The Supreme Court of Canada’s decision in Saskatchewan (Human Rights Commission) v. Whatcott was an opportunity for the Court to delve into a number of difficult and sometimes conflicting issues. This paper argues that the Court missed an important and rare opportunity to attempt to reconcile freedom of expression and the right to equality by giving only superficial consideration to Canada’s history with the use of human rights bodies to address the problem of hateful expression. The experience, jurisprudence and academic commentary in this area all suggested a need to revisit the approach the Court took to hate speech provisions in the early days of the Charter. Nevertheless, the Court opted not to engage in an in-depth analysis of the issues. It is also argued that the Court’s constitutional reasoning fell short in terms of assessing concerns about the subjective nature of the notion of “hatred”, addressing the connection between the definition of hate speech and the goal of eradicating discrimination, and the question of the level of evidentiary support required to justify a violation of freedom of expression.
Zwibel, Cara Faith.
"Reconciling Rights: The Whatcott Case as Missed Opportunity."
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
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