Whatcott v. Human Rights Tribunal (Sask.) et al., (2013) 441 N.R. 1 (SCC)

• Judge: McLachlin, C.J.C., LeBel, Deschamps*, Fish, Abella, Rothstein and Cromwell, JJ.
• Court: Supreme Court (Canada)
• Case Date: October 12, 2011
• Jurisdiction: Canada (Federal)
• Citations: (2013), 441 N.R. 1 (SCC);2013 SCC 11;[2013] ACS no 2011;[2013] 1 SCR 467;[2013] SCJ No 11 (QL)

Whatcott v. Human Rights Tribunal (2013), 441 N.R. 1 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2013] N.R. TBEd. FE.022

Saskatchewan Human Rights Commission (appellant) v. William Whatcott (respondent) and Attorney General for Saskatchewan, Attorney General of Alberta, Canadian Constitution Foundation, Canadian Civil Liberties Association, Canadian Human Rights Commission, Alberta Human Rights Commission, Egale Canada Inc., Ontario Human Rights Commission, Canadian Jewish Congress, Unitarian Congregation of Saskatoon, Canadian Unitarian Council, Women's Legal Education and Action Fund, Canadian Journalists for Free Expression, Canadian Bar Association, Northwest Territories Human Rights Commission, Yukon Human Rights Commission, Christian Legal Fellowship, League for Human Rights of B'nai Brith Canada, Evangelical Fellowship of Canada, United Church of Canada, Assembly of First Nations, Federation of Saskatchewan Indian Nations, Métis Nation Saskatchewan, Catholic Civil Rights League, Faith and Freedom Alliance and African Canadian Legal Clinic (intervenors)

(33676; 2013 SCC 11; 2013 CSC 11)

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

Supreme Court of Canada

McLachlin, C.J.C., LeBel, Deschamps*, Fish, Abella, Rothstein and Cromwell, JJ.

February 27, 2013.

Summary:

Four complaints were filed with the Saskatchewan Human Rights Commission concerning four flyers that were published and distributed by Whatcott on behalf of the Christian Truth Activists. The flyers targeted homosexuals and were challenged by the complainants on the basis that they promoted hatred against individuals because of their sexual orientation. Section 14(1)(b) of the Saskatchewan Human Rights Code (the Code) prohibited the publication or display of any representation "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". The Saskatchewan Human Rights Tribunal held that the flyers constituted publications that contravened s. 14 of the Code as they exposed persons to hatred and ridicule on the basis of their sexual orientation. Whatcott applied for judicial review.

The Saskatchewan Court of Queen's Bench, in a decision reported at 306 Sask.R. 186, upheld the Tribunal's decision. Whatcott appealed.

The Saskatchewan Court of Appeal, in a decision reported at 346 Sask. R. 210; 477 W.A.C. 210, allowed the appeal. The court accepted that s. 14(1)(b) of the Code was constitutional, but it held that the flyers at issue did not meet the test for hatred and were not prohibited publications within the meaning of s. 14(1)(b) of the Code. The Saskatchewan Human Rights Commission appealed. Two issues arose in the appeal: (1) whether s. 14(1)(b) of the Code was constitutional, and, if so, (2) whether the Tribunal's application of that provision in the context of this case should have been upheld.

The Supreme Court of Canada concluded that s. 14(1)(b) of the Code infringed s. 2(a) (freedom of religion) and s. 2(b) (freedom of expression) of the Charter, but the infringement was justified under s. 1 of the Charter. The court held that a prohibition of any representation that "ridicules, belittles or otherwise affronts the dignity of" any person or class of persons on the basis of a prohibited ground was not a reasonable limit on freedom of religion or freedom of expression. Those words were constitutionally invalid and were severed from the statutory provision. The remaining prohibition of any representation "that exposes or tends to expose to hatred" any person or class of persons on the basis of a prohibited ground was a reasonable limit and demonstrably justified in a free and democratic society. The court held that the Saskatchewan Court of Appeal erred, in part, in overturning the Tribunal's decision. The court allowed the appeal in part and reinstated the decision of the Tribunal with respect to two of the flyers. The court dismissed the appeal in regard to the other two flyers.

Editor's Note: *Deschamps, J., took no part in the judgment.

Civil Rights - Topic 345

Freedom of conscience and religion - Exercise of - Restrictions - [See Civil Rights - Topic 382 ].

Civil Rights - Topic 382

Freedom of conscience and religion - Infringement of - What constitutes - Four flyers were published and distributed by Whatcott on behalf of the Christian Truth Activists - The flyers targeted homosexuals and were challenged by four complainants on the basis that they promoted hatred against individuals because of their sexual orientation - Section 14(1)(b) of the Saskatchewan Human Rights Code (the Code) prohibited the publication or display of any representation "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" - The Saskatchewan Human Rights Tribunal held that the flyers constituted publications that contravened s. 14 of the Code - Whatcott argued that, to the extent that s. 14(1)(b) of the Code precluded criticism of same-sex conduct or activity, it infringed freedom of religion under s. 2(a) of the Charter - The Supreme Court of Canada held that s. 14(1)(b) of the Code infringed freedom of religion as guaranteed under s. 2(a) of the Charter - The court conducted an analysis to determine whether the infringement was reasonably justified in a free and democratic society under s. 1 of the Charter - The court held that the words "ridicules, belittles or otherwise affronts the dignity of" were not rationally connected to the legislative purpose of addressing systemic discrimination of protected groups, nor tailored to minimally impair freedom of religion - The court found that the remaining prohibition of any representation "that exposes or tends to expose to hatred" any person or class of persons on the basis of a prohibited ground to be a reasonable limit on freedom of religion and demonstrably justified in a free and democratic society - See paragraphs 152 to 164.

Civil Rights - Topic 948

Discrimination - Publication, display or broadcast - Statutory prohibition (incl. hate speech) - The Supreme Court of Canada stated that "the Taylor definition of 'hatred', with some modifications, provides a workable approach to interpreting the word 'hatred' as it is used in prohibitions of hate speech. The guidance provided by Taylor should reduce the risk of subjective applications of such legislative restrictions, provided that three main prescriptions are followed. First, courts are directed to apply the hate speech prohibitions objectively. ... The question courts must ask is whether a reasonable person, aware of the context and circumstances surrounding the expression, would view it as exposing the protected group to hatred. Second, the legislative term 'hatred' or 'hatred and contempt' is to be interpreted as being restricted to those extreme manifestations of the emotion described by the words 'detestation' and 'vilification'. This filters out expression which, while repugnant and offensive, does not incite the level of abhorrence, delegitimization and rejection that risks causing discrimination or other harmful effects. Third, tribunals must focus their analysis on the effect of the expression at issue. Is the expression likely to expose the targeted person or group to hatred by others? The repugnancy of the ideas being expressed is not, in itself, sufficient to justify restricting the expression. The prohibition of hate speech is not designed to censor ideas or to compel anyone to think 'correctly'. Similarly, it is irrelevant whether the author of the expression intended to incite hatred or discriminatory treatment or other harmful conduct towards the protected group. The key is to determine the likely effect of the expression on its audience, keeping in mind the legislative objectives to reduce or eliminate discrimination. In light of these three principles, where the term 'hatred' is used in the context of a prohibition of expression in human rights legislation, it should be applied objectively to determine whether a reasonable person, aware of the context and circumstances, would view the expression as likely to expose a person or persons to detestation and vilification on the basis of a prohibited ground of discrimination" - See paragraphs 55 to 59.

Civil Rights - Topic 948

Discrimination - Publication, display or broadcast - Statutory prohibition (incl. hate speech) - The Supreme Court of Canada stated that "Finding that certain expression falls within political speech does not close off an enquiry into whether the expression constitutes hate speech. Hate speech may often arise as a part of a larger public discourse but, as discussed in Keegstra and Taylor, 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" - See paragraph 117.

Civil Rights - Topic 948

Discrimination - Publication, display or broadcast - Statutory prohibition (incl. hate speech) - The Saskatchewan Human Rights Tribunal found that four flyers published and distributed by Whatcott contravened s. 14(1)(b) of the Saskatchewan Human Rights Code as they exposed persons to hatred and ridicule on the basis of their sexual orientation - The Supreme Court of Canada stated that it did not find the Tribunal's approach unreasonable in isolating certain excerpts from the flyers for examination - The court stated that "I agree that the words and phrases in a publication cannot properly be assessed out of context. The expression must be considered as a whole, to determine the overall impact or effect of the publication. However, it is also legitimate to proceed with a closer scrutiny of those parts of the expression which draw nearer to the purview of s. 14(1)(b) of the Code. In most cases, the overall context of the expression will affect the presentation, tone, or meaning of particular phrases or excerpts. However, a dissertation on public policy issues will not necessarily cleanse passages within a publication that would otherwise contravene a hate speech prohibition ... it was not unreasonable for the Tribunal in this case to isolate the phrases it considered to be in issue. If, despite the context of the entire publication, even one phrase or sentence is found to bring the publication, as a whole, in contravention of the Code, this precludes publication of the flyer in its current form" - See paragraphs 174 to 175.

Civil Rights - Topic 948

Discrimination - Publication, display or broadcast - Statutory prohibition (incl. hate speech) - The Saskatchewan Human Rights Tribunal found that four flyers published and distributed by Whatcott contravened s. 14(1)(b) of the Saskatchewan Human Rights Code as they exposed persons to hatred and ridicule on the basis of their sexual orientation - The Supreme Court of Canada stated that it did not find the Tribunal's approach unreasonable in finding that the flyers criticized sexual orientation and not simply sexual behaviour - The court stated that "I do not accept Mr. Whatcott's submission that the flyers targeted sexual activities, rather than sexual orientation. While the publications at issue may appear to engage in the debate about the morality of certain sexual behaviour, they are only aimed at that sexual activity when it is carried out by persons of a certain sexual orientation. They do not deal with the same sexual acts when carried out by heterosexual partners. ... Genuine comments on sexual activity are not likely to fall into the purview of a prohibition against hate. ... If, however, he chooses to direct his expression at sexual behaviour by those of a certain sexual orientation, his expression must be assessed against the hatred definition in the same manner as if his expression was targeted at those of a certain race or religion" - See paragraphs 176 to 177.

Civil Rights - Topic 948

Discrimination - Publication, display or broadcast - Statutory prohibition (incl. hate speech) - Complaints were filed with the Saskatchewan Human Rights Commission concerning four flyers (Flyer D, Flyer E, Flyer F, and Flyer G) that were published and distributed by Whatcott on behalf of the Christian Truth Activists - The flyers targeted homosexuals and were challenged by the complainants on the basis that they promoted hatred against individuals because of their sexual orientation - The Saskatchewan Human Rights Tribunal held that the flyers contravened s. 14(1)(b) of the Saskatchewan Human Rights Code as they exposed persons to hatred and ridicule on the basis of their sexual orientation - Whatcott applied for judicial review - The Saskatchewan Court of Queen's Bench upheld the Tribunal's decision - Whatcott appealed - The Saskatchewan Court of Appeal held that the flyers at issue did not meet the test for hatred and were not prohibited publications within the meaning of s. 14(1)(b) of the Code - The Saskatchewan Human Rights Commission appealed - The Supreme Court of Canada held that the standard of review of the Tribunal's decision was reasonableness - The court held that the Tribunal's conclusions with respect to Flyers D and E were reasonable - It was reasonable for the Tribunal to hold that Flyers D and E would objectively be seen as exposing homosexuals to detestation and vilification - Flyers D and E expressly called for discriminatory treatment of those of same-sex orientation - Whatcott therefore combined expression exposing homosexuals to hatred with expression promoting their discriminatory treatment - It was not unreasonable for the Tribunal to conclude that this expression was more likely than not to expose homosexuals to hatred - However, the court held that the Tribunal's decision with respect to Flyers F and G was unreasonable and that Flyers F and G did not contravene s. 14(1)(b) of the Code - The court stated that "The Tribunal erred by failing to apply s. 14(1)(b) in accordance with the Taylor directive (requiring feelings of an ardent and extreme nature so as to constitute hatred), or in accordance with the interpretation of s. 14(1)(b) prescribed in Bell (essentially reading out the words 'ridicules, belittles or otherwise affronts the dignity'). By failing to apply the proper legal test to the facts before it, the Tribunal's determination that those flyers contravened s. 14(1)(b) was unreasonable and cannot be upheld ... it cannot reasonably be found that Flyers F and G contain expression that a reasonable person, aware of the relevant context and circumstances, would find as exposing or likely to expose persons of same-sex orientation to detestation and vilification ... the expression falls short of expressing detestation or vilification in a manner that delegitimizes homosexuals. The expression, while offensive, does not demonstrate the hatred required by the prohibition" - See paragraphs 165 to 202.

Civil Rights - Topic 948

Discrimination - Publication, display or broadcast - Statutory prohibition (incl. hate speech) - [See Civil Rights - Topic 382 and all Civil Rights - Topic 1860.2 ].

Civil Rights - Topic 953

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

Civil Rights - Topic 1860.2

Freedom of speech or expression - Limitations on - Hate messages and literature - The Supreme Court of Canada held that the statutory prohibition against hate speech in s. 14(1)(b) of the Saskatchewan Human Rights Code infringed the freedom of expression guaranteed under s. 2(b) of the Charter - In considering whether the provision could be saved under s. 1 of the Charter, the court stated, inter alia, "the question of whether a restriction on hate speech is rationally connected to the legislative goal of reducing discrimination must focus on the group rather than on the individual and depends on demonstrating that the likely harm is to the group rather than an individual alone. Hate speech seeks to marginalize individuals based on their group characteristics. As such, in order to satisfy the rational connection requirement, the expression captured under legislation restricting hate speech must rise to a level beyond merely impugning individuals: it must seek to marginalize the group by affecting its social status and acceptance in the eyes of the majority. ... A prohibition of hate speech will only be rationally connected to the objective if its ambit is limited to expression publicly directed at a protected group, or at an individual on the basis that he or she is a member of that group" - See paragraphs 79 to 84.

Civil Rights - Topic 1860.2

Freedom of speech or expression - Limitations on - Hate messages and literature - The Supreme Court of Canada held that the statutory prohibition against hate speech in s. 14(1)(b) of the Saskatchewan Human Rights Code infringed the freedom of expression guaranteed under s. 2(b) of the Charter - In considering whether the provision could be saved under s. 1 of the Charter, the court stated, inter alia, "Violent expression and expression that threatens violence does not fall within the protected sphere of s. 2(b) of the Charter: ... However, apart from that, not all expression will be treated equally in determining an appropriate balancing of competing values under a s. 1 analysis. That is because different types of expression will be relatively closer to or further from the core values behind the freedom, depending on the nature of the expression. This will, in turn, affect its value relative to other Charter rights, the exercise or protection of which may infringe freedom of expression. ... Hate speech is at some distance from the spirit of s. 2(b) because it does little to promote, and can in fact impede, the values underlying freedom of expression. ... expression can be used to the detriment of the search for truth ... hate speech can also distort or limit the robust and free exchange of ideas by its tendency to silence the voice of its target group. It can achieve the self-fulfillment of the publisher, but often at the expense of that of the victim. These are important considerations in balancing hate speech with competing Charter rights and in assessing the constitutionality of the prohibition in s. 14(1)(b) of the Code" - See paragraphs 112 to 114.

Civil Rights - Topic 1860.2

Freedom of speech or expression - Limitations on - Hate messages and literature - The Supreme Court of Canada held that the statutory prohibition against hate speech in s. 14(1)(b) of the Saskatchewan Human Rights Code infringed the freedom of expression guaranteed under s. 2(b) of the Charter - The court then considered whether the provision could be saved under s. 1 of the Charter - With respect to the issue of minimal impairment, two alternatives had been suggested that would better serve the goal of eradicating hate speech than the provisions of the Code - One was that trust should be placed in the "marketplace of ideas" to arrive at the appropriate balancing of competing rights and conflicting views - The other was that the prosecution of hate speech ought to be left to the criminal law - The court stated that "Having canvassed the proposed alternatives to the civil law remedy, I cannot say that any one represents such a superior approach as to render the others unreasonable. Section 14(1)(b) of the Code is within the range of reasonable alternatives that was available to the legislature" - See paragraphs 102 to 106.

Civil Rights - Topic 1860.2

Freedom of speech or expression - Limitations on - Hate messages and literature - The Supreme Court of Canada held that the statutory prohibition against hate speech in s. 14(1)(b) of the Saskatchewan Human Rights Code infringed the freedom of expression guaranteed under s. 2(b) of the Charter - The court then considered whether the provision could be saved under s. 1 of the Charter - With respect to the issue of overbreadth, the court stated, inter alia "s. 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 ... This suggests that, at least in this respect, the provision is not overbroad in its application" - See paragraph 120.

Civil Rights - Topic 1860.2

Freedom of speech or expression - Limitations on - Hate messages and literature - The Supreme Court of Canada held that the statutory prohibition against hate speech in s. 14(1)(b) of the Saskatchewan Human Rights Code infringed the freedom of expression guaranteed under s. 2(b) of the Charter - The court then considered whether the provision could be saved under s. 1 of the Charter - With respect to the issue of overbreadth, the court stated, inter alia, "I agree that sexual orientation and sexual behaviour can be differentiated for certain purposes. However, in instances where hate speech is directed toward behaviour in an effort to mask the true target, the vulnerable group, this distinction should not serve to avoid s. 14(1)(b) ... Courts have thus recognized that there is a strong connection between sexual orientation and sexual conduct. Where the conduct that is the target of speech is a crucial aspect of the identity of the vulnerable group, attacks on this conduct stand as a 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. Therefore, a prohibition is not overbroad for capturing expression of this nature" - See paragraphs 121 to 124.

Civil Rights - Topic 1860.2

Freedom of speech or expression - Limitations on - Hate messages and literature - The Supreme Court of Canada held that the statutory prohibition against hate speech in s. 14(1)(b) of the Saskatchewan Human Rights Code infringed the freedom of expression guaranteed under s. 2(b) of the Charter - The court then considered whether the provision could be saved under s. 1 of the Charter - Critics of s. 14(1)(b) of the Code claimed that it was overbroad because it did not require intent by the publisher and it did not require proof of harm - With respect to intent, the court stated that "the preventive measures found in human rights legislation reasonably centre on effects, rather than intent. I see no reason to depart from this approach" - With respect to proof of harm, the court stated that "the discriminatory effects of hate speech are part of the everyday knowledge and experience of Canadians. I am of the opinion that the Saskatchewan legislature is entitled to a reasonable apprehension of societal harm as a result of hate speech" - See paragraphs 126 to 135.

Civil Rights - Topic 1860.2

Freedom of speech or expression - Limitations on - Hate messages and literature - The Supreme Court of Canada held that the statutory prohibition against hate speech in s. 14(1)(b) of the Saskatchewan Human Rights Code infringed the freedom of expression guaranteed under s. 2(b) of the Charter - The court then considered whether the provision could be saved under s. 1 of the Charter - Critics of s. 14(1)(b) of the Code claimed that it was overbroad because it did not provide for any defences - The legislature of Saskatchewan had not provided a defence of truth or any other defence as a basis upon which to avoid being found in contravention of s. 14(1)(b) of the Code - The court stated that "To the extent that truthful statements are used in a manner or context that exposes a vulnerable group to hatred, their use risks the same potential harmful effects on the vulnerable groups that false statements can provoke. The vulnerable group is no less worthy of protection because the publisher has succeeded in turning true statements into a hateful message. In not providing for a defence of truth, the legislature has said that even truthful statements may be expressed in language or context that exposes a vulnerable group to hatred" - See paragraphs 136 to 141.

Civil Rights - Topic 1860.2

Freedom of speech or expression - Limitations on - Hate messages and literature - The Supreme Court of Canada held that the statutory prohibition against hate speech in s. 14(1)(b) of the Saskatchewan Human Rights Code infringed the freedom of expression guaranteed under s. 2(b) of the Charter - The court then considered whether the provision could be saved under s. 1 of the Charter - Critics of s. 14(1)(b) of the Code claimed that it was overbroad because it did not provide for any defences - Some interveners argued that there should be a defence of sincerely held belief - In their view, speech that was made in good faith and on the basis of the speaker's religious beliefs should be given greater protection, or constitute an absolute defence to any prohibition - The court stated that "if the sincerity of a religious belief would automatically preclude the finding of a contravention of s. 14(1)(b), the s. 1 analysis would be derailed with no balancing of the competing rights. Apart from that concern, the fact that a person circulates a hate publication in the furtherance of a sincere religious belief goes to the question of the subjective view of the publisher, which is irrelevant to the objective application of the definition of hatred. Allowing the dissemination of hate speech to be excused by a sincerely held belief would, in effect, provide an absolute defence and would gut the prohibition of effectiveness" - See paragraphs 142 to 144.

Civil Rights - Topic 1860.2

Freedom of speech or expression - Limitations on - Hate messages and literature - Section 14(1)(b) of the Saskatchewan Human Rights Code provided that "No person shall publish or display ... any 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" - The Supreme Court of Canada held that the statutory prohibition against hate speech infringed s. 2(b) (freedom of expression) of the Charter - However, the court concluded that the infringement was justified under s. 1 of the Charter - The court held that a prohibition of any representation that "ridicules, belittles or otherwise affronts the dignity of" any person or class of persons on the basis of a prohibited ground was not rationally connected to reducing systematic discrimination against vulnerable groups and was not a reasonable limit on freedom of expression under s. 1 of the Charter - The court also found those words constitutionally invalid because they did not minimally impair freedom of expression - Those words were severed from the statutory provision - The remaining prohibition of any representation "that exposes or tends to expose to hatred" any person or class of persons on the basis of a prohibited ground was a reasonable limit and demonstrably justified in a free and democratic society - The purpose of the legislation was pressing and substantial - Prohibiting representations that were objectively seen to expose protected groups to "hatred" was rationally connected to the objective of eliminating discrimination and the other harmful effects of hatred - Once the additional words were severed from s. 14(1)(b), the remaining prohibition was not overbroad - Section  14(1)(b) met the minimal impairment requirement - The prohibition was one of the reasonable alternatives that could have been selected by the legislature - It impaired freedom of expression "no more than reasonably necessary, having regard to the practical difficulties and conflicting tensions that must be taken into account" - The benefits of the suppression of hate speech and its harmful effects outweighed the detrimental effect of restricting expression which, by its nature, did little to promote the values underlying freedom of expression - The limitation imposed on freedom of expression by s. 14(1)(b) of the Code, when properly defined and understood, was demonstrably justified in a free and democratic society - See paragraphs 62 to 151.

Civil Rights - Topic 1863

Freedom of speech or expression - Denial of - What constitutes - [See all Civil Rights - Topic 1860.2 ].

Civil Rights - Topic 3107.2

Trials - Due process, fundamental justice and fair hearings - General principles and definitions - Overbreadth principle - [See fourth, fifth, sixth, seventh and eighth Civil Rights - Topic 1860.2 ].

Civil Rights - Topic 7115

Federal, provincial or territorial legislation - Practice - Judicial review (incl. standard of review) - [See fifth Civil Rights - Topic 948 ].

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - [See Civil Rights - Topic 382 and all Civil Rights - Topic 1860.2 ].

Cases Noticed:

R. v. Keegstra, [1990] 3 S.C.R. 697; 117 N.R. 1; 114 A.R. 81, refd to. [para. 1].

R. v. Andrews and Smith, [1990] 3 S.C.R. 870; 117 N.R. 284, refd to. [para. 1].

R. v. Krymowski (K.) et al., [2005] 1 S.C.R. 101; 330 N.R. 58; 195 O.A.C. 341; 2005 SCC 7, refd to. [para. 1].

Taylor and Western Guard Party v. Canadian Human Rights Commission, [1990] 3 S.C.R. 892; 117 N.R. 191, consd. [para. 1].

Human Rights Commission (Sask.) et al. v. Bell (1994), 120 Sask.R. 122; 68 W.A.C. 122 (C.A.), refd to. [para. 10].

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, refd to. [para. 10].

Kane et al. v. Alberta Report et al. (2001), 291 A.R. 71; 2001 ABQB 570, refd to. [para. 35].

Elmasry v. Roger's Publishing Ltd. (No. 4), 2008 BCHRT 378; 64 C.H.R.R. D/509, refd to. [para. 35].

Nealy v. Johnston (1989), 10 C.H.R.R. D/6450, refd to. [para. 40].

Warman v. Kouba, 2006 CHRT 50, refd to. [para. 44].

Citron v. Zündel, (No. 4) (2002), 41 C.H.R.R. D/274, refd to. [para. 44].

Warman v. Tremaine (No. 2), 2007 CHRT 2, 59 C.H.R.R. D/391, refd to. [para. 45].

McAleer et al. v. Canadian Human Rights Commission et al. (1994), 26 C.H.R.R. D/271, affd. (1996), 108 F.T.R. 256; 26 C.H.R.R. D/280 (T.D.), refd to. [para. 45].

Warman v. Northern Alliance, 2009 CHRT 10, refd to. [para. 45].

Center for Research-Action on Race Relations v. www.bcwhitepride.com, 2008 CHRT 1, refd to. [para. 45].

Warman v. Winnicki (No. 2), 2006 CHRT 20, 56 C.H.R.R. D/381, refd to. [para. 45].

Irwin Toy Ltd. v. Québec (Procureur général), [1989] 1 S.C.R. 927; 94 N.R. 167; 24 Q.A.C. 2, refd to. [para. 50].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 61].

Canadian Broadcasting Corp. et al. v. Canada (Attorney General) et al., [2011] 1 S.C.R. 19; 411 N.R. 23; 2011 SCC 2, refd to. [para. 62].

R. v. Butler and McCord, [1992] 1 S.C.R. 452; 134 N.R. 81; 78 Man.R.(2d) 1; 16 W.A.C. 1, refd to. [para. 64].

R. v. Sharpe (J.R.), [2001] 1 S.C.R. 45; 264 N.R. 201; 146 B.C.A.C. 161; 239 W.A.C. 161; 2001 SCC 2, refd to. [para. 64].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 66].

Attis v. Board of Education of District No. 15 et al., [1996] 1 S.C.R. 825; 195 N.R. 81; 171 N.B.R.(2d) 321; 437 A.P.R. 321, refd to. [para. 66].

Ross v. New Brunswick School District No. 15 - see Attis v. Board of Education of District No. 15 et al.

Mugesera et al. v. Canada (Ministre de la Citoyenneté et de l'Immigration), [2005] 2 S.C.R. 100; 335 N.R. 229; 2005 SCC 40, refd to. [para. 74].

Thomson Newspapers Co. et al. v. Canada (Attorney General), [1998] 1 S.C.R. 877; 226 N.R. 1; 109 O.A.C. 201, refd to. [para. 77].

JTI-Macdonald Corp. et al. v. Canada (Attorney General), [2007] 2 S.C.R. 610; 364 N.R. 89; 2007 SCC 30, refd to. [para. 78].

R. v. Edwards Books and Art Ltd. - see R. v. Videoflicks et al.

R. v. Videoflicks et al., [1986] 2 S.C.R. 713; 71 N.R. 161; 19 O.A.C. 239, refd to. [para. 78].

Withler v. Canada (Attorney General), [2011] 1 S.C.R. 396; 412 N.R. 149; 300 B.C.A.C. 120; 509 W.A.C. 120; 2011 SCC 12, refd to. [para. 79].

Human Rights Commission (Sask.) v. Engineering Students' Society, University of Saskatchewan (1989), 72 Sask.R. 161 (C.A.), refd to. [para. 86].

Hutterian Brethren of Wilson Colony et al. v. Alberta, [2009] 2 S.C.R. 567; 390 N.R. 202; 460 A.R. 1; 462 W.A.C. 1; 2009 SCC 37, refd to. [para. 98].

Abrams v. United States (1919), 250 U.S. 616, refd to. [para. 103].

Human Rights Commission (Ont.) and Bates v. Zurich Insurance Co., [1992] 2 S.C.R. 321; 138 N.R. 1; 55 O.A.C. 81, refd to. [para. 105].

R. v. Khawaja (M.M.) (2012), 437 N.R. 42; 301 O.A.C. 200; 2012 SCC 69, refd to. [para. 112].

Kempling v. College of Teachers (B.C.) et al. (2005), 213 B.C.A.C. 240; 352 W.A.C. 240; 43 B.C.L.R.(4th) 41; 2005 BCCA 327, refd to. [para. 118].

Snyder v. Phelps (2011), 131 S. Ct. 1207, refd to. [para. 119].

Royal College of Dental Surgeons (Ont.) et al. v. Rocket and Price, [1990] 2 S.C.R. 232; 111 N.R. 161; 40 O.A.C. 241, refd to. [para. 120].

Trinity Western University et al. v. College of Teachers (B.C.) et al., [2001] 1 S.C.R. 772; 269 N.R. 1; 151 B.C.A.C. 161; 249 W.A.C. 161; 2001 SCC 31, refd to. [para. 123].

Egan and Nesbit v. Canada, [1995] 2 S.C.R. 513; 182 N.R. 161, refd to. [para. 123].

R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; 58 N.R. 81; 60 A.R. 161, refd to. [para. 153].

Multani v. Commission scolaire Marguerite-Bourgeoys et al., [2006] 1 S.C.R. 256; 345 N.R. 201; 2006 SCC 6, refd to. [para. 153].

Sheena B., Re, [1995] 1 S.C.R. 315; 176 N.R. 161; 78 O.A.C. 1, refd to. [para. 154].

R.B. v. Children's Aid Society of Metropolitan Toronto - see Sheena, B., Re.

R. v. Jones, [1986] 2 S.C.R. 284; 69 N.R. 241; 73 A.R. 133, refd to. [para. 154].

Syndicat Northcrest v. Amselem et al., [2004] 2 S.C.R. 551; 323 N.R. 59; 2004 SCC 47, refd to. [para. 155].

Alliance Pipeline Ltd. v. Smith, [2011] 1 S.C.R. 160; 412 N.R. 66; 2011 SCC 7, refd to. [para. 167].

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al., [2011] 3 S.C.R. 654; 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 2011 SCC 61, refd to. [para. 167].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 1 [para. 6]; sect. 2(a), sect. 2(b) [para. 1].

Saskatchewan Human Rights Code, S.S. 1979, c. S-24.1, sect. 14 [para. 12].

Authors and Works Noticed:

Canada, Special Committee on Hate Propaganda in Canada, Report of the Special Committee on Hate Propaganda in Canada (1996), generally [para. 72].

Cardozo, Benjamin N., The Nature of the Judicial Process (1921), pp. 106 to 110 [para. 33].

Dworkin, Ronald, "Foreward", in Ivan Hare and James Weinstein, eds. Extreme Speech and Democracy (2009), generally [para. 103].

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, p. 57 [para. 86].

Moon, Richard, The Constitutional Protection of Freedom of Expression (2000), generally [para. 103], p. 37 [para. 130].

Moon, Richard, 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 (2008), p. 26. [para. 105].

Sumner, L.W., The Hateful and the Obscene: Studies in the Limits of Free Expression (2004), pp. 83 [para. 130]; 180, 181, 202 [para. 105]; 202, 203 [para. 130].

Counsel:

Grant J. Scharfstein, Q.C., and Deidre L. Aldcorn, for the appellant;

Thomas A. Schuck, Iain Benson, John Carpay and Daniel Mol, for the respondent;

Thomson Irvine, for the intervener, the Attorney General for Saskatchewan;

David N. Kamal, for the intervener, the Attorney General of Alberta;

Mark A. Gelowitz and Jason MacLean, for the intervener, the Canadian Constitution Foundation;

Andrew K. Lokan and Jodi Martin, for the intervener, the Canadian Civil Liberties Association;

Philippe Dufresne and Brian Smith, for the intervener, the Canadian Human Rights Commission;

Audrey Dean and Henry S. Brown, Q.C., for the intervener, the Alberta Human Rights Commission;

Cynthia Petersen and Christine Davies, for the intervener, Egale Canada Inc;

Anthony D. Griffin, for the intervener, the Ontario Human Rights Commission;

Mark J. Freiman, for the intervener, the Canadian Jewish Congress;

Arif Chowdhury, for the interveners, the Unitarian Congregation of Saskatoon and the Canadian Unitarian Council;

Kathleen E. Mahoney and Jo-Ann R. Kolmes, for the intervener, the Women's Legal Education and Action Fund;

M. Philip Tunley and Paul J. Saguil, for the intervener, the Canadian Journalists for Free Expression;

David Matas, for the intervener, the Canadian Bar Association;

Written submissions only by Shaunt Parthev, Q.C., and Ashley M. Smith, for the interveners, the Northwest Territories Human Rights Commission and the Yukon Human Rights Commission;

Derek J. Bell, Ranjan K. Agarwal and Ruth A. M. Ross, for the intervener, the Christian Legal Fellowship;

Marvin Kurz, for the intervener, the League for Human Rights of B'nai Brith Canada;

Donald E. L. Hutchinson and André Schutten, for the intervener, the Evangelical Fellowship of Canada;

Ben Millard, for the intervener, the United Church of Canada;

Written submissions only by David M. A. Stack, for the interveners, the Assembly of First Nations, the Federation of Saskatchewan Indian Nations and the Métis Nation-Saskatchewan;

Ryan D. W. Dalziel and Micah B. Rankin, for the interveners, the Catholic Civil Rights League and the Faith and Freedom Alliance;

Sunil Gurmukh, Moya Teklu and Ed Morgan, for the intervener, the African Canadian Legal Clinic.

Solicitors of Record:

Scharfstein Gibbings Walen Fisher, Saskatoon, Saskatchewan; Saskatchewan Human Rights Commission, Saskatoon, Saskatchewan, for the appellant;

Nimegeers, Schuck, Wormsbecker & Bobbitt, Weyburn, Saskatchewan; Iain Benson, Toronto, Ontario; John Carpay, Calgary, Alberta; Mol Advocates, Edmonton, Alberta, for the respondent;

Attorney General for Saskatchewan, Regina, Saskatchewan, for the intervener, the Attorney General for Saskatchewan;

Attorney General of Alberta, Edmonton, Alberta, for the intervener, the Attorney General of Alberta;

Osler, Hoskin & Harcourt, Toronto, Ontario, for the intervener, the Canadian Constitution Foundation;

Paliare Roland Rosenberg Rothstein, Toronto, Ontario, for the intervener, the Canadian Civil Liberties Association;

Canadian Human Rights Commission, Ottawa, Ontario, for the intervener, the Canadian Human Rights Commission;

Alberta Human Rights Commission, Edmonton, Alberta, for the intervener, the Alberta Human Rights Commission;

Sack Goldblatt Mitchell, Toronto, Ontario, for the intervener, Egale Canada Inc.;

Ontario Human Rights Commission, Toronto, Ontario, for the intervener, the Ontario Human Rights Commission;

Lerners, Toronto, Ontario, for the intervener, the Canadian Jewish Congress;

Fasken Martineau DuMoulin, Calgary, Alberta, for the intervener, the Unitarian Congregation of Saskatoon and the Canadian Unitarian Council;

Jo-Ann R. Kolmes, Edmonton, Alberta; University of Calgary, Calgary, Alberta, for the intervener, Women's Legal Education and Action Fund;

Stockwoods, Toronto, Ontario, for the intervener, the Canadian Journalists for Free Expression;

David Matas, Winnipeg, Manitoba, for the intervener, the Canadian Bar Association;

MacPherson Leslie & Tyerman, Saskatoon, Saskatchewan, for the interveners, the Northwest Territories Human Rights Commission and the Yukon Human Rights Commission;

Bennett Jones, Toronto, Ontario, for the intervener, the Christian Legal Fellowship;

Dale, Streiman & Kurz, Brampton, Ontario, for the intervener, the League for Human Rights of B'nai Brith Canada;

Evangelical Fellowship of Canada, Ottawa, Ontario, for the intervener, the Evangelical Fellowship of Canada;

Symes & Street, Toronto, Ontario, for the intervener, the United Church of Canada;

McKercher, Saskatoon, Saskatchewan, for the interveners, the Assembly of First Nations, the Federation of Saskatchewan Indian Nations and the Métis Nation-Saskatchewan;

Bull, Housser & Tupper, Vancouver, British Columbia, for the intervener, the Catholic Civil Rights League and the Faith and Freedom Alliance;

African Canadian Legal Clinic, Toronto, Ontario; University of Toronto, Toronto, Ontario, for the intervener, the African Canadian Legal Clinic.

This appeal was heard on October 12, 2011, before McLachlin, C.J.C., LeBel, Deschamps*, Fish, Abella, Rothstein and Cromwell, JJ., of the Supreme Court of Canada. The following judgment of the Supreme Court was delivered by Rothstein, J., in both official languages on February 27, 2013. *Deschamps, J., took no part in the judgment.