The point where Canada’s freedom-of-speech provisions overlap with hate crime legislation is a legal, political, ethical and emotional minefield. The latest challenge, a provincial case that has reached the Supreme Court of Canada, promises to have repercussions across the country.
Bill Whatcott was charged with promoting hate after he distributed flyers in Regina and Saskatoon in 2001 and 2002 calling homosexuals sodomites and child molesters. He was found guilty by the Saskatchewan Human Rights Tribunal in 2005 and ordered to pay $17,500 to the complainants.
Whatcott argued he was opposed to gay activity, not gay people, and the Saskatchewan Court of Appeal overturned the ruling in 2010.
Bill Whatcott distributed flyers in Regina and Saskatoon in 2001 and 2002 calling homosexuals sodomites and child molesters.
On Oct. 12, the case between Whatcott and the Saskatchewan Human Rights Commission went before the Supreme Court of Canada. Whatcott's lawyer, Thomas Schuck, wants the court system to lose its right to rule on hate speech. He says it's almost impossible to define hate.
Whatcott’s is the latest in a string of court challenges that have helped shape Canada’s free speech and hate crime laws, as well as their interpretation by the courts.
Here are several other notable cases that have helped set precedent for how the legal system balances what is considered a hate crime and what constitutes freedom of speech.
John Ross Taylor, a self-described fascist, was jailed in Ontario in the 1980s for telephone hate messages.
In 1990, the case reached the Supreme Court of Canada, which ruled against Taylor. The majority ruled that although Canada's Human Rights Act restricts freedom of expression, that restriction is justified.
"Parliament's objective of preventing the harm caused by hate propaganda is of sufficient importance to warrant overriding a constitutional freedom," Chief Justice Brian Dickson stated in the majority opinion.
The minority opinion was written by Beverley McLachlin, now Canada's chief justice. "It is arguable whether criminalization of expression calculated to promote racial hatred is necessary," McLachlin wrote.
Former Alberta school teacher James Keegstra in 1985, at the time on trial for hate mongering. The trial lasted 70 days and ended in Keegstra's conviction.
James Keegstra had been teaching anti-Semitism to students in Eckville, Alta., for 14 years when a parent complained to the local school board about his lessons. It was 1982 and Keegstra was also Eckville's mayor.
The story received international attention and Keegstra was charged in 1984 under Canada's hate crime laws. He was convicted, but the decision was overturned on appeal after Keegstra's lawyer argued the law was unconstitutional because it violated Charter provisions on freedom of expression.
The Keegstra case continued to bounce around various courts until a landmark 1996 ruling by the Supreme Court. It said the Criminal Code section on public incitement of hatred did infringe on the Charter — but that infringement was justified — and upheld Keegstra's conviction.
Ernst Zundel sits in a court in Germany in 2005 at the beginning of a trial where he was accused of incitement. Michael Probst/Canadian Press
Holocaust denier Ernst Zundel lived in Canada for four decades, making frequent court appearances to argue for the freedom to express his anti-Semitic views in books and pamphlets and on a website.
In 1992, the Supreme Court of Canada overturned his conviction for "spreading false news," saying that the charge violated his Charter right to freedom of expression.
The German-born Zundel, who wrote the introduction to the book Did Six Million Jews Really Die?, was deported to Germany in 2005 after a Federal Court judge ruled he was a threat to national security.
He was freed from a German prison in 2010 after serving five years for denying the Holocaust.
Former leader of the Assembly of First Nations, David Ahenakew, shown in this 2008 photo, was first charged in 2002 for wilfully promoting hatred. Geoff Howe/Canadian Press
David Ahenakew, a once-powerful leader of the Assembly of First Nations, was stripped of his Order of Canada for remarks about Jews in 2002.
During a speech at a gathering of First Nations leaders in Saskatoon, Ahenakew launched into a barely comprehensible diatribe and made anti-Semitic remarks. He repeated those comments to a reporter, and after the news was published, Ahenakew was charged with promoting hatred.
The court proceedings were protracted, but an initial conviction was overturned and, after a second trial, Ahenakew was acquitted. The Saskatchewan chief died in 2010, at 76.
Neo-Nazi custody case
Two children were removed from their Winnipeg home in 2008 after one, a seven-year-old girl, showed up at her elementary school with racist writings and symbols on her skin.
The Manitoba Court of Appeal later refused to allow the girl’s stepfather, who was accused of teaching her and his biological son neo-Nazi beliefs, to appeal a custody order giving the state permanent custody of them.
The court also dismissed a constitutional challenge from the father, who argued the government violated his right to raise the children according to his beliefs.
Two Nova Scotia men were convicted under Canada's hate crime laws in relation to a cross-burning incident on the lawn of an interracial couple in Windsor, N.S. (RCMP/CBC)
On Feb. 21, 2010, a wooden cross was set aflame on the front lawn of an interracial couple and their children in Poplar Grove, N.S. Brothers Nathan and Justin Rehberg were convicted of public incitement of hatred, as well as criminal harassment.
Crown attorney Darrell Carmichael praised the conviction as "a really significant decision for our country." He added that, "There has never been an official court decision which states that cross-burning in this context is a hate crime."
Justin Rehberg apologized at his sentencing hearing for what he described as "a horrible mistake."
In 1948, the United Nations adopted the Universal Declaration of Human Rights, which says: "Everyone has the right to opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers."
Free speech is protected in Canada under the Canadian Charter of Rights and Freedoms, but the right is not absolute. Section One of the Charter states: "The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."
The Criminal Code of Canada says a hate crime is committed to intimidate, harm or terrify not only a person, but an entire group of people to which the victim belongs. It applies when the victims are targeted for who they are, not because of anything they have done, and can involve intimidation, harassment, physical force or threat of physical force against a person, a group or a property.
In Canada it’s also a crime to incite hatred. Under Section 318 of the Criminal Code, it is a criminal act to "advocate or promote genocide" — to call for, support, encourage or argue for the killing of members of a group based on colour, race, religion, ethnic origin or sexual orientation.
Section 319 deals with publicly stirring up or inciting hatred against an identifiable group based on colour, race, religion, ethnic origin or sexual orientation. It is illegal to communicate hatred in a public place by telephone, broadcast or through other audio or visual means, but the same section protects people from being charged with a hate crime if their statements are truthful or the expression of a religious opinion.
The mischief section, 430, covers hate-motivated mischief and religious property. It provides for harsher sentences than mischief involving other property.
Prior to 2003, Canada’s Criminal Code protected people on the basis of race, religion, ethnic origin, colour, gender and disability. On April 29, 2004, the federal government passed Bill C-250 to amend the Criminal Code, adding penalties for inciting hatred against people on the basis of sexual orientation.
'The section of the code on sentencing (718.2) encourages judges to consider whether the crime was motivated by hate of the victim's race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation or any other similar factor.
Under section 13 of the Canadian Human Rights Act it is a "discriminatory practice" to send hate messages via telecommunications equipment, including the internet.
When is it hate speech?: 7 significant Canadian cases - Canada - CBC News