2
Part I – Statement of Fact
1.
The appellant’s Memorandum of Fact and Law was served on February 13, 2013. TheSupreme Court of Canada subsequently released its decision in the case of
Saskatchewan(Human Rights Commission) v. Whatcott
, 2013 SCC 11 on February 27, 2013(hereinafter referred to as
Whatcott
). As the
Whatcott
case directly impacts many of theissues raised in this case, the appellant was granted leave to file this supplementaryMemorandum and supplementary Appeal Book in order to address
Whatcott’s
implications. [see: Order of Webb, J.A., dated April 3, 2013, Supplementary AppealBook, p. 16]2.
The
Whatcott
case did not deal with the
Canadian Human Rights Act
, the subject of thisappeal, but with a provincial legislative scheme in
Saskatchewan Human Rights Code
,
S.S. 1979, c. S-24.1,
specifically, s. 14(1)(b) which provides
:
14. –
(1) No person shall publish or display, or cause or permit to be published or displayed, on any lands or premises or in a newspaper, through atelevision or radio broadcasting station or any other broadcasting device, or inany printed matter or publication or by means of any other medium that the person owns, controls, distributes or sells, any representation, including anynotice, sign, symbol, emblem, article, statement or other representation:(
a
) tending or likely to tend to deprive, abridge or otherwise restrict theenjoyment by any person or class of persons, on the basis of a prohibited ground, of any right to which that person or class of persons is entitled under law; or (
b
) that exposes or tends to expose to hatred, ridicules, belittles or otherwise affronts the dignity of any person or class of persons on the basisof a prohibited ground.(2) Nothing in subsection (1) restricts the right to freedom of expressionunder the law upon any subject.3.
Whatcott
had published and distributed four printed flyers to the public in Regina and Saskatoon concerning the issue of homosexuals and public schools. Four individuals whoreceived the flyers at their homes filed complaints with the Saskatchewan Human RightsCommission. [Whatcott, paras. 8, 9]
3
4.
The Saskatchewan Human Rights Tribunal held that the flyers contravened s. 14(1)(b) of the
Saskatchewan Human Rights Code, supra
, on the grounds that they exposed personsto hatred and ridicule on the basis of their sexual orientation. Whatcott was prohibited from further distributing the flyers or any similar materials and was also ordered to paymonetary compensation to the complainants. [Whatcott, para. 3, 11]5.
The decision of the Tribunal was upheld before the Saskatchewan Court of Queen’sBench but was overturned by the Saskatchewan Court of Appeal, which held that while s.14(1)(
b
) was constitutional, the flyers did not meet the test for hatred under the provision.[Whatcott, paras. 3 and 4]6.
There were two issues before the Supreme Court: (1) whether s. 14(1)(
b
) of the
Code
infringed s. 2(
a
) and/or s. 2(
b
) of the
Charter
and, if so, whether the infringement wasdemonstrably justified under s. 1 of the
Charter
. If so, (2) whether the Tribunal’sapplication of that provision in the context of this case should have been upheld.[Whatcott, para. 5, 19]7.
In the result, the Court upheld the constitutionality of s. 14(1)(b) with the exception of thewords “ridicules, belittles or otherwise affronts the dignity of” which were held not to berationally connected to the legislative purpose of addressing systemic discrimination of protected groups and therefore could not be justified under s. 1 of the
Charter.
The Courtheld that they could be severed from s. 14(1)(
b
), without contravening the legislativeintent. [92-94]8.
The Court’s findings on the second issue before it, the application of the provision to theflyers in issue, is not germane to this appeal.
Part II – Statement of Points in Issue
9.
The points in issue with respect to the decision in
Whatcott
are as follows:(a)
What arguments raised by the appellant in his Memorandum of Fact and Law have been determined by the
Whatcott
decision?