The Inside Agenda Blog

Canadian Case Law on Hate Speech

by Mark Brosens Monday October 24, 2011

English Canada’s legal system is based on common law that states today’s legal decisions ought to conform to previous rulings. As a result, Canadian court proceedings often involve detailed arguments about how previous judgments do or do not apply to the case being heard.


The lawyers arguing the William Whatcott case before the Supreme Court of Canada are referencing two rulings repeatedly: R. v. Oakes and Canada v. Taylor


I thought it would be usefully to provide a brief overview of these rulings and how they apply to the Whacott case.  

Trials at the Supreme Court are usually remarkably complicated, so the summaries below are just sketches of these rulings (if you really want to understand these cases, follow the links and read the Supreme Court judgments).



R. v. Oakes (1986)


Why there was a trial: David Edwin Oakes was arrested for possessing eight vials of hashish oil and $619.45 in cash. He was charged with unlawful possession of a narcotic for the purpose of trafficking. According to the law at the time, Oakes had a reverse onus in court (meaning that he had to prove that he wasn’t intending to sell the narcotics – possessing narcotics has a lesser punishment than trafficking narcotics, so often those charged with trafficking argue that their drugs were only for their personal use). Oakes was found guilty of trafficking and after various appeals his case was brought to the Supreme Court.


The ruling: The Supreme Court ruled that placing a reverse onus on Oakes violated his right to be presumed innocent until found guilty (section 11(d) of the Canadian Charter of Rights and Freedoms). 


Why it’s important: I know referencing a drug trafficking case in a freedom of expression trial sounds strange, but this ruling created “the Oakes test,” which provides a guideline on when rights can be limited. There are three parts to the Oakes test: 1) a right must only be limited for something necessary for a free and democratic country, 2) the measure must be reasonable and justifiable, 3) the measure must advance its purpose reasonably, it must limit rights and freedoms minimally and its benefits must overweigh its costs on rights.


Thus, because of the Oakes test, in the Whatcott case lawyers are making arguments, such as: free speech is fundamentally necessary for a democratic society and that limiting speech in this case could create a slippery slope where the right is further curtailed in the future; or that restricting hate speech minimally impairs rights while fostering a healthy multicultural society.



Canada (Human Rights Commission) v. Taylor (1990)


Why there was a trial: In 1979, John Ross Taylor, a self-proclaimed fascist and white-supremacist, was brought before the Canadian Human Rights Commission (CHRC) for transmitting a recorded phone message that disparaged Jews. He was sentenced to a $5,000 fine and one year imprisonment, but the sentence was suspended provided that Taylor ceased transmitting the phone message. Taylor refused to comply with the ruling and was placed in jail. Then in 1983, when it was discovered that Taylor (now out of prison) continued to transmit hateful messages via the phone, the CHRC attempted to convict Taylor with another $5,000 fine and another year imprisonment. Taylor argued that this violated his right to freedom of expression under section 2(b) of the Charter. The case eventually reached the Supreme Court.


The Supreme Court’s majority ruling: In a split 4-3 decision, the Supreme Court majority sided with the CHRC. The majority thought: it’s important to protect vulnerable Canadian minority groups; that the penalties in the Canadian Human Rights Act are minor enough to correct behaviour rather than punish offenders; and the definition of hate speech was clear and it only applied to extreme language.


Thus, restricting Taylor’s freedom of expression was constitutionally justified.


The Supreme Court’s dissenting ruling: A minority of justices submitted a dissenting opinion siding with Taylor. Their most important argument, as it applies to the Whatcott case, was that the definition of hate speech in the Canadian Human Rights Act was too vague and broad, which could lead to a “chilling effect” on the freedom of expression.


Why it’s important: Apart from being a key piece of precedence in supporting restrictions on freedom of expression in hate speech trials, today’s Chief Justice of the Supreme Court Beverley McLachlin led the dissenting opinion (Robert Dickson was the Chief Justice of the Supreme Court when the case was heard). Some wonder what her elevated role in the court means for the Whatcott case.



What do these two cases mean for us today? Basically, sometimes the government can restrict an individual’s rights for a larger goal and sometimes it cannot. And because Canada uses the common law system and because the case law seems to be unsettled, it makes the outcome of the Whatcott case very important. The Whatcott ruling could set a precedent for future hate speech trials.



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