Canadian Supreme Court Upholds Hate Speech Laws Against Anti-Gay Activist

William Whatcott

The Supreme Court of Canada has ruled that the nation’s laws against hate speech do, in fact, restrict anti-gay rhetoric, regardless of whether it reflects religious beliefs or not. The case dealt with William Whatcott of Saskatchewan, who regularly protests in public spaces with signs that say things like “Keep Homosexuality out of Saskatoon’s Public Schools!” and “Sodomites in our Public Schools.” According to the Court’s unanimous decision, Whatcott’s religious beliefs do not entitle him to spread messages that are harmful and marginalizing to a whole group of people:

Framing speech as arising in a moral context or within a public policy debate does not cleanse it of its harmful effect.  Finding that certain expression falls within political speech does not close off the enquiry into whether the expression constitutes hate speech.  Hate speech may often arise as a part of a larger public discourse but it is speech of a restrictive and exclusionary kind.  Political expression contributes to our democracy by encouraging the exchange of opposing views.  Hate speech is antithetical to this objective in that it shuts down dialogue by making it difficult or impossible for members of the vulnerable group to respond, thereby stifling discourse.  Speech that has the effect of shutting down public debate cannot dodge prohibition on the basis that it promotes debate.  Section 14 of the Code provides an appropriate means by which to protect almost the entirety of political discourse as a vital part of freedom of expression.  It extricates only an extreme and marginal type of expression which contributes little to the values underlying freedom of expression and whose restriction is therefore easier to justify.

A prohibition is not overbroad for capturing expression targeting sexual behaviour.  Courts have recognized a strong connection between sexual orientation and sexual conduct and where the conduct targeted by speech is a crucial aspect of the identity of a vulnerable group, attacks on this conduct stand as proxy for attacks on the group itself.  If expression targeting certain sexual behaviour is framed in such a way as to expose persons of an identifiable sexual orientation to what is objectively viewed as detestation and vilification, it cannot be said that such speech only targets the behaviour.  It quite clearly targets the vulnerable group.

Canada’s laws differ from the U.S.’s in terms of what limitations can be placed on free speech, so a similar law would not likely be upheld back in the States. But the Court’s ruling is notable for the sensible way it addresses sexual orientation, ensuring that attacking the behavior unique to a group of people is the same as attacking the people themselves.

Conservatives regularly try to discount the very existence of gay people by reducing their identities to merely their sexual behavior. This distinction is artificial and specifically designed to negate the full life experiences of LGBT people and their families.

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