The Whatcott case was brought to the Supreme Court of Canada on appeal from the Saskatchewan Court of Appeal, which had found that a number of pamphlets critical of homosexual behaviour did not meet the test for “hate speech” under Saskatchewan’s Human Rights Code.
In considering the Human Rights Commission’s appeal, the Supreme Court of Canada substantially reiterated its previous reasoning in R. v. Keegstra and Canada (Human Rights Commission) v. Taylor, finding that hate speech prohibitions contravened Section 2(b) of the Charter of Rights and Freedoms but could be “demonstrably justified” as a “reasonable limit” under Section 1.
Applying this reasoning to the case at hand, the Supreme Court found that two of the pamphlets circulated by Whatcott (which criticized the acceptance of homosexuality in public schools) met the test for hate speech, and therefore justified fines and a cease and desist order against Whatcott.
Contrary to the Supreme Court’s assertion that hate speech prohibitions can be enforced “objectively” against “those extreme manifestations of the emotion described by the words ‘detestation’ and ‘vilification,’” the facts of the Whatcott case demonstrate how inherently subjective and fickle such prohibitions are.
In 1967, some 46 years before Whatcott was decided, the Supreme Court of Canada upheld a lower court’s finding that Everett George Klippert (a confessed homosexual) was a “dangerous sexual offender” on the basis that he “was likely to commit further sexual offences of the same kind with other consenting adult males.” To quote this decision with approval today would almost certainly attract a conviction under one of Canada’s various “hate speech” statutes.
In a mere half-lifetime, a political opinion about a controversial subject has gone from being the law of the land to being illegal. The Whatcott decision merely repeats the mistakes of past Supreme Court panels by imposing the subjective opinion of the majority and calling it law.
Decided by the Supreme Court of Canada on February 27, 2013.
Click here for the full text of the decision.