Hate Speech at the Supreme Court of Canada

In an important decision yesterday in Saskatchewan (Human Rights Commission) v. Whatcott,

2013 SCC 11, the Supreme Court of Canada upheld against constitutional challenge s. 14 of the Saskatchewan Human Rights Code (albeit with slight modifications). 

The legislation provides for private parties to make complaints to a human rights tribunal; s. 14 allows the tribunal to sanction hate speech. In the present case, Whatcott had distributed various anti-gay flyers. Four complaints were made. The tribunal found against Whatcott and ordered him to pay nearly $20,000 in compensation.

I will leave the finer points of the freedom of expression analysis to others, but it is important to highlight the permissible limits of hate speech defined by the Court:

[59] In light of these three principles, where the term “hatred” is used in the context of a prohibition of expression in human rights legislation, it should be applied objectively to determine whether a reasonable person, aware of the context and circumstances, would view the expression as likely to expose a person or persons to detestation and vilification on the basis of a prohibited ground of discrimination.

This is the test to be applied by human rights tribunals in assessing whether expression should be characterized as hate speech.

Once it had been established that s. 14 was constitutional, attention turned to whether the tribunal's conclusion was reasonable as a matter of administrative law:

[168]                      In this case, the decision was well within the expertise of the Tribunal, interpreting its home statute and applying it to the facts before it. The decision followed the Taylor precedent and otherwise did not involve questions of law that are of central importance to the legal system outside its expertise.  The standard of review must be reasonableness.

Not, let it be noted, whether the tribunal's conclusion was proportionate or correct. The choice of standard of review is hardly unprecedented: the Court has often reverted to an administrative law analysis in such circumstances; and in its most recent pronouncement on the question, it urged deference to decision-makers even where Charter rights have been infringed.

On the facts, the Court upheld the tribunal's conclusion as to two of the flyers, but struck down as unreasonable the conclusion about the other two.

As to the first two flyers, Rothstein J. concluded:

[192] In the instant case, Flyers D and E expressly call for discriminatory treatment of those of same-sex orientation.  Flyer D urges that the rights of homosexuals and lesbians should be reduced by stating:  “We also believe that for sodomites and lesbians who want to remain in their lifestyle and proselytize vulnerable young people that civil law should discriminate against them” (emphasis added).  Flyer E urges: “Our acceptance of homosexuality and our toleration of its promotion in our school system will lead to the early death and morbidity of many children” (emphasis added).  Mr. Whatcott therefore combined expression exposing homosexuals to hatred with expression promoting their discriminatory treatment.  In my view, it was not unreasonable for the Tribunal to conclude that this expression was more likely than not to expose homosexuals to hatred. 

But the tribunal erred in its application of the correct legal test to the two other flyers. Its conclusion was accordingly unreasonable:

[194] However, in my view, the Tribunal’s decision with respect to Flyers F and G was unreasonable. The Tribunal erred by failing to apply s. 14(1)(b) in accordance with the Taylor directive (requiring feelings of an ardent and extreme nature so as to constitute hatred), or in accordance with the interpretation of s. 14(1)(b) prescribed in Bell (essentially reading out the words “ridicules, belittles or otherwise affronts the dignity”). By failing to apply the proper legal test to the facts before it, the Tribunal’s determination that those flyers contravened s. 14(1)(b) was unreasonable and cannot be upheld.

Add this to your list of indicia of unreasonableness: failure to apply the correct legal test.

I wonder though whether Rothstein J.'s conclusion is just a little too quick. A classic error of law of course justifies the intervention of a reviewing court.  But the Canadian courts have long since ceased to be classicists in this regard.

When we are in the domain of reasonableness review, an error of law does not automatically justify intervention by a reviewing court. If the divergence of views between the tribunal and the reviewing court can be explained by -- for example -- reference to the tribunal's statutory purposes, or the underlying values of its statutory scheme, then a properly deferential court should keep its hands off.

It seems to me that the Court cannot have its cake and eat it. If it truly wants to be deferential even when Charter rights have been infringed, it has to give tribunals a margin of appreciation. Here, the Court decided for itself what the appropriate legal test was and insisted on a strict application of it in the context of the facts of the case.

For those of us who think that the Court was wrong in the first place to advocate a deferential approach in fundamental rights cases, Whatcott is good news. It is evidence that, in the application of the reasonableness test, the Court will not be deferential in practice, whatever about its rhetoric.

Cass Sunstein on OIRA

I linked in passing in Saturday's post to Cass Sunstein's very interesting article on OIRA, The Office of Information and Regulatory Affairs: Myths and Realities. Here is the abstract:

Since its creation in 1980, the Office of Information and Regulatory Affairs (OIRA), a part of the Office of Management and Budget (OMB), has become a well-established institution within the Executive Office of the President. This essay, based on public documents and the author’s experience as OIRA Administrator from 2009-2012, attempts to correct some pervasive misunderstandings and to describe OIRA’s actual role. Perhaps above all, OIRA operates as an information-aggregator. One of OIRA’s chief functions is to collect widely dispersed information – information that is held by those within the Executive Office of the President, relevant agencies and departments, state and local governments, and the public as a whole. Costs and benefits are important, and OIRA does focus on them (as do others within the Executive Branch, particularly the National Economic Council and the Council of Economic Advisers), above all in the case of economically significant rules. But for most rules, the analysis of costs and benefits is not the dominant issue in the OIRA process. Much of OIRA’s day-to-day work is devoted to helping agencies to work through interagency concerns, promoting the receipt of public comments on a wide range of issues and options (for proposed rules), ensuring discussion and consideration of relevant alternatives, promoting consideration of public comments (for final rules), and helping to ensure resolution of questions of law, including questions of administrative procedure, by engaging relevant lawyers in the executive branch. OIRA seeks to operate as a guardian of a well-functioning administrative process, and much of what it does is closely connected to that role.

I had plenty of misconceptions about OIRA's role before reading Sunstein's piece, particularly about the relative importance of cost-benefit analysis, and am now much the wiser!

Judicial Deference to Academic Judgement

I am naturally all in favour of caps being doffed to academics. But should the preferences of my ego be translated into judicial review doctrine? Two recent decisions from either side of the Atlantic demonstrate the favoured judicial approaches to review of academic decisions and some of the potential pitfalls. 

President Obama's Executive Order on Cybersecurity

Given the recent discussion of the constraints law places -- or doesn't place -- on administration, I think Executive Order -- Improving Critical Infrastructure Cybersecurity is noteworthy. Even though President Obama is not under any duty to follow the strictures of the Administrative Procedure Act in issuing executive orders, the hallmarks of administrative law can be glimpsed in this important document.

More on Being a Fraud

I managed to be inadvertently provocative on this subject last time out, with Michael Greve failing to catch my clin d'oeil towards Akhil Amar's anguished declaration that if Obamacare were turned to dust by the U.S. Supreme Court his whole life would be a fraud. In any event, Greve has now explained in some more detail his skepticism about administrative law.  This has prompted some (rambling) reflection on my part.

Questions and Answers: Procedural Fairness

In Barreau du Québec c. Khan, 2011 QCCA 792, the Québec Court of Appeal held that a student who failed a bar exam was entitled to look over her exam, answer booklet, answer key and correction grid and to take notes while doing so.

With its decision in Ordre des infirmières et infirmiers du Québec c. Ngoya Tupemunyi, 2013 QCCA 134, the Court has gone even further. The issue was whether procedural fairness required the disclosure of an exam and answer key to allow the individual concerned to properly respond to the recommendations of disciplinary inquiry.

Is my discipline a fraud?

Provocative post from Michael Greve. A taste:

More and more, our administrative state looks like something dreamt up in a late-night meeting between Carl Schmitt and Evita Peron. I’m teaching something called, fraudulently, administrative “law.” Believe you me: nothing in that corpus juris poses any meaningful constraint on government.

Social Welfare Appeals in Ireland

Saoirse Brady had a fine op-ed in the Irish Times this week on the problems claimants experience in the Irish social welfare decision-making process: "Social welfare appeals process not fit for purpose".

The report she describes can be downloaded from the website of the Free Legal Advice Centre.

You Don't Have the Power: Securities Investigations in Québec

In the context of an ongoing investigation of the embattled engineering firm, SNC-Lavalin, Québec's securities regulator compelled an executive to produce certain documents. In the same letter, however, the regulator purported to prevent the executive from telling anyone else about the documents (apart from the company's lawyers). Revealing the existence of an ongoing investigation was permitted, but not any details of the requested documents.

After some back and forth, the prohibition on disclosure was modified somewhat, so as to allow the company to comply with the request. However, the company was forbidden from communicating the details of the requested documents to its auditors. The auditors cried foul, arguing that they could not sign off on the company's books without knowing the details of the investigation, which they could piece together once they had identified the requested documents. On (internal) appeal to the Bureau de décision et révision, the company won, and the auditors had the necessary information (almost) at their fingertips, at which point the regulator too cried foul and appealed to the ordinary courts.

The saga came to an end yesterday (barring the granting of leave to appeal to the Supreme Court of Canada), with defeat for the regulator in Autorité des marchés financiers c. Groupe SNC-Lavalin Inc., 2013 QCCA 204.

Out of Time, Out of Luck: The Postal Acceptance Rule and Administrative Law

Canada's immigration system is bursting at the seams. One of the backlogs is in sponsorship applications by Canadian permanent residents and citizens of their parents and grandparents. The federal government's response was to institute, by way of ministerial instructions issued pursuant to s. 87 of the Immigration and Refugee Protection Act, a "temporary pause" in the acceptance of new applications.

In order to avoid a torrent of new applications, the federal government announced its change of policy on November 4, 2011, and made it effective the following day, November 5, 2011.  The Minister responsible explained this decision in the following terms:

… [A]s we redesign the program to make it sustainable, here's the challenge we have: if we leave the program open for applications during that period of consultation and redesign, we know what will happen - we will get absolutely flooded with a huge increase in applications. Because people will say “if the criteria might change, we need to get our application in right away.” And we’re very concerned about this possibility. This has happened before. Immigration consultants and lawyers will go to their clients and say “we're going to send your application in right now.” And then we'll go from 40,000 applications to 50 or 60 or 70,000, and we'll never be able to deal with the backlog.

The applicant in Lukaj v. Canada (Citizenship and Immigration), 2013 FC 8 learned of the change of policy and immediately sent off his application. The application was returned to him, however, with a note that it had been received after the November 5, 2011 deadline.