Monday, April 14, 2008

A federal power over political speech?

I got to thinking about this after I got out my twenty-year-old edition of Professor Hogg's Constitutional Law of Canada, which I picked up for a couple dollars at a book sale. In the section on free speech rights, he asserts that, while there is a divided federal-provincial jurisdiction over expression, certain categories fall under sole federal jurisdiction. Hogg, who is probably the top constitutional law expert in the country, says that political speech - that which is necessary to the working of a liberal democracy - can be regulated, but that this can only be done by the federal government. Only Ottawa is competent to restrict speech that is purely political, because the right to expression is so fundamental that any derogation of it should be done through federal law (usually the Criminal Code), with appropriate procedural safeguards.

When I went to look in the newest edition at the library, I found that the section on speech was virtually unchanged from twenty years ago. Despite everything that had gone on with speech in the late 80s and beyond, the professor had left in all the old case law like the Reference re Alberta Statutes and the Padlock case (Switzman v. Elbling), but had not included Taylor or a provincial equivalent like the first Collins. This isn't to say that the new edition is falling down on the job at all; I mean, to someone like me, the free speech issue is huge, but in national terms it really doesn't amount to a lot of case law. There have only been about two dozen hearings in the federal Human Rights Commission dealing with s.13. As for the provincial cases in BC, Alberta, and Saskatchewan, I haven't counted them all, but surely they would be about the same in number, total, as the federal complaints. Professor Hogg has no shortage of subjects to deal with in his textbook, which is already about the size of a Toyota in its unabridged format.

The point is that according to Hogg, the provinces do have the power to regulate a great deal of expression, but they do not have jurisdiction over anything that could be called 'political.' Surely, there is nothing unconstitutional about the 'signs and notices' provisions that appear in pretty much every Human Rights code from here to Nova Scotia. Likewise, libel and slander actions get fought out in provincial court and some provinces have their own acts dealing with defamation. According to the older case law - meaning, older than the federal version of the Human Rights Act, only Ottawa is supposed to be able to regulate political speech. Note that this rule would apply to all kinds of political expression, whether you were talking about the mayoral election in your town or the situation over in China. It shouldn't matter what kind of politics you're talking, the rule is that only one government is allowed to regulate what you can and cannot say in that area. According to this rule, the federal Commission would be good and constitutional. The actions of the various federal commissions and tribunals, though - that might be another story.

For some tribunal law on this subject, one can look back at a case that was reviewed before on this site - Canadian Jewish Congress v. North Shore Publishing (or, as it's more commonly known, the first Collins complaint). In the reasons for this one (which are extremely long and very well reasoned, by the way), one of the intervenors brought up several jurisdictional arguments, one of which was the supposed federal power over speech. Tribunal Member Nitya Iyer (who, upon further research, turns out to have a Master's degree from Harvard, which would explain the degree of sophistication evident in the reasons) deals with the question in much more detail than I have time to do here. In short, she goes over the older cases, going as far back as the 1938 Alberta Statutes reference, and looking at everything up to Taylor and R. v. Keegstra. She goes over Professor Tarnopolsky's book on Human Rights, which argues for an exclusive federal jurisdiction for political expression, and briefly looks at a Saskatchewan case called Engineering Students Society which appears to support the notion. There is a lot of writing on fed-provincial jurisdiction questions, and it takes up an awful lot of ink.

The passage I most wanted to highlight is where Iyer discusses Chief Justice Dickson's reasons from Keegstra. She notes that the Chief Justice in that case did find that hate speech could be classified as 'political,' but then quotes his strong qualification:

"I recognize that hate propaganda is expression of a type which would generally be categorized as "political", thus putatively placing it at the very heart of the principle extolling freedom of expression as vital to the democratic process. Nonetheless, expression can work to undermine our commitment to democracy where employed to propagate ideas anathemic to democratic values. Hate propaganda works in just such a way, arguing as it does for a society in which the democratic process is subverted and individuals are denied respect and dignity simply because of racial or religious characteristics. This brand of activity is thus wholly inimical to the democratic aspirations of the free expression guarantee."

So, the Chief Justice concluded that while hate speech may be political in nature, it has a distinctly anti-democratic tendency to it. Iyer then takes this to mean that hate speech, as a class of expression, is less deserving of constitutional protection, and should not be reserved exclusively to the federal jurisdiction. Now, so far, I am not questioning the tribunal member's reasoning. There is, indeed, pretty ironclad law passed down by the Supreme Court here, saying in pretty clear words that this one type of political speech - that is, hate propaganda - should not benefit from the same broad constitutional protection as other types of communication. Iyer is correct to draw from this the idea that hateful speech can be legally suppressed by the state.

The problem is, nothing in what the Chief Justice said in Keegstra can by any means take away from the principle that political speech is purely a federal matter. Dickson C.J. most explicitly did say that hate speech "would generally be classified as political." True, he does go on to say that it is anti-democratic, and therefore not worthy to be saved by s.1 of the Charter with its mention of a "free and democratic society." But this does not mean that hate speech is no longer political. It simply means that it can be infringed upon. Nothing in the reasons suggests that Dickson C.J. meant to overturn the decades-old principle of Parliamentary jurisdiction in this area. Iyer, then, comes to a faulty conclusion. She essentially assumes that only political speech that is democratic should fall under the federal power. This is in direct opposition to the Padlock case, for example, where the Court found that the suppression of Communist propaganda was an essentially federal matter, and was ultra vires the province of Quebec. Communism, it need hardly be explained, is an explicitly anti-democratic ideology. What Dickson C.J. said about hate propaganda undermining democracy could just as easily have been applied to Marxism. The principle is, and should be, that only Parliament can suppress political ideas. It is irrelevant whether these ideas are essentially democratic (e.g. 'throw the bums out') or anti-democratic (e.g. 'no votes for women').

In addition to Collins, there is a whole body of rather confusing case law on this matter from Saskatchewan. It doesn't resolve things to my satisfaction, any more than the BC jurisprudence does. It would be interesting to look at how Alberta has dealt with this question. More questions for another day.