Whatcott v. Human Rights Tribunal (Sask.) et al., 2010 SKCA 26

• Judge: Sherstobitoff, Smith and Hunter, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: February 25, 2010
• Jurisdiction: Saskatchewan
• Citations: 2010 SKCA 26;(2010), 346 Sask.R. 210 (CA)

Whatcott v. Human Rights Tribunal (2010), 346 Sask.R. 210 (CA);

    477 W.A.C. 210

MLB headnote and full text

Temp. Cite: [2010] Sask.R. TBEd. MR.012

William Whatcott (appellant/appellant) v. The Saskatchewan Human Rights Tribunal, The Saskatchewan Human Rights Commission, James Komar, Brendan Wallace, Guy Taylor and Kathy Hamre (respondents/respondents) and Attorney General for Saskatchewan (intervenor/intervenor) and Canadian Constitution Foundation and Canadian Civil Liberties Association (intervenors)

(No. 1566; 2010 SKCA 26)

Indexed As: Whatcott v. Human Rights Tribunal (Sask.) et al.

Saskatchewan Court of Appeal

Sherstobitoff, Smith and Hunter, JJ.A.

February 25, 2010.

Summary:

Whatcott distributed four flyers under the name of Christian Truth Activists. Four persons who received the flyers filed complaints alleging the material in the flyers promoted hatred against individuals because of their sexual orientation and violated s. 14(1)(b) of the Saskatchewan Human Rights Code. A Human Rights Tribunal concluded that Whatcott's flyers contravened the Code. Whatcott appealed from the Tribunal's decision.

The Saskatchewan Court of Queen's Bench, in a decision reported at (2007), 306 Sask.R. 186, dismissed the appeal. Whatcott appealed.

The Saskatchewan Court of Appeal allowed the appeal. The court held that Whatcott's flyers did not violate s. 14(1)(b) of the Code.

Civil Rights - Topic 948

Discrimination - Publication, display or broadcast - Statutory prohibition - Scope of - Whatcott distributed four flyers under the name of Christian Truth Activists - The first flyer was entitled "Keep Homosexuality out of Saskatoon's Public Schools!" - The second flyer was entitled "Sodomites in our Public Schools" - The third and fourth flyers, which were a copy from the classified section of a gay magazine, had hand writing at the top which stated: "Saskatchewan's largest gay magazine allows ads for men seeking boys!" Four persons who received the flyers filed complaints alleging the material in the flyers promoted hatred against individuals because of their sexual orientation and violated s. 14(1)(b) of the Saskatchewan Human Rights Code - A Human Rights Tribunal concluded that Whatcott's flyers contravened the Code - Whatcott appealed from the Tribunal's decision - The Saskatchewan Court of Queen's Bench dismissed the appeal - Whatcott appealed - The Saskatchewan Court of Appeal allowed the appeal - The court, per Hunter, J.A., stated that "Any publication which is the basis for a complaint under s. 14(1)(b) of the Code, must be analyzed in accordance with the structure of the Code and the principles established in Bell and Owens. This means, in this case, each of the flyers must be examined in context and the circumstances in which the publication was made and distributed. When assessing the severity of the language in the publication, the language used in the flyers must be examined objectively, having regard to the context and the circumstances in which it is presented. Throughout this examination, care must be taken to balance the limitation to freedom of expression contained in s. 14(1)(b), with the confirmation provided in s. 14(2), that nothing in s. 14(1)(b) 'restricts the right to freedom of expression under the law upon any subject'" - The Tribunal and the Queen's Bench judge failed to apply those principles - The court concluded that the four publications distributed by Whatcott, properly considered, did not offend s. 14(1)(b) of the Code.

Civil Rights - Topic 953

Discrimination - Sexual orientation - Homosexuals (incl. same-sex couples) - [See Civil Rights - Topic 948 ].

Civil Rights - Topic 1190

Discrimination - Exemptions or exceptions - General - Freedom of speech or expression - [See Civil Rights - Topic 948 ].

Civil Rights - Topic 1860.2

Freedom of speech or expression - Limitations on - Hate messages and literature - [See Civil Rights - Topic 948 ].

Cases Noticed:

Human Rights Commission (Sask.) et al. v. Bell (1994), 120 Sask.R. 122; 68 W.A.C. 122 (C.A.), consd. [para. 13, footnote 5].

Owens v. Human Rights Commission (Sask.) et al. (2002), 228 Sask.R. 148; 2002 SKQB 506, revd. (2006), 279 Sask.R. 161; 372 W.A.C. 161; 267 D.L.R.(4th) 733; 2006 SKCA 41, consd. [para. 13, footnote 6].

Human Rights Commission (Sask.) v. Engineering Students' Society, University of Saskatchewan (1989), 72 Sask.R. 161; 56 D.L.R.(4th) 604 (C.A.), consd. [para. 23, footnote 12].

Taylor and Western Guard Party v. Canadian Human Rights Commission, [1990] 3 S.C.R. 892; 117 N.R. 191, consd. [para. 28, footnote 14].

R. v. Keegstra, [1990] 3 S.C.R. 697; 117 N.R. 1; 114 A.R. 81; 61 C.C.C.(3d) 1, refd to. [para. 43, footnote 20].

Quebec v. Carrières Ste-Thérèse ltée, [1985] 1 S.C.R. 831; 59 N.R. 391, refd to. [para. 57, footnote 36].

Communities Economic Development Fund v. Canadian Pickles Corp. et al., [1991] 3 S.C.R. 388; 131 N.R. 81; 76 Man.R.(2d) 1; 10 W.A.C. 1, refd to. [para. 57, footnote 36].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 103].

Nealy v. Johnston (1989), 10 C.H.R.R. D/6450, refd to. [para. 107].

Egan and Nesbit v. Canada, [1995] 2 S.C.R. 513; 182 N.R. 161, refd to. [para. 117].

Statutes Noticed:

Saskatchewan Human Rights Code, S.S. 1979, c. S-24.1, sect. 4, sect. 5 [para. 24]; sect. 14 [para. 26].

Authors and Works Noticed:

McNamara, Luke, Negotiating the Contours of Unlawful Hate Speech: Regulation Under Provincial Human Rights Laws in Canada (2005), 38 U.B.C. L. Rev. 1, generally [para. 23, footnote 12].

Driedger , Elmer A., Construction of Statutes (3rd Ed. 1994), p. 159 [para. 57, footnote 36].

Sullivan, Ruth, Sullivan on the Construction of Statutes (5th Ed. 2008), p. 210 [para. 57, footnote 36].

Counsel:

Thomas A. Schuck, for the appellant;

Janice E. Gingell, for the Saskatchewan Human Rights Commission;

J. Thomson Irvine, for the Attorney General for Saskatchewan;

John V. Carpay, for the Canadian Constitution Foundation;

Andrew K. Lokan, for the Canadian Civil Liberties Association.

This appeal was heard on September 19, 2008, before Sherstobitoff, Smith and Hunter, JJ.A., of the Saskatchewan Court of Appeal.

The judgment of the Court of Appeal was delivered on February 25, 2010, including the following opinions:

Hunter, J.A. (Sherstobitoff, J.A., concurring) - see paragraphs 1 to 89;

Smith, J.A. (Sherstobitoff, J.A., concurring) - see paragraphs 90 to 142.