Saskatchewan (Human Rights Commission) v. Whatcott is a long decision which I have just skimmed the headnote and a few dozen paragraphs of the reasons as well as the conclusions. Lawyers on both sides are going to have great fun parsing the decision and noting how it limits certain restrictions on freedom of expression while affirming others.
My own sense is that, insofar as Whatcott rescues Taylor’s general view that speech can and should be regulated by the state, this decision has simply proven that Canadians, and Canadian judges, are unwilling to let go of the idea that speech must, somehow, be controlled.
It is a very Canadian position.
Our discomfort with the idea that individuals are capable of governing themselves and that, ultimately, the state needs the means to intervene when some one “goes too far” (for whatever reason) is the animating spirit behind a cautious, communitarian, group driven society.
Obviously I would have preferred a decision which embraced individual rights and accepted that, from time to time, the exercise of those rights will be offensive to some. But as one CHRC official put it, and I paraphrase, “I don’t pay much attention to free speech, its an American concept”. And the decision in Whatcott suggests strongly that this view is going to determine the law in Canada for years to come.
Rothstein, J.’s reasons are very carefully considered and are, in their essence, a narrow but effective assertion that, in Canada, there are some things which you simply cannot say and, more importantly, that this position is deeply embedded in the Charter.
The Charter is a profoundly Canadian document. Its few ringing phrases are ring fenced by the saving clause in s. 1 “reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society”.
Canada is never far from her original values of “Peace, Order and Good Government” as Rothstein, J.’s masterly rescue of the dim reasoning in Taylor ably demonstrates.
Nice people will take heart in Whatcott‘s affirmation of real, reasonable Canadian values. And, if perchance, you don’t take heart well then you are not very nice are you…possibly un-Canadian.