Hate speech is back in the news. The Quebec government has recently tabled Bill 59, which, among other things, would prohibit “hate speech” – a term that is not defined. Anyone who “engages in or disseminates” hate speech is liable to be fined up to $10,000 for the first utterance and $20,000 for the second.
The Bill would also provide the Quebec Human Rights Commission with new powers to investigate reports of hate speech, and fine anyone who interferes with an investigation up to $20,000.
If and when Bill 59 becomes law, we can expect a constitutional challenge. In the usual course this will take the form of a Charter challenge arguing that the law violates freedom of expression under section 2(b). The problem with this approach is that the Supreme Court unanimously upheld similar provisions in the Saskatchewan Human Rights Code in the recent Whatcott decision as a “reasonable limit” on freedom of expression. While there may an argument that Bill 59 is distinguishable, the better approach, in my view, is to challenge the law as a violation of the “division of powers” – to argue, in other words, that a province is not constitutionally capable of banning political expression.
Canada’s Constitution establishes a ‘federal union’, meaning that it divides all legislative power between Parliament and the provincial legislatures. This federalist structure, which the Privy Council once referred to as “watertight compartments,” grants each order of government the power to “exclusively” make laws in relation to certain specified matters. There will be instances of overlap – drinking and driving laws for example – but if a provincial law’s “pith and substance” falls within a federal head of power, then it is unconstitutional.
While the specific issue of “hate speech” has never been afforded a division of powers analysis, past precedent suggests that banning any form of political expression, no matter how offensive, falls under Parliament’s exclusive jurisdiction over criminal law. The Supreme Court’s 1957 decision in Switzman v. Elbling concerned a Quebec statute that sought to prohibit what would undoubtedly have been considered the “hate speech” of the day: communist propaganda. The Court struck down the statute on the basis that it was in “pith and substance” criminal law, and therefore beyond the scope of provincial power.
In his concurring opinion, Justice Rand added that parliamentary democracy requires “virtually unobstructed access to and diffusion of ideas” and that restricting this access is “not a matter within the Regulation of a Province.”
The decision in Switzman – and Rand’s remarks in particular – echoed another opinion from two decades earlier written in concurrence by then Chief Justice Lyman Duff, the longest serving Supreme Court justice in Canadian history. Duff argued that, as freedom of political expression is the lifeblood of parliamentary institutions, “any attempt to abrogate this right of public debate” would be “incompetent to the Legislature of the Province.”
Hate speech may not be inherently political, but as recent history demonstrates, it often is. And in the case of Bill 59, the law would clearly target political expression since it would prohibit hate speech directed at groups identified by their “political conviction.” In essence, Bill 59 would curtail ‘hateful’ expression aimed at any politically identifiable group, from Quebec sovereigntists to white supremacists. It is difficult to conceive of an instance when such expression would not be political.
The stated purpose of Bill 59 – “to establish measures to combat hate speech and speech inciting violence” – strongly suggests that the true nature of the Bill is criminal law. Bill 59 prohibits conduct with penal sanctions and is directed toward a traditional criminal law purpose – combatting hate speech and incitements to violence, both of which are already captured by the Criminal Code.
Canadians tend to think of the Charter as the ultimate protector of our rights and freedoms. While the Charter is certainly important, we should not lose sight of the fact that Canada was a free country long before 1982 and that our liberty rests primarily on a constitutional structure that limits government power. The division of legislative powers is a central feature of that structure as it ensures that neither order of government exerts too much power. It grants the provinces authority over most of their internal affairs, where they are generally more efficient and accountable, while leaving most of the “big” socio-economic and moral issues to Parliament, which is less prone to pass laws that are, in the oldest sense of the word, provincial.
And unlike a Charter review, which invariably provides unelected judges with the discretion to weigh public policy considerations, a division of powers analysis does not consider whether the law is justified as a “reasonable limit.” Either a province has the power to prohibit political speech or it does not.
It is unfortunate that in the last few decades the division of powers has become almost an afterthought. Our conception of liberty has become increasingly Charter-focused and our courts have begun to embrace a model of “cooperative federalism,” which, contrary to the clear wording of the Constitution, gives Parliament and the provinces a wide berth to pass legislation “in furtherance the public interest” with little regard to whether it infringes on the other’s jurisdiction.
Yet despite these trends, Canadian federalism has not strayed too far from the constitutional text. Switzman and many other “classical federalism” cases remain good law and the original “watertight compartments” remain relatively intact. Our courts have ample precedent with which to uphold an exclusive division of powers, but their decisions will only be as good as the arguments put before them. In Whatcott, the parties relied completely on the Charter. If we expect the courts to rule any differently the next time around, then those who seek to challenge the law will need to appeal first and foremost to Canada’s federal structure.
This article was originally published in the National Post and is being reprinted courtesy of the National Post