What was Saskatchewan (Human Rights Commission) v. Whatcott (2013)?

Saskatchewan (Human Rights Commission) v. Whatcott is the 2013 Supreme Court of Canada decision upholding most of section 14(1)(b) of the Saskatchewan Human Rights Code, which prohibited any publication 'that exposes or tends to expose to hatred, ridicules, belittles or otherwise affronts the dignity of any person or class of persons on the basis of a prohibited ground'. The court read down the provision to exclude the words 'ridicules, belittles or otherwise affronts the dignity of' as overbroad, but upheld the prohibition on 'hatred' as a justified limit on freedom of expression.

William Whatcott, a Saskatchewan Christian activist, distributed flyers in Saskatoon and Regina in 2001 and 2002 that contained intensely critical material targeting gay men. The Saskatchewan Human Rights Tribunal found that the flyers contravened section 14(1)(b) and ordered Whatcott to pay compensation to the four complainants. The Saskatchewan Court of Queen's Bench upheld the order; the Court of Appeal overturned it. The Supreme Court restored most of the order and clarified the constitutional framework for civil hate-speech regulation.

Justice Marshall Rothstein wrote the unanimous opinion. The court applied the R. v. Keegstra (1990) section 1 framework to the human-rights code context. The objective of preventing the harms of hate speech (psychological damage to members of the targeted group, marginalisation in democratic discourse, fostering of intergroup tensions) was pressing and substantial. A narrowly defined prohibition on hatred (limited to extreme manifestations of detestation and vilification) was rationally connected and minimally impairing. The 'ridicules, belittles or otherwise affronts the dignity of' phrase was overbroad because it captured speech that did not rise to the level of hatred, and was therefore severed.

Whatcott applied a narrow definition of hatred drawn from Canada (Human Rights Commission) v. Taylor (1990): hatred refers only to 'the most extreme manifestations of the emotion described by the words "detestation" and "vilification"'. Truth, sincerity, and political or religious motivation are not defences. The decision continues to govern provincial and federal hate-speech jurisprudence outside the Criminal Code, including the partial restoration of section 13 of the Canadian Human Rights Act through Bill C-63 (the Online Harms Act, 2024 to 2025) for online platforms only.