In Saskatchewan (Human Rights Commission) v. Whatcott, the Supreme Court of Canada unanimously reaffirmed the constitutionality of anti-hate human rights legislation. This paper explores the Court’s reliance on the pragmatic concept of “reasonableness” to narrow the proper scope of such legislation, in particular: when revisiting the definition of “hatred” under the Saskatchewan Human Rights Code; when conceptualizing the “harm” caused by hate speech; when considering minimal impairment under the Oakes analysis; and when articulating the standard of review applicable to human rights tribunals. The author finds that, in all but one of the above areas, the Whatcott Court’s recourse to “reasonableness” is a principled approach to hate speech and to the Court’s own role in regulating expressive freedom. However, the author argues that “reasonableness” is a troubling standard by which to review tribunal decisions on the substantive question of whether specific communications constitute hate speech; this may be one bridge to “reasonableness” too far.
Freiman, Mark J..
"Hate Speech and the Reasonable Supreme Court of Canada."
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
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