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Criminal - Hatred [CCC 319]. R. v. Whatcott
In R. v. Whatcott (Ont CA, 2023) the Court of Appeal considered (and allowed) a Crown appeal from an acquittal of a 'willfully promoting hatred' charge [under CCC 319(2)].
In these quotes the court considers the Canadian criminal law of hatred:[43] Professor Mulé testified about how the identifiable group would perceive the flyer. Professor Mulé explained how the tropes of anti-gay discrimination, present in the flyer, impact the community. The perspective of the target community is not only relevant per se in an analysis of hate speech, but it is critically important to an assessment of whether the challenged speech causes “emotional distress” to the members of that community: see Ward v. Quebec (Commission des droits de la personne et des droits de la jeunesse), 2021 SCC 43, 463 D.L.R. (4th) 567, at paras. 62, 75, 83-84. The perspective of the gay male community as it relates to the tropes present in the flyer might strengthen (or diminish) the hatefulness of Mr. Whatcott’s communication.
[44] Emotional distress caused to individual members of the group is one of the pressing harms that anti-hate speech laws aim to address. The second, identified in Keegstra, Taylor, and Whatcott (SCC) is the social impact of hateful speech against a targeted group. “If a group of people can be considered inferior, subhuman, or lawless, it is easier to justify denying the group and its members equal rights or status”: Whatcott (SCC), at para. 74. Professor Mulé’s evidence aimed to help the trier of fact situate Mr. Whatcott’s communication via the flyer in its social and historical context.
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[60] The impact of the failure to admit the expert evidence was significant in light of the substantive test for what constitutes hate speech.
[61] This test is not in dispute. In R. v. Keegstra, 1990 CanLII 24 (SCC), [1990] 3 S.C.R. 697, at pp. 777-78, the Supreme Court of Canada considered its meaning in the context of s. 319(2) of the Criminal Code found within the subsection of “Hate Propaganda”. Dickson C.J., writing for the majority, explained that the term “hate propaganda” denotes “expression intended or likely to create or circulate extreme feelings of opprobrium and enmity against a racial or religious group.” He further defined the meaning of “hatred” in s. 319(2), at p. 777:Noting the purpose of s. 319(2), in my opinion the term “hatred” connotes emotion of an intense and extreme nature that is clearly associated with vilification and detestation. As Cory J.A. stated in R. v. Andrews, supra, at p. 179: “Hatred is not a word of casual connotation. To promote hatred is to instil detestation, enmity, ill-will and malevolence in another. Clearly an expression must go a long way before it qualifies within the definition in [s. 319(2)].” Hatred is predicated on destruction, and hatred against identifiable groups therefore thrives on insensitivity, bigotry and destruction of both the target group and of the values of our society. Hatred in this sense is a most extreme emotion that belies reason; an emotion that, if exercised against members of an identifiable group, implies that those individuals are to be despised, scorned, denied respect and made subject to ill-treatment on the basis of group affiliation. [62] This determination should be made objectively, the question being whether a reasonable person, aware of the context and circumstances surrounding the expression, would view it as exposing or tending to expose the target group to hatred: see Whatcott (SCC), at para. 35, citing Owens v. Saskatchewan (Human Rights Commission), 2006 SKCA 41, 267 D.L.R. (4th) 733, at para. 60.
[63] The Crown is not required to prove that actual harm resulted from the communication in question, so long as the communication amounted to the promotion of hate against an identifiable group.
[64] The case law on s. 319(2) of the Criminal Code and other cases on hate speech in the human rights context gives rise to additional propositions.
[65] First, the Supreme Court’s decision in Whatcott (SCC) instructs to analyze the expression at issue in parts and as a whole in determining whether it amounts to hate speech. While a detailed approach is necessary to identify and analyze parts of the expression, so is analyzing the expression as a whole and in context. The Supreme Court noted that “[i]n most cases, the overall context of the expression will affect the presentation, tone, or meaning of particular phrases or excerpts”: at para. 174.
[66] Second, in Whatcott (SCC), the Supreme Court was clear that “Mr. Whatcott and others are free to preach against same-sex activities, to urge its censorship from the public school curriculum and to seek to convert others to their point of view”, meaning that this type of speech does not amount to hate speech: at para. 163.
[67] While I would not offer any conclusions as to whether the trial judge erred in his interpretation of s. 319(2) of the Criminal Code, the definition of hate speech, or its application to this case, it may be helpful to address the proper approach to analyzing whether a communication constitutes hate speech, as this question highlights the significance of the trier of fact having the benefit of a complete record. Additionally, this issue formed the bulk of the parties’ and interveners’ submissions. Indeed, the interveners Free to Care Society of Canada (“Free to Care”) and the Association for Reformed Political Action (“ARPA”) Canada were granted leave to make submissions on the threshold for hate speech, and in particular, on the issue of speech that condemns conduct, such as sexual behaviour, that is strongly tied with the identity of the group.
[68] In concluding that the flyer did not promote hatred, the trial judge reviewed the ten hallmarks of hate listed in Warman v. Kouba, 2006 CHRT 50 (CanLII), 2006 C.H.R.T. 50, which the trial Crown highlighted in their submissions. The trial judge stated that the flyer did not contain various listed hallmarks such as calls to violence, suggestions that gay men are subhuman or animals, and calls for the segregation of gay men from society. The trial judge also considered the flyer’s assertions that homosexuality is contrary to human nature and that its realities include “disease, death and confusion”. The trial judge concluded that these were expressions of “disdain” but that they did not amount to vilification or “the most intense form of dislike” as defined in Keegstra.
[69] The trial judge saw this as the kind of “borderline case” identified by Dickson C.J. in Keegstra. He explained that there was reasonable doubt about whether the flyer promotes hatred for two reasons: first, the flyer had “few, if any of the hallmarks of hate speech”; and second, the flyer was “not sufficiently misleading so as to be inflammatory”.
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[72] Free to Care argues that the appellant equates advocacy against a practice central to an identifiable group’s identity with advocacy for the eradication of that group. In this case, Free to Care argues that advocating sexual abstinence for gay men is not equivalent to arguing that gay men should not exist. Additionally, Free to Care argued that the appellant’s argument improperly expands the scope of impermissible speech caught by s. 319(2) beyond the Supreme Court’s findings in Keegstra and Canada (Human Rights Commission) v. Taylor, 1990 CanLII 26 (SCC), [1990] 3 S.C.R. 892. Free to Care also submits that the appellant’s interpretation runs afoul of several Charter rights as well as the principles of a free democratic society that values open dialogue.
[73] ARPA similarly argues that “[t]he Crown’s submissions wrongly conflate moral criticism of personal conduct that is tied to the identity of a protected group with promoting the destruction of the group so identified.” ARPA argues that the Crown’s interpretation would expand the scope of s. 139(2) by automatically qualifying criticisms of gay male sexual practices to promoting hatred. Instead, the ARPA argues that the Supreme Court in Whatcott (SCC) decided that the behaviour-identity distinction cannot shield speech that is framed in such a way as to objectively promote hatred against an identifiable group, i.e., gay men.
[74] Despite the interveners’ claims that they disagree with the appellant on the above issue, in my view, the parties are largely in agreement with the Supreme Court pronouncement on the distinction between sexual orientation and sexual behaviour in Whatcott (SCC), at paras. 121-124. Writing in the context of human rights legislation, the Supreme Court noted, at para. 124: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. [Emphasis added.] [75] As I have concluded the record before the trial judge was incomplete, I would leave a fuller analysis of the record in light of this analytic approach for the trial judge who will hear the matter anew. However, I would note that even in cases where the speech targets conduct, the analysis – as in all instances of hate speech – ultimately focuses on whether it objectively exposes the group to hatred, read as a whole, with a view to the context and circumstances surrounding the expression, in line with the propositions of law laid out by the Supreme Court in Keegstra, Taylor, Whatcott (SCC), and other relevant jurisprudence.
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