Freedom of Conscience Flashcards
Section 2(b)
he Charter guarantees everyone “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication”.
For you to have an infringement of Section 2(b) you need to answer the following question:
1) Whether it is a federal or provincial power?
2) Do the parties have standing?
3) You want to determine whether or not you are dealing with expression.
4) Then you want to determine whether you have an infringement. If there is no violation of your right – if there is no infringement – there is no case.
5) Then you need a violation of the right.
6) Then you needed justification for the violation under Section 1.
Irwin Toys
Any activity is deemed to be expression except for violence (Irwin)
Case law says to us that we need democratic discourse, truth-finding, or individual fulfilment.
Democratic discourse: a role in the political process of freedom of expression (freedom from state interference but also free to communicate with others)
Truth-finding: freedom of expression is a precondition to the search for truth.
Individual self-fulfillment: governments attempt to curtail freedom of expression must prima facie be viewed with suspicion.
R v Keegstra [1990]
Keegstra was teaching anti-Semitic views to his students in school, and he was testing the students on it as well. He was teaching it as if it was history, and then he was testing the students on his personal belief.
What did the court say? Through the minimum impairment component of the Oakes Test they had to give him another position.
The court had to find whether or not there was a valid purpose of expression and what he was saying.
It is difficult – these are all very touchy subjects. When we get to child pornography, when we get to hate speech, it is very difficult to understand why the court is justifying all of this as protected forms of expression. But they believed that a free and democratic society should have democratic discourses, and the role of expression is to help the political “truth-finding” purposes, but also that an individual should be free from state interference with regards to their means of expression. In other words, people should be free to talk about whatever they want.
Furthermore, it protects you from being prosecuted by the state in your relationship to another individual. Your beliefs are protected from one individual to another.
That is going to be an interesting element because we know that the Charter does not apply to private parties. However, we know that the Quebec Charter, especially Section 13, applies to private parties, and we will see how in Québec they have applied this between private parties and how there can be no violation of freedom of expression between two individuals.
The other purpose of expression is to find the truth. Freedom of expression is a precondition to the search for the truth. This is true in a democratic society. This comes from the fundamental idea of the free trade of ideas from Oliver Wendell Holmes — an American judge who is also responsible for American positivism, etc. He is a realist and says that the legal system comes from within.
If you want to find the truth of the matter you can do that through discourse, such as discourse about conflict resolution between individuals; it is also about absolute truth – this conceptual thing that we believe in that the truth lies in the a variety of expression in communicating with one another. When we establish a middle ground, that is where the truth lies.
It is very philosophical, but that is what the court believes as well. It is an instrument of truth finding.
The other purpose, and this is the one that we usually focus on, especially on the most touchy and controversial cases, is the individual self-fulfillment component.
Here the government’s attempt to curtail freedom of expression must prima facie be viewed with suspicion.
In some countries things like literature, for example, are banned. In Canada you cannot ban literature on the basis of its content. Why can we not do that?
What characteristic does my freedom of expression have in Canada? Freedom of expression is content neutral.
Not only, if you can prove that not talking about bananas fulfils me as an individual…because I don’t like talking about them…if you can make that case properly, that is a valid purpose of expression, and that is self-fulfilment.
That is very very broad.
So, when you have a case about the freedom of expression you start with the jurisdiction, then you look to see if you have standing, then you look to see if you are dealing with expression. If your are dealing with expression, what is the purpose of that expression, and would it be covered under Section 2(b)? If there is a valid purpose that will be covered.
Prostitution Reference
Any activity that attempts to convey meaning
Dolphin Delivery
We do not mean threats of violence (Irwin Toys); we mean actual violence. We will see this from the Dolphin case.
What was this case about? It tells us that two private parties do not have the protection of the Charter. It also tells us something about freedom of expression that is very interesting.
There was a union that said that they were going to go and do secondary picketing; they were not actually going to go and have a protest in front of their own employer but in front of the client’s employer.
The company sought an injunction for the picketers to be removed and to not go into their protest.
The Court is asked to analyze if there was a jurisdictional issue, and then it wants to determine whether or not there is a charter problem in there. Obviously you know that in this particular case it was found that there was no standing on charter grounds because it was between two private parties.
However, the court went into the substantive analysis of whether or not there was a freedom of expression a violation.
What it finds here, and what is interesting that you have to understand, is that the act of picketing…it never took place because it was an injunction proceeding…it was before the fact…was considered to be a form of expression. This is because it was a protest.
However, it most probably would not be upheld because it does not fall short of violence.
What sort of violence are we talking about here? Picketing is a form of violence, according to the Dolphin case.
The fact that in your employment contract it tells you: 1. you are not allowed to go on strike, and 2. you should not force someone to breach their contract with the supplier, which is what they were trying to do with the protest.
That created a tort of economic violence. That forces people not to fulfil their contract, and that is considered economic violence. Therefore, that would not have been upheld as a violation of their freedom of expression because we know that violence cannot be justified as a means of freedom of expression.
R v Zundel
he man in this case was a distributing Holocaust denying anti-Semitic flyers. He claimed that the Holocaust was an international conspiracy by the Jews and that it had never happened.
The outcome of the case was very different from the one in Keegstra.
The court in this case said that not all expression is equally worthy of protection. The evaluation of worthiness is irrelevant and comes into play only in the Section 1 analysis – that is content neutrality.
The two cases have a very different outcome. Here Zundel was in violation of the federal law. The court said that this was a false news – he was distributing flyers that were historically inaccurate. However, the court did not feel that there was a clear threat to the community; therefore, they said in the Section 1 analysis that it would be a bigger impairment to the freedom of expression to strike it down then to let him go forward and distribute his propaganda.
That is the outcome you get because of content neutrality.
It is all about the Section 1 analysis.
R v Khawaja
the court says “It makes little sense to exclude acts of violence from the ambit of Section 2(b) but to confer protection on threats of violence. Neither are worthy of protection.”
RJR MacDonald Inc v Canada (A-G) [1995]
The court said that lifestyle advertising may be enticing people to start smoking.
Justice McLachlan said that that could potentially be restricted.
However, the Act was struck down and the companies were allowed to do whatever they wanted with tobacco products. They were not obliged to put the warnings on their packaging – that was the outcome of the case.
However, Justice McLachlan makes a distinction between lifestyle and brand advertising, because she says if it is for the advertising for the purpose of information…disclaimer with regards to the health impact of tobacco…or just with regards to what the product encloses… That Justice McLachlan calls an element of “Brand switching”. She says that that technically should be protected.
However, in any case everything is protected.
It is a bit controversial that they made this distinction with regards to the effect of the meaning of this expression, and with regards to whether or not it should be upheld or struck down by Section 1.
McLachlan says if it is lifestyle advertising than it is wrong – technically I don’t know if it should be protected but we will protect it.
If the advertising was for only brand purposes… It should definitely be protected because it is valid expression.
The bottom line is that it is wrong to think like that because we have content neutrality in Canada.
Secondly, how are you to assess whether or not the effect of something is more or less important and should there for be more or less protected by the Charter?
You cannot have the double standard here. It is either yes or no. The tobacco companies made the clear point saying that it has to be protected because smoking is a lawful activity; why would they not be allowed to talk about it? This was not a prohibition era – there were Canadian smokers and they should be allowed to advertise.
Canada (Attorney General) v JTI-Macdonald Corp [2007]
In the second case the Court upheld the prohibition by the federal Act for false, misleading, or deceptive advertising of tobacco products.
The activity was considered to be expression under Section 2(b).
McLachlan wrote the opinion and she stated that “minor restrictions or requirements with respect to packaging might not infringe Section 2(b) at all”.
Now she is making the argument that if the requirement – the labelling on the package — is not that big, it is not that much of a violation of freedom of expression.
Her argument can be valid with regards to the Section 1 analysis, because this is a minimal impairment. That is what the court found.
Why was it not okay before? Because:
The warnings were unattributed. In the second case the warnings had to say “Health Canada”, so you would clearly know that it was the government and not the manufacture.
Secondly, the warnings were smaller than they were before.
So, the court believed that this was not infringing on freedom of expression of the tobacco producers to advertise their products.
The legislation requires cigarettes to be hidden behind the counter so that they do not entice the vulnerable groups to start smoking. Furthermore, warnings can still be on the packages as per the Act.
McLachlan’s lifestyle argument is pushed even further and she says: “the evidence established that bigger warnings may have a greater effect. Parliament is not required to implement less effective alternatives.”
That is when they were running the Oakes Test with regards to the minimal impairment element of the test.
The court acknowledged that the bigger the warning the bigger the effect was, but that they did not care about the effect of the Act or the effect of what was implemented. What was being looked at was whether or not you could minimally imperative. You are not required to be less effective; you are required to be less harmful in violating your freedom of expression.
R v Butler [1991]
Butler was selling obscene material in a shop in Winnipeg. He was arrested. Later, he reopened again and this time they arrested him again with an employee. They fined him.
The court said that it was still freedom of expression and the material that he was selling, but there was some violence depicted in the material as well, and was therefore not allowed.
Butler challenged the constitutionality of the criminal code that prohibited obscenity.
The Supreme Court found unanimously that the prohibition of obscenity offended Section 2(b).
Because we have content neutrality…so, for them it would be falling under self-fulfillment. Therefore, it would be a protected form of expression and has a valid purpose. Therefore, it was considered to be protected.
Since it bans any harm during sexual representation, it was justified as a restriction on freedom of expression under the Criminal Code section.
The definition of obscene in the Criminal Code was sufficiently clear to put a standard that was justified as a social purpose. The basis of criminal defence of possession and sales of material would fall under that.
So, the criminal offence was a valid limitation upheld under Section 1 when they applied the Oakes Test.
What you have to understand from the Butler case is that degrading or demonizing forms of pornography are not required by the internal necessity of serious work of arts.
They are intolerable to the Canadian community. This is where it its important to understand the broad meaning of the Oakes Test with regards to a free and democratic society. There the Court believes that if there is violence involved or degrading inhuman treatment in that particular form of expression, that cannot be tolerated by Canadian society because it is harmful.
This is a famous case because it gave rise to a test, that you will want to apply when you are dealing with sexually explicit forms of expression.
Community standard is based on the amount of harm the community will tolerate. Do you think that that form of tolerance meets that threshold? It is a subjective form of assessment. For example, a woman being slaughter in a pornographic film would not be tolerated in Canadian society. Usually, if you have a case like that it will be very clear.
Harm means content that predisposes persons to act in an antisocial matter. If viewing this particular type of material will entice violence, or people will be led to do something violent, the test. It definitely will not pass.
Society formally recognizes this conduct is incompatible with its functioning.
There must be a “substantial risk of harm which exceeds the community’s tolerance”.
Basically, The Butler test is telling you that if you think that according to the principle of Canadian society this would be intolerable because it would lead to harm of a specific group, it should not be protected under Section 2(b).
Little Sisters Book and Art Emporium v Canada (Minister of Justice) [ 2002]
This case was about a bookstore that catered to LGBT customers, and they were importing materials from the United States, some of which were deemed to be obscene by border agents. The materials were confiscated.
Little Sisters challenged this. They said that the materials were not to be considered obscene.
The customs agents were going through the shipments and saying that they were applying a Federal Act with regards to what they considered to be obscene material, and that was therefore against Canadian law.
Little Sisters claimed that applying the Butler Test was discriminatory against the LGBT community.
They said that because the Harm Based Approach used a single community standard that was inevitably insensitive to the nature and the significance of erotica directed at minority sexual communities.
Here they are saying that what might be obscene for heterosexual people might not be the same standard for the game lesbian community.
The Court said that they were going to uphold the prohibition on obscenity according to Section 1.
They said that the implementation of the prohibition by the customs officials had indeed been unconstitutionally discriminatory — that was true. However, it was a matter of procedure.
It was not that the Butler Test was discriminatory in nature. That is what the Court held.
The court said that it is not inappropriate to use a single community standard of obscenity, pointing out that the Little Sisters Bookstore was open to the public.
The standard of obscenity should not change in accordance to whatever group you are looking at. The standard of obscenity is according to everybody in a community – the society as a whole.
The definition was indifferent to whether the harm occurred in the context of heterosexuality or homosexuality.
However, the Court said that the application of the custom regulation was in violation of procedure. Therefore, they did not need to strike down the law. They just needed to have better application and they could do through indirect ways which would not require modifying the legislation.
The judge directed the government to apply the legislation in a different way.
It is interesting here because instead of changing the law…the Court usually shies away from doing that and refers to parliament or just strike the law down…they decided to tell the executive what to do better in their application of it.
R v Shapre [2001]
Here there is a constitutional challenge to the criminal code with regards to the position of child pornography.
You have noted that child pornography is a valid form of expression under Section 2(b) because it is considered to be an instrument of personal fulfilment.
The Supreme Court held that the offence was a limit on the personal freedom of expression under Section 2(b) and the only question was whether this could be justified under Section 1.
So, child pornography was found to be a valid form of expression because we are content neutral.
However, are we going to uphold it under Section 1?
The Supreme Court acknowledged that child pornography made no contribution to a free and democratic government, and may no contribution for the search of truth, but they said that it was an instrument of personal fulfilment.
The Section 1 analysis in this case turned entirely on whether the mere possession of child pornography was harmful to children.
