[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.