Whatcott and Hate Speech: Re-thinking Freedom of Expression in the Charter Age

Author ORCID Identifier

Richard Haigh: 0000-0002-2828-8566

Document Type


Publication Date


Source Publication

National Journal of Constitutional Law, 34(1), 1-30


Supreme Court decisions; Hate speech; Freedom of speech; Federalism; Politics


The authors examine the particular nature of political expression in the context of the recent Supreme Court of Canada decision in Saskatchewan Human Rights Commission v. Whatcott. The novel approach they take is, instead of analyzing expression and its limits under s. 2(b) of the Charter, conceiving political expression as part of a division of powers analysis. With Whatcott, the time was ripe to subject restrictive speech laws, found in human rights codes, to an approach based on federalism. The paper outlines the background to Whatcott, the decision, and the distinct form of expression known as political expression. A federalism analysis of provincial hate speech laws is undertaken, and is then applied to Whatcott and political expression. The final claim is made that some constitutional free speech cases, such as Whatcott, might benefit from a more detailed constitutional review that includes federalism. In an era of rights-based jurisprudence under the Charter it is important to remember that the structure of federalism is also capable of protecting rights and freedoms.

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