Ch 11

Question 1

Has the SCC defined constitutionally protected expression broadly or narrowly?

Answer 1

• SCC has interpreted rights broadly
• Irwin toy: expression includes any activity that conveys or attempts to convey a meaning, the use of the word activity suggests that actions without words may have expression content that is worth constitutional protection, most expressive activity is protected by section 2b, in this case court want to protect controversial forms of speech

Question 2

Any restrictions to expression?

Answer 2

• expressive conduct for acts of violence (perpetrator of conduct cannot gain constitutional protection)

Question 3

On what grounds is the broad approach to expression justified?

Answer 3

• SCC said need to ensure protection for freedom of thought, opinion and belief because that is the hallmark of a free and pluralistic society (freedom of expression even for those opinions that are distasteful)

Question 4

What is protected under 2b?

Answer 4

• commercial expression aimed at children, communicating to engage in prostitution, pornography, threatening violence, propaganda, publication falsehoods, might extend to perjury, deliberate misrepresentation constituting fraud, conspiring to commit a crime, and other kinds of expression that are explicitly prohibited by the criminal code

Question 5

What values ground freedom of expression (SCC)?

Answer 5

• Irwin toy: truth, democracy, self-realization

Question 6

Truth

Answer 6

• market place of ideas (john Stewart mill) SCC has said that seeking the truth is an inherently good idea, and suppressing ideas in the name of truth is dangerous, the best way to get out the truth is to allow for unrestricted exchange of ideas

Question 7

Self-realization

Answer 7

• intrinsic worth of expression to those who engage in expressive activities, integral to individual freedom, self fulfillment and human flourishing

Question 8

Democracy

Answer 8

• free expression is critically important democratic rule, ability to criticize is integral to democracy

Question 9

Why is robin elliot critical of the court’s approach to section 2b?
(Purpose vs. Effect)

Answer 9

Are the controversial forms of expression connected to the core values?

• elliot says no, he is critical of the fact that the courts set out the core purposes but don’t limit constitutional expressions that are not connected to these values
• purpose vs. effect based claim: distinction between legislation whose purpose is to limit expression and legislation that has the effect of limiting expression (court can find an infringement of section 2b to in either case)

Question 10

Do both types of claims, purpose vs effect, have to be connected to one of the rationales in order to establish that section 2bhas been violated?

Answer 10

• purpose based claims: no rational connection needed

Question 11

Purpose-based claims

Answer 11

• arise with legislation being challenged that is aimed at words that is thought to be harmful, purpose is to restrict words that are deemed to be harmful, no connection needs to be established according to Irwin toy, where the purpose of the legislation is to restrict expression, the claimant does not have to establish a connection between expressive activity and one of the three rationales in order to establish that the claimants 2b right was violated

Question 12

Effect based claims

Answer 12

• these cases involve legislation that does not have the purpose of limiting expression but effect of limiting expression
• Ramsden v Peterborough: the city had a byelaw that banned postering on a public property, Ram was in a band and he was fined twice for putting posters on Hydro poles, he argued that the city by law violated his right to freedom of expression, the Supreme Court found that the purpose of the byelaw was to address litter, traffic hazards and safety workers who might have to climb the Hydro poles, law was about safety not the messages conveyed on the posters, while the purpose was not aimed at limiting expression it had the effect of limiting expression. claimants, those bringing forth the effects based section 2b claim, must connect the expressive activity that is being limited to one of the three rationales to establish section 2B has been violated. Court found postering promotes social and political discourse and therefore was connected to one of the three rationales

Question 13

Elliot’s view of the purpose vs effect distinction

Answer 13

• thinks the distinction is incoherent, says the distinction offers constitutional protection of expression that is not connected to any of the three rationales (purpose based claims), in his view all expression should be related to one of the three rationales in order to be protected. Second, he says that the problem with this distinction is that it creates the possibility that the exact same expressive activity will be protected by section 2b in one case but then not protected in another

Question 14

According to the court, whose expressive interests are engaged by section 2b?

Answer 14

• The interests of the listener and the speaker (interests of the listener receive most consideration by the court)
• access vs content based claims

Question 15

Access-based claims

Answer 15

• involve cases where the rights of the listener are being exercised, those who want access to the information, courts are sympathetic to access based claims
• Southam: A newspaper, southam wanted access to information, involved a federal statute called the juvenile delinquents act, which requires that the trials of all juvenile offenders be held in camera (no public access), southam challenged this rule, Ontario court of appeal held at the absolute band was unconstitutional and said open courts were important
• this case demonstrates a section 2b access based claim where the right of the listener prevailed

Question 16

Content based claims

Answer 16

• are cases involving the right of the speaker to engage in expressive activity, less sympathetic when speaker is addressing ideas that are thought to be distasteful
• butler: section 2b challenge to obscenity laws, criminal code profession that made it a criminal offence to make or publish obscene materials, unable to provide a connection, right to engage in distasteful activity did not prevail
• keegstra: hate speech case, Keegstra was a former mayor and high school teacher, taught a social studies class, told students the holocaust was a fraud and that Jewish people were evil, he was charged for the wilful promotion of hatred against an identifiable group, he challenged this saying it violated his free expression, court found speech was constitutionally protected under section 2b but claim failed, court was protecting vulnerable third parties

Question 17

Core vs periphery distinction

Answer 17

• core expression: expression that goes to the core of the purposes of section 2b (truth, democracy, self-realization), the SC has said that these activities will receive the highest degree of protection under the Charter
• peripheral expression: involves activities that are further removed from the three rationales, does not directly engage with these values, ex. Commercial advertising, hate propaganda
• distinction is used to assess how valuable and expressive activity is, and to change lawful protection afforded to the expression based on whether it is core or peripheral (core afforded more protection)

Question 18

How does the court go about affording different levels of protection to core and peripheral expression?

Answer 18

• Core expression is more valuable because it is closer to the values
• changes the standard of review under section 1, the standard will shift depending on whether the expressive activity involves core periphery activity
• peripheral expression has less value because further removed from core purposes, courts Will take a more relaxed approach to apply the oaks test, it will lower the standard the government has to meet to establish a reasonable limit
• Core expression: court has said this expression has greater value because closer to core purposes, court will therefore make it harder for the government to establish a reasonable limit

Question 19

Harper v Canada

Answer 19

• involved a section 2b challenge to provisions in the Canada elections act, provisions placed restrictions on third-party election advertising
• this is a core expression (democracy)
• third-party election advertising is political advertising by non-parties, could be a union or advocacy group, the Canada elections act placed spending limits on the amount of money that third parties could spend on advertising, limited it to $3000 in any electoral district and $150,000 nationally
• Harper Challenge this provision and argued these spending limits violated section 2b
• The government’s legislative objective was to protect electoral fairness, there is a connection between economic resources and real world politics, the right to expression does not ensure equal access to resources, therefore public would have equal access to all voices
• The majority upheld the government spending limits, first they said that the spending limits help create legitimacy because ensures fairness, second spending limit create equality in political discourse, necessary to provoke meaningful participation, third spending limit ensure that voters have access to all relevant information which enhanced the right to vote, split decision (6-3), Minority thought spending limits were so severe that they came close to becoming a total band on spending, believed citizens should have the same right to communicate views without having to join a political party
• content based claim, but majority emphasized interests of the listeners