Thursday, October 28, 2010

Supreme Court of Canada will decide: What Constitutes Hate Speech in the Context of Anti-Homosexual Literature? - Case Comment by Corey D. Steinberg

The issue in this action is over four anti-homosexual flyers left in the mailboxes of various homes in Saskatoon and Regina, by Mr. Whatcott. This occurred during 2001 and 2002. Some recipients of the flyers filed complaints alleging that the message within them "promotes hatred against individuals because of their sexual orientation" in violation of s. 14(1)(b) of the Saskatchewan Human Rights Code.

At the first instance, a Tribunal heard the complaints, and concluded that the flyers did indeed contravene the Code.

Mr. Whatcott appealed, arguing that he was exercising his right to freedom of expression and freedom of religion and the flyers do not violate the Code. He argued in the alternative that if the materials do exhibit hate, it is directed towards sexual behaviour, which is not a prohibited ground. Finallly, he argued that if sexual behaviour is a prohibited ground within the meaning of sexual orientation, then the provision is overbroad and should be inoperative to the extent that it conflicts with s. 4 and 5 of the Code and s. 2 of the Charter of Rights and Freedoms.

The Court of Queen's Bench of Saskatchewan dismissed the appeal.

The Court of Appeal allowed the appeal.

Today, the Supreme Court of Canada granted leave to hear the final appeal on this matter, and we look forward to what the highest Court in this country will rule on this highly sensitive issue.

For further details see Saskatchewan Human Rights Commission v. William Whatcott et al (Sask. C.A., February 25, 2010) (33676)

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