Constitutional Cases Flashcards
R. v. Oakes.
R. v. Oakes [1986] 1 S.C.R. 103 is a case decided by the Supreme Court of Canada which established the famous Oakes test, an analysis of the limitations clause (Section 1) of the Canadian Charter of Rights and Freedoms that allows reasonable limitations on rights and freedoms through legislation if it can be demonstrably justified in a free and democratic society.
R. v. Big M Drug Mart Ltd.
R. v. Big M Drug Mart Ltd. is a landmark decision by Supreme Court of Canada where the Court struck down the Lord’s Day Act for violating section 2 of the Canadian Charter of Rights and Freedoms. This case had many firsts in constitutional law including being the first to interpret section 2.
R. v. Edwards Books and Art Ltd.
R. v. Edwards Books and Art Ltd. [1986] 2 S.C.R. 713 is a leading Supreme Court of Canada decision on the constitutional validity of an Ontario provincial Sunday closing law. The Court found that the legislation was within the power of the province to legislate but it was in violation of the right to freedom of religion under section 2(a) of the Canadian Charter of Rights and Freedoms. However, it could be saved under section 1.
- Ontario Law - Retail Business Holidays Act
- Prohibited opening of larger shops
- Challenged under religious freedom
- Purpose not to interfere with religion
- Purpose to give a “common pause day” to workers
Zylberberg v. Sudbury Board of Education.
- School prayer
- Schools opens and closes with a prayer
- Opportunity to opt out
- Freedom of Religion includes the right not to be forced to participate in Religion
Challenged under s.2 (a) - Law imposed Christian observances on non-christians and religious observances on non-believers.
- Pressure to conform to the majority.
R. v. Jones.
R. v. Jones, [1986] 2 S.C.R. 284 is an early leading Supreme Court of Canada decision on the freedom of religion under section 2(a) of the Canadian Charter of Rights and Freedoms and the right to security of person under section 7.
Thomas Jones was a pastor in a fundamentalist church who did not want his three children educated in school and instead was teaching them himself in the basement of the church. The Alberta Schools Act requires all parents to send their children to school unless the parent can show that they are going to an accredited private school or the government has approved the home-school curriculum. Jones was charged with truancy under the Schools Act.
Jones argued that the rule requiring government approval to educate his children involves “his acknowledging that the government, rather than God, has the final authority over the education of his children” and so contravenes his right to freedom of religion under section 2(a) and his right to have control over how his children are educated which is protected under section 7.
Justice Gérard La Forest, for the majority, held that the Act did not violate the Charter. He found that the degree of control that the Act imposed on Jones’ children was far from absolute. It was a reasonable requirement and was supported by a compelling interest that it could be justified in a free and democratic society. The certification procedure was in no way manifestly unfair or contravened any principles of fundamental justice and so did not invoke section 7. While the Supreme Court ruled that although Thomas Jones did have to license the school, the provincial government had to provide reasonable accommodation for religious belief. The court ruled that the province must “‘delicately and sensitively weigh the competing interests so as to respect as much as possible the religious convictions as guaranteed by the Charter,”
- Wanted to educate the child at home for religious reasons
- Law said you needed government approval
- Challenged the Law
- Act allowed for instruction at home, as long as this was approved
- Requirement is demonstrably justified…
- Requirement is a reasonable limit on parents religious convictions
- Was a reasonable limit under s.1
Syndicat Northcrest v. Amselem.
Syndicat Northcrest v. Amselem [2004] 2 S.C.R. 551 was a decision of the Supreme Court of Canada that attempted to define freedom of religion under the Quebec Charter of Human Rights and Freedoms and section 2 of the Canadian Charter of Rights and Freedoms. Although the Supreme Court split on their definition, the majority advocated tolerating a practice where the individual sincerely feels it is connected to religion, regardless of whether the practice is required by a religious authority.
- Condo building owners wanted to build temporary religious structures (succahs) on balconies during religious festival
- Not Permitted
- Claimed Breach of s.2(a)
- The building of Succahs was not required by the religion in question
- Religion is about freely and deeply held personal convictions… connected to an individuals spiritual faith and linked to his or her… spiritual fulfillment
- Individual must demonstrate he or she…is sincerely doing something.. to connect with the divine or as a function of his or her spiritual faith.
Regardless whether a practice or belief is required by official religious DOGMA.
- Sincerity of belief implies honesty of belief
- Freedom of religion triggered when he or she sincerely believes in a practice or belief that has a nexus with religion.
- Charter Violation, not saved by s.1.
Multani v. Commission scolaire Marguerite‑Bourgeoys.
Multani v. Commission scolaire Marguerite-Bourgeoys, [2006] 1 S.C.R. 256, 2006 SCC 6 is a decision by the Supreme Court of Canada in which the Court struck down an order of a Quebec school authority, that prohibited a Sikh child from wearing a kirpan to school, as a violation of freedom of religion under section 2(a) of the Canadian Charter of Rights and Freedoms. This order could not be saved under section 1 of the Charter.
The case involved a 12-year-old Sikh named Gurbaj Singh, who in November 2001 dropped a metal kirpan at his school, École Sainte‑Catherine‑Labouré. This prompted the school board to request certain limits on the wearing of the kirpan, including that it be covered at all times. The Sikh family accepted this request. However, another board, in February 2002, overrode the school board, deciding that the kirpan was a weapon and thus was not allowed under the code of conduct. The council of commissioners agreed with the latter decision, although they suggested a non-metal kirpan could be used. The Quebec Court of Appeal found in favour of the council of commissioners.
- Can a Sikh boy wear a ceremonial dagger (a Kirpan) to school?
- School regulation prohibited weapons
- Sikh Faith - wear metal kirpan at all times
- Violation of Freedom of religion - personal belief in the religious significance of the kirpan was sincere
- Could continue to wear the kirpan provided it be placed in a holder and sewn into the clothing.
R. v. Morgentaler.
R. v. Morgentaler was a decision of the Supreme Court of Canada which held that the abortion provision in the Criminal Code of Canada was unconstitutional, as it violated a woman’s right under section 7 of the Canadian Charter of Rights and Freedoms to security of person. Since this ruling, there have been no criminal laws regulating abortion in Canada.
- Criminal Code provisions on abortion
- One judge said this denied freedom of conscious
- “Personal morality or conscientious beliefs which are not founded in religion or religiously motivated”
Irwin Toy Ltd. v. Quebec (Attorney General).
Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927 is a landmark Supreme Court of Canada decision on freedom of expression in section 2(b) of the Canadian Charter of Rights and Freedoms. The court held that in order to determine if a breach of section 2(b) had occurred one first had to determine whether the conduct constituted non violent activity which attempted to convey meaning. This changed the law of the constitution of Quebec. The next step was to consider whether the effect or purpose of the legislation was to restrict freedom of expression. Applying the analysis, the Court held that a Quebec law that restricted advertising directed to children was valid law which violated section 2(b) but could be justified under section 1.
- “Activity is expressive it attempts to convey meaning”
- Content neutrality
- No matter how offensive the content of a statement may be, it can still be “expression”
- Protects right to express even if the message is offensive to the majority
Ford v. Quebec (Attorney General).
Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712 is a landmark Supreme Court of Canada decision in which the Court struck down part of the Charter of the French Language, commonly known as Bill 101. This law had restricted the use of commercial signs written in languages other than French. The court ruled that Bill 101 violated the freedom of expression as guaranteed in the Canadian Charter of Rights and Freedoms.
- law requiring business signs in French only
- violates s. 2(b)
- reasonable limit? Not a reasonable limit
Devine v. Quebec (Attorney General).
Devine v. Quebec (Attorney General), [1988] 2 S.C.R. 790 is a leading Supreme Court of Canada decision on the constitutional protection of minority language rights.
Allan Singer was a Montreal printer who mostly served anglophone clientele. For over 30 years, his store front had a sign advertising his store that was written in English only. He was charged under the Charter of the French Language for having an English sign.
Singer and several others brought an action to strike down provisions of the French Language Charter and the Regulation respecting the language of commerce and business, which required commercial signs to be in French only, as being laws that were ultra vires the province, and in violation of his freedom of expression under section 2(b) of the Canadian Charter and section 3 of the Quebec Charter, right to equality under 15(1) of the Canadian Charter, and his right against discrimination under section 10 of the Quebec Charter.
The issues before the Supreme Court were:
whether the Language Charter was valid provincial law
whether the provisions prohibiting English signs violated the right to freedom of expression under section 2(b) of the Canadian Charter
and if so, could it be saved under section 1 of the Canadian Charter.
In a unanimous decision, the Supreme Court held that the Language Charter concerned a valid provincial matter but it violated Singer’s freedom of expression under section 2(b) of the Canadian Charter as it prohibited the use of English.
The Court rejected Singer’s argument that the law restricted mobility as protected under the Charter. The law only established conditions for doing business but did not restrict anyone’s comings or goings.
On the federalism issue, the Court rejected Singer’s argument that the law constituted Criminal law under the Constitution Act, 1867. Though there was a prohibition and a penalty, the Act as a whole it constituted a regulatory scheme directed as the linguistic mode of certain commercial activities, and did not resemble any traditional criminal matters based on morality or public order.
- Business documents in French, but could also be in other languages
-Violates 2(b)
- Reasonable limit? yes, objective was to promote, protect french language with minimal impairment of freedom of expression
Rocket v. Royal College of Dental Surgeons of Ontario.
Rocket v. Royal College of Dental Surgeons of Ontario, [1990] 2 S.C.R. 232 is a leading constitutional decision of the Supreme Court of Canada on the right to freedom of expression under section 2(b) of the Canadian Charter of Rights and Freedoms. The Court struck down a law prohibiting professionals from advertising as it was too broad.
Dr. Rocket and Dr. Price were dentists practicing in Ontario. They started an advertisement campaign to promote their practice. They were charged with violating the prohibition of advertising under the Health Disciplines Act.
Justice McLachlin, writing for a unanimous Court, held that the Act violated section 2(b) of the Charter and it could not be saved under section 1 of the Charter. Consequently, the law must be struck down.
- restrictions on advertising
- Breach of 2(b)
- Not a reasonable limit, too restrictive of advertising
RJR-MacDonald Inc. v. Canada (Attorney General).
RJR - MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199 is a leading Canadian constitutional decision of the Supreme Court of Canada where the Court upheld the federal Tobacco Products Control Act, but struck out the provisions which prevented tobacco advertising and unattributed health warnings.
Charter issues
The majority held that the impugned sections violated the freedom of expression under section 2(b) of the Charter. The right to freedom of expression includes the right to say nothing. The mandatory use of unattributed labels was a form of forced expression and so invoked section 2(b).
The majority held that the violation was not upheld under section 1 of the Charter.
- Restrictions on tobacco advertising
- Breach of 2(b)
- Reasonable limits? No, struck down law, public health in best interests, smoking is bad for health, thus negative advertisement on packs, etc. made mandatory
R.W.D.S.U., Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd. ALTERNATIVELY, Pepsi Cola v. Retail Wholesale Union.
R.W.D.S.U., Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd., 2002 SCC 8, is a leading Supreme Court of Canada decision on secondary picketing. The Court held that at common law secondary picketing is legal so long as there is no criminal or tortious conduct.
Employees of PepsiCo, organized by the Retail, Wholesale and Department Store Union, in Saskatchewan went on strike. Unlike many other provinces, Saskatchewan did not have any secondary picketing legislation. So as part of their strike the employees picketed at retail stores that sold Pepsi products and the homes of Pepsi’s management. Pepsi successfully applied for an interlocutory injunction to prevent employees from picketing at the secondary locations. The employees appealed the injunction.
The Court recognized picketing as freedom of expression, consistent with section 2(b) of the Canadian Charter of Rights and Freedoms. Since the Court found picketing to be ingrained in the Charter, they declined to limit picketing based on location. The Court felt that the limited financial and human resources of labour unions would prevent the unchecked spread of picketing beyond the primary parties, with limited resources they felt it was unlikely the union would picket a location which has no possible impact on their labour dispute.
Pepsi had relied primarily on the 1960s decision of Hersees of Woodstock Ltd. v. Goldstein which held that all secondary picketing was illegal. The Supreme Court, however, overturned the decision but expressly forbade the picketing of the management’s homes.
The Court’s overall conclusion was that secondary picketing is legal so long as it is not tortious or criminal in nature and does not inflict “undue” hardship on the struck parties.
Committee for the Commonwealth of Canada vs. Canada.
- Restriction on activity in a public place: what is the test? In an airport like this case they are likely not interfering with efficiency, thus they are permitted to protest peacefully
R. v. Keegstra.
R. v. Keegstra, [1990] 3 S.C.R. 697 is a landmark freedom of expression decision of the Supreme Court of Canada where the Court upheld the Criminal Code of Canada provision prohibiting the willful promotion of hatred against an identifiable group as constitutional under the freedom of expression provision in section 2(b) of the Canadian Charter of Rights and Freedoms. It is a companion case to R. v. Andrews.
James Keegstra was a public school teacher in Eckville, Alberta. In 1984, he was charged under section 281.2(2) of the Criminal Code [now 319(2)] (“Every one who, by communicating statements, other than in private conversation, wilfully promotes hatred against any identifiable group”)[1] for “promoting hatred against an identifiable group by communicating anti-semitic statements to his students”. During class, he would describe Jews as a people of profound evil who had “created the Holocaust to gain sympathy.” He also tested his students in exams on his theories and opinion of Jews.
Keegstra lived in his own fantasy world of Jewish conspiracy rooted from his anti Semitism views. This conspiracy theory is the notion of world domination by Jews and their plan to annihilate Christianity. He has asserted that the current historical information being taught in universities and schools is a trap set by the Jews to mislead the public. He claims that the education system has failed because of their awareness regarding Jewish conspiracy with the holocaust. Keegstra believes he is one of the few chosen individuals who is aware of this treachery and must put a stop to it. Keegstra would teach his classes concepts that were not apart of the Alberta Social Studies Curriculum.[2]
Keegstra had applied to have the charge quashed for violation of his freedom of expression; however, this motion was denied and he was eventually convicted at trial. The conviction was then appealed to the Court of Appeal of Alberta under the auspice that Criminal Code section 319(2) breached the constitutional right to freedom of expression, section 2(b). The Appeals court ruled that indeed section 319(2) did breach section 2(b) of the Charter. The Crown appealed this decision to the Supreme Court of Canada.
The issue before the Supreme Court was whether sections 319(2) and 319(3)(a) of the Criminal Code violated section 2(b) and section 11(d) of the Charter and, if so, whether they could be saved under section 1.
The Court found that section 319 clearly did violate section 2(b) as it was legislation designed to suppress expression. In this, the Court wrote that freedom of expression within section 2 would not be limited by section 15 (equality rights) and section 27 (recognition of multiculturalism) of the Charter. As the Court explained, using sections 15 and 27 in this way would contradict “the large and liberal interpretation given the freedom of expression in Irwin Toy” and moreover, “s. 1 of the Charter is especially well suited to the task of balancing.”
The Court found that the violation of freedom of expression was justified under section 1 as the law had a rational connection to its objective, it was not overly limiting, and the seriousness of the violation was not severe as the content of the hateful expression has little value to protect.
The case provided precedent for other freedom of expression and hate speech cases. In R. v. Butler (1992), a case considering laws against obscenity, the Supreme Court cited Keegstra to note that freedom of expression should be interpreted generously and was infringed in that case. In another hate speech case, R. v. Krymowski (2005), the Court noted that Keegstra had demonstrated hate speech laws were constitutional. Building on expectations that there must be evidence of promotion of hatred against a group, the Court added in Krymowski that courts should then consider the “totality of the evidence” to conclude whether a group had fallen victim to hate speech.
The Alberta Teachers Association had modified its code of ethics in order to prevent any hate crime against an ethnic group. This included the right to protect the self-respect of any individual or group regardless of any prejudgment to race, religion age or other physical characteristics. New requests were made to qualify new teachers through constant assessments and there was a council formed to establish the Alberta Teacher Standards. The council’s main focus was to devise procedures for classroom checkup of teacher proficiency. Keegstra was fined $5000 and his professional teaching certificate was suspended. The guilty verdict in the trial did not necessarily prove justice for the offended group. James Keegstras beliefs stay obstinate despite the accusations and faults found in his teachings against Jews.
- 319 (2) Everyone who.. willfully promotes hatred against any identifiable group is guilty of an.. offence
- Violation of 2(b)
- reasonable limit? Very easily limited by the courts
CANADA v. TAYLOR and WESTERN GUARD PARTY.
- violation of CANADIAN HUMAN RIGHTS ACT
- Violation of 2(b)
- easily limited by courts
R. v. Zundel.
R. v. Zundel [1992] 2 S.C.R. 731 is a landmark Supreme Court of Canada decision where the Court struck down the provision in the Criminal Code of Canada that prohibited publication of false information or news on the basis that it violated the freedom of expression provision under section 2(b) of the Canadian Charter of Rights and Freedoms.
In 1985, Holocaust denier Ernst Zündel was charged with “spreading false news” by publishing a pamphlet entitled “Did Six Million Really Die?” in Canada, contrary to s. 181 of the Criminal Code.
Section 181 states that “[e]very one who wilfully publishes a statement, tale or news that he knows is false and causes or is likely to cause injury or mischief to a public interest is guilty of an indictable offence and liable to imprisonment . . .”.
At trial, Zundel was convicted. However, on appeal the case was sent back for a new trial due to a procedural error at trial in admitting evidence and instructing the jury. He was re-tried in 1988, and convicted again. The judgement was upheld by the Court of Appeal, and Zundel appealed to the Supreme Court.
The issue before the Supreme Court was whether s. 181 of the Code infringed “the guarantee of freedom of expression in s. 2(b) of the Canadian Charter of Rights and Freedoms and, if so, whether s. 181 is justifiable under s. 1 of the Charter.”
Justice McLachlin, writing for the Court, found that Zundel did violate section 181. The book was examined, and the court concluded that it “misrepresented the work of historians, misquoted witnesses, fabricated evidence, and cited non-existent authorities.” However, section 181 violated section 2(b) of the Charter. She noted that section 2(b) protects all expression of a non-violent form, and as such, the content itself is irrelevant (section 2(b) is content neutral). The protection provided by the Charter includes expression of minority beliefs even where the majority may find it false. The imposition of imprisonment for expression has a severely limiting effect on freedom, beyond reason.
McLachlin further found that it could not be justified under section 1 of the Charter as the restriction on all expressions “likely to cause injury or mischief to a public interest” was far too broad.
- Criminal Code s. 181
- Everyone who willfully publishes a statement… or news that he knows is false and that causes or is likely to cause injury or mischief to a public interest is guilty of an… offence
- Violates 2(b)
- Reasonable limit?
- What is the objective of the law under the Oakes Test? There to protect the societal elite, not valid grounds to charge.
Saskatchewan Human Rights Commission v. Whatcott.
In Whatcott, the Supreme Court of Canada upheld the constitutionality of the prohibition of hate speech in human rights legislation, stating “words matter”. LEAF intervened in this appeal to the SCC, submitting that hate speech causes deep harm to vulnerable groups and to society at large and that hate speech prohibitions in human rights legislation are justified. LEAF’s arguments in this case focused on hate speech as a form of discrimination and the multiple ways that hate speech harms women, especially amplified at the intersection of race, sexual orientation, class, ethnicity or other status.
The facts of the case are as follows. In 2001 and 2002 William Whatcott published four flyers under the name of Christian Truth Activists, which he placed in mailboxes in homes in Saskatoon and Regina. The flyers contained homophobic messages including “Keep Homosexuality out of Saskatoon’s Public Schools!” and “Sodomites in our Public Schools” and referring to LGBTQ persons as “dirty,” “filthy,” “degenerate” and as pedophiles. Four complaints were made to the Saskatchewan Human Rights Commission alleging that the flyers promoted hatred against individuals because of their sexual orientation in violation of s.14(1)(b) of The Saskatchewan Human Rights Code. The Saskatchewan Human Rights Tribunal found that the flyers constituted hate speech. The Saskatchewan Court of Queen’s Bench upheld this finding. The Saskatchewan Court of Appeal, however, held that the flyers did not contravene the Code. The Court of Appeal was of the view that in the context of a debate about policy and morality, the flyers could not be considered a hate publication. The Saskatchewan Human Rights Commission appealed to the SCC. At the Supreme Court level, Whatcott challenged the constitutionality of the hate speech provision in the Code, arguing that the provision breached his freedom of expression and freedom of religion, and could not be justified.
In a unanimous decision, the Supreme Court held that the Saskatchewan hate speech provision (with some words removed because they were overbroad) was justified and constitutional.
The Court considered the definitions of “hatred and contempt,” affirming the analysis of the Court in 1990 in R. v. Keegstra and Taylor v. The Canadian Human Rights Commission, and setting out the approach that courts and tribunals should use in interpreting these terms. The Court explained that they refer to expression of an unusual and extreme nature, involving vilification, dehumanization, and reviling. This interpretation excludes merely offensive expression.
The Court noted that freedom of expression is central to our democracy, but it is not absolute, and limitations may be justified under s. 1 of the Charter. In considering justification for the limit, the Court held that the objective of the legislation is pressing and substantial. The Court recognized the harm caused by hate speech, not only to the targeted group, but also to society at large. “Hate speech lays the groundwork for later, broad attacks on vulnerable groups,” Justice Rothstein wrote. “These attacks can range from discrimination, to ostracism, segregation, deportation, violence and, in the most extreme cases, to genocide.” A “particularly insidious” effect of hate speech is that it inhibits the expression of the targeted group, Justice Rothstein noted.
The Court noted that framing speech as arising in a “moral context” or “within a public policy debate” does not cleanse it of its harmful effect. The Court rejected Whatcott’s argument that the flyers were critical of same-sex behaviour, as distinct from sexual orientation, and therefore did not contravene the legislation. Justice Rothstein wrote that attacks on conduct stand as proxy for attacks on the group itself, and that the distinction between sexual conduct and sexual orientation should not serve to avoid the hate speech prohibition.
The Court went on to hold that the prohibition against hate speech involves balancing between freedom of expression and equality rights. The Court concluded that the limitation on freedom of expression by the prohibition of hate speech, when properly defined and understood, is demonstrably justified in a free and democratic society.
The Court applied the same justification analysis to the infringement of freedom of religion. The Court held that it does not matter whether the expression at issue is religiously motivated or not; if, viewed objectively, it exposes or is likely to expose the vulnerable group to detestation and vilification, then the religious expression is captured by the hate speech prohibition.
The Court went on to conclude that two of Whatcott’s flyers contravened the hate speech prohibition, but two flyers did not. The Court upheld the Tribunal’s remedy relating to the two flyers that contravened the legislation and the Tribunal’s prohibition on further distribution of those flyers.
LEAF had submitted to the Court that hate speech, like sexual harassment, is a practice of discrimination which is properly limited by human rights statutes. LEAF’s factum addressed the gendered harms of hate speech, including the relationship between hate speech and violence against women, like the December 6, 1989 massacre at the Ecole Polytechnique in Montreal, the murder and disappearance of Indigenous women in Canada and targeted violence against lesbians. LEAF argued that the prohibition of hate speech is constitutionally valid. The significant Charter equality, security of the person, freedom of expression and other rights of groups targeted by hate speech are protected and promoted by limits on hate expression. LEAF’s factum focused on the importance of the case from the perspective of access to justice for women.
LEAF has a long history of equality analysis and advocacy with respect to the importance of statutory limitations on freedom of expression. LEAF intervened in the Supreme Court of Canada cases of Keegstra and Taylor in 1990. In December 2009, LEAF made submissions to federal government on the importance of s.13 of the Canadian Human Rights Act which also prohibits hate speech
Irwin Toy Ltd. v. Quebec (Attorney General).
Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927 is a landmark Supreme Court of Canada decision on freedom of expression in section 2(b) of the Canadian Charter of Rights and Freedoms. The court held that in order to determine if a breach of section 2(b) had occurred one first had to determine whether the conduct constituted non violent activity which attempted to convey meaning. This changed the law of the constitution of Quebec. The next step was to consider whether the effect or purpose of the legislation was to restrict freedom of expression. Applying the analysis, the Court held that a Quebec law that restricted advertising directed to children was valid law which violated section 2(b) but could be justified under section 1.
Expression
The Justices considered the rationale of the freedom of expression provision and enumerated three grounds:[1]
seeking and attaining the truth is an inherently good activity;
participation in social and political decision-making is to be fostered and encouraged; and
the diversity in forms of individual self-fulfillment and human flourishing ought to be cultivated in an essentially tolerant, indeed welcoming, environment not only for the sake of those who convey a meaning, but also for the sake of those to whom it is conveyed.
The Justices then considered the scope of expression. They defined it broadly as any activity that “attempts to convey meaning”. However, it excluded nonsensical activities that are “purely physical and [do] not convey or attempt to convey meaning” as well as activities that are of a violent form.
The majority re-affirmed the decision of Ford v. Quebec (1988) by finding that freedom of expression included advertising. Accordingly, they found that the Quebec law violated section 2(b).
Justified limitation
The Justices then considered whether the law was justified under section 1. They dismissed the argument that the law was not prescribed by law. A law only needed to have an “intelligible standard” which the Quebec law satisfied.
On the inquiry into minimal impairment the Court held that when the government attempts to justify the necessity of a complete ban, courts will not be restrictive to social sciences, however, the government must establish a “sound evidentiary basis” for their conclusions.
The Court was unsympathetic to the harm to Irwin. The effects of the ban, said the Court, were not so severe as to override the objective of the ban. The advertisers would always be able to direct ads to adults or use other means to sell children’s products.
- Prohibited commercial advertising aimed at children
- Violation of 2 (b)
Saskatchewan v. Whatcott.
William (Bill) Whatcott (born October 16, 1967) is a Canadian social conservative activist who campaigns against homosexuality and abortion. The dramatic nature of his activities have attracted attention from the media, including an appearance on The Daily Show. He has also run for political office in Toronto, Saskatchewan and Edmonton.
In Regina he expanded his public campaign against abortion and homosexuality, with his goal to make both activities illegal. One of his most notable activities has been to travel to different Canadian cities and place graphic flyers in mailboxes. These include flyers with images of dismembered fetuses and flyers with pictures of diseases allegedly caused by gay sex. He also has protested at gay pride celebrations and outside abortion clinics. On occasion he has also taken up other causes, including distributing flyers describing Muhammad as “a man of violence” with images of a beheaded Indonesian girl. In 2001 he held a Heterosexual Pride Day parade in Regina. After the event turned out to be focused on anti-homosexual displays and speeches the city did not approve the event in subsequent years.”
- SCC decision February 27,213
- Four FLyers published and distributed
- Alleged that the flyers promoted hatred against individuals on the basis of their sexual orientation
- provincial law prohibited publications that “expose or tend to expose to hatred or ridicule”
- “Hatred” - A reasonable person, aware of the context would view the expression as likely to expose a person to detestation and vilification.
- Is law an infringment of freedom of expression? YES Is it a reasonable limit? YES
- Is law an infringement of freedom of religion? YES - Is it a reasonable limit? YES
R. v. Butler.
R. v. Butler, [1992] 1 S.C.R. 452 is a leading Supreme Court of Canada decision on pornography and state censorship. In this case, the Court had to balance the right to freedom of expression under section 2 of the Canadian Charter of Rights and Freedoms with women’s rights. The outcome has been described as a victory for anti-pornography feminism and the Women’s Legal Education and Action Fund, but a loss for alternative sexualities.
- Is this a violationof s. 2(b)?
- Is it a reasonable limit under s.1?
- SCC states test to determine if material was obscene and criminal
Material Obscene if:
- Explicit activity with violence or
- Explicit sexual activity without violence but… which degrades or dehumanizes through subordination or humiliation
- Court found a link between obscene material and the risk of harm
- Doesn’t prevent serious works of art.
R. v. Sharpe.
R. v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2, is a Canadian civil rights decision of the Supreme Court of Canada. The Court upheld the child pornography provisions of the Criminal Code of Canada as a valid limitation of the right to freedom of expression under section 2(b) of the Canadian Charter of Rights and Freedoms. In doing so, it reversed a ruling by the British Columbia Supreme Court. That opinion, issued by Justice Duncan Shaw, held that the law was what he called a “profound invasion” of rights of privacy and freedom of expression found in the Charter of Rights and Freedoms.[1] Prior to its reversal by the higher court, the ruling sparked extensive public complaints, and more than half of the Members of Parliament called for action by the Prime Minister to override the ruling.
- Charged with possession of child pornography under the criminal code and possession of child porn for the purpose of distribution.
- “Child pornography” includes visual representations that show a person who is or is depicted as under the age of 18 years and is engaged in or is depicted as engaged in explicit sexual activity
- The SCC found: Posession of child pornography is a form of expression protected by s.2 (b)
- Is the law a reasonable limit?
- It met all the criteria of the Oakes test (reasonable limit under s.1)
- Court found for the most part, the law was a reasonable limit under s.1..
- However, they also considered “representations” created and held by accused alone
- Limiting these, the court held, may be going to far.
- 2(b) Freedom of Thought, belief, opinion, and expression including freedom of the press and other media of communication;
Edmonton journal v. Alberta.
Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326 is a leading freedom of the press case decided by the Supreme Court of Canada. The Court held that a publication restrictions on matrimonial proceedings were in violation of their freedom of expression rights under section 2(b) of the Canadian Charter of Rights and Freedoms and could not be saved under section 1.
- Right of the press to report on court proceedings
- Violation of Charter? YES
- Reasonable limit? Educate - NO!
R. v. Canadian Newspapers Company Limited.
- Ban on identifying victims in sexual assault cases
- Violation of the Charter? YES
- Reasonable limit? YES
Reference re Public Service Employee Relations Act (Alta.)
Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313 is a leading opinion of the Supreme Court of Canada on right to freedom of association under section 2(d) of the Canadian Charter of Rights and Freedoms. The Court held that section 2(d) does not include the right to strike.
The province of Alberta referred a reference question to the Alberta Court of Appeal, which was eventually appealed to the Supreme Court. The questions concerned the constitutionality of prohibiting strikes and replacing them with compulsory arbitration.
McIntyre, argued that the freedom of association is an individual right that protects collective activities which are already protected by individual rights. Thus, activities that are prohibited individually are also forbidden collectively. As such, a trade union cannot strike incident to a collective bargain.
Dickson, in dissent, also agreed with the characterization of the freedom, but argued that the right is not associated with particular activities but rather is “a freedom of persons to join and act with others in common pursuits”.
Note that this case involved a “double-swing decision” where Dickson was assigned the reasons for the Court at conference but lost the signatures to McIntyre who then lost them to LeDain.
- Prohibited essential employees from striking imposed compulsory arbitration
- Union claimed breech of freedom of association NO
- COURT SAID; Charter doesn’t include right to strike or bargain collectively
- Public servants had wage increases limited
- Union claimed breach of collective bargaining right
- Court said NO
Saskatchewan Dairies Case.
- Striking Dairy workers ordered back to work
- Claimed a violation of 2(d)
- Court said no violation.
Health Services v. BC.
- Revision of Earlier position regarding collective bargaining rights
- Protected by freedom of association
- No Impact on right to strike
- Freedom of association protects the capacity of members of labor unions to engage in collective bargaining on workplace issues.
