12 THE ADVOCATE
VOL. 80 PART 1 JANUARY 2022
Commission) v. Whatcott,15 a case in which the constitutionality of a section
of the Saskatchewan Human Rights Code prohibiting speech “that exposes or
tends to expose to hatred, ridicules, belittles or otherwise affronts the dignity
of any person” was at issue. In that case, the court struck down the portions
of the provision relating to “ridicules”, “belittles” or “affronts …
dignity” on the basis that a democratic society concerned about preserving
freedom of expression must make space for such discourse given that it typically
does not lead to systemic discrimination against groups. The case was
summarized this way:
In short, the Court limited the prohibition in the legislation to expression
that could inspire extreme feelings of detestation likely to affect the
vulnerable group’s acceptance within society and that also had enough
motivating force to lead to the type of discriminatory treatment the legislature
was seeking to address. The Court declined to limit freedom of
expression in order to confer protection from emotional harm.16
In Ward, the majority cautioned that “a shift toward protecting a right not
to be offended … has no place in a democratic society”.17 This is a significant
caution that we would all be wise to take note of. Lawyers need to be alert,
as members of the bar, that this so-called “standard” does not take hold,
because it is a curious (and potentially dangerous) mindset that seems to
have emerged over the past decade, even within our profession.
Compassion for the downtrodden or oppressed in society should not give
way to cloudy thinking that confuses moral responsibility for legal duty. We
see support for the idea of a “right not to be offended” or even a “duty not
to offend” all over the place in the academic and corporate worlds and in
modern media, with publishers, editors and writers being encouraged to put
“trigger warnings” on things, speakers being banned from speaking at universities
and individuals being cancelled for holding and espousing opinions
different from those of their employers/teams/associations. Editors of
publications have been chastised (or even fired) for publishing opinions
(often other than their own) that do not reflect the opinion of the newspaper—
or, even more perversely, that do not reflect the opinions of the
majority of readers. This is a dangerous precedent when it comes to opinion
editors, whose very task is to publish competing views in the interest of
encouraging the exchange of ideas and civilized debate.
Ours is a profession founded upon fierce advocacy within an adversarial
framework that also encourages civility. That does not mean we are never
taken aback, troubled or even offended by our opponents’ positions. Being
offended is not and should not become the standard by which we measure
others’ right to freedom of expression. Being exposed to ideas that are not
our own is actually the prize for living in a pluralistic society.