Exam 4 - Keegstra/Whatcott

Question 1

criminal law

Answer 1

aims to punish and rehabilitate

Question 2

administrative law

Answer 2

aims to remedy and educate

Question 3

question of reasonableness

Answer 3

“when considered objectively by a reasonable person aware of the relevant context/circumstances, the speech in question would be understood as exposing or tending to expose members of the target group to hatred?”
WHATCOTT!!!

Question 4

R. v. Keegstra (1990) Overview

Answer 4

• Albertan teacher responsible for teaching his students that Jewish people were evil and deceptive/spreading anti-semitic messages
• was charged under s. 319(2) willful promotion of hatred against an identifiable group
• he later challenged the constitutionality of s. 319(2) saying it violated his freedom of expression as guaranteed by s. 2(b) of the charter.

Question 5

Keegstra majority - Dickson

Answer 5

• s. 319 DID IN FACT VIOLATE s. 2(B) freedom, however it was JUSTIFIED under s. 1 (limitations clause)
• conclusion: racist speech harms self-worth of a group, and the state is justified in restricting such expression out of prevention of violence/discrimination/indignifying acts towards a group.

Question 6

Keegstra - McLaughlin’s Dissent

Answer 6

• argued that the state must show all limits as “demonstrably justified” - more than enough proof is required to prove justification on a balance of probabilities
• argues FOR the CIVIL standard: proof on balanced probabilities): impossible to meet without adducting good empirical evidence.

Question 7

Keegstra - Hate speech restriction

Answer 7

• allows powerful groups to weaponize laws with no objective standard
• little evidence is required; low standard of proof.
• benefits of restricting hate will always outweigh the cost to freedom of expression.

Question 8

Keegstra - conclusions

Answer 8

• the right to exercise freedom is a benefit that confers duty on the rights bearer, INCLUDING a duty not to impose non-liberty costs on others through the expression of hateful speech.
• extends the power of law as a tool by elites to protect preferred interpretations of “truth”
• a “moral” discussion: not empirical, rather about one’s dignity and humanity.
• religion may serve as a protection against hate speech laws, creating ambiguity.

Question 9

SK Human Rights Commission v. Whatcott (2013) Overview

Answer 9

• Whatcott spread flyers in Saskatoon/Regina fighting “homosexuality and sodomy” in public schools
• SK HRC tribunal ruled that the flyers violated s. 14 of the HRC as it exposed people to hatred on the basis of sexual orientation
• argued s. 14 to be a JUSTIFIED restriction on Whatcott’s s. 2 free expression/religion rights.
• Queen’s Bench was in accord, Court of Appeal accepted that s.14 was constitutional but that the flyers themselves did not violate it.
• then, sent to Supreme Court.

Question 10

Whatcott - Section 14 (1)(B) of the SK HRC

Answer 10

to prevent discrimination by restricting expression, a commitment to equality and respect for group identity/dignity of all persons.
- intent: to lower the social costs of discrimination on groups.

Question 11

Whatcott - Supreme Court Conclusions

Answer 11

• the only expression which should be caught by the s. 14 of the code is hate-inspiring that adds little value to the political discourse/quest for truth, self-fulfillment and embracing the marketplace for ideas
• limitations on speech do not severely curtail the values underpinning freedom of expression because it aims to prevent risk of future harmful effects

Question 12

Whatcott - defining hate speech

Answer 12

-intent of speaker is IRRELEVANT, it is all about the impact of speech upon others
-“effort to marginalize individuals on the basis of group membership so as to de-legitimize them in the eyes of the majority, thus reducing their social standing + acceptance within society”
- not an issue of taking offense to speech, rather, an issue concerning the destruction of a group itself.

Question 13

reasonable persons test

Answer 13

• to determine the effect of hate speech on society as a whole
• judges must set biases aside and base the choice on what they predict to be the rational views of an informed member of society
• legislature should focus on expression of unusually hateful speech using words such as DETESTATION AND VILIFICATION.

Question 14

constitutionality of s. 14

Answer 14

court found it to be a justified limit on expression to combat LIKELY impacts of hate speech on listener/target group

Question 15

balancing charter rights

Answer 15

hate speech = undermines equality and dignity outweighing the minimal impairment, thus, is low value.

Question 16

Application to Whatcott’s flyers

Answer 16

• one may hate the ACT, but not the persons to whom the act is selectively applied (sodomy/gay men …)
• it must implicate the group, not simply the act itself

Question 17

Whatcott - Conclusion

Answer 17

• court held him responsible for 2 of the 4 flyers
• court refined words to describe hate speech to focus on whether or not the speech contributedto the “detestation/vilification” of target group protected by Human Rights legislation.

Question 18

Federal Human Rights Legislation Overview

Answer 18

• goal: eliminating discrimination against identifiable groups
• Canadian govt. adopted the Canadian Human Rights Act in 1977, including s.13 to RESTRICT AND DISSEMINATE HATE PROMOTION MESSAGES VIA PHONE.

Question 19

Section 13 - the controversy

Answer 19

• according to s. 13, hate speech did not require a specific victim, unlike ANY other clause
• about “controlling a poison” that is LIKELY to cause harm (a paternalistic law)
• Richard Moon 2008: demanded hate speech prohibition of s. 13 to be repealed… argued that censorship should not be the method of addressing group defamation, suggested holding institutions such as media accountable for engaging in discrimination.

Question 20

Human Rights Commission v. Taylor (1990)

Answer 20

• Taylor, a leader of the Western Guard Party (white supremacist), distributed cards with a phone number which would feed an automated anti-semitic message if called.
• Canadian Human Rights Commission ruled that this violated s. 13 and ordered him to stop, and suggested a $5k fine and 1 year in prison. Taylor refused to stop spreading the hate, so he paid/did his time.
• the WGP argued the s. 13 violated the party’s s. 2 charter rights (expression)

Question 21

Taylor - Majority

Answer 21

found that the objective behind s13 is obviously one of substantial importance, sufficient to warrant some limitation upon the freedom of expression (pro 13)
- Chief J. Dickson wrote that hate speech threatens society, damages dignity/self-worth, contributes to social/cultural disharmony, and erodes the tolerance/open-mindedness required to maintain equality.

Question 22

Taylor - McLaughlin Dissent

Answer 22

• raised concerns surrounding the subjectivity of hatred (definition issue)
• widens the scope of offence to the individual (subjective issue)
• HR legislation lacks any intent/harm requirement (absence of empirical evidence issue)

Question 23

Taylor - Conclusions (3 elements)

Answer 23

a) hatred must be approached OBJECTIVELY by courts
b) hatred must be restricted to only those extreme manifestations of emotion
c) hatred at hand must seek to abuse, denigrate, de-legitimize a protected group as lawless, dangerous, unacceptable.

Question 24

Hatred - Human rights law

Answer 24

• the Keegstra/Taylor standard will permit offensive speech provided that it does not incite the high level of abhorrence required to satisfy “hatred” definition.
• legislation should focus to eliminate forms of expression that have potential to inspire discrimination
• adjudicators should focus on the effect fo expression/impact of exposure.
• section 13 was repealed because it was used by politically motivated actors to limit criticism of political/religious viewpoints (abuse of intent and authority).