Switzman<\/em> \u2013 and Rand\u2019s 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, \u201cany attempt to abrogate this right of public debate\u201d would be \u201cincompetent to the Legislature of the Province.\u201d<\/p>\n <\/p>\n
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\u2019 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.<\/p>\n
<\/p>\n
The stated purpose of Bill 59 \u2013 \u201cto establish measures to combat hate speech and speech inciting violence\u201d \u2013 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 \u2013 combatting hate speech and incitements to violence, both of which are already captured by the Criminal Code.<\/p>\n
<\/p>\n
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 \u201cbig\u201d socio-economic and moral issues to Parliament, which is less prone to pass laws that are, in the oldest sense of the word, provincial.<\/p>\n
<\/p>\n
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 \u201creasonable limit.\u201d Either a province has the power to prohibit political speech or it does not.<\/p>\n
<\/p>\n
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 \u201cin furtherance the public interest\u201d with little regard to whether it infringes on the other\u2019s jurisdiction.<\/p>\n
<\/p>\n
Yet despite these trends, Canadian federalism has not strayed too far from the constitutional text. Switzman<\/em> and many other \u201cclassical federalism\u201d cases remain good law and the original \u201cwatertight compartments\u201d 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\u2019s federal structure.<\/p>\n <\/p>\n
This article was originally published<\/a> in the National Post and is being reprinted courtesy of the National Post<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"Hate speech is back in the news. The Quebec government has recently tabled Bill 59, which, among other things, would prohibit \u201chate speech\u201d – a term that is not defined. Anyone who \u201cengages in or disseminates\u201d hate speech is liable to be fined up to $10,000 for the first utterance and $20,000 for the second. …<\/p>\n","protected":false},"author":2,"featured_media":1516,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_exactmetrics_skip_tracking":false,"_exactmetrics_sitenote_active":false,"_exactmetrics_sitenote_note":"","_exactmetrics_sitenote_category":0,"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"footnotes":""},"categories":[36],"tags":[187,159,45,112,158,129,128,145,147],"_links":{"self":[{"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts\/1514"}],"collection":[{"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/comments?post=1514"}],"version-history":[{"count":6,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts\/1514\/revisions"}],"predecessor-version":[{"id":1963,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts\/1514\/revisions\/1963"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/media\/1516"}],"wp:attachment":[{"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/media?parent=1514"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/categories?post=1514"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/tags?post=1514"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}