Kovach dismissed the constitutional challenge to s. 14(1)(b), again on the basis of stare decisis. He too relied on the Taylor and Bell decisions. On the merits, Kovach J. upheld the ruling of the Tribunal. 7 Mr Whatcott then appealed to the Saskatchewan Court of Appeal. That Court also dismissed the constitutional challenge to s. 14(1)(b), again on stare decisis and Taylor. However, the Court of Appeal allowed the appeal on the merits. The Court found that the pamphlets did not infringe s. 14(1)(b). The Court set a very high standard for finding a violation of s. 14(1)(b), based on freedom of expression concerns. The Court appeared to suggest that where statements were made relating to a matter of public debate and moral issues, the statements would likely not infringe s. 14(1)(b). The Court also appeared to accept that there was a distinction between the protected class, and the activities of a protected class. Thus, while sexual orientation itself was protected, comments against same-sex activity appeared not to infringe s. 14(1)(b). 8 The Saskatchewan Human Rights Commission obtained leave to appeal to the Supreme Court of Canada, which heard the appeal in October, 2011. The Court released its decision in February, 2013, unanimously overturning the decision of the Saskatchewan Court of Appeal. The Supreme Court confirmed that s. 14(1)(b) is constitutional, reaffirming its earlier decision in Taylor. However, the Court disagreed with Court of Appeal s interpretative approach to s. 14(1)(b), holding that it had given too strict an interpretation to the provision. The Supreme Court then reviewed the pamphlets under its interpretation of s. 14(1)(b), and found that only two of the four pamphlets infringed that section. As a result, it disallowed two of the claims, which reduced the total award for dignity damages to $7,500. 7 Whatcott v. Saskatchewan Human Rights Tribunal et al., 2007 SKQB 450, 61 C.H.H.R. D/401. 8 Whatcott v. Saskatchewan Human Rights Tribunal et al. 2010 SKCA 26.

- 4 - C. ROLE OF THE ATTORNEY GENERAL FOR SASKATCHEWAN The Attorney General did not participate in the hearing before the Tribunal. The first intervention by the Attorney General was in the appeal to the Queen s Bench. The Attorney General also participated in both the Court of Appeal and the Supreme Court. The Attorney General intervened solely to defend constitutionality of s. 14(1)(b). The Attorney General did not have any role in the initial investigation by the Commission, nor in the Commission s decision to refer the complaints to the Tribunal. As well, since the Attorney General did not participate in the hearing before the Tribunal, the Attorney General did not contribute to the evidential base before the Tribunal. D. STARE DECISIS AND SECTION 1 EVIDENCE The case raised an interesting evidential issue: in what circumstances does the Attorney General need to lead s. 1 evidence, when there is a strong claim of stare decisis upholding the constitutionality of the impugned provision? In Taylor, the Supreme Court had previously rejected a similar freedom of expression challenge, relying on s. 1 of the Charter. The Court of Appeal in Bell then relied on Taylor to uphold the very provision in issue in this case. Does the Attorney General need to lead s. 1 evidence in every case, even when there is such strong precedent in favour of the constitutionality of the provision? In any event, in this case the Commission did not lead any s. 1 evidence at the Tribunal hearing. Nor did the Attorney General, who did not participate at that stage. When the matter went to the Supreme Court, there was some argument from those challenging the provision about a changed social setting since the Taylor case in 1990, but there was no new evidence. The only s. 1 evidence was essentially what was stated by the Supreme Court in its decision in Taylor. Obviously, there is no way to tell in advance which cases are going to go to the Supreme Court, with one of the parties asking the Court to overturn one of its own earlier

- 5 - decisions. Does the Attorney General have to lead detailed evidence in every case, on the possibility that the case may go to the Supreme Court? That seems an excessive call on the resources of the government, particularly when there are decided cases in favour of the Attorney General on the very point. On the other hand, if the Attorney General fails to lead s. 1 evidence, will that prejudice the case if the matter does go to the Supreme Court? The Whatcott case raises those issues, but does not provide any guidance, as the Court did not address the question in its reasons. E. THE ARGUMENT IN THE SUPREME COURT 1. POSITION OF THE ATTORNEY GENERAL When the case went to the Supreme Court, counsel for the Attorney General only made submissions on the constitutional issue, not on the merits of the human rights complaints. This approach is based on the terms of The Constitutional Questions Act, which only gives the Attorney General standing to intervene on constitutional issues, not on all issues raised by a particular case. Counsel for the Human Rights Commission, Grant Scharfstein, Q.C., argued the merits, as well as making submissions on the constitutional issue. Tom Schuck of Weyburn argued for Mr Whatcott. In addition to the parties, there was a record number of interveners, both for and against the constitutionality of the provision. The argument for the Attorney General largely relied on the majority decision by Dickson C.J.C. in Taylor and the companion case of R. v. Keegstra, 9 which had upheld the hate publication offence in the Criminal Code. 10 The argument of the Attorney General relied on the merits of the position taken by Dickson C.J.C., and also on the principle of stare decisis. 9 R. v. Keegstra, [1990] 3 S.C.R. 697. 10 Criminal Code, R.S.C. 1985, c. C-46, s. 319.

- 6-2. THE HUMAN RIGHTS CODE IS ENTIRELY CIVIL IN NATURE Another aspect of the argument for the Attorney General was to emphasise the numerous changes to the Code since the decisions in Taylor and Bell. Those amendments had made the human rights process in Saskatchewan an entirely civil matter. That approach fit well with the analysis of Dickson C.J.C. in Taylor. He had emphasised that civil remedies for hate speech were less intrusive than penal sanctions, and therefore easier to justify under s. 1. 11 In the 20 years since Taylor, Saskatchewan has moved steadily away from a punitive approach in the Code to civil remedies: mediation has played an increasing role in the Commission process, to the point that it is now mandatory under the 2011 amendments to the Code. 12 Mediation emphasises the approach of encouraging the parties to resolve their differences themselves, through directed discussions, rather than impose penalties under the law. There is no longer a general offence provision in the Code, meaning that it is not an offence to infringe s. 14. 13 The only offence now in the Code is for failure to comply with court orders. 14 The remedies under the Code now are entirely civil in nature, primarily civil damages to the complainants, and cease and desist orders. 15 If civil damages are granted, they are enforced by order of the Court, similar to other money judgments of the Court. 16 Even if a person fails to comply with a 11 Canada (Human Rights Commission) v. Taylor, at 932. 12 Mediation was added to the Code in 2000, as one option to resolve a matter: Code, s. 28(1)(a), (b), as enacted by The Saskatchewan Human Rights Code Amendment Act, 2000, S.S. 2000, c. 26, s. 22. Mediation was made mandatory in 2011: Code, s. 29.5(1), as enacted by The Saskatchewan Human Rights Code Amendment Act, 2011, S.S. 2011, c. 17, s. 13. 13 The general offence provision, s. 35(2), was repealed in 2000: The Saskatchewan Human Rights Code Amendment Act, 2000, supra, s. 31(2). 14 Code, s. 35(1). 15 Code, s. 31.3, 31.4, as enacted by The Saskatchewan Human Rights Code Amendment Act, 2011, s. 17.

- 7 - court order and is convicted of that offence, the only penalty is a fine. In that case, the Code specifically provides that there can be no imprisonment to recover the fine. The only way to recover the fine is by civil enforcement mechanisms. 17 All of these changes supported the argument that the Code now is entirely civil in nature, well within the rationale of Dickson C.J.C. s analysis in Taylor. 3. HATE PUBLICATIONS AND THE CRIMINAL CODE Several of those arguing against the constitutionality of the provision argued that the question of hate publications is better handled under the Criminal Code, a position advocated by Professor Moon in a report commissioned by the Canadian Human Rights Commission on the equivalent federal position, s. 13 of the Canadian Human Rights Act. 18 Professor Moon had argued that s. 13 of the federal Act should be repealed, and that the issue of hate publications should be dealt with solely under the Criminal Code. 19 Those relying on the Moon argument in the Supreme Court suggested that the human rights process did not provide sufficient procedural protections for an individual said to have infringed a hate publication provision. In support of this argument for exclusive criminal law sanctions, some also argued that the definition of hate was too vague and unworkable to be used in the human rights process. In oral argument, Justice Cromwell responded to this argument by pointing out that the Court in Taylor and Keegstra had used the same definition for hate. How, he asked, was the definition of hate unworkable in the civil human rights context, yet workable in the criminal context? In response to this argument, the Attorney General argued that it was misguided, particularly with respect to the s. 1 issue. The criminal law is far more intrusive than the civil process under the Human Rights Code. A person charged with an offence under the Criminal Code is potentially facing a criminal record, fines, and even jail time. By 16 Code, s. 31.3(3) and (4), as enacted by The Saskatchewan Human Rights Code Amendment Act, 2011, s. 17. 17 Code, s. 41, 42. 18 Canadian Human Rights Act, S.C. 1976-77, c. 33, s. 13. 19 Richard Moon, Report to the Canadian Human Rights Commission Concerning Section 13 of the Canadian Human Rights Act and the Regulation of Hate Speech on the Internet (October, 2008), at 31-32. Note that Parliament has since repealed s. 13: An Act to amend the Canadian Human Rights Act (protecting freedom), S.C. 2013, c. 37, s. 2.

- 8 - contrast, the human rights process is entirely civil in nature. The main remedies are damages payable to the complainant, and cease and desist orders, to stop the conduct. There is no possibility of jail time under the human rights process. When one is considering the chilling effect which a prohibition on hate publication may have on freedom of expression, the criminal law is by far more intrusive and more likely to have a chilling effect. A civil process is more easily justified under s. 1. 20 Counsel for the Attorney General responded to the arguments based on the alleged lack of procedural protections by pointing out that not only had the Code been amended to make the human rights process clearly civil in nature, without the serious penal sanctions available under the Criminal Code, but that the Human Rights Tribunal had been abolished and the adjudicative function transferred to the Queen s Bench, using the ordinary rules of civil procedure and civil evidence. 21 Another of the reforms made in 2011 expanded the right of appeal. Prior to 2011, appeals from the Tribunal were restricted to questions of law alone. Now, there is a full right of appeal to the Court of Appeal, similar to any other appeal from the Queen s Bench to the Court of Appeal. 22 Overall, these changes provided additional procedural protections for an individual alleged to have breached the hate publication provisions of the Human Rights Code. That in turn supported the s. 1 argument of the Attorney General, respecting the proportionality of the provision. 4. OVERBREADTH AND S. 14(1)(B) Another issue which came up was that s. 14(1)(b) is overbroad, because it does not just address the issue of hatred. The provision could also be triggered by a publication which ridicules, belittles or otherwise affronts the dignity of any person or class of persons. In Taylor and Keegstra, the Supreme Court had emphasised that its decision was limited to upholding prohibitions on hate publications. Those opposed to 20 Factum of the Attorney General, para. 58. 21 Code, s. 29.7(3), as enacted by The Saskatchewan Human Rights Code Amendment Act, 2011, s. 13. 22 Code, s. 32(1), as enacted by The Saskatchewan Human Rights Code Amendment Act, 2011, s. 19.

- 9 - s. 14(1)(b) in the Whatcott case argued that it went well beyond the scope of the analysis in Taylor and Keegstra, and therefore could not be upheld under those cases. In response, the Attorney General argued that the provision could be dealt with by reading down the overbroad portion, leaving the section only applying to hate publications. The Saskatchewan Court of Appeal had taken exactly that approach twenty years earlier, in the Bell case, and the provision had been interpreted ever since as applying only to hate publications. Some of the justices queried this point during the hearing, and asked why the Legislature had not amended s. 14(1)(b) to reflect the Court of Appeal s decision in Bell. Was the approach taken by the Court of Appeal in Bell justifiable? In response, the Attorney General argued that the Supreme Court should take the same approach as the Court of Appeal had taken in Bell. Under the Supreme Court s jurisprudence on Charter remedies, it was permissible to strike out only those parts of s. 14(1)(b) which could not be justified under the Supreme Court s s. 1 analysis in Taylor. This approach would leave the prohibition on hate publications intact. The experience since Bell had shown that the provision could be applied on this basis. This proposed remedy was also consistent with the principle that courts should only strike out the clearly unconstitutional provisions and maintain as much of the statutory framework as possible, consistent with the intention of the Legislature. F. THE SUPREME COURT DECISION In February, 2013, the Court gave its decision. The Court upheld the constitutionality of s. 14(1)(b), and overturned the Court of Appeal on the merits. There was a surprise in the decision. In 1990, Justice McLachlin had written the dissenting judgments in both the Taylor and Keegstra cases. She did not agree that the hate publication provisions could be upheld under s. 1, and would have held that both the criminal and the human rights provisions were unconstitutional. She was the only judge still on the Court from that time. Many of the counsel at the hearing had assumed that

- 10- she would likely repeat her position. The Court s unanimous decision upholding s. 14(1)(b) was therefore a bit unexpected. Justice Rothstein wrote the decision for the Court. He confirmed that the Court s decision in Taylor was still good law, albeit with some fine-tuning of the definition of hate. Applying its interpretation, the Supreme Court held that the Court of Appeal had applied too strict a standard. The Court also rejected the position of the Court of Appeal that publications discussing matters of politics, public policy and morals would generally not infringe s. 14(1)(b), as well as the suggestion that the section did not extend to activities, such as same-sex behaviours. The Supreme Court therefore overturned the decision of the Court of Appeal. The Court then reviewed the four pamphlets under its interpretative approach to s. 14(1)(b). It held that two of the four pamphlets did not meet the test of hatred which set out in the Code, and therefore did not restore the findings of liability against Mr Whatcott for those two publications. However, it did uphold the finding of liability with the other two pamphlets. Overall, that decision had the effect of reducing the total amount of damages from $17,500 to $7,500. On the issue of the overbreadth of s. 14(1)(b), he accepted the arguments of the Attorney General that the overbroad provisions of s. 14(1)(b) could be read down, to make it comply with the Court s s. 1 analysis in Taylor. He followed the course taken by the Court of Appeal in Bell on this point. He confirmed that s. 14(1)(b) is to be read solely as a prohibition on hate publications. The overbroad aspects of the provision, referring to ridiculing, belittling or affronting dignity, are confirmed to be inoperative. 23 Rothstein J. also accepted the arguments of the Attorney General concerning the numerous procedural changes. He outlined the changes, and then concluded that the civil nature of the human rights process made the arguments of those opposing the provision unpersuasive. 24 23 Whatcott (S.C.C.), para. 93. 24 Whatcott (S.C.C.), para. 150.

- 11- G. CONCLUSION The Supreme Court decision is significant for confirming its earlier decision that hate publication provisions in human rights laws are justifiable under s. 1 of the Charter, and therefore constitutional. The Court s decision is also informative for the impact which procedural changes to the Code can have for constitutional issues, such as justification under s. 1 of the Charter.

- 12- APPENDIX: SECTION 14 OF THE SASKATCHEWAN HUMAN RIGHTS CODE Prohibitions against publications 14(1) No person shall publish or display, or cause or permit to be published or displayed, on any lands or premises or in a newspaper, through a television or radio broadcasting station or any other broadcasting device, or in any printed matter or publication or by means of any other medium that the person owns, controls, distributes or sells, any representation, including any notice, sign, symbol, emblem, article, statement or other representation: (b) 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. (2) Nothing in subsection (1) restricts the right to freedom of expression under the law upon any subject.