Vive le Québec Libre!

Prosecutors in Québec seem to have forgotten that this is a free province in a free country. First, they came for a makeup artist whose gory videos, though involving no actual gore or violence whatsoever, were too realistic for their liking. And then, after a mere busybody concerned citizen complained, they came for a ranting blogger for, apparently, saying that someone ought to organize a mass shooting at the Québec National Assembly. (The story is a couple of weeks old, but I only came across it now, and think it’s worth highlighting, especially since it hasn’t attracted the attention of anglophone media.)

Now what Matthieu Bonin, the blogger, said is thoroughly disgusting. But that is not enough to accuse him of―wait for it―hate propaganda. Jeremy Waldron, about whose views on hate speech prohibitions I have written at length ( hereherehere, here, and here), thinks that Western democracies, including Canada, can be trusted not to abuse their hate speech laws to prosecute expression that is merely offensive, and does not fall within a fairly narrow understanding what what hate speech really is. This case is evidence that he is, regrettably, mistaken.

As the lawyer and blogger Véronique Robert, from whose post I learned about this case, explains, there is a very simple reason why Mr. Bonin is not guilty of the charge against him. S. 319 of the Criminal Code criminalizes public incitement (subs. 1) and wilful promotion (subs. 2) of “hatred against an identifiable group” (my emphasis). And “identifiable group,” pursuant to subs. 319(7) and 318(4), “means any section of the public distinguished by colour, race, religion, ethnic origin or sexual orientation.” As Mtre Robert points out,

This is … an exhaustive list of what constitutes an identifiable group. … As this definition of an identifiable group does not include the group of politicians, there is no actus reus at all, and nothing, in my view, can ground a charge against Matthieu Bonin. In order to have him found guilty, the prosecution would have to amend the Criminal Code. (Translation mine)

As in the make up artist’s case, it seems to me that the prosecution is grotesquely mistaken about the legal claim it is asserting. But of course, even though the accused is going to be acquitted, he will have suffered stress and incurred considerable expenses. This is not how the power of a free state should be used. Whoever authorized the prosecution should be ashamed of him- or herself.

There is a further point to be made, though it is of secondary importance in light of Mtre Robert’s conclusion. The provision of the Criminal Code under which Mr. Bonin is charged might be unconstitutional. But what about R. v. Keegstra, [1990] 3 S.C.R. 697, which is generally taken to have, in Mtre Robert’s words, “have settled the question” of the constitutionality of the Criminal Code‘s prohibition on hate speech? Let me explain.

S. 319 of the Criminal Code has two subsections that create similar, but distinct offences. Subs. 1, criminalizes incitement of hatred “by communicating statements in any public place … where such incitement is likely to lead to a breach of the peace.” This is the provision Mtre Robert quotes in her post, but she does not clearly say that that is the one under which Mr. Bonin is charged. Subs. 2 criminalizes “wilful[] promot[ion]” of hatred “other than in private conversation. So it is applicable to a broader range of situations than subs. 1―anything other than a private conversation, as opposed to “a public place”, and there is no need for likelihood of a breach of peace; but subs. 2 is also narrower, in that it includes a requirement of wilfulness which is absent from subs. 1. Only subs. 2 (as well as par. 3(a)) was at issue, and was upheld, by a vote of 5-4, in Keegstra. And, importantly, the requirement of wilfulness in subs. 2 was among the factors the majority invoked as showing the limited scope of subs. 2, and therefore constitutional permissibility. Because that requirement is absent from subs. 1, I think that Keegstra does not settle the question of its constitutionality. To the contrary, it is some reason to believe that subs. 1 might be unconstitutional. So if that’s the provision under which Mr. Bonin is charged, he has, in my opinion, a fairly strong constitutional argument to make.

There is, by the way, another difference between subs. 319(1) and 319(2). Pursuant to subs. 319(6), “[n]o proceeding for an offence under subsection (2) shall be instituted without the consent of the Attorney General.” There is no such restriction applicable to subs. 1. This may not have any constitutional significance―the Supreme Court did not comment on this requirement in Keegstra. But if the charge against Mr. Bonin is under subs. 1, without the Attorney General’s consent, their absurdity might suggest that it would be a good idea to apply the subs. 6 requirement to subs. 1 as well as subs. 2.

The best thing, of course, would be to get rid of s. 319 altogether, for the reasons I discuss in the posts linked to above, and because we now have an example of blatant prosecutorial abuse. But so long as the provision is on the books, the prosecutors’ sense of decency―or at least their knowledge of the law―are what we are forced to count on for our freedom. Right now, in Québec, both are in short supply.

Author: Leonid Sirota

Law nerd. I teach public law at the University of Reading, in the United Kingdom. I studied law at McGill, clerked at the Federal Court of Canada, and did graduate work at the NYU School of Law. I then taught in New Zealand before taking up my current position at Reading.

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