EXPRESSION
CONTENTS:
EXPRESSION .............................................................................................................................................. 1
AUSTRALIA ................................................................................................................................................. 4
DEFAMATION LAW IN AUSTRALIA ................................................................................................... 4
THEOPHANOUS v THE HERALD AND WEEKLY TIMES LIMITED AND ANOTHER F.C. 94/041
Constitutional Law (Cth) – Defamation (1994) 182 CLR ...................................................................... 7
104 (1994) 124 ALR 1 (1994) Aust Torts Reports 81-297: Freedom to discuss government and
political matters; publication without malice; qualified priviledge. ....................................................... 7
FREEDOM OF SPEECH IN AUSTRALIA .............................................................................................19
Overview...............................................................................................................................................19
Nationwide News Pty. Limited v. Wills (1992) 177 CLR 1: attack on the integrity and independence
of the Australian Industrial Relations Commission ...............................................................................20
Australian Capital Television Pty. Limited and Others v. The Commonwealth (1992) 177 CLR
106: implication of freedom of communication contained in the Constitution extends to all political
matters ...................................................................................................................................................20
Stephens and Others v. West Australian Newspapers Limited (1994) 182 CLR 211: freedom of
communication about political matters implied in the Commonwealth Constitution extends to the
public discussion of the performance, conduct and fitness for office of members ................................21
Cunliffe and Another v. The Commonwealth of Australia (1994) 182 CLR 272: Whether implied
freedom was not limited to communications for the purposes of the political processes ......................22
Langer v. The Commonwealth of Australia 96/002 HIGH COURT: If the impairment of the
freedom is reasonably capable of being regarded as appropriate and adapted to the achieving of a
legitimate legislative purpose and the impairment is merely incidental to the achievement of that
purpose, the law is within parliament’s power ......................................................................................23
MulDowney v. The State of South Australia and Others 93/005: Restrictions imposed on freedom
of speech are an incident of that protection. It is reasonably capable of being regarded by Parliament
as appropriate and adapted to the achieving of a legitimate legislative purpose of protecting the
prescribed primary method. ...................................................................................................................24
HATE SPEECH AND RACIAL VILIFICATION LAWS IN AUSTRALIA ...........................................25
Hate Speech vs. Free Speech ...............................................................................................................25
Racial Hatred Act ................................................................................................................................26
State Racial Vilification Laws ............................................................................................................27
ZIMBABWE .................................................................................................................................................28
S v Hartmann 1983 ZLR 186 S Crt: lawyers, held a press conference on behalf of their detained
clients: convicted of contempt of court: whether there was a real risk as opposed to remote possibility that
the publication was calculated to prejudice a fair hearing. .......................................................................30
In re Munhumeso & Others 1995 (1) SA 551(ZS) at 557C-D ..........................................................30
Retrofit (PVT) LTD v Posts and Telecommunications Corporation 1996 (1) SA 847: applicant
requested the defendant to issue it with a licence for the purpose of establishing a mobile cellular
telephone service. The respondent refused to grant the licence on the ground that the service was one over
which it enjoyed a monopoly. Act was inconsistent with the right to freedom of expression.....................30
NAMIBIA .....................................................................................................................................................32
Kausea v Minister of Home Affairs & Others 1995 (1) SA 51: The constitution did not elevate
freedom of speech and expression above other fundamental freedoms.....................................................32
EUROPEAN COMMUNITY ........................................................................................................................32
WINGROVE v. THE UNITED KINGDOM (19/1995/525/611) 25 November 1996: Refusal to
grant distribution certificate in respect of video work considered blasphemous; Blasphemy by very
nature has no precise legal definition - national authorities must be afforded degree of flexibility in
assessing whether particular facts fall within definition -- Interference intended to protect against
seriously offensive attacks on matters regarded as sacred by Christians ...............................................34
DE HAES AND GIJSELS v. BELGIUM (7/1996/626/809) 24 February 1997: judgment against
journalists for defamation of magistrats and fairness of the proceedings against the journalists --
2
Accusations against the judges and Advocate-General amounted to an opinion - comments severely
critical but proportionate to the indignation caused by the matters alleged --- Journalists' legitimate
concern not to risk compromising their sources of information ............................................................42
TELESYSTEM TIROL KABELTELEVISION v. AUSTRIA (21/1996/585/640/824) 9 June 1997:
television company unable to broadcast own programmes on account of Austrian Broadcasting
Corporation's monopoly ........................................................................................................................49
OBERSCHLICK v. AUSTRIA (no. 2) (47/1996/666/852) 1 July 1997: Political discussion -Applicant's article: could be considered polemical, but did not on that account constitute gratuitous
personal attack as he had provided an objectively understandable explanation, derived from speech of
politician ................................................................................................................................................53
WORM v. AUSTRIA (83/1996/702/894) 29 August 1997: journalist's conviction for publishing an
article considered capable of influencing outcome of criminal proceedings -- Applicant's conviction
constituted interference with his right to freedom of expression. ..........................................................57
BOWMAN v. THE UNITED KINGDOM (141/1996/762/959) 19 February 1998: prosecution
following distribution of leaflets by abortion campaigner prior to general election -- margin of
appreciation in striking balance between rights to free elections and freedom of expression –legitimate
aim. ........................................................................................................................................................64
SCHÖPFER v. SWITZERLAND (56/1997/840/1046) 20 May 1998: disciplinary penalty imposed
on lawyer following criticisms of the judiciary made at a press conference -- proper administration of
justice-- balance to be struck between various interests involved, which include public’s right to
receive information, requirements of proper administration of justice and dignity of legal profession.
...............................................................................................................................................................69
ENGLAND ....................................................................................................................................................72
Consideration of the Actual Malice Rule in the United Kingdom ...................................................73
CANADA ......................................................................................................................................................73
Irwin Toy Ltd. v. Quebec (Attorney General) [1989] 1 S.C.R. 92: Commercial advertising directed
at persons under thirteen years of age -- protected sphere of conduct -- whether the purpose or effect of
the government action in issue was to restrict freedom of expression -- restricting content -government's purpose – direct harmful physical consequences -- meaning of the activity or the
purported influence that meaning has on the behaviour of others .........................................................74
RWDSU v. DOLPHIN DELIVERY LTD. [1986] 2 S.C.R. 573: Picketing involves some form of
expression and enjoys Charter protection unless the action includes violence, threats of violence or
other unlawful acts. ...............................................................................................................................75
Rocket v. Royal College of Dental Surgeons of Ontario [1990] 2 S.C.R. 232: Appellants were
dentists who participated in an advertising campaign. As a result, they were charged with violating the
Health Disciplines Act --- The freedom of expression protected by s. 2(b) of the Charter includes
commercial speech such as advertising, even though the Charter was not intended to protect economic
interests, because advertising aims to convey a meaning and hence involves more than economics ....80
Hill v Church of Scientology 2 SCR 1130 (1995): Barrister held a press conference on the
courthouse steps. Unfounded allegations of criminal contempt made against the crown attorney.
Whether the common law of defamation is consistent with the Canadian Charter. ..............................82
Dagenais v Canadian Broadcasting Corp. [1994] 3 SCR 835: Challenge of a publication ban -airing of programmes. Common law rule on publication bans conflicted with charter values -- the
common law rule must be varied in such a manner as to enable the court to consider both the objective
of a publication ban and the proportionality of the ban’s effect on protected charter rights .................89
R v Lucas 1998 1 SCR 439: Accused convicted of defamatory libel -- Whether defamatory libel
provisions in Criminal Code infringe right to freedom of expression -- If so, whether infringement
justifiable ...............................................................................................................................................91
Canadian Broadcasting Corp. v. New Brunswick (Attorney General) [1996] 3 S.C.R. 480: -Freedom of the press -- Trial judge excluding public and media from courtroom during part of
accused's sentencing proceedings -- Whether s. 486(1) of Criminal Code infringes freedoms of
expression and of the press -- If so, whether s. 486(1) justifiable in a free and democratic society ......95
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RJR-MacDonald Inc. v. Canada (Attorney General) [1995] 3 S.C.R. 199: Freedom of expression
-- Commercial advertising -- Cigarette advertising banned -- Whether or not legislation validly
enacted under criminal law power or under peace, order and good government clause -- If so,
whether or not Act's provisions infringing s. 2(b) Charter right to freedom of expression -- If so,
whether or not infringements justifiable under s. 1 ...............................................................................98
RJR -- MacDonald Inc. v. Canada (Attorney General) [1994] 1 S.C.R. 311: Interlocutory motions
to stay implementation of regulations pending final decision on appeals and to delay implementation if
appeals dismissed -- Leave to appeal granted shortly after applications to stay heard -- Whether the
applications for relief from compliance with regulations should be granted -- Tobacco Products
Control Act, .........................................................................................................................................109
Native Women's Assn. of Canada v. Canada [1994] 3 S.C.R. 627: -- Federal government funding
four national aboriginal associations alleged to be male-dominated and inviting them to participate in
constitutional discussions -- Aboriginal women's association not provided with equal funding and
rights of participation to express its views -- Whether aboriginal women's freedom of expression
infringed -- Whether federal government obliged under ss. 2(b) and 28 of Canadian Charter of Rights
and Freedoms to provide equal funding and participation to aboriginal women's association ..........113
R. v. S. (T.) [1994] 3 S.C.R. 952: Publication bans -- Young offender charged with sexual offences on
two children -- Youth court judge banning publication of evidence and proceedings at young
offender's trial until trials of other accused involving same complainants completed -- Whether media
can challenge publication ban. .............................................................................................................116
New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly) [1993] 1
S.C.R. 319: --Provincial legislature refusing media access to public gallery to film proceedings with
their own cameras -- Whether refusal infringes guarantee of freedom of expression .........................117
Ramsden v. Peterborough (City) [1993] 2 S.C.R. 1084: Postering -- Municipal by-law banning
posters on public property -- Whether postering a form of expression -- If so, whether protected by s.
2(b) -- If infringement of s. 2(b), whether justified under s. 1 .............................................................123
R. v. Butler [1992] 1 S.C.R. 452: -- Obscenity -- Obscene materials -- Whether definition of obscenity
in Criminal Code infringes s. 2(b) of Canadian Charter of Rights and Freedoms -- If so, whether
infringement justifiable under s. 1 .......................................................................................................125
R. v. Zundel [1992] 2 S.C.R. 731: Spreading false news -- Criminal Code prohibiting wilful
publication of false statement or news that person knows is false and that is likely to cause injury or
mischief to a public interest (s. 181) -- Whether s. 181 of Code infringes s. 2(b) of Canadian Charter
of Rights and Freedoms -- If so, whether s. 181 justifiable under s. 1 ................................................128
Committee for the Commonwealth of Canada v Canada [1991] 1 S.C.R. 139: Airport officials
forbidding distributing of political pamphlets -- Federal regulations prohibiting advertising or
soliciting at airports -- Whether regulations infringe s. 2(b) of Canadian Charter of Rights and
Freedoms -- If so, whether infringement justifiable under s. 1 ............................................................134
Canadian Broadcasting Corp. v. Lessard [1991] 3 S.C.R. 421: -- Search warrants issued for
premises of the press -- Seized videotapes already aired -- Affidavit supporting application not
indicating other sources of information -- Whether or not search warrant valid -- Whether or not
Charter right to freedom of the press infringed ...................................................................................138
ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC ....................................................138
Canadian Broadcasting Corp. v. New Brunswick (Attorney General) [1991] 3 S.C.R. 459: -Search warrants issued for premises of the press -- Alternative sources of information available -Affidavit supporting application not indicating ...................................................................................142
other sources of information -- Whether or not search warrant valid -- Whether or not Charter right to
freedom of the press infringed .............................................................................................................143
Rocket v The Royal College of Dental Surgeons of Ontario [1990] 2 S.C.R. 232: Freedom of
expression -- Profession restricting members' advertising -- Whether or not restrictions an
infringement of freedom of expression -- If so, whether or not restrictions justified ..........................145
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO ..................................................145
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Moysa v The Labour Relations Board of Alberta [1989] 1 S.C.R. 1572: Evidence -- Privilege -Press -- Journalist refusing to testify at a labour relations board hearing -- Journalist claiming privilege
against the disclosure of communications from sources -- Whether journalist has a privilege at
common law or under the Canadian Charter to refuse to answer questions involving her sources .....147
Hate Propaganda cases ............................................................................................................................148
R. v. Andrews [1990] 3 S.C.R. 870: Criminal Code prohibiting wilful promotion of hatred against
identifiable groups (s. 319(2)) -- Defence of truth to be established ...................................................148
by accused on balance of probabilities (s. 319(3)(a)) -- Whether s. 319(2) of Code infringes s. 2(b) of
Canadian Charter of Rights and Freedoms -- If so, whether infringement justifiable under s. 1 ........149
Canada (Human Rights Comm.) v. Taylor (1990), 13 C.H.R.R. D/435 (S.C.C.) [Eng./Fr. 53 pp.]
Communication of Hate Messages by Telephone Prohibited -- Canadian Human Rights Act, which
prohibits the communication of hate messages by telephone, does not violate the Canadian Charter
.............................................................................................................................................................150
Canada (Human Rights Comm.) v. Canadian Liberty Net (No. 1) (1992), 26 C.H.R.R. D/194
(F.C.T.D.) [Eng./Fr. 26 pp.]: Injunction issued to stop telephonic messages -- -- exposure to hatred on
the basis of race or religion..................................................................................................................154
Canada (Human Rights Comm.) v. Canadian Liberty Net (No. 2) (1996), 26 C.H.R.R. D/242
(F.C.A.) [Eng./Fr. 18 pp.] Authority to Issue Injunction .....................................................................155
Before Tribunal Ruling -- exposure to hatred on the basis of race or religion -- survey of the law ....156
Canada (Human Rights Comm.) v. Canadian Liberty Net (No. 3) (1996), 26 C.H.R.R. D/260
(F.C.A.) [Eng./Fr. 11 pp.] Contempt order upheld despite lack of authority to issue injunction before
tribunal ruling ......................................................................................................................................157
McAleer v. Canada (Human Rights Comm.) (1996), 26 C.H.R.R. D/280 (F.C.T.D.) [Eng./Fr. 15
pp.]: exposure to hatred on the basis of sexual orientation -- Tribunal decision upheld in hate messages
case ......................................................................................................................................................159
Ross v. New Brunswick School Dist. No. 15 (1996), 25 C.H.R.R. D/175 (S.C.C.) [Eng./Fr. 38 pp.]
Supreme Court of Canada upholds the decision of a Board of Inquiry which ruled that a Board of
School Trustees discriminated with respect to a public service because it failed to take appropriate
action against a teacher who made repeated public attacks on Jewish people. ....................................160
United States................................................................................................................................................164
The New York Times v. Sullivan "Actual Malice" Rule .........................................................................164
(d)Critiques of the "Actual Malice" Rule ................................................................................................165
AUSTRALIA
DEFAMATION LAW IN AUSTRALIA
In most Australian jurisdictions defamation law is a mixture of statute and
common law. The law is far from uniform from State to State. In 1979 the
Australian Law Reform Commission recommended numerous changes to the law
of defamation including introducing a uniform defamation law for all of Australia.
Despite attempts to bring such law into effect,1 this has not occurred nationally,
although three States (New South Wales, Victoria and Queensland) adopted
uniform laws in 1992.
1
By Commonwealth Attorney-Generals Gareth Evans (in 1983) and Michael Lavarch (in 1993).
4
5
The main issue in relation to the law of defamation (which seeks to
protect individual reputation) ‘is how to reconcile [its] purpose with the competing
demands of free speech’.2 In Australia free speech in the political arena is
implied into the constitution but is not otherwise constitutionally protected. This is
different to the United States where freedom of speech enjoys broader
constitutional protection. As a result, in Australia, in contrast to the US, ‘libel
actions still play a prominent role in our own public affairs as a regular arsenal of
political combat’.3
What is most interesting then is the way in which the recent ‘free speech’
cases have impacted on the law of defamation in Australia.4 In particular, the
cases of Theophanous v. The Herald Weekly Times Ltd & Anor and Stephens &
Ors v. West Australian Newspapers Ltd are of significance. In effect these cases
have established a constitutional defence in situations where the defamatory
material is a matter of political discussion. In Theophanous v. The Herald
Weekly Times Ltd v. Times Ltd & Anor it was held that a defamatory publication
will not be actionable under the law relating to defamation if the defendant
establishes that: (a) it was unaware of the falsity of the material published; (b) it
did not publish the material recklessly (ie, not caring if the material was true or
false); and (c) the publication was reasonable in the circumstances. A
publication that attracts the freedom implied in the Commonwealth Constitution
can be described as a publication on an occasion of qualified privilege.
Theophanous was applied in the decision of Stephens & Ors v. West Australian
Newspapers Ltd, which went further and confirmed that the defence applied to
State (as well as Federal) political publications
As a defence derived from the Constitution this new form of qualified
privilege cannot be restricted or overridden by state, territory or federal
legislation. Indeed, in Theophanous it was held that ‘defamation law, whether it
be based on legislation or the common law, was subject to and could be shaped
by, the implied constitutional freedom of political discussion’.5 The effect of
finding an implied freedom of political discussion in the Constitution has been to
expand the defences available in defamation actions and thus reduce the
circumstances in which speech can be legitimately restricted. Consequently, the
balance between free speech and protection of reputation has shifted, with a
move towards greater protection of free speech and the ‘constitutionalization’ of
defamation law, not unlike that existing in American law. In fact, Walker argues
2
Fleming, The Law of Torts 524 (8th ed. 1992).
Fleming, The Law of Torts 524 (8th ed. 1992).
4 In particular Australian Capital Television v. The Commonwealth (1992) 177 CLR 106, Nationwide News
Pty Ltd v. Wills (1992) 177 CLR 1, Theophanous v. The Herald Weekly Times Ltd & Anor (1994) 182
CLR 104 and Stephens & Ors v. West Australian Newspapers Ltd (1994) 182 CLR 211.
5
Walker, The Impact of the High Court s Free Speech Cases on Defamation Law, 17 SLR 43, 45 (1995).
3
5
6
that these Australian decisions ‘strike a better balance than New York Times Co.
v. Sullivan between the protection of reputation from wrongful attack and the
protection of freedom of communication.’6
It is still not clear to what extent that this development will impact upon the
rest of defamation law.7 Probably, to a large degree it will depend on the extent
to which free speech is or isn’t ultimately recognized as a constitutional right.
BIBLIOGRAPHY
Armstrong, Blakeney & Watterson, Media Law in Australia (2nd ed. 1988).
Brennan, The defence of Truth and Defamation Law Reform, 20 Monash
University Law Review 151 (1994).
Chesterman, The Money or the Truth: Defamation Reform in Australia and the
USA, 18 University of NSW Law Journal 300 (1995).
Fleming, The Law of Torts (8th ed. 1992).
Kenyon, Defamation, Artistic Criticism and Fair Comment, 18 SLR 193 (1996).
The Law Reform Commission, Defamation - Options for Reform (1977).
The Law Reform Commission, Unfair Publication: Defamation and Privacy
(1979).
Trindade & Cane, The Law of Torts in Australia (1985).
Trindade, ‘Political Discussion’ and the Law of Defamation, 111 The Law
Quarterly Review 199 (1995).
Walker, The Impact of the High Court’s Free Speech Cases on Defamation Law,
17 Sydney Law Review 43 (1995).
6
7
Walker, The Impact of the High Court s Free Speech Cases on Defamation Law, 17 SLR 43, 43 (1995).
Kenyon, Defamation, Artistic Criticism and Fair Comment, 18 SLR 193, 199 (1996).
6
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THEOPHANOUS v THE HERALD AND WEEKLY TIMES LIMITED AND
ANOTHER F.C. 94/041 Constitutional Law (Cth) – Defamation (1994) 182 CLR
104 (1994) 124 ALR 1 (1994) Aust Torts Reports 81-297: Freedom to discuss
government and political matters; publication without malice; qualified priviledge.
Answer the questions reserved in the case stated as follows:
1. Is there a freedom guaranteed by the Commonwealth Constitution to publish
material:
(a) discussing government and political matters;
(b) of and concerning members of the Parliament of the Commonwealth of
Australia which relates to the performance by such members of their duties as
members of the Parliament or parliamentary committees;
(c) in relation to the suitability of persons for office as members of the
Parliament?
Answer: There is implied in the Commonwealth Constitution a freedom to
publish material:
(a) discussing government and political matters;
(b) of and concerning members of the Parliament of the Commonwealth of
Australia which relates to the performance by such members of their duties as
members of the Parliament or parliamentary committees;
(c) in relation to the suitability of persons for office as members of the
Parliament.
2. If yes to any part or parts of question 1, is any such freedom subject to a
condition that the publication will not be actionable under the law relating to
defamation if:
(a) the publication be without malice;
(b) the publication be reasonable in the circumstances;
(c) the publication not be made without any honest belief in the truth of the
material published or made with reckless disregard for the truth or untruth of the
material published; or
(d) the publication be made at a time when it was publicly anticipated that a
federal election was about to be called?
Answer: In the light of the freedom implied in the Commonwealth Constitution,
the publication will not be actionable under the law relating to defamation if the
defendant establishes that:
(a) it was unaware of the falsity of the material published;
(b) it did not publish the material recklessly, that is, not caring whether the
material was true or false; and
(c) the publication was reasonable in the circumstances.
3. If yes to any part or parts of question 1, is any such publication a publication
on an occasion of qualified privilege:
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(a) if published at a time when it was publicly anticipated that a federal
election was about to be called;
(b) if published at a time when it was not publicly anticipated that a federal
election was about to be called?
Answer: A publication that attracts the freedom implied in the Commonwealth
Constitution can also be described as a publication on an occasion of qualified
privilege. Whether a federal election is about to be called is not a relevant
consideration.
4. Are the defences pleaded in paragraphs 11 and 12 of (the first defendant's)
Further Further Amended Defence bad in law?
Answer: No.
JUDGE1
MASON CJ, TOOHEY AND GAUDRON JJ This is a case stated by the Chief
Justice pursuant to s.18 of the Judiciary Act 1903 (Cth). The plaintiff, Dr Andrew
Theophanous, is and has been since 1980 a member of the House of
Representatives. He was on 8 November 1992 the chairperson of the Joint
Parliamentary Standing Committee on Migration Regulations and the chairperson
of the Australian Labor Party's Federal Caucus Immigration Committee. He has
played a prominent part in public discussion of migration issues. On 8 and 12
October 1992, Mr Graeme Campbell, M.H.R., criticized the plaintiff's views and
conduct in relation to migration issues and that criticism received media publicity.
2. The second defendant, Mr Bruce Ruxton, is and was on 8 November 1992 the
President of the Victorian branch of the Returned and Services League. On 8
November 1992, the first defendant, The Herald and Weekly Times Limited,
published in its newspaper The Sunday Herald Sun a letter to the editor written
by Ruxton entitled "Give Theophanous the shove". The letter was as follows:
"IF Reports coming out of Canberra are true about the alleged behaviour of Dr
Andrew Theophanous, then it is high time he was thrown off Parliament's
immigration committee.
I have read reports that he stands for most things Australians are against.
He appears to want a bias shown towards Greeks as migrants....
The plaintiff's action for defamation and the proceedings
3. On 11 February 1993 the plaintiff commenced defamation proceedings in the
County Court of Victoria against the two defendants. Certain imputations
pleaded in the plaintiff's statement of claim were struck out. The imputations
remaining are:
"(a) the Plaintiff showed a bias towards Greeks as migrants;
(b) the Plaintiff stood for things that most Australians were against;
(c) the Plaintiff was an idiot and his actions were the antics of an idiotic man."
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By its amended defence, the first defendant pleaded a number of defences
which vary in accordance with the differing laws of defamation in the States and
Territories. Those defences included truth, truth in relation to a matter of public
interest, fair comment on a matter of public interest and qualified privilege.
Paragraphs 11 and 12 of the further further amended defence are in the following
terms:
"11. In further answer to the whole of the Statement of Claim:
(a) the words were published pursuant to a freedom guaranteed by the
Commonwealth Constitution to publish material:
(i) in the course of discussion of government and political matters;
(ii) of and concerning members of the Parliament of the Commonwealth of
Australia which
relates to the performance by such members of
their duties as members of the
Parliament or parliamentary
committees;
(iii) in relation to the suitability of persons for office as members of the
Parliament.
(b) The publication of the words was:
(i) in the course of discussion of government and political matters;
(ii)
of and concern the plaintiff as a member of the House of
Representatives and as
Chairperson of the Joint Parliamentary
Standing Committee on Migration Regulation
and the Australian
Labor Party's Federal Caucus Immigration Committee;
(iii) in respect of the plaintiff's performance of his duties as a member and as
Chairperson as aforesaid;
(iv)
in relation to the plaintiff's suitability for office as a member of
Parliament;
(v) without malice;
(vi) reasonable in the circumstances;
(vii) not made without an honest belief in the truth of the words or made with
reckless
disregard for the truth or untruth of the words;
(viii) made at a time when it was publicly anticipated that a federal election
was
about to be called.
(c) By reason of each of the matters aforesaid the said publication is not
actionable.
12. Further and alternatively, by reason of the freedom guaranteed by the
Commonwealth Constitution as aforesaid, the words were published on an
occasion of qualified privilege."
The implied freedom of communication
6. The defences pleaded in pars 11 and 12 are based on the implication of
freedom of communication in the Commonwealth Constitution recognized in the
judgments of this Court in Nationwide News Pty. Ltd. v. Wills ((1) (1992) 177 CLR
1.) and Australian Capital Television Pty. Ltd. v. The Commonwealth ((2) (1992)
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177 CLR 106.). In those cases, a majority of the Court distilled from the
provisions and structure of the Constitution, particularly from the concept of
representative government which is enshrined in the Constitution, an implication
of freedom of communication. That implication does not extend to freedom of
expression generally ((3) cf. the First Amendment to the Constitution of the
United States which reads: "Congress shall make no law ... abridging the
freedom of speech, or of the press".). The limited scope of the freedom was
expressed in various ways by the members of the Court. It was described as
"freedom of communication, at least in relation to public affairs and political
discussion" ((4) Australian Capital Television (1992) 177 CLR at 138, 142 per
Mason CJ), "freedom ... to discuss governments and political matters" ((5)
Nationwide News (1992) 177 CLR at 50 per Brennan J), "freedom of
communication about the government of the Commonwealth" which "extends to
all political matters", including "matters relating to other levels of government" ((6)
Australian Capital Television (1992) 177 CLR at 169 per Deane and Toohey JJ),
"freedom of political discourse" ((7) ibid. at 214 per Gaudron J) and "freedom of
participation, association and communication in relation to federal elections" ((8)
ibid. at 227 per McHugh J).
8. It follows therefore..... that there is an implied freedom of communication with
respect to "discussion of government and political matters"....
The scope of the implied freedom
9. Whether that freedom extends to the publication of matter concerning
members of Parliament relating to the performance by such members of their
parliamentary duties and their suitability for parliamentary office is the next
question. The implied freedom of communication is not limited to communication
between the electors and the elected. Because the system of representative
government depends for its efficacy on the free flow of information and ideas and
of debate, the freedom extends to all those who participate in political discussion.
By protecting the free flow of information, ideas and debate, the Constitution
better equips the elected to make decisions and the electors to make choices
and thereby enhances the efficacy of representative government.
Is the freedom confined to discussion of matters relating to the Parliament and
government of the Commonwealth and Commonwealth public affairs? 10. The
concept of "political discussion" is not limited to matters relating to the
government of the Commonwealth, using that expression in its broadest sense
so as to include the public affairs of the Commonwealth. In Australian Capital
Television, Mason CJ, Deane and Toohey JJ and Gaudron J rejected that
limitation ((10) ibid. at 142, 168-169, 215-217.). The interrelationship of
Commonwealth and State powers and the interaction between the various tiers
of government in Australia, the constant flow of political information, ideas and
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debate across the tiers of government and the absence of any limit capable of
definition to the range of matters that may be relevant to debate in the
Commonwealth Parliament and to its workings make unrealistic any attempt to
confine the freedom to matters relating to the Commonwealth government...
11. ...criticism of the views, performance and capacity of a member of Parliament
and of the member's fitness for public office, particularly when an election is in
the offing, is at the very centre of the freedom of political discussion ((13) See
Nationwide News (1992) 177 CLR at 72 per Deane and Toohey JJ).
12. But it is desirable to consider the question: what is the content of the
expression "political discussion", bearing in mind that the underlying purpose of
the freedom is to ensure the efficacious working of representative democracy. In
approaching that question, the fact that it is not possible to fix a limit to the range
of matters that may be relevant to debate in the Commonwealth Parliament is
again a relevant consideration.
14. For present purposes, it is sufficient to say that "political discussion" includes
discussion of the conduct, policies or fitness for office of government, political
parties, public bodies, public officers and those seeking public office. The
concept also includes discussion of the political views and public conduct of
persons who are engaged in activities that have become the subject of political
debate, e.g., trade union leaders, Aboriginal political leaders, political and
economic commentators. Indeed, in our view, the concept is not exhausted by
political publications and addresses which are calculated to influence choices.
Barendt states that ((15) Freedom of Speech, (1985) at 152.): "'political speech'
refers to all speech relevant to the development of public opinion on the whole
range of issues which an intelligent citizen should think about".
It was this idea which Mason CJ endeavoured to capture when, in Australian
Capital Television, he referred to "public affairs" as a subject protected by the
freedom ((16) (1992) 177 CLR at 138-140.).
15. A similar view has been advocated by Alexander Meiklejohn. He says
freedom of speech ((17) Political Freedom, (1960) at 42.):
"is assured only to speech which bears, directly or indirectly, upon issues with
which voters have to deal - only, therefore, to the consideration of matters of
public interest. Private speech, or private interest in speech, on the other hand,
has no claim whatsoever to the protection of the First Amendment".
Thus, he distinguishes between commercial speech - "a merchant advertising his
wares" - and speech on matters of public concern ((18) ibid. at 37.). The problem
is, of course, that what is ordinarily private speech may develop into speech on a
matter of public concern with a change in content, emphasis or context. That
conclusion is not inconsistent with the proposition that speech which is simply
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aimed at selling goods and services and enhancing profit-making activities will
ordinarily fall outside the area of constitutional protection. Commercial speech
without political content "says nothing about how people are governed or how
they should govern themselves" ((19) Re Klein and Law Society of Upper
Canada (1985) 16 DLR (4th) 489 at 539 per Callaghan J; cf. Ford v. Quebec
(Attorney-General) (1988) 54 DLR (4th) 577 at 618-619.).
16. It is necessary to treat with some caution Canadian and United States
judicial decisions dealing with general guarantees of freedom of speech. Their
constitutional provisions are not the same as ours. In our case, not all speech
can claim the protection of the constitutional implication of freedom we have
identified in order to ensure the efficacious working of representative democracy
and government. The foregoing examination of the freedom implied by the
Australian Constitution indicates that there is a significant difference between that
freedom and an unlimited freedom of expression and that the difference, though
it does not lend itself to precise definition, is capable of being ascertained when
the occasion to do so arises. In this respect, it is instructive to contrast the limited
concept of freedom of expression as implied earlier by the Supreme Court of
Canada from the British North America Act 1867 (Imp.) ((20) See, for example,
Re Alberta Legislation (1938) 2 DLR 81; Switzman v. Elbling (1957) 7 DLR (2d)
337.) with the expanded concept of freedom of expression resulting from that
Court's more recent interpretation of the Canadian Charter of Rights and
Freedoms ((21) See, for example, Retail, etc., Union v. Dolphin Delivery Ltd.
(1986) 33 DLR (4th) 174; Ford v. Quebec (Attorney- General).). The difference
between the two reflects the difference between protection of freedom of
expression generally as a fundamental human right and the protection of
freedom of communication in matters of political discussion as an indispensable
element in ensuring the efficacious working of representative democracy and
government.
Is the implied freedom a source of positive rights, an immunity or a restriction on
legislative and executive power? The relationship between the implied freedom
and the common law of defamation 17....
18. It is also clear that the implied freedom is one that shapes and controls the
common law. At the very least, development in the common law must accord
with its content. And, though it may not have been apparent in 1901 or, indeed,
at any time prior to the decisions in Nationwide News and Australian capital
Television, if the content of the freedom so required, the common law must be
taken to have adapted to it in 1901.
19. The question in this case is whether the nature of the implied freedom is
such that that freedom impinges on the existing laws of defamation....
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21. ...the limits to constitutional freedoms are to be determined by evaluating
what is necessary
for the working of the Constitution and its principles.... The antecedent common
law can at most be a guide in this analysis...
23 ....at the end of the nineteenth century ....the common law recognized the
importance of debate on matters of public interest but, notwithstanding that
recognition, rejected the view that bona fide belief in truth without more afforded
a good defence in the absence of privilege ((26) Campbell v. Spottiswoode
(1863) 3 B...
24 .... The beliefs of the founders at the end of the last century as to the
sufficiency of protections conferred by statute and common law cannot limit the
content of an implication to be drawn from the Constitution, particularly if it
transpires that the effect of the common law and statute law as it now stands is to
interfere unduly with the relevant freedom of communication...
Do the existing laws of defamation inhibit freedom of communication?
27. The contention that the existing laws of defamation do not constitute an
infringement of the implied freedom is said to draw some support from two
considerations. The first is that, in both England and Canada, it has been
decided by courts of the highest authority that defamation laws rejecting the
sufficiency of the honest belief defence in defamation are consistent with a
guarantee of freedom of expression. In Derbyshire C.C. v. Times Newspapers
Lord Keith of Kinkel (with whom the other Law Lords agreed) referred ((31)
(1993) AC 534 at 551.) with approval to the comment of Lord Goff of Chieveley in
Attorney-General v. Guardian Newspapers Ltd. (No.2) ((32) (1990) 1 AC 109 at
283-284.) that, in the field of freedom of speech, there was no difference in
principle between English law on the subject and Art.10 of the European
Convention on Human Rights. However, whatever significance that statement
might have otherwise had for the present case disappears when attention is
given to the actual decision in Derbyshire. The House of Lords unanimously
upheld a unanimous decision of the Court of Appeal. In so doing, their Lordships
held that, since it was of the highest public importance that a democratically
elected governmental body should be open to uninhibited public criticism and
since the threat of civil actions for defamation would place an undesirable fetter
on the freedom to express such criticism, it would be contrary to the public
interest for institutions of central or local government to have any right at
common law to maintain an action for defamation ((33) (1993) AC at 547, 549,
550.).
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28. The second consideration is that, in Canada, it has been decided that the
freedom of expression guaranteed by s.32 of the Charter of Rights and
Freedoms does not confer upon a person any right or immunity beyond that
accorded by the relevant laws of defamation ((34) Retail, etc., Union v. Dolphin
Delivery Ltd.; Coates v. The Citizen (1988) 85 NSR (2d) 146; Derrickson v.
Tomat (1992) 88 DLR (4th) 401 at 408; Pindling v. National Broadcasting Corp.
(1984) 14 DLR (4th) 391 at 399.). The basis of the Canadian approach seems to
be that the freedom is a protection truly against government conduct and
government conduct does not include the judicial enforcement of private common
law rights. However, that is not the approach which was taken by the Supreme
Court of the United States in the celebrated case of New York Times Co. v.
Sullivan ((35) (1964) 376 US 254.). In that case, the Supreme Court held that the
guarantee of free speech contained in the First Amendment protected even false
defamatory speech unless the plaintiff could prove actual malice or reckless
disregard for truth or falsity on the part of the defendant. This approach does not
limit the protection to protection against government conduct. The European
Court of Human Rights has also taken a broad approach to Art.10 of the
European Convention on Human Rights ((36) Lingens v. Austria (1986) 8 EHRR
407; Case of Oberschlick v. Austria Series A, No. 204, 23 May 1991.). Article 10
and the First Amendment are general guarantees of freedom of expression and
are not confined to ensuring the efficacy of democratic government. But that
circumstance is not a reason for concluding that the United States and European
approaches are irrelevant or inappropriate to our situation.
29. To our minds, it is incontrovertible that an implication of freedom of
communication, the purpose of which is to ensure the efficacy of representative
democracy, must extend to protect political discussion from exposure to onerous
criminal and civil liability if the implication is to be effective in achieving its
purpose. The correctness of that proposition has repeatedly been affirmed. In
the United States, in City of Chicago v. Tribune Co. Thompson CJ said ((37)
(1923) 139 NE 86 at 90.):
"While in the early history of the struggle for freedom of speech the
restrictions were enforced by criminal prosecutions, it is clear that a civil action is
as great, if not a greater, restriction than a criminal prosecution. If the right to
criticize the government is a privilege which ... cannot be restricted, then all civil
as well as criminal actions are forbidden. A despotic or corrupt
government
can more easily stifle opposition by a series of civil actions than by criminal
prosecutions".
That statement, along with others to the same effect, was endorsed by the
Supreme Court of the United States in Sullivan.
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30. Subsequently, in Derbyshire C.C. v. Times Newspapers, Lord Keith cited
((38) (1993) AC at 547-548.) those statements and the endorsement of them in
Sullivan and went on to say ((39) ibid. at 548.):
"While these decisions were related most directly to the provisions of the
American Constitution concerned with securing freedom of speech, the public
interest considerations which underlaid them are no less valid in this country.
What has been described as 'the chilling
effect' induced by the threat of civil
actions for libel is very important. Quite often the facts which would justify a
defamatory publication are known to be true, but admissible evidence capable of
proving those facts is not available."
Earlier his Lordship had observed ((40) ibid. at 547.):
"The threat of a civil action for defamation must inevitably have an inhibiting
effect on freedom of speech."
31. The statements quoted above, as well as the decision in Sullivan, speak
eloquently of the tendency of the law of defamation to inhibit the exercise of the
freedom of communication - "the chilling effect" - in the United States and the
United Kingdom. In Australia also the existence of that tendency has been noted
((41) New South Wales Law Reform Commission, Discussion Paper No.32,
Defamation, August 1993.). Nonetheless, there is an argument that, despite that
tendency of the law of defamation, it does not amount to an infringement of the
freedom because the common law of defamation has endeavoured to achieve an
acceptable balance between the public interest in giving effect to freedom of
speech and the competing public interest in protecting the reputation of
individuals who are defamed. The defences of truth, privilege and fair comment
have been developed with a view to resolving the tension which exists between
recognition of freedom of speech and the necessity of protecting the individual
from injury to reputation. Thus, it may be said that, because the common law of
defamation has been moulded by the judges with that end in view, the law has
arrived at an appropriate balance of the competing interests so that freedom of
communication is not infringed. The answer to this argument, so it seems to us,
is that, in reaching that balance, the courts have not taken account of the fact
that there is an implied freedom of communication. The decisions which
establish the common law principles have not been concerned to assess the
inhibiting impact of the law of defamation and threats of action for defamation on
the exercise of that freedom. It follows, in our view, that the Court is not justified
in concluding that the balance achieved by the common law in protecting the
reputation of the individual defamed and the publication of political discussion
necessarily means that there is no inconsistency between common law principles
and the freedom.
32. Furthermore, the acknowledged tendency of the existing law of defamation
to inhibit the exercise of the freedom tells strongly against the absence of such
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inconsistency. In Sullivan, Brennan J, who delivered the opinion of the Court,
pointed out ((42) (1963) 376 US at 279.) that a rule compelling the critic of official
conduct to prove truth as a defence to actions in which punitive damages may be
awarded does not deter false speech only. It is often difficult to prove the truth of
the alleged libel in all its particulars. And the necessity of proving truth as a
defence may well deter a critic from voicing criticism, even if it be true, because
of doubt whether it can be proved or fear of the expense of having to do so....
33. The common law defences of fair comment and qualified privilege are not
always available. Fair comment is available only for the expression of opinion
and, then, only if the comment is based on facts which are notorious or truly
stated. Qualified privilege depends on the absence of malice and on the person
who makes the communication having an interest or duty in its making and on
the recipient having a corresponding interest or duty in receiving it. The
requirement for reciprocity of interest has the effect that common law qualified
privilege is usually not available where the information has been disseminated to
the public generally....
34. In these circumstances, the common law defences which protect the
reputation of persons who are the subject of defamatory publications do so at the
price of significantly inhibiting free communication. To that extent, the balance is
tilted too far against free communication and the need to protect the efficacious
working of representative democracy and government in favour of the protection
of individual reputation. In the case of a statutory regime, the outcome will
depend on identification of the criteria which determine whether publication of
political matter is non-actionable.
The criteria to determine whether publication of political matter is non-actionable
35. What then are the criteria to be applied in determining whether a publication
which discusses political matters and is defamatory of the plaintiff is nonetheless
not actionable?... the freedom under the Australian Constitution is not absolute,
an absolute immunity from action cannot easily be supported. It does not seem
to us that the efficacious working of representative democracy and government
demands or needs protection in the form of an absolute immunity. There is
nothing in that concept which requires that a person who publishes a statement
be protected from the consequences of making a defamatory statement which is
knowingly false. Nor does that concept require protection of a publication made
with reckless disregard for the truth or untruth of the material published. The
public interest to be served does not warrant protecting statements made
irresponsibly.
36. The case for adopting the Sullivan test - that the publication is not actionable
unless it is made with knowledge of falsity or with reckless disregard for the truth
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or falsity - or some version of it, is that it offers some protection to the
reputation of the individual who is defamed and at the
same time offers a large measure of protection to the publisher. The publisher is
at risk only if the publisher has knowledge of falsity or acts recklessly. Although
the so-called "chilling effect" of a threatened action for defamation may not
entirely be dispelled, it would be substantially eliminated by the application of
such a test. The principal criticism of such a test is that it sets too little store by
the reputation of the person defamed. Further, the Sullivan test imposes an
additional obstacle by requiring a plaintiff to make out a case with "convincing
clarity".
43. However, once it is acknowledged, as it must be, that the existing law
seriously inhibits freedom of communication on political matters, especially in
relation to the views, conduct and suitability for office of an elected representative
of the people in the Australian Parliament, then, as it seems to us, that law is
inconsistent with the requirements of the implied freedom of free communication.
The law of defamation, whether common law or statute law, must conform to the
implication of freedom, even if conformity means that plaintiffs experience greater
difficulty in protecting their reputations. The interests of the individual must give
way to the requirements of the Constitution. At the same time, the protection of
free communication does not necessitate such a subordination of the protection
of individual reputation as appears to have occurred in the United States.
44. For that reason the defendant should be required to establish that the
circumstances were such as to make it reasonable to publish the impugned
material without ascertaining whether it was true or false. The publisher should
be required to show that, in the circumstances which prevailed, it acted
reasonably, either by taking some steps to check the accuracy of the impugned
material or by establishing that it was otherwise justified in publishing without
taking such steps or steps which were adequate. To require more of those
wishing to participate in political discussion would impose impractical and,
sometimes, severe restraint on commentators and others who participate in
discussion of public affairs. Such a restraint would severely cramp that freedom
of political discussion which is so essential to the effective and open working of
modern government. At the same time, it cannot be said to be in the public
interest or conducive to the working of democratic government if anyone were at
liberty to publish false and damaging defamatory matter free from any
responsibility at all in relation to the accuracy of what
is published.
45. In other words, if a defendant publishes false and defamatory matter about a
plaintiff, the defendant should be liable in damages unless it can establish that it
was unaware of the falsity, that it did not publish recklessly (i.e., not caring
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whether the matter was true or false), and that the publication was reasonable
in the sense described. These requirements will redress the balance and give
the publisher protection, consistently with the implied freedom, whether or not the
material is accurate.
47. It will be noted from the preceding paragraphs that we do not consider that
the plaintiff should bear the onus of proving that the publication is not protected.
In our view, it is for the defendant to establish that the publication falls within the
constitutional protection. That approach accords with the approach that the
courts have taken in the past to proof of matters of justification and excuse and
we are not persuaded that the constitutional character of the justification should
make any difference to the onus of proof. Whether the defendant has acted
reasonably will involve consideration of any inquiry made by the defendant
before publishing; that is a matter peculiarly within the knowledge of the
defendant.
48. The requirement that a publisher publish honestly, not recklessly, and
reasonably is to require no more than is reasonably necessary to protect the
individual's reputation from damaging defamatory publications. True it is that the
test so formulated does not call for a determination of the truth or untruth of the
defamatory imputation, that being the gravamen of the plaintiff's complaint in
most cases. And the test, as we have formulated it, deprives a plaintiff of a trial
on the issue of truth or falsity. A trial on that issue, if the outcome were
favourable to the plaintiff, would result in his or her vindication. However, the
formulation of a test which focuses on the truth or falsity of the defamatory
imputation rather than the defendant's belief in truth or falsity, would, in our view,
run counter to the freedom of communication implied by the Constitution and the
purpose it seeks to serve. Whether a publisher has acted reasonably must be a
question of fact in every case. It will depend upon the standards and
expectations of the community as to whether the allegations needed to be
investigated. Reasonableness is a concept with which the law is familiar....
The constitutional implication of freedom and qualified privilege
52. Common law qualified privilege must now be viewed in the light of the
implied constitutional freedom. That does not necessitate a review of its
essential feature, namely, publication on an occasion of qualified privilege, or of
the common law requirement that publication be without malice. It does,
however, require some consideration of the notion of reciprocal interest and
duty. The public at large has an interest in the discussion of political matters
such that each and every person has an interest, of the kind contemplated by the
common law, in communicating his or her views on those matters and each and
every person has an interest in receiving information on those matters. It is an
interest which exists at all times; it is not confined to situations where it is publicly
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anticipated that a federal election will be called. It follows that the discussion of
political matters is an occasion of qualified privilege. Even understood in this
light, the common law defence does not conform to the constitutional freedom.
As already explained, the freedom requires no more than that the person who
publishes defamatory matter in the course of political discussion does not know
that it is false, does not publish recklessly, and does not publish unreasonably, in
the sense earlier explained.
FREEDOM OF SPEECH IN AUSTRALIA
Overview
The Australian Constitution does not expressly protect freedom of speech
or expression. In 1992, however, the High Court of Australia held that a right to
freedom of expression, in so far as public and political discussion were
concerned, was implied in the Constitution. This right was thought to be an
essential requirement of democratic and representative government and thus
implied into the Australian Constitution, which had established such a system of
government. Subsequent cases have made determinations on the scope of this
implied freedom. It has been found to extend to the publication of material:



discussing government and political matters generally;
relating to the performance of individuals of their duties as members of
the Parliament; and
discussing the performance, conduct and fitness for office of members
of the Commonwealth and State legislatures.
The right does not extend to more generally to a right to freedom of expression
where political issues are not involved.
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Nationwide News Pty. Limited v. Wills (1992) 177 CLR 1: attack on the
integrity and independence of the Australian Industrial Relations Commission
Facts: The plaintiff (Nationwide News) was the holding company of the
proprietor of The Australian (a nationwide Australian newspaper). In 1989 an
article was published in that paper which contained an attack on the integrity and
independence of the Australian Industrial Relations Commission and its
members. The plaintiff was prosecuted under s299(1)(d)(ii) of the Industrial
Relations Act 1988 (Cth) which reads ‘A person shall not ... by wiring or speech
use words calculated ... to bring a member of the Commission or the
Commission into disrepute.’ The defendant challenged the constitutional validity
of s299(1)(d)(ii).
Held: The court held unanimously that the challenged provision was invalid,
however, the way in which that conclusion was reached in the different
judgments differs widely. Mason CJ, Dawson and McHugh JJ held that the
provision was invalid on the ground that the protection it afforded the
Commission was so disproportionate that it stood outside the incidental scope of
the power in s51(xxxv) of the Constitution (the constitutional power to make laws
with respect to conciliation and arbitration for the prevention of industrial
disputes). Brennan, Deane, Toohey and Gaudron JJ held that the law may have
been within the scope of s51(xxxv) but, in any event, the law infringed the
Constitution’s implied right to freedom of communication about matters relating to
the government of the Commonwealth.
Australian Capital Television Pty. Limited and Others v. The
Commonwealth (1992) 177 CLR 106: implication of freedom of communication
contained in the Constitution extends to all political matters
Facts: The plaintiffs sought declarations that Part IIID of the Broadcasting Act
1942 (Cth) was invalid. Part IIID contained a series of provisions prohibiting the
radio and television broadcasting of political material (political advertisements
broadcasts) and other provisions compelling broadcasters to provide free
election broadcasting time during an election period. It was conceded by the
plaintiffs that these provisions came within one or more heads of Commonwealth
power. Thus, the critical question was whether there was an implied guarantee
of freedom of expression in the Constitution, at least in relation to public and
political discussion and, if so, whether Part IIID contravened that guarantee.
Held per Mason CJ, Deane, Toohey and Gaudron JJ: that Part IIID was wholly
invalid on the ground that it infringed the right to freedom of communication on
matters relevant to political discussion that was implied in the system of
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representative government for which the Constitution provided. Per Mason CJ,
the implied freedom of communication extends to all matters of public affairs and
political discussion, not withstanding that a particular matter at a given time might
appear to have a primary or immediate connection with the affairs of a State, a
local authority or a Territory and little or no connection with Commonwealth
affairs. Per Deane, Toohey and Gaudron JJ, the implication of freedom of
communication contained in the Constitution extends to all political matters,
including matters relating to other levels of government, within the national
system which exists under the Constitution.
Theophanous v. The Herald Weekly Times Limited and Another (1994) 182
CLR 104 (see above)
Facts: The plaintiff was a member of the House of Representatives in Australia
and had played a prominent part in public discussion of migration issues. The
first defendant (The Herald Weekly Times) published a letter to the editor written
by the second defendant which criticised the plaintiff’s views and conduct in
relation to these issues. The plaintiff brought an action for defamation against
the two defendants. One aspect of the first defendant’s defense was that the
words were published pursuant to the implied freedom of communication
guaranteed by the Commonwealth Constitution. The plaintiff filed a summons in
the High Court to strike out this part of the first defendant’s defense.
Held (per Mason CJ, Deane, Toohey and Gaudron JJ): That there is implied in
the Commonwealth Constitution a freedom to publish material: (a) discussing
government and political matters; (b) of and concerning members of the
Parliament of the Commonwealth of Australia which relates to the performance
by such members of their duties as members of the Parliament or parliamentary
committees; and (c) in relation to their suitability of persons for office as members
of the Parliament. In light of the freedom implied in the Commonwealth
Constitution, the publication will not be actionable under the law relating to
defamation if the defendant establishes that: (a) it was unaware of the falsity of
the material published; (b) it did not publish the material recklessly, that is, not
caring whether the material was true or false; and (c) the publication was
reasonable in the circumstances. A publication that attracts the freedom implied
in the Commonwealth Constitution can be described as a publication on an
occasion of qualified privilege. Whether a federal election is about to be called is
not a relevant consideration in determining this issue.
Stephens and Others v. West Australian Newspapers Limited (1994) 182
CLR 211: freedom of communication about political matters implied in the
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Commonwealth Constitution extends to the public discussion of the
performance, conduct and fitness for office of members
Facts: Six members of the Western Australian Legislative Council sued the
publisher of a newspaper for damages for defamation. In defense the
newspaper argued that the articles related to matters relevant to an elector in
deciding how to vote in Western Australia Parliamentary elections and that the
articles were published pursuant to the freedom guaranteed by the
Commonwealth Constitution and the Constitution Act 1889 (WA) and were
therefore not actionable. The defense also pleaded that the articles were
published on occasions of qualified privilege. The substance of the first defense
was repeated as particulars of the second defense.
Held (per Mason CJ, Deane, Toohey and Gaudron JJ): That the first defense
was bad in law on the ground that although the freedom of communication as to
political matters implied in the Commonwealth Constitution would afford a
defense if the defendant was unaware of the falsity of the material published, did
not publish the material recklessly and if the publication was reasonable in the
circumstances, the defense did not allege fulfilment of the first and second of
those conditions. The second defense of qualified privilege was good in law.
The freedom of communication about political matters implied in the
Commonwealth Constitution extends to the public discussion of the performance,
conduct and fitness for office of members of a State legislature. Furthermore, a
freedom of communication about political matters was implied in the Western
Australian Constitution and extended to criticism of the performance, conduct
and fitness for office of a member of parliament.
Cunliffe and Another v. The Commonwealth of Australia (1994) 182 CLR
272: Whether implied freedom was not limited to communications for the
purposes of the political processes
Facts: The plaintiffs sued the Commonwealth in the High Court for a declaration
that Pt 2A of the Migration Act 1958 (Cth) was invalid. Part 2A established a
registration system for persons who gave immigration assistance or who made
immigration representations. A person who was not so registered was prohibited
from giving immigration assistance unless he or she came within certain
exceptions. The plaintiff argued, amongst other things, that the law was invalid
because it contravened the implied constitutional guarantee of freedom of
communication. The plaintiff argued that this implied freedom was not limited to
communications for the purposes of the political processes in a representative
democracy, but applied generally to all people of the Commonwealth in their
communications with the Commonwealth Government.
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Held per Brennan, Dawson, Toohey and McHugh JJ: that Pt 2A was wholly valid
as a law with respect to aliens within s51(xix) of the Commonwealth Constitution.
The registration imposed by 2A upon the giving of immigration assistance to
aliens or the making of immigration representations on their behalf did not
interfere with any freedom of communication implied by the Constitution; per
Brennan J on the ground that they did not infringe the freedom of political
discussion that is necessary to maintain the system of representative democracy;
per Dawson J on the ground that they were not incompatible with the
requirements of the system of representative government with the Constitution
ordains; per Toohey J on the ground that they did not constitute an undue
restriction on the implied freedom of political communication; and per McHugh J
on the ground that the Constitution contained no guarantee of freedom of
expression to which they were obnoxious.
Langer v. The Commonwealth of Australia 96/002 HIGH COURT: If the
impairment of the freedom is reasonably capable of being regarded as
appropriate and adapted to the achieving of a legitimate legislative purpose and
the impairment is merely incidental to the achievement of that purpose, the law is
within parliament’s power
Facts: Section 329A(1) of the Commonwealth Electoral Act 1918 (Cth) provides
that a person must not print or publish anything which encourages persons voting
at the election to fill in a ballot paper otherwise than in accordance with section
240 (which sets out how ballot papers should be marked). The plaintiff
contended that he was constitutionally entitled to publish material encouraging
persons to fill in their ballot papers otherwise than in accordance with s240 so
that, if the encouragement is taken, their ballot papers would be informal. One of
the arguments he put forward in support of his case was that s329A was invalid
because it infringes the freedom of communication about political matters which
the High Court has held to be implied in the Constitution.
Held per Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ: that section
329A of the Act was valid. Per Brennan CJ, the powers of the Parliament are
impliedly limited so as to preserve that freedom of political discussion which is
essential to the maintenance of the Commonwealth system of representative
government. But the extent of the limitation depends on the particular
circumstances, including especially the subject matter of the law which impairs
the freedom. If the impairment of the freedom is reasonably capable of being
regarded as appropriate and adapted to the achieving of a legitimate legislative
purpose and the impairment is merely incidental to the achievement of that
purpose, the law is within power.
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MulDowney v. The State of South Australia and Others 93/005: Restrictions
imposed on freedom of speech are an incident of that protection. It is reasonably
capable of being regarded by Parliament as appropriate and adapted to the
achieving of a legitimate legislative purpose of protecting the prescribed primary
method.
Facts: The plaintiff, an enrolled elector for the South Australian electoral division
of Mitchell under the Electoral Act 1985 (SA), sought declarations that section 76
and section 126 of the Electoral Act 1985 (SA) were invalid because they
exceeded a limit on the legislative power of the Parliament of the State of South
Australia to be implied from the Constitution of the Commonwealth of Australia.
Section 76 of the Act dealt with the way in which ballot papers should be filled
out. Section 126 provided that a person should not publicly advocate that a
person fill out a ballot paper otherwise than in the manner prescribed in section
76 of the Act.
Held per Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow JJ: neither
section 76 nor section 126(1) of the Electoral Act 1985 (SA) is invalid. Per
Brennan CJ, the freedom of political discussion implied in the Commonwealth
Constitution is implied to protect the working of the system of government of the
Commonwealth prescribed by the Constitution, but not to protect the working of
the system of government prescribed by the Constitution of a State. Although
the provisions of the Commonwealth Constitution prevail in the event of any
inconsistency with the powers otherwise vested in the Parliament of a State,
none of the provisions from which a freedom of political discussion is inferred
affects the method of election of the members of a State Parliament. Nor does
section 126 affect the government of the Commonwealth. The validity of section
126 is therefore unqualified by the implied freedom of political discussion to be
found in the Commonwealth Constitution.
In any event, the restriction of discussion imposed by s126 is not a restriction of
the kind that, if imposed by a law of the Commonwealth, would be inconsistent
with the freedom of political discussion implied in the Commonwealth
Constitution. Section 126 (like s329A of the Commonwealth Electoral Act) is
means of protecting the method which Parliament has prescribed for the election
of members of Parliament. The restrictions imposed on freedom of speech by
s126(1)(b) and (c) are an incident of that protection. It is reasonably capable of
being regarded by Parliament as appropriate and adapted to the achieving of a
legitimate legislative purpose of protecting the prescribed primary method of
choosing members to sit in the respective Houses of Parliament of South
Australia. As s126(1)(b) and (c) does not impose a restriction of a kind that
24
25
would be invalid under the Commonwealth Constitution, it does not impose a
restriction that is invalid under the Constitution of South Australia.
Bibliography
Barendt, Free Speech in Australia: A Comparative Perspective, (1994) Sydney
Law Review 149.
Campbell and Sadurski, Freedom of Communication (1994).
Coper, The High Court and Free Speech: Visions of Democracy or Delusions of
Grandeur?, (1994) Sydney Law Review 185.
Douglas, Freedom of Expression in the Australian Constitution, (1993) 16
University of New South Wales Law Journal 315.
Doyle, The Industrial/Political Dichotomy: The Impact of the Freedom of
Communication Cases on Industrial Law, (1995) 8 AJLL 1.
Zines, A Judicially Created Bill of Rights?, (1994) 16 Sydney Law Review 166.
HATE SPEECH AND RACIAL VILIFICATION LAWS IN AUSTRALIA
Hate Speech vs. Free Speech
The idea of free speech has always been highly valued in Australia
society. Although, Australia has no Bill of Rights and until recently could not be
said to have any constitutionally guaranteed right to freedom of speech, the
principle of free speech existed as a ‘silent principle’ of common law, albeit at the
mercy of parliamentary sovereignty.8 Recent decisions of the High Court have
found a constitutionally implied right to freedom of speech at least in the area of
political and public affairs.9 The scope of this new implied right and the common
law principle is not clear, and consequently much debate surrounded the
introduction of the Commonwealth racial hatred legislation in 1995.
8
Flahvin, Can Legislation Prohibiting Hate Speech be Justified in Light of Free Speech Principles? (1995)
18 UNSWLJ 327 at 328.
9 Nationwide News Pty Ltd v. Wills (1992) 66 ALJR 658 (political insults case) and Australia Capital
Television Pty Ltd v. The Commonwealth (1992) 66 ALJR 695 (political broadcast and advertising case).
25
26
Australia has a variety of hate speech laws. The Racial Hatred Act is
the only racial vilification law with national application. The states of New South
Wales, Western Australia, South Australia and the Australian Capital Territory
have also enacted racial vilification laws.10 The NSW Act is the oldest, having
been enacted in 1989. The other Acts are more recent, having all been enacted
in the 1990s.
Racial Hatred Act
The Racial Hatred Act (Cth) 1995 prohibits offensive public acts which are
based on racial hatred. Offensive behaviour is unlawful if it is reasonably likely to
offend, insult, humiliate or intimidate another person or a group of people and the
act is done because of the race, color or national or ethnic origin of the other
person or some or all of the people in the group. An act is deemed to be public if
it causes words, sounds, images or writing to be communicated to the public, is
done in a public place or is done in the sight or hearing of people who are in a
public place. Public place includes any place to which the public access as a
right or by invitation. The access may be express or implied and does not
depend on an admission price being charged.
The Act protects free speech by providing several exemptions to its
provisions. Acts which are done reasonably and in good faith are not unlawful if
they are done:




in the performance, exhibition or distribution of artistic work;
in the course of any statement, publication or discussion or debate made or
held for any genuine academic, artistic, scientific or any other genuine public
interest purpose;
in making or publishing a fair and accurate report of any event or matter of
public interest; or
in making or publishing a fair comment on any event or matter of public
interest if the comment is an expression of a genuine belief held by the
person making the comment.
An employer will be vicariously liable for the unlawful acts of an employee or
agent performed in connection with their work duties, unless the employer can
show that he or she took all reasonable steps to prevent the employee or agent
from doing the unlawful act.
10
Anti-Discrimination Act (Racial Vilification) Amendment Act (NSW) 1989 ss20C & 20D, Criminal Code
1913 (WA) ss 76-80, Racial Vilification Act (SA) 1996 s4, Discrimination Act (ACT) 1991 ss66 & 67.
26
27
There has only been one case which covers the Act’s interpretation:
Bryant v. Queensland Newspapers Pty Ltd.11 In this case the complainant (Mr.
Bryant) sued the respondent (Queensland Newspapers) for publishing articles
and letters in its weekly publication the Sunday Mail, which referred to English
people as ‘Poms’ or ‘Pommies’. The complainant alleged that the use of these
terms is insulting and offensive to English people.
The Race Discrimination Commissioner declined to investigate the
complaint on the grounds that the act did not meet the objective standard
prescribed by the Racial Hatred Act. For the act to be unlawful it had to be
‘reasonably likely, in all the circumstances, to offend, insult, humiliate or
intimidate’ the person or group of people referred to. She concluded that this
objective standard had not been met. Arrangements were made for an public
hearing into the complaint. However, prior to this public hearing, the respondent
applied to have the complaint dismissed on the grounds that it was frivolous,
vexatious, misconceived, lacking in substance or relating to an act which was not
unlawful under the relevant provisions of the Act.
In hearing this application, Sir Ronald Wilson, president of the Human
Rights and Equal Opportunity Commission, accepted that the complainant was
offended by the use of the words ‘Poms’ and ‘Pommies’ but he agreed with the
Commissioner that this was not enough. He found that the offensiveness test is
an objective one because of the words ‘reasonably likely’. He thought that the
notion of ‘hatred’ suggested that the relevant provisions of the Act allow a fair
degree of journalistic licence, including the use of flamboyant or colloquial
language. Accordingly, he dismissed the complaint on the grounds that the act in
question was not an unlawful act under the Act.
State Racial Vilification Laws
The State vilification laws are virtually identical.12 They make it unlawful
for a person by a public act to incite hatred towards, serious contempt for, or
severe ridicule of, a person or group of persons on the ground of the race of the
person or members of the group, by either threatening physical harm to the
person or members of the groups or to property of the person or members of the
group, or by inciting others to do the same. There is no case law dealing with
state racial vilification laws.
Bibliography
11
12
Human Rights and Equal Opportunity Commission, No. H97/38.
Although the NSW and ACT legislation additionally spells out three situations which are not rendered
unlawful under the Act.
27
28
Flahvin, Can Legislation Prohibiting Hate Speech be Justified in Light of Free
Speech Principles? 18 UNSWLJ 327 (1995).
Human Rights and Equal Opportunity Commission, What is the Racial Hatred
Act? (1996).
Sadurski, ‘Racial Vilification, Psychic Harm, and Affirmative Action’ in Campbell &
Sadurski, Freedom of Communication (1994).
Sadurski, Offending with Impunity: Racial Vilification and Freedom of Speech 14
SydLR 163 (1992).
ZIMBABWE
Constitution of Zimbabwe13
Article number: 20
(1) Except with his own consent or by way of parental discipline, no person shall be
hindered in the enjoyment of his freedom of expression, that is to say, freedom to
hold opinions and to receive and impart ideas and information without interference,
and freedom from interference with his correspondence.
(2) Nothing contained in or done under the authority of any law shall be held to be
in contravention of subsection (1) to the extent that the law in question makes
provision (a) in the interests of defence, public safety, public order, the economic
interests of the State, public morality or public health;
(b) for the purpose of (i)
protecting the reputations, rights and freedoms of other
persons or the private lives of persons concerned in legal
proceedings;
(ii)
preventing the
confidence;
13
disclosure
of
information
received
in
As amended at the 1st August, 1985. The Constitution of Zimbabwe was published as a Schedule to the
Zimbabwe Constitution Order 1979 (S.I. 1979/1600 of the United Kingdom).
28
29
(iii)
maintaining the authority and independence of the courts or
tribunals or the Senate or the House of Assembly;
(iv)
regulating the technical administration, technical operation or
general efficiency of telephony, telegraphy, posts, wireless
broadcasting or television or creating or regulating any
monopoly in these fields;
(v)
in the case of correspondence, preventing the unlawful
dispatch therewith of other matter;
or
(c) that imposes restrictions upon public officers: except so far as that
provisions or, as the case may be, the thing done under the authority thereof
is shown not to be reasonably justifiable in a democratic society.
(3) No religious denomination and no person or group of persons shall be
prevented from establishing and maintaining schools, whether or not that
denomination, person or group is in receipt of any subsidy, grant or other form of
financial assistance from the State.
(4) Nothing contained in or done under the authority of any law be held to be in
contravention of subsection (3) to the extent that the law in question makes
provision (a) in the interests of defence, public safety, public order, public morality,
public health or town and country planning, or
(b) for regulating such schools in the interests of persons receiving
instruction therein; except so far as that provision or, as the case may be,
the thing done under the authority thereof is shown not to be reasonably
justifiable in a democratic society.
(5) No person shall be prevented from sending to any school a child of whom that
person is parent or guardian by reason only that the school is not a school
established or maintained by the State.
(6) The provisions of subsection (1) shall not be held to confer on any person right
to exercise his freedom of expression in or on any road, street, lane, path,
pavement, side-walk, thoroughfare or similar place which exists for the free
passage of persons or vehicles.
29
30
S v Hartmann 1983 ZLR 186 S Crt: lawyers, held a press conference on behalf
of their detained clients: convicted of contempt of court: whether there was a real
risk as opposed to remote possibility that the publication was calculated to
prejudice a fair hearing.
Georges CJ:
Section 20 of the constitution protects freedom of speech. Although this freedom
may be limited in terms of s20(2) for the purpose of maintaining the authority of the
courts, this inroad into the right of freedom of speech should not be wider or deeper
than is required for the achievement of the declared objective. Appellants, both
lawyers, held a press conference on behalf of their detained clients declaring their
loyalty and innocence and protesting against torture used against their clients. The
lawyers were convicted of contempt of court. Held that the South African test of ‘a
tendency to prejudice or interfere with the administration of justice’ would make too
great an inroad with the right of freedom of expression. The English test should be
applied, namely whether there was a real risk as opposed to remote possibility that
the publication was calculated to prejudice a fair hearing.
Locate the following 2 cases:
In re Munhumeso & Others 1995 (1) SA 551(ZS) at 557C-D
In re Chikweche 1995 (4) SA 284 (ZS)
Retrofit (PVT) LTD v Posts and Telecommunications Corporation 1996 (1)
SA 847: applicant requested the defendant to issue it with a licence for the purpose
of establishing a mobile cellular telephone service. The respondent refused to grant
the licence on the ground that the service was one over which it enjoyed a
monopoly. Act was inconsistent with the right to freedom of expression.
Gubbay CJ:
In July 1993 the applicant requested the defendant to issue it with a licence for the
purpose of establishing a mobile cellular telephone service. The respondent
refused to grant the licence on the ground that the service was one over which it
enjoyed a monopoly in terms of s26(1) of the Postal and Telecommunication
Services Act Chap 250. The applicant contended that authority for the issue of the
license existed in terms of the Radiocommunication Services Act Chap 252. The
applicant sought (1) a declarator that s26(1) of the Postal and Telecommunication
Services Act was inconsistent with the right to freedom of expression in terms of
s20(1) of the Constitution and (2) an order directing the respondent to issue the
applicant with a licence.
30
31
Held that freedom of expression was an indispensable condition for a free and
democratic society. It serves the broad special purposes of helping an individual to
obtain fulfilment, assisting in the discovery of truth, strengthening the capacity of an
individual to obtain self-fulfilment and providing a mechanism by which it would be
possible to establish a reasonable balance between stability and social change.
Held that s20(1) of the Constitution enjoined not only that persons were free to
express themselves but that they were not hindered in the means of expression: an
examination of foreign jurisprudence showed that restriction upon the means of
communication abridged the guarantee of freedom of expression; a fortiori any
monopoly which had the effect of hindering the right to receive and impart ideas
and information, violated the protection of this paramount right.
Held that it was axiomatic that for respondent to monoplise telecommunication
services in Zimbabwe, and then to furnish a public switched telephone network of
notoriously poor worth, available only to a small percentage of the population,
manifestly interfered with the constitutional right of every person to impart ideas and
information by means of the telephone network. Persons in every walk of life were
entitled to a telephone service which affords them a rapid and reliable means of
communication. A public monopoly which failed to fulfil that essential role imposed
a severe restraint upon the constitutionality protected freedom of expression.
Held that s26(1) of the Act, insofar as it vested in the defendant with the exclusive
priviledge of establishing a mobile cellular telephone service was not reasonably
justifiable in a democratic society. The objectives of the legislation as claimed by
the respondent in maintaining a viable telephone service, providing universal
service, instilling of investor confidence and permitting the orderly development of
the telephone service were not of sufficient importance to warrant a serious inroad
into the constitutional right to freedom of expression.
Held that the measures designed to meet these legislative objectives were not
rationally connected to it. Monopoly service was not the least drastic means by
which the legislative objectives could be accomplished: the respondent would still
be able to provide a comparatively inexpensive, good quality cellular telephone
service to both urban and outlying communities, together with the ability to control
an excessive intrusion into the field by the private sector.
31
32
NAMIBIA
Freedom of speech and expression
Article 21 [Fundamental Freedoms]
(1) All persons shall have the right to:
a) freedom of speech and expression, which shall include freedom of the press
and other media;
b) freedom of thought, conscience and belief, which shall include academic
freedom in institutions of higher learning;
(2) The fundamental freedoms referred to in Paragraph (1) shall be exercised
subject to the law of Namibia, in so far as such law imposes reasonable restrictions
on the exercise of the rights and freedoms conferred by the said Paragraph, which
are necessary in a democratic society and are required in the interests of the
sovereignty and integrity of Namibia, national security, public order, decency or
morality, or in relation to contempt of court, defamation or incitement to an offence.
Kausea v Minister of Home Affairs & Others 1995 (1) SA 51: The constitution
did not elevate freedom of speech and expression above other fundamental
freedoms
O’Linn J:
Infringement of freedom of speech and expression by law relating to defamation,
contempt of court and incitement to commit an offence reasonable and necessary
in democratic society as intended in art 21(2). The constitution did not elevate
freedom of speech and expression above other fundamental freedoms, nor did it
elevate it above any of the fundamental rights.
EUROPEAN COMMUNITY
[European] Convention for the Protection of Human Rights and Fundamental
Freedoms14
14
213 U.N.T.S. 222, entered into force Sept. 3, 1953, as amended by Protocols Nos 3, 5, and 8 which
entered into force on 21 September 1970, 20 December 1971 and 1 January 1990 respectively.
32
33
Article 9
1. Everyone has the right to freedom of thought, conscience and religion; this right
includes freedom to change his religion or belief and freedom, either alone or in
community with others and in public or private, to manifest his religion or belief, in
worship, teaching, practice and observance.
2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations
as are prescribed by law and are necessary in a democratic society in the interests of
public safety, for the protection of public order, health or morals, or for the protection of
the rights and freedoms of others.
Article 10
1. Everyone has the right to freedom of expression. This right shall include
freedom to hold opinions and to receive and impart information and ideas without
interference by public authority and regardless of frontiers. This Article shall not
prevent States from requiring the licensing of broadcasting, television or cinema
enterprises.
2. The exercise of these freedoms, since it carries with it duties and
responsibilities, may be subject to such formalities, conditions, restrictions or
penalties as are prescribed by law and are necessary in a democratic society, in
the interests of national security, territorial integrity or public safety, for the
prevention of disorder or crime, for the protection of health or morals, for the
protection of the reputation or rights of others, for preventing the disclosure of
information received in confidence, or for maintaining the authority and
impartiality of the judiciary.
Locate and elaborate on the following 8 EHRR cases
1. Open Door Counselling and Dublin Well Woman v Ireland 15 EHRR 244.
Freedom of expression; meaning of victim; local remedies; necessary in a
democratic society; legitimate aims; proportional.
2. J v Belguim 15 EHRR CD 1991. Public hearing, party as a judge, fair hearing,
freedom of expression, journalistic freedom and responsibility.
3. Times Newspapers Ltd and Neil v United Kingdom 15 EHRR CD49 1991.
Freedom of expression, restrictions prescribed by law, retroactivity,
spycatcher.
4. Nydahl v Sweden 16 EHRR CD15 1990. Broadcasting, failure to obtain
licence, freedom of expression, freedom of speech, interference with, equal
treatment, fair hearing.
33
34
5. Arrowsmith v United Kingdom 3 EHRR 218. Pacifism, freedom of thought
and conscience, freedom of expression, necessary interference.
6. Gay News Ltd and Lemon v United Kingdom 5 EHRR 123 1982. Freedom of
expression, restrictions, common law offence of blasphemous libel,
restrictions necessary in a democratic society, discrimination.
7. Castells v Spain 14 EHRR 445 1992. Freedom of expression of opposition
politicians; domestic remedies; freedom of expression ‘ interference,
prescribed by law, necessary in a democratic society. Discrimination. Just
satisfaction- pecuniary injury, non-pecuniary injury, costs and expenses.
8. Handyside v United Kingdom (1976) 1 EHRR 737 at para 49.
WINGROVE v. THE UNITED KINGDOM (19/1995/525/611) 25 November 1996:
Refusal to grant distribution certificate in respect of video work considered
blasphemous; Blasphemy by very nature has no precise legal definition - national
authorities must be afforded degree of flexibility in assessing whether particular
facts fall within definition -- Interference intended to protect against seriously
offensive attacks on matters regarded as sacred by Christians
United Kingdom - refusal to grant distribution certificate in respect of video work
considered blasphemous (section 4(1) of the Video Recordings Act 1984)
Article 10 of the Convention
Refusal by British Board of Film Classification to grant distribution certificate for
applicant's video work: "interference" with applicant's right to freedom of expression.
A. Prescribed by law
Board acted in accordance with section 4(1) of Video Recordings Act 1984.
Blasphemy by very nature has no precise legal definition - national authorities must be
afforded degree of flexibility in assessing whether particular facts fall within definition.
No general uncertainty or disagreement as to definition of blasphemy - Court satisfied
that applicant with legal advice could reasonably foresee that scenes in film could fall
within the scope of blasphemy - cannot be said that blasphemy law did not afford
adequate protection against arbitrary interference - impugned restriction was "prescribed
by law".
B. Legitimate aim
Aim of interference corresponds to the protection of rights of others and is fully
consonant with aims of Article 9.
Whether or not real need for protection against exposure to video to be addressed when
assessing "necessity" of interference.
Not for European Court to rule in abstracto as to compatibility of domestic law with
Convention - fact that law of blasphemy does not treat all religions on equal footing does
not detract from legitimacy of aim pursued in present context - certificate refusal had a
legitimate aim.
C. Necessary in a democratic society
34
35
Interference intended to protect against seriously offensive attacks on matters regarded
as sacred by Christians - there is as yet not sufficient common ground in legal and social
orders of Member States of the Council of Europe to conclude that blasphemy legislation
is, in itself, unnecessary in a democratic society.
Under Article 10 § 2 little scope for restrictions on political speech or on debate of
questions of public interest - wider margin of appreciation generally available in relation
to matters liable to offend intimate personal convictions in the sphere of morals or
religion - as with morals, no uniform European conception of the requirements of
protection against attacks on religious convictions - national authorities better placed than
international judge to define these requirements and to rule on "necessity" of
"restriction".
Final European supervision all the more necessary given breadth and open-endedness of
notion of blasphemy and the risks of arbitrary or excessive interferences this entails prior restraint in present case calls for special scrutiny.
Blasphemy law does not prohibit expression of views hostile to Christian religion or of
any opinion offensive to Christians - law seeks to control manner in which views are
advocated - extent of insult to religious feelings must be significant.
High degree of profanation required: safeguard against arbitrariness.
Video work portrays crucified Christ in acts of overtly sexual nature - national authorities
considered manner in which such imagery was treated placed focus less on erotic feelings
of the character than on those of the audience and that no attempt was made to explore
meaning of imagery beyond engaging viewer in "voyeuristic erotic experience" - thus
reasons given to justify interference can be considered relevant and sufficient interference cannot be said to be arbitrary or excessive.
Videos once on the market easily escape control - not unreasonable for national
authorities to consider that video could have reached people to whom it would have
caused offence - national authorities better placed than European Court to make
assessment as to video's likely impact.
Although interference amounted to complete ban this was understandable consequence of
authorities' opinion that distribution of video would infringe the criminal law and of
applicant's refusal to amend it or cut out blasphemous scenes - national authorities'
margin of appreciation not overstepped.
Conclusion: no violation (seven votes to two).
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
35. The applicant alleged a violation of his right to freedom of expression, as guaranteed
by Article 10 of the Convention, which, in so far as relevant, provides:
"1. Everyone has the right to freedom of expression. This right shall include
freedom to hold opinions and to receive and impart information and ideas without
interference by public authority and regardless of frontiers. ...
2. The exercise of these freedoms, since it carries with it duties and
responsibilities, may be subject to such formalities, conditions, restrictions or
35
36
penalties as are prescribed by law and are necessary in a democratic society, in the
interests of national security, territorial integrity or public safety, for the
prevention of disorder or crime, for the protection of health or morals, for the
protection of the reputation or rights of others, for preventing the disclosure of
information received in confidence, or for maintaining the authority and
impartiality of the judiciary."
36. The refusal by the British Board of Film Classification to grant a certificate for the
applicant's video work Visions of Ecstasy, seen in conjunction with the statutory
provisions making it a criminal offence to distribute a video work without this certificate
(see paragraph 23 above), amounted to an interference by a public authority with the
applicant's right to impart ideas. This was common ground between the participants in the
proceedings.
To determine whether such an interference entails a violation of the Convention, the
Court must examine whether or not it was justified under Article 10 § 2 by reason of
being a restriction "prescribed by law", which pursued an aim that was legitimate under
that provision and was "necessary in a democratic society".
A. Whether the interference was "prescribed by law"
37. The applicant considered that the law of blasphemy was so uncertain that it was
inordinately difficult to establish in advance whether in the eyes of a jury a particular
publication would constitute an offence. Moreover, it was practically impossible to know
what predictions an administrative body - the British Board of Film Classification would make as to the outcome of a hypothetical prosecution. In these circumstances, the
applicant could not reasonably be expected to foresee the result of the Board's
speculations. The requirement of foreseeability which flows from the expression
"prescribed by law" was therefore not fulfilled.
38. The Government contested this claim: it was a feature common to most laws and
legal systems that tribunals may reach different conclusions even when applying the same
law to the same facts. This did not necessarily make these laws inaccessible or
unforeseeable. Given the infinite variety of ways of publishing "contemptuous, reviling,
scurrilous, or ludicrous matter relating to God, Jesus Christ, or the Bible" (see paragraph
27 above), it would not be appropriate for the law to seek to define in detail which images
would or would not be potentially blasphemous.
39. The Commission, noting that considerable legal advice was available to the applicant,
was of the view that he could reasonably have foreseen the restrictions to which his video
work was liable.
40. The Court reiterates that, according to its case-law, the relevant national "law", which
includes both statute and common law (see, inter alia, the Sunday Times v. the United
Kingdom (no. 1) judgment of 26 April 1979, Series A no. 30, p. 30, § 47), must be
formulated with sufficient precision to enable those concerned - if need be, with
appropriate legal advice - to foresee, to a degree that is reasonable in the circumstances,
the consequences which a given action may entail. A law that confers a discretion is not
in itself inconsistent with this requirement, provided that the scope of the discretion and
the manner of its exercise are indicated with sufficient clarity, having regard to the
36
37
legitimate aim in question, to give the individual adequate protection against arbitrary
interference (see, for instance, the Tolstoy Miloslavsky v. the United Kingdom judgment
of 13 July 1995, Series A no. 316-B, pp. 71-72, § 37, and the Goodwin v. the United
Kingdom judgment of 27 March 1996, Reports 1996-..., p. ..., § 31).
41. It is observed that, in refusing a certificate for distribution of the applicant's video on
the basis that it infringed a provision of the criminal law of blasphemy, the British Board
of Film Classification acted within its powers under section 4(1) of the 1984 Act (see
paragraph 24 above).
42. The Court recognises that the offence of blasphemy cannot by its very nature lend
itself to precise legal definition. National authorities must therefore be afforded a degree
of flexibility in assessing whether the facts of a particular case fall within the accepted
definition of the offence (see, mutatis mutandis, the Tolstoy Miloslavsky judgment, cited
above at paragraph 40, p. 73, § 41).
43. There appears to be no general uncertainty or disagreement between those appearing
before the Court as to the definition in English law of the offence of blasphemy, as
formulated by the House of Lords in the case of Whitehouse v. Gay News Ltd and Lemon
(see paragraph 27 above). Having seen for itself the content of the video work, the Court
is satisfied that the applicant could reasonably have foreseen with appropriate legal
advice that the film, particularly those scenes involving the crucified figure of Christ,
could fall within the scope of the offence of blasphemy.
The above conclusion is borne out by the applicant's decision not to initiate proceedings
for judicial review on the basis of counsel's advice that the panel's formulation of the law
of blasphemy represented an accurate statement of the law (see, mutatis mutandis, the
Open Door and Dublin Well Woman v. Ireland judgment of 29 October 1992, Series A
no. 246, p. 27, § 60).
44. Against the foregoing background it cannot be said that the law in question did not
afford the applicant adequate protection against arbitrary interference. The Court
therefore concludes that the impugned restriction was "prescribed by law".
B. Whether the interference pursued a legitimate aim
45. The applicant contested the Government's assertion that his video work was refused a
certificate for distribution in order to "protect the right of citizens not to be offended in
their religious feelings". In his submission, the expression "rights of others" in the present
context only refers to an actual, positive right not to be offended. It does not include a
hypothetical right held by some Christians to avoid disturbance at the prospect of other
people's viewing the video work without being shocked.
In any event - the applicant further submitted - the restriction on the film's distribution
could not pursue a legitimate aim since it was based on a discriminatory law, limited to
the protection of Christians, and specifically, those of the Anglican faith.
46. The Government referred to the case of Otto-Preminger-Institut v. Austria (judgment
of 20 September 1994, Series A no. 295, pp. 17-18, §§ 47-48) where the Court had
accepted that the respect for the religious feelings of believers can move a State
legitimately to restrict the publication of provocative portrayals of objects of religious
veneration.
37
38
47. The Commission considered that the English law of blasphemy is intended to
suppress behaviour directed against objects of religious veneration that is likely to cause
justified indignation amongst believing Christians. It follows that the application of this
law in the present case was intended to protect the right of citizens not to be insulted in
their religious feelings.
48. The Court notes at the outset that, as stated by the Board, the aim of the interference
was to protect against the treatment of a religious subject in such a manner "as to be
calculated (that is, bound, not intended) to outrage those who have an understanding of,
sympathy towards and support for the Christian story and ethic, because of the
contemptuous, reviling, insulting, scurrilous or ludicrous tone, style and spirit in which
the subject is presented" (see paragraph 15 above).
This is an aim which undoubtedly corresponds to that of the protection of "the rights of
others" within the meaning of paragraph 2 of Article 10. It is also fully consonant with
the aim of the protections afforded by Article 9 to religious freedom.
49. Whether or not there was a real need for protection against exposure to the film in
question is a matter which must be addressed below when assessing the "necessity" of the
interference.
50. It is true that the English law of blasphemy only extends to the Christian faith. Indeed
the anomaly of this state of affairs in a multidenominational society was recognised by
the Divisional Court in R. v. Chief Magistrate, ex parte Choudhury, [1991] 1 All England
Law Reports 206, p. 317. However, it is not for the European Court to rule in abstracto
as to the compatibility of domestic law with the Convention.
The uncontested fact that the law of blasphemy does not treat on an equal footing the
different religions practised in the United Kingdom does not detract from the legitimacy
of the aim pursued in the present context.
51. The refusal to grant a certificate for the distribution of Visions of Ecstasy
consequently had a legitimate aim under Article 10 § 2.
C. Whether the interference was "necessary in a democratic society"
52. The Court recalls that freedom of expression constitutes one of the essential
foundations of a democratic society. As paragraph 2 of Article 10 expressly recognises,
however, the exercise of that freedom carries with it duties and responsibilities. Amongst
them, in the context of religious beliefs, may legitimately be included a duty to avoid as
far as possible an expression that is, in regard to objects of veneration, gratuitously
offensive to others and profanatory (see the Otto-Preminger-Institut judgment, cited
above at paragraph 46, pp. 18-19, §§ 47 and 49).
53. No restriction on freedom of expression, whether in the context of religious beliefs or
in any other, can be compatible with Article 10 unless it satisfies, inter alia, the test of
necessity as required by the second paragraph of that Article. In examining whether
restrictions to the rights and freedoms guaranteed by the Convention can be considered
"necessary in a democratic society" the Court has, however, consistently held that the
Contracting States enjoy a certain but not unlimited margin of appreciation. It is, in any
event, for the European Court to give a final ruling on the restriction's compatibility with
the Convention and it will do so by assessing in the circumstances of a particular case,
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inter alia, whether the interference corresponded to a "pressing social need" and
whether it was "proportionate to the legitimate aim pursued" (see, mutatis mutandis,
among many other authorities, the Goodwin judgment, mentioned above at paragraph 40,
p. ..., § 40).
54. According to the applicant, there was no "pressing social need" to ban a video work
on the uncertain assumption that it would breach the law of blasphemy; indeed, the
overriding social need was to allow it to be distributed. Furthermore, since adequate
protection was already provided by a panoply of laws - concerning, inter alia, obscenity,
public order and disturbances to places of religious worship - blasphemy laws, which are
incompatible with the European idea of freedom of expression, were also superfluous in
practice. In any event, the complete prohibition of a video work that contained no
obscenity, no pornography and no element of vilification of Christ was disproportionate
to the aim pursued.
55. For the Commission, the fact that Visions of Ecstasy was a short video work and not a
feature film meant that its distribution would have been more limited and less likely to
attract publicity. The Commission came to the same conclusion as the applicant.
56. The Government contended that the applicant's video work was clearly a provocative
and indecent portrayal of an object of religious veneration, that its distribution would
have been sufficiently public and widespread to cause offence and that it amounted to an
attack on the religious beliefs of Christians which was insulting and offensive. In those
circumstances, in refusing to grant a classification certificate for the applicant's video
work, the national authorities only acted within their margin of appreciation.
57. The Court observes that the refusal to grant Visions of Ecstasy a distribution
certificate was intended to protect "the rights of others", and more specifically to provide
protection against seriously offensive attacks on matters regarded as sacred by Christians.
As the observations filed by the intervenors show, blasphemy legislation is still in force
in various European countries. It is true that the application of these laws has become
increasingly rare and that several States have recently repealed them altogether. In the
United Kingdom only two prosecutions concerning blasphemy have been brought in the
last seventy years (see paragraph 27 above). Strong arguments have been advanced in
favour of the abolition of blasphemy laws, for example, that such laws may discriminate
against different faiths or denominations - as put forward by the applicant - or that legal
mechanisms are inadequate to deal with matters of faith or individual belief - as
recognised by the Minister of State for the Home Department in his letter of 4 July 1989
(see paragraph 29 above). However, the fact remains that there is as yet not sufficient
common ground in the legal and social orders of the Member States of the Council of
Europe to conclude that a system whereby a State can impose restrictions on the
propagation of material on the basis that it is blasphemous is, in itself, unnecessary in a
democratic society and thus incompatible with the Convention (see, mutatis mutandis, the
Otto-Preminger-Institut, cited above at paragraph 46, p. 19, § 49).
58. Whereas there is little scope under Article 10 § 2 of the Convention for restrictions on
political speech or on debate of questions of public interest (see, mutatis mutandis,
among many other authorities, the Lingens v. Austria judgment of 8 July 1986, Series A
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no. 103, p. 26, § 42; the Castells v. Spain judgment of 23 April 1992, Series A no. 236,
p. 23, § 43, and the Thorgeir Thorgeirson v. Iceland judgment of 25 June 1992, Series A
no. 239, p. 27, § 63), a wider margin of appreciation is generally available to the
Contracting States when regulating freedom of expression in relation to matters liable to
offend intimate personal convictions within the sphere of morals or, especially, religion.
Moreover, as in the field of morals, and perhaps to an even greater degree, there is no
uniform European conception of the requirements of "the protection of the rights of
others" in relation to attacks on their religious convictions. What is likely to cause
substantial offence to persons of a particular religious persuasion will vary significantly
from time to time and from place to place, especially in an era characterised by an ever
growing array of faiths and denominations. By reason of their direct and continuous
contact with the vital forces of their countries, State authorities are in principle in a better
position than the international judge to give an opinion on the exact content of these
requirements with regard to the rights of others as well as on the "necessity" of a
"restriction" intended to protect from such material those whose deepest feelings and
convictions would be seriously offended (see, mutatis mutandis, the Müller and Others v.
Switzerland judgment of 24 May 1988, Series A no. 133, p. 22, § 35).
This does not of course exclude final European supervision. Such supervision is all the
more necessary given the breadth and open-endedness of the notion of blasphemy and the
risks of arbitrary or excessive interferences with freedom of expression under the guise of
action taken against allegedly blasphemous material. In this regard the scope of the
offence of blasphemy and the safeguards inherent in the legislation are especially
important. Moreover the fact that the present case involves prior restraint calls for special
scrutiny by the Court (see, mutatis mutandis, the Observer and Guardian v. the United
Kingdom judgment of 26 November 1991, Series A no. 216, p. 30, § 60).
59. The Court's task in this case is to determine whether the reasons relied on by the
national authorities to justify the measures interfering with the applicant's freedom of
expression are relevant and sufficient for the purposes of Article 10 § 2 of the
Convention.
60. As regards the content of the law itself, the Court observes that the English law of
blasphemy does not prohibit the expression, in any form, of views hostile to the Christian
religion. Nor can it be said that opinions which are offensive to Christians necessarily fall
within its ambit. As the English courts have indicated (see paragraph 27 above), it is the
manner in which views are advocated rather than the views themselves which the law
seeks to control. The extent of insult to religious feelings must be significant, as is clear
from the use by the courts of the adjectives "contemptuous", "reviling", "scurrilous",
"ludicrous" to depict material of a sufficient degree of offensiveness.
The high degree of profanation that must be attained constitutes, in itself, a safeguard
against arbitrariness. It is against this background that the asserted justification under
Article 10 § 2 in the decisions of the national authorities must be considered.
61. Visions of Ecstasy portrays, inter alia, a female character astride the recumbent body
of the crucified Christ engaged in an act of an overtly sexual nature (see paragraph 9
above). The national authorities, using powers that are not themselves incompatible with
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the Convention (see paragraph 57 above), considered that the manner in which such
imagery was treated placed the focus of the work "less on the erotic feelings of the
character than on those of the audience, which is the primary function of pornography"
(see paragraph 15 above). They further held that since no attempt was made in the film to
explore the meaning of the imagery beyond engaging the viewer in a "voyeuristic erotic
experience", the public distribution of such a video could outrage and insult the feelings
of believing Christians and constitute the criminal offence of blasphemy. This view was
reached by both the Board of Film Classification and the Video Appeals Committee
following a careful consideration of the arguments in defence of his work presented by
the applicant in the course of two sets of proceedings. Moreover, it was open to the
applicant to challenge the decision of the Appeals Committee in proceedings for judicial
review (see paragraph 30 above).
Bearing in mind the safeguard of the high threshold of profanation embodied in the
definition of the offence of blasphemy under English law as well as the State's margin of
appreciation in this area (see paragraph 58 above), the reasons given to justify the
measures taken can be considered as both relevant and sufficient for the purposes of
Article 10 § 2. Furthermore, having viewed the film for itself, the Court is satisfied that
the decisions by the national authorities cannot be said to be arbitrary or excessive.
62. It was submitted by both the applicant and the Delegate of the Commission that a
short experimental video work would reach a smaller audience than a major feature film,
such as the one at issue in the Otto-Preminger-Institut case (cited above at paragraph 46).
The risk that any Christian would unwittingly view the video was therefore substantially
reduced and so was the need to impose restrictions on its distribution. Furthermore, this
risk could have been reduced further by restricting the distribution of the film to licensed
sex shops (see paragraph 23 above). Since the film would have been dispensed in video
boxes which would have included a description of its content, only consenting adults
would ever have been confronted with it.
63. The Court notes, however, that it is in the nature of video works that once they
become available on the market they can, in practice, be copied, lent, rented, sold and
viewed in different homes, thereby easily escaping any form of control by the authorities.
In these circumstances, it was not unreasonable for the national authorities, bearing in
mind the development of the video industry in the United Kingdom (see paragraph 22
above), to consider that the film could have reached a public to whom it would have
caused offence. The use of a box including a warning as to the film's content (see
paragraph 62 above) would have had only limited efficiency given the varied forms of
transmission of video works mentioned above. In any event, here too the national
authorities are in a better position than the European Court to make an assessment as to
the likely impact of such a video, taking into account the difficulties in protecting the
public.
64. It is true that the measures taken by the authorities amounted to a complete ban on the
film's distribution. However, this was an understandable consequence of the opinion of
the competent authorities that the distribution of the video would infringe the criminal
law and of the refusal of the applicant to amend or cut out the objectionable sequences
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(see paragraph 13 above). Having reached the conclusion that they did as to the
blasphemous content of the film it cannot be said that the authorities overstepped their
margin of appreciation.
D. Conclusion
65. Against the foregoing background the national authorities were entitled to consider
that the impugned measure was justified as being necessary in a democratic society
within the meaning of paragraph 2 of Article 10. There has therefore been no violation of
Article 10 of the Convention.
DE HAES AND GIJSELS v. BELGIUM (7/1996/626/809) 24 February 1997:
judgment against journalists for defamation of magistrats and fairness of the
proceedings against the journalists -- Accusations against the judges and
Advocate-General amounted to an opinion - comments severely critical but
proportionate to the indignation caused by the matters alleged --- Journalists'
legitimate concern not to risk compromising their sources of information
Belgium - judgment against journalists for defamation of magistrats and fairness of the
proceedings against the journalists (Articles 1382 and 1383 of the Civil Code)
I. Article 10 of the Convention
Judgment complained of amounted to an "interference" with applicants' exercise of their
freedom of expression, had been "prescribed by law" and had pursued at least one of the
legitimate aims referred to in Article 10 § 2 (protection of reputation or rights of others).
Recapitulation of case-law on role of press in a democratic society.
Regard being had to seriousness of allegations, applicants had not failed in their
professional obligations by publishing what they had learned about the case of the notary
X - the information published had not been put in doubt by the judges and AdvocateGeneral who had brought the defamation proceedings, except in one instance.
Essentially, the journalists had been found liable for having made unproved statements
about the private life of the judges and Advocate-General who had brought proceedings
and for having concluded from these that they had not been impartial in their handling of
the case in question.
Distinction between facts and value judgments - judgment complained of related not so
much to the allegations reported as to the comments which those had inspired the
journalists to make - alleged political sympathies could be regarded as potentially lending
credibility to the idea that they were not irrelevant to the decisions being criticised allusion to past history of father of one of the judges unacceptable but only one of the
elements in the case.
Accusations against the judges and Advocate-General amounted to an opinion comments severely critical but proportionate to the stir and indignation caused by the
matters alleged - necessity of interference not shown, except as regards allusion to past
history of father of one of the judges.
Conclusion: violation (seven votes to two).
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II. Article 6 § 1 of the Convention
Recapitulation of case-law on equality of arms.
In order to deny that there had been any basis for the journalists' argument, the judges and
Advocate-General who had brought proceedings had referred to the content of the case
they had themselves dealt with and of the judgments delivered by them or with their aid.
Journalists' legitimate concern not to risk compromising their sources of information by
lodging themselves the documents whose production they had sought - articles had
contained such a wealth of detail that it could not have been reasonably supposed,
without further inquiry, that the authors had not had at least some relevant information
available to them.
The proceedings brought against the applicants had related solely to whether they had
been entitled to express themselves as they had - in order to answer that question, it was
sufficient to produce documents likely to prove or disprove truth of applicants'
allegations - outright rejection of application for production of documents had put
journalists at a substantial disadvantage vis-à-vis the plaintiffs - breach of principle of
equality of arms - unnecessary to examine the other complaints raised under Article 6 § 1.
Conclusion: violation (unanimously).
III. Article 50 of the Convention
A. Pecuniary damage
Claim allowed.
B. Non-pecuniary damage
Judgment afforded sufficient just satisfaction.
C. Costs and expenses
Reimbursement.
Conclusion: respondent State to pay specified sums to the applicants (unanimously).
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
32. The applicants alleged that the judgment of the Brussels tribunal de première
instance and Court of Appeal against them had entailed a breach of Article 10 of the
Convention, which provides:
"1. Everyone has the right to freedom of expression. This right shall include
freedom to hold opinions and to receive and impart information and ideas without
interference by public authority and regardless of frontiers. This Article shall not
prevent States from requiring the licensing of broadcasting, television or cinema
enterprises.
2. The exercise of these freedoms, since it carries with it duties and
responsibilities, may be subject to such formalities, conditions, restrictions or
penalties as are prescribed by law and are necessary in a democratic society, in
the interests of national security, territorial integrity or public safety, for the
prevention of disorder or crime, for the protection of health or morals, for the
protection of the reputation or rights of others, for preventing the disclosure of
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information received in confidence, or for maintaining the authority and
impartiality of the judiciary."
33. The judgment against the applicants indisputably amounted to an "interference" with
their exercise of their freedom of expression. It was common ground that the interference
had been "prescribed by law" and had pursued at least one of the legitimate aims referred
to in Article 10 § 2 - the protection of the reputation or rights of others, in this instance
the rights of the judges and Advocate-General who brought proceedings.
The Court agrees. It must therefore ascertain whether the interference was "necessary in a
democratic society" for achieving that aim.
34. Mr De Haes and Mr Gijsels pointed out that their articles had been written against the
background of a public debate, reported by other newspapers, on incest in Flanders and
on the way in which the judiciary was dealing with the problem. Before writing them,
they had undertaken sufficient research and sought the opinion of several experts, and
that had enabled them to base the articles on objective evidence. The only reason why
they had not produced that evidence in court was that they had not wished to disclose
their sources of information. The refusal of the Brussels courts of first instance and
appeal to admit in evidence the documents they had mentioned had accordingly in itself
entailed a breach of Article 10.
Their criticisms of the judges and Advocate-General concerned could not, they
continued, justify a penalty merely on the ground that the criticisms were at odds with
decisions of the Antwerp Court of Appeal. The determination of the "judicial truth" in a
court decision did not mean that any other opinion had to be considered wrong when the
exercise of the freedom of the press was being reviewed. That, however, was exactly
what had happened in the instant case, although the impugned articles had been based on
sufficient objective information. In short, the interference complained of had not been
necessary in a democratic society.
35. The Commission accepted this argument in substance.
36. The Government maintained that, far from stimulating discussion of the functioning
of the system of justice in Belgium, the impugned press articles had contained only
personal insults directed at the Antwerp judges and Advocate-General and had therefore
not deserved the enhanced protection to which political views were entitled. No
immunity could be claimed for opinions expressed by journalists merely on the ground
that the accuracy of those opinions could not be verified. In the instant case the authors of
the articles had incurred a penalty for having exceeded the limits of acceptable criticism.
It would have been quite possible to challenge the way the courts had dealt with Mr X's
cases without at the same time making a personal attack on the judges and AdvocateGeneral concerned and accusing them of bias and of showing "a lack of independence".
In that connection, it also had to be borne in mind that the duty of discretion laid upon
magistrats prevented them from reacting and defending themselves as, for example,
politicians did.
37. The Court reiterates that the press plays an essential role in a democratic society.
Although it must not overstep certain bounds, in particular in respect of the reputation
and rights of others, its duty is nevertheless to impart - in a manner consistent with its
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obligations and responsibilities - information and ideas on all matters of public interest,
including those relating to the functioning of the judiciary.
The courts - the guarantors of justice, whose role is fundamental in a State based on the
rule of law - must enjoy public confidence. They must accordingly be protected from
destructive attacks that are unfounded, especially in view of the fact that judges are
subject to a duty of discretion that precludes them from replying to criticism.
In this matter as in others, it is primarily for the national authorities to determine the need
for an interference with the exercise of freedom of expression. What they may do in this
connection is, however, subject to European supervision embracing both the legislation
and the decisions applying it, even where they have been given by an independent court
(see, mutatis mutandis, the Prager and Oberschlick v. Austria judgment of 26 April 1995,
Series A no. 313, pp. 17-18, §§ 34-35).
38. The Court notes at the outset that the judgment against the applicants was based on all
the articles published by them between 26 June and 27 November 1986 on the subject of
the X case.
This must be taken into account for the purpose of assessing the scale and necessity of the
interference complained of.
39. The articles contain a mass of detailed information about the circumstances in which
the decisions on the custody of Mr X's children were taken. That information was based
on thorough research into the allegations against Mr X and on the opinions of several
experts who were said to have advised the applicants to disclose them in the interests of
the children.
Even the Antwerp Court of Appeal considered that Mr X's wife and parents-in-law, who
had been prosecuted for criminal libel, "had no good reason to doubt the truth of the
allegations" in question (see paragraph 8 above).
That being so, the applicants cannot be accused of having failed in their professional
obligations by publishing what they had learned about the case. It is incumbent on the
press to impart information and ideas of public interest. Not only does the press have the
task of imparting such information and ideas: the public also has a right to receive them
(see, among other authorities, the Jersild v. Denmark judgment of 23 September 1994,
Series A no. 298, p. 23, § 31, and the Goodwin v. the United Kingdom judgment of 27
March 1996, Reports of Judgments and Decisions 1996-II, p. 500, § 39). This was
particularly true in the instant case in view of the seriousness of the allegations, which
concerned both the fate of young children and the functioning of the system of justice in
Antwerp. The applicants, moreover, made themselves quite clear in this regard when they
wrote in their article of 18 September 1986: "It is not for the press to usurp the role of the
judiciary, but in this outrageous case it is impossible and unthinkable that we should
remain silent" (see paragraph 21 above).
40. It should be noticed, moreover, that the judges and Advocate-General who brought
proceedings did not, either in their writ or in their submissions to the Brussels courts of
first instance and appeal, cast doubt on the information published about the fate of the X
children, other than on the statement that the case in question had been withdrawn from
the Antwerp courts (see paragraphs 22 and 23 above). However, the weight of the latter
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item in comparison with the impugned articles as a whole and the fact that the
applicants corrected it themselves, mean that, on its own, that incident cannot put in
doubt the reliability of the journalists' work.
41. In actual fact the judges and Advocate-General complained mainly of the personal
attacks to which they considered they had been subjected in the journalists' comments on
the events in the custody proceedings in respect of the X children. The applicants, in
accusing them of marked bias and cowardice, had, they maintained, made remarks about
them that were defamatory and constituted an attack on their honour. The applicants had
furthermore accused two of them of pronounced extreme-right-wing sympathies and had
thus grossly infringed their right to respect for their private life.
The Brussels courts accepted that contention in substance (see paragraphs 11 and 14
above). The Court of Appeal essentially found the applicants guilty of having made
unproved statements about the private life of the judges and Advocate-General who had
brought proceedings and of having drawn defamatory conclusions by alleging that they
had not been impartial in their handling of the case of the X children. Its judgment says:
"In the instant case the appellants dared to go one step further by maintaining,
without a shred of evidence, that they were entitled to infer the alleged bias from
the very personalities of the judges and the Advocate-General and thus interfere
with private life, which is without any doubt unlawful.
Furthermore, the purpose of the present proceedings is not to decide what
ultimately was the objective truth in the case that the original plaintiffs finally
determined at the time but merely whether the comments in issue are to be
considered defamatory, which is not in the slightest doubt." (see paragraph 14
above)
42. The Court reiterates that a careful distinction needs to be made between facts and
value judgments. The existence of facts can be demonstrated, whereas the truth of value
judgments is not susceptible of proof (see the Lingens v. Austria judgment of 8 July
1986, Series A no. 103, p. 28, § 46).
43. As regards, firstly, the statements concerning the political sympathies of the judges
and Advocate-General who brought proceedings, it must be noted that the Brussels Court
of Appeal held:
"Even if the appellants believed that certain ideological views could be ascribed
to the respondents (views which they have failed to prove that the respondents
held), they cannot in any event be permitted purely and simply to infer from those
views - even if they had been proved - that the judges and the Advocate-General
were biased and to criticise that bias in public." (see paragraph 14 above)
It is apparent from this that even if the allegations in question had been accurate, the
applicants would not have escaped being found liable since that finding related not so
much to the allegations reported as to the comments which these inspired the journalists
to make.
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44. Added to the information which the applicants had been able to gather about Mr X's
behaviour towards his children, information which was in itself capable of justifying the
criticism of the decisions taken by or with the aid of the judges and Advocate-General
concerned, the facts which they believed they were in a position to allege concerning
those persons' political sympathies could be regarded as potentially lending credibility to
the idea that those sympathies were not irrelevant to the decisions in question.
45. One of the allusions to the alleged political sympathies was inadmissible - the one
concerning the past history of the father of one of the judges criticised (see paragraph 19
above). It is unacceptable that someone should be exposed to opprobrium because of
matters concerning a member of his family. A penalty was justifiable on account of that
allusion by itself.
It was, however, only one of the elements in this case. The applicants were convicted for
the totality of the accusations of bias they made against the three judges and the
Advocate-General in question.
46. In this connection, the Court reiterates that freedom of expression is applicable not
only to "information" or "ideas" that are favourably received or regarded as inoffensive or
as a matter of indifference but also to those that offend, shock or disturb the State or any
section of the community. In addition, journalistic freedom also covers possible recourse
to a degree of exaggeration, or even provocation (see, mutatis mutandis, the Prager and
Oberschlick judgment cited above, p. 19, § 38).
47. Looked at against the background of the case, the accusations in question amount to
an opinion, whose truth, by definition, is not susceptible of proof. Such an opinion may,
however, be excessive, in particular in the absence of any factual basis, but it was not so
in this instance; in that respect the present case differs from the Prager and Oberschlick
case (see the judgment cited above, p. 18, § 37).
48. Although Mr De Haes and Mr Gijsels' comments were without doubt severely
critical, they nevertheless appear proportionate to the stir and indignation caused by the
matters alleged in their articles. As to the journalists' polemical and even aggressive tone,
which the Court should not be taken to approve, it must be remembered that Article 10
protects not only the substance of the ideas and information expressed but also the form
in which they are conveyed (see, as the most recent authority, the Jersild judgment cited
above, p. 23, § 31).
49. In conclusion, the Court considers that, regard being had to the seriousness of the
circumstances of the case and of the issues at stake, the necessity of the interference with
the exercise of the applicants' freedom of expression has not been shown, except as
regards the allusion to the past history of the father of one of the judges in question (see
paragraph 45 above).
There has therefore been a breach of Article 10.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
50. The applicants also complained of a breach of Article 6 § 1, which provides:
"In the determination of his civil rights and obligations ..., everyone is entitled to
a fair ... hearing ... by an ... impartial tribunal..."
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They firstly criticised the Brussels tribunal de première instance and Court of Appeal
for having refused to admit in evidence the documents referred to in the impugned
articles or hear at least some of their witnesses (see paragraphs 10 and 12 above). This,
they said, had resulted in a basic inequality of arms between, on the one hand, the judges
and the Advocate-General, who were familiar with the file, and, on the other, the
journalists, who with only limited sources had had to reconstruct the truth.
Further, in arguing against Mr De Haes and Mr Gijsels on the basis of their article of 14
October 1988 (see paragraph 24 above), the Brussels Court of Appeal had ruled on
matters not before it as the judges criticised in that article were not parties to the case
before the Court of Appeal and their decision had not been mentioned in the original writ.
The Court of Appeal had thus taken as a basis a fact that had not been the subject of
adversarial argument and had thereby departed from due process.
Lastly, the derogatory terms used in the Brussels Court of Appeal's judgment showed that
there had been a lack of subjective impartiality.
51. The Commission shared, in substance, the applicants' opinion as to the effects of the
alleged breaches on equality of arms and due process. It did not consider it necessary to
express a view on the Brussels Court of Appeal's impartiality.
52. The Government submitted that the evidence which the journalists proposed to
submit had been calculated to call in question the decisions taken in the lawsuit between
Mr X and his wife, which was res judicata. The Brussels courts had therefore been
entitled to reject it, seeing that the "judicial truth" was sufficiently clear from the
judgments delivered in Mr X's cases. In short, production of the evidence in question had
been shown not to be decisive in the instant case, and the Court of Cassation had
confirmed that.
As to the Court of Appeal's reference to the press article of 14 October 1988, it was a
superfluous reason, as the judgment against the applicants rested primarily on other
grounds. The reference to that article in the submissions of the judges and AdvocateGeneral who had brought proceedings was not intended to amend their claim but simply
to highlight Mr De Haes and Mr Gijsels' relentless hostility.
53. The Court reiterates that the principle of equality of arms - a component of the
broader concept of a fair trial - requires that each party must be afforded a reasonable
opportunity to present his case under conditions that do not place him at a substantial
disadvantage vis-à-vis his opponent (see, among other authorities, the Ankerl v.
Switzerland judgment of 23 October 1996, Reports of Judgments and Decisions 1996-V,
pp. 1565-1566, § 38).
54. It notes that in their submissions to the Brussels courts of first instance and appeal the
judges and Advocate-General concerned maintained, in substance and inter alia, that the
criticisms made of them in Humo were not supported by the facts of the case and
certainly not by the four judgments that had been delivered by them or with their aid in
that case, which were otherwise uncontradicted. They thus referred, in order to deny that
there was any basis for the journalists' argument, to the content of the case they had
themselves dealt with and of the relevant judgments.
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Coming as it did from the judges and Advocate-General who had handled the case, that
statement had such credibility that it could hardly be seriously challenged in the courts if
the defendants could not adduce at least some relevant documentary or witness evidence
to that end.
55. In this respect, the Court does not share the Brussels Court of Appeal's opinion that
the request for production of documents demonstrated the lack of care with which Mr De
Haes and Mr Gijsels had written their articles. It considers that the journalists' concern
not to risk compromising their sources of information by lodging the documents in
question themselves was legitimate (see, mutatis mutandis, the Goodwin v. the United
Kingdom judgment cited above, Reports 1996-..., p. .., § 45). Furthermore, their articles
contained such a wealth of detail about the fate of the X children and the findings of the
medical examinations they had undergone that it could not reasonably be supposed,
without further inquiry, that the authors had not had at least some relevant information
available to them.
56. It should also be noted that the journalists' argument could hardly be regarded as
wholly unfounded, since even before the judges and the Advocate-General brought
proceedings against the applicants, the Antwerp tribunal de première instance and Court
of Appeal had held that the defendants in the libel action Mr X had brought against his
wife and parents-in-law had not had any good reason to doubt the truth of their
allegations (see paragraph 8 above).
57. At all events, the proceedings brought against the applicants by the judges and the
Advocate-General did not relate to the merits of the judgment in the X case but solely to
the question whether in the circumstances the applicants had been entitled to express
themselves as they had. It was not necessary in order to answer that question to produce
the whole file of the proceedings concerning Mr X but only documents which were likely
to prove or disprove the truth of the applicants' allegations.
58. It was in those terms that Mr De Haes and Mr Gijsels made their application. They
asked the Brussels tribunal de première instance and Court of Appeal at least to study the
opinion of the three professors whose examinations had prompted the applicants to write
their articles (see paragraph 10 above). The outright rejection of their application put the
journalists at a substantial disadvantage vis-à-vis the plaintiffs. There was therefore a
breach of the principle of equality of arms.
59. That finding alone constitutes a breach of Article 6 § 1. The Court consequently
considers it unnecessary to examine the other complaints raised by the applicants under
that provision.
TELESYSTEM TIROL KABELTELEVISION v. AUSTRIA (21/1996/585/640/824)
9 June 1997: television company unable to broadcast own programmes on
account of Austrian Broadcasting Corporation's monopoly
Austria - television company unable to broadcast own programmes on account of
Austrian Broadcasting Corporation's monopoly - Article 10 of the Convention
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Rule 51 §§ 2 and 4 of Rules of Court B
Friendly settlement concluded between the Austrian Government and the applicant - no
public policy reasons of such a kind as to necessitate continuation of the proceedings.
Conclusion: case ordered to be struck out of the list (unanimously).
I. The circumstances of the case
8. Telesystem Tirol Kabeltelevision Unterland Gesellschaft m.b.H. & Co KG
("Telesystem Tirol Kabeltelevision") is a limited partnership whose registered address is
in Wörgl (Tyrol, Austria).
Having obtained authorisation to set up a shared aerial (Gemeinschaftsantennenanlage),
the applicant was able to receive broadcast programmes and retransmit them to
subscribers via a cable television network.
9. On 11 January 1989 it sent out to its subscribers, via the cable network, some practical
information about local life.
10. On the same day the Tirol and Vorarlberg Regional Post and Telecommunications
Head Office (Post- und Telegraphendirektion) informed Telesystem Tirol
Kabeltelevision that the transmission of this type of information was in breach of the
relevant regulations.
11. On 12 January 1989 the applicant applied for authorisation to send out its own
programmes via its cable network.
12. On 16 January 1989 the Regional Head Office rejected the above application on the
ground that under Article 20 § 1 of the Broadcasting Ordinance (Rundfunkverordnung see paragraph 19 below) the applicant could use a shared aerial to pick up broadcasts and
retransmit them to its subscribers but not to send out its own programmes on the cable
network.
13. The applicant appealed against this decision to the National Post and
Telecommunications Head Office (Generaldirektion für die Post- und
Telegraphenverwaltung), which dismissed the appeal on 17 February 1989, basing its
decision in particular on the Constitutional Court's judgment of 16 December 1983 (see
paragraph 22 below).
14. Telesystem Tirol Kabeltelevision then applied to the Constitutional Court
(Verfassungsgerichtshof).
15. On 26 November 1990 the Constitutional Court, referring to its judgment of 16
December 1983, decided not to give the application further consideration on the ground
that it did not have sufficient prospects of success and passed it on to the Administrative
Court (Verwaltungsgerichtshof).
16. On 18 September 1991 the Administrative Court dismissed the application. It held
that the applicant was not content with picking up and retransmitting information but was
itself creating programmes intended for the public at large and that, regard being had to
the Constitutional Court's judgment of 16 December 1983, Telesystem Tirol
Kabeltelevision could not therefore be authorised to send out its own programmes.
II. Relevant domestic law
A. The Telecommunications Law of 13 July 1949
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17. According to the Telecommunications Law (Fernmeldegesetz) of 13 July 1949,
"the right to set up and operate telecommunications installations (Fernmeldeanlagen) is
vested exclusively in the federal authorities (Bund)" (Article 2 § 1). The latter may
however confer on natural or legal persons the power to exercise that right in respect of
specific installations (Article 3 § 1). No licence is required in certain circumstances,
including the setting up of an installation within the confines of a private property
(Article 5).
B. The Ministerial Ordinance of 18 September 1961 concerning private
telecommunications installations
18. The Ministerial Ordinance of 18 September 1961 concerning private
telecommunications installations (Verordnung des Bundesministeriums für Verkehr und
Elektrizitätswirtschaft über Privatfernmeldeanlagen) lays down inter alia the conditions
for setting up and operating private telecommunications installations subject to federal
supervision. According to the case-law, it cannot however constitute the legal basis for
the grant of licences.
C. The 1965 Broadcasting Ordinance
19. Article 20 § 1 of the 1965 Broadcasting Ordinance (Rundfunkverordnung) provides
that radio signals must be retransmitted in full to users immediately after being picked up.
Under Article 24 of the Ordinance, in the amended version in force since 31 July 1993
(Official Gazette - Bundesgesetzblatt - no. 507/1993) the bearers of a licence to operate a
shared aerial may, without having to seek further permission, send text via the cable
network, using their own equipment (paragraph 1). By means of this type of teletext it is
possible, inter alia, to impart information to the members of a community or the
population of a region in the form of alphanumeric symbols, other graphical signs or
pages of teletext. This is an additional service provided to subscribers (via a separate
channel and the vertical interval of the television signal).
D. The Constitutional Law of 10 July 1974 guaranteeing the independence of
broadcasting
20. According to Article 1 of the Constitutional Law of 10 July 1974 guaranteeing the
independence of broadcasting (Bundesverfassungsgesetz über die Sicherung der
Unabhängigkeit des Rundfunks),
"...
2. Broadcasting shall be governed by more detailed rules to be set out in a federal
law. Such a law must inter alia contain provisions guaranteeing the objectivity
and impartiality of reporting, the diversity of opinions, balanced programming
and the independence of persons and bodies responsible for carrying out the
duties defined in paragraph 1.
3. Broadcasting within the meaning of paragraph 1 shall be a public service."
E. The Law of 10 July 1974 on the Austrian Broadcasting Corporation
21. The Law of 10 July 1974 on the Austrian Broadcasting Corporation (Bundesgesetz
über die Aufgaben und die Einrichtung des Österreichischen Rundfunks) established the
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Austrian Broadcasting Corporation with the status of an autonomous public-law
corporation.
It is under a duty to provide comprehensive news coverage of major political, economic,
cultural and sporting events; to this end, it has to broadcast, in compliance with the
requirements of objectivity and diversity of views, in particular current affairs, news
reports, commentaries and critical opinions (Article 2 § 1 (1)), and to do so via at least
two television channels and three radio stations, one of which must be a regional station
(Article 3). Broadcasting time must be allocated to the political parties represented in the
national parliament and to representative associations (Article 5 § 1).
A supervisory board (Kommission zur Wahrung des Rundfunkgesetzes) rules on all
disputes concerning the application of the above-mentioned law which fall outside the
jurisdiction of an administrative authority or court (Articles 25 and 27). It is composed of
seventeen independent members, including nine judges, appointed for terms of four years
by the President of the Republic on the proposal of the Federal Government.
F. The Constitutional Court's judgment of 16 December 1983
22. In a judgment of 16 December 1983 the Constitutional Court held that the freedom to
set up and operate radio and television stations was subject to the powers accorded to the
legislature under paragraph 1 in fine and paragraph 2 of Article 10 of the Convention
(Gesetzesvorbehalt). The Constitutional Broadcasting Law had instituted a system which
made all activity of this type subject to the grant of a licence by the federal legislature.
This system was intended to ensure objectivity and diversity of opinions
(Meinungsvielfalt), and would be ineffective if it were possible for everybody to obtain
the requisite authorisation. As matters stood, the right to broadcast was restricted to the
Austrian Broadcasting Corporation, as no implementing legislation had been enacted in
addition to the law governing that organisation (see the Informationsverein Lentia and
Others v. Austria judgment of 24 November 1993, Series A no. 276, pp. 8-9, § 10).
G. The Constitutional Court's judgments of 27 September 1995 and 8 October 1996
23. In a judgment of 27 September 1995 the Constitutional Court set aside with effect
from 1 August 1996 the rule limiting cable distribution to the retransmission of
programmes produced by others ("passive broadcasting") and the transmission of text, on
the ground that it was contrary to Article 10 of the Convention. In that connection the
Constitutional Court referred explicitly to the judgment given by the European Court of
Human Rights on 24 November 1993 in the case of Informationsverein Lentia and Others
v. Austria (loc. cit.). Since 1 August 1996 the transmission of original programmes
("active broadcasting") has accordingly been legal, just as passive broadcasting already
was.
24. In a judgment of 8 October 1996 the Constitutional Court declared unconstitutional
the prohibition of commercial advertising laid down in Article 24b § 2 of the
Broadcasting Ordinance, on the ground that it was contrary to Article 10 of the
Convention and restricted the freedom to carry on a gainful occupation.
PROCEEDINGS BEFORE THE COMMISSION
25. Telesystem Tirol Kabeltelevision applied to the Commission on 29 November 1991.
Relying on Article 10 of the Convention, it complained that, pursuant to Austrian law, it
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53
had been refused permission to send out its own programmes on account of the
Austrian Broadcasting Corporation's monopoly.
26. On 17 January 1995 the Commission declared the application (no. 19182/91)
admissible. In its report of 18 October 1995 it expressed the unanimous opinion that there
had been a violation of Article 10 of the Convention. The full text of the Commission's
opinion is reproduced as an annex to this judgment.
OBERSCHLICK v. AUSTRIA (no. 2) (47/1996/666/852) 1 July 1997: Political
discussion -- Applicant's article: could be considered polemical, but did not on
that account constitute gratuitous personal attack as he had provided an
objectively understandable explanation, derived from speech of politician
I. Article 10 of the Convention
The judicial decisions challenged before the Court had to be considered in light of case as
a whole, including article in question and circumstances in which it had been written politician concerned clearly intended to be provocative and consequently to arouse strong
reactions.
Applicant's article: could be considered polemical, but did not on that account constitute
gratuitous personal attack as he had provided an objectively understandable explanation,
derived from speech of politician concerned, for using term complained of - constituted
part of political discussion provoked by that speech and amounted to an opinion.
Calling a politician a Trottel (idiot) in public might offend him - in instant case, however,
word did not seem disproportionate to indignation knowingly aroused by politician
concerned - article's polemical tone: protected by Article 10.
Conclusion: violation (seven votes to two).
I. The circumstances of the case
7. Mr Oberschlick, a journalist living in Vienna, was at the material time editor of the
periodical Forum.
8. On 7 October 1990 on the occasion of a "peace celebration" (Friedensfeier) at the foot
of the Ulrichsberg, Mr Haider, leader of the Austrian Freedom Party (Freiheitliche Partei
Österreichs - FPÖ) and Governor (Landeshauptmann) of the Land of Carinthia, gave a
speech glorifying the role of the "generation of soldiers" who had taken part in the
Second World War. In it he said that all soldiers, including those in the German army,
had fought for peace and freedom and that people should therefore not differentiate
between "good" and "bad" soldiers of that generation but should rather be grateful to all
of them for having founded and built today's affluent, democratic society. Mr Haider then
criticised an Austrian writer who had, in his view, disparaged all those killed in the
Second World War, and continued as follows:
"Ladies and gentlemen, freedom of opinion is taken for granted in a democracy,
but it reaches its limits where people lay claim to that spirtitual freedom they
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would never have got if others had not risked their lives for them so that they may
now live in democracy and freedom."
9. This speech was reproduced in full in Forum and commented on by the applicant and
the aforementioned Austrian writer. Mr Oberschlick's passage, entitled "PS.: 'Trottel' statt
'Nazi'" ("PS.: `Idiot' instead of `Nazi'"), read as follows:
"I will say of Jörg Haider, firstly, that he is not a Nazi and, secondly, that he is,
however, an idiot. That I justify as follows:
[L.] [...] wholly convinced me that being called a Nazi is an advantage to Jörg
Haider. That is why I ask my friends to forgive my abstaining from using that
description for that very good reason.
...
As [Haider] denies those of us who in his eyes did not have the legitimising good
fortune (legitimierende Glück) to have risked our lives in the uniform of honour
(Ehrenkleid) of the Third Reich for the Hitlerian freedom to wage wars of
conquest (Raubkrieg) and impose the final solution, [and as he denies us] the right
"to lay claim to a purely `spiritual' freedom of opinion", let alone a "political
freedom", and he himself has
never had the good fortune to serve in the uniform of honour of the SS or the
German army (Wehrmacht), thus excluding himself along with the vast majority
of Austrians from any exercise of freedom, he is, in my eyes, an idiot."
10. On 26 April 1991 Mr Haider brought an action for defamation (üble Nachrede) and
insult (Beleidigung) against the applicant in the Vienna Regional Criminal Court
(Landesgericht für Strafsachen - "the Regional Court"). He also applied for an order for
the immediate seizure of the relevant issue of the periodical and for an announcement of
the institution of proceedings to be published in Forum.
11. On 30 April 1991 the court allowed the application for an announcement to be
published, but on 21 May 1991 Mr Oberschlick appealed against that decision.
12. On 23 May 1991 the court found the applicant guilty under Article 115 of the
Criminal Code (see paragraph 19 below) of having insulted Mr Haider and sentenced him
to pay twenty day-fines of 200 Austrian schillings (ATS), with ten days' imprisonment in
default. In the court's view, the word Trottel (idiot) was an insult (Schimpfwort) and
could only ever be used as a disparagement (Herabsetzung); it therefore could never be
used for any objective criticism (sachliche Kritik). In the written version of the judgment
the court ordered the seizure of the relevant issue of Forum.
ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
24. Mr Oberschlick argued that the decisions in which he was held to be guilty of insult
had infringed his right to freedom of expression as secured in Article 10 of the
Convention, which provides:
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"1. Everyone has the right to freedom of expression. This right shall include
freedom to hold opinions and to receive and impart information and ideas without
interference by public authority and regardless of frontiers. This Article shall not
prevent States from requiring the licensing of broadcasting, television or cinema
enterprises.
2. The exercise of these freedoms, since it carries with it duties and
responsibilities, may be subject to such formalities, conditions, restrictions or
penalties as are prescribed by law and are necessary in a democratic society, in
the interests of national security, territorial integrity or public safety, for the
prevention of disorder or crime, for the protection of health or morals, for the
protection of the reputation or rights of others, for preventing the disclosure of
information received in confidence, or for maintaining the authority and
impartiality of the judiciary."
25. His conviction by the Vienna Regional Court on 23 May 1991 (see paragraph 11
above), upheld by the Vienna Court of Appeal on 25 March 1992 (see paragraph 18
above), had indisputably amounted to an "interference" with the exercise of freedom of
expression.
Those appearing before the Court also agreed that the interference was "prescribed by
law" - Article 115 of the Criminal Code (see paragraph 19 above) - and its purpose was to
protect "the reputation or rights of others", within the meaning of Article 10 § 2.
The oral argument dealt with the question whether the interference was "necessary in a
democratic society" in order to achieve that end.
26. In the applicant's submission, the word Trottel had not been used by chance; it was
the only word that could both draw public attention to how outrageous the arguments in
Mr Haider's speech were and sum up the criticism of him in the article in issue. Both the
words and the tone had been chosen to show Mr Haider and readers just how illogical,
unreasonable and dangerous his words at the Ulrichsberg had been in that they were such
as to deprive the speaker himself and most citizens of the right to freedom of opinion.
That being so, it was in the public interest to warn people at large against the ideas of the
person who was at that time Governor of the Land of Carinthia and was even regarded as
a possible candidate for the position of Federal Chancellor. In sum, the word Trottel had
been directed not against the speaker but against what he had said, as any average reader
had been able to see.
27. The Commission accepted that the word in issue could be considered insulting but
was of the view that in the circumstances of the case and regard being had in particular to
the views expressed by Mr Haider, the applicant's conviction represented a
disproportionate interference with the exercise of his freedom of expression.
28. The Government pointed out that the conviction in question related not to Mr
Oberschlick's criticism of Mr Haider but merely to the use of the word Trottel. Far from
being able to be regarded as the expression of an opinion, it was nothing but an insult
used to denigrate and disparage an individual in public. That was not acceptable in a
democratic society, even where the person being attacked had defended extreme opinions
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which were intended to provoke. In order to maintain a minimum level in political
debate, certain basic rules had to be observed. Insults, denigrations and offensive
language could not enjoy general, unlimited protection under the Convention as they
made no positive contribution to the political development of society. They were more
likely to poison the climate by prompting a desire for retaliation. In its own interests a
democratic society could not tolerate such an escalation.
29. The Court reiterates that, subject to paragraph 2 of Article 10 of the Convention,
freedom of expression is applicable not only to "information" and "ideas" that are
favourably received or regarded as inoffensive or as a matter of indifference, but also to
those that offend, shock or disturb.
These principles are of particular importance with regard to the press. While it must not
overstep the bounds set, inter alia, for "the protection of the reputation of others", its task
is nevertheless to impart information and ideas on political issues and on other matters of
general interest.
As to the limits of acceptable criticism, they are wider with regard to a politician acting in
his public capacity than in relation to a private individual. A politician inevitably and
knowingly lays himself open to close scrutiny of his every word and deed by both
journalists and the public at large, and he must display a greater degree of tolerance,
especially when he himself makes public statements that are susceptible of criticism. He
is certainly entitled to have his reputation protected, even when he is not acting in his
private capacity, but the requirements of that protection have to be weighed against the
interests of open discussion of political issues, since exceptions to freedom of expression
must be interpreted narrowly (see, in particular, the Oberschlick v. Austria (no. 1)
judgment of 23 May 1991, Series A no. 204, pp.25-26, §§ 57-59, and the Vereinigung
demokratischer Soldaten Österreichs and Gubi v. Austria judgment of 19 December
1994, Series A no. 302, p. 17, § 37).
30. The Court notes that Mr Oberschlick was convicted for having insulted Mr Haider by
describing him as a Trottel in the title and in the main body of the article he published in
Forum. The Regional Court considered that the word itself was insulting and that its mere
use was enough to justify the conviction (see paragraph 12 above). The Vienna Court of
Appeal took the view that the mere fact that the word in question also appeared in the
title of the article made it insulting since readers who had read neither the article nor Mr
Haider's speech and the comments on it would link the word not with what Mr Haider
had said but with his own person (see paragraph 18 above).
31. The Court disagrees. It wishes to point out in this connection that the judicial
decisions challenged before it must be considered in the light of the case as a whole,
including the applicant's article and the circumstances in which it was written see the
Oberschlick (no. 1) judgment cited above, p. 26, § 60).
The most important of these is Mr Haider's speech, which Mr Oberschlick was reporting
on in his article. In claiming, firstly, that all the soldiers who had served in the Second
World War, whatever side they had been on, had fought for peace and freedom and had
contributed to founding and building today's democratic society and in suggesting,
secondly, that only those who had risked their lives in that war were entitled to enjoy
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freedom of opinion, Mr Haider clearly intended to be provocative and consequently to
arouse strong reactions.
32. As to Mr Oberschlick's article, it was published together with the speech in question
and an article by a writer who was also reacting to what Mr Haider had said. In his article
the applicant briefly explained, in some twenty lines, why Mr Haider's remarks had
prompted him to describe him as a Trottel rather than as a Nazi - mainly because in his
speech Mr Haider had excluded himself from enjoying any freedom of opinion.
33. In the Court's view, the applicant's article, and in particular the word Trottel, may
certainly be considered polemical, but they did not on that account constitute a gratuitous
personal attack as the author provided an objectively understandable explanation for them
derived from Mr Haider's speech, which was itself provocative. As such they were part of
the political discussion provoked by Mr Haider's speech and amount to an opinion, whose
truth is not susceptible of proof. Such an opinion may, however, be excessive, in
particular in the absence of any factual basis, but in the light of the above considerations
that was not so in this instance (see, as the most recent authority, the De Haes and Gijsels
v. Belgium judgment of 24 February 1997, Reports of Judgments and Decisions - 1997-..,
p. ..., § 47).
34. It is true that calling a politician a Trottel in public may offend him. In the instant
case, however, the word does not seem disproportionate to the indignation knowingly
aroused by Mr Haider. As to the polemical tone of the article, which the Court should not
be taken to approve, it must be remembered that Article 10 protects not only the
substance of the ideas and information expressed but also the form in which they are
conveyed (see among other authorities, the Oberschlick (no. 1) judgment cited above, p.
15, § 57).
35. In conclusion, the Court considers that the necessity of the interference with the
exercise of the applicant's freedom of expression has not been shown.
There has therefore been a breach of Article 10.
WORM v. AUSTRIA (83/1996/702/894) 29 August 1997: journalist's conviction
for publishing an article considered capable of influencing outcome of criminal
proceedings -- Applicant's conviction constituted interference with his right to
freedom of expression.
Austria - journalist's conviction for publishing an article considered capable of
influencing outcome of criminal proceedings (section 23 of the Media Act)
II. ARTICLE 10 OF THE CONVENTION
Applicant's conviction constituted interference with his right to freedom of expression.
A. Whether interference was "prescribed by law"
Convictions for "prohibited influence on criminal proceedings" have legal basis in
domestic law (s. 23 of Media Act) - application of that provision to applicant's case not
beyond what could be reasonably foreseen in circumstances - impugned conviction was
"prescribed by law".
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B. Whether interference pursued a legitimate aim
Interference aimed at "maintaining the authority and impartiality of the judiciary" Contracting States entitled to take account of considerations going to general protection
of the fundamental role of courts in a democratic society - various reasons given for
conviction fell within that aim - not necessary to examine separately whether interference
aimed at protecting right to presumption of innocence.
C. Whether interference was "necessary in a democratic society"
Reasons given for conviction were "relevant" with regard to aim pursued.
Courts cannot operate in vacuum - there is room for discussion of subject-matter of
criminal trials in specialised journals, in general press or amongst public at large reporting, including comment, on court proceedings contributes to their publicity in
consonance with Article 6 § 1 requirement that hearings be public - particularly where a
public figure is involved - limits of acceptable comment wider as regards a politician than
as regards private individuals - public figures nonetheless entitled to enjoyment of fairtrial guarantees on same basis as every other person.
Conviction at issue not directed against applicant's right to inform in an objective manner
about public figure's trial but against unfavourable assessment of an element of evidence
at the trial - applicant clearly stated opinion on accused's guilt - appeal court took into
account impugned article in its entirety – article cannot be said to be incapable of
warranting conclusion as to its potential for influencing outcome of trial.
It was primarily for appeal court to evaluate likelihood that article would be read by at
least the lay judges and to ascertain applicant's criminal intent - appeal court entitled to
punish applicant's attempt to usurp courts' role.
Interests of applicant and public in imparting and receiving ideas concerning matter of
general concern not such as to outweigh considerations as to adverse consequences of
diffusion of impugned article for the authority and impartiality of the judiciary in Austria
- reasons adduced to justify interference also "sufficient".
Given amount of fine and fact that publishing firm was made jointly and severally liable
for payment, sanction not disproportionate to aim.
Applicant's conviction and sentence "necessary in a democratic society".
Conclusion: no violation (seven votes to two).
II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
36. It was uncontested that the applicant's conviction constituted an interference with his
right to freedom of expression as guaranteed by paragraph 1 of Article 10 and the Court
sees no reason to hold otherwise. It must therefore be examined whether the interference
was justified under the second paragraph of that provision.
A. Whether the interference was "prescribed by law"
37. It was common ground that convictions for "prohibited influence on criminal
proceedings" have a legal basis in domestic law, namely section 23 of the Media Act (see
paragraph 23 above).
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The applicant maintained, however, that the facts in his case did not fall within the
ambit of that provision and that the Vienna Court of Appeal had erred in its finding that
his article was calculated to influence the criminal proceedings against Mr Androsch.
38. The Court reiterates that the relevant national law must be formulated with sufficient
precision to enable the persons concerned - if need be with appropriate legal advice - to
foresee, to a degree that is reasonable in the circumstances, the consequences which a
given action may entail. It is primarily for the national authorities, notably the courts, to
interpret and apply domestic legislation (see, inter alia, the Chorherr v. Austria judgment
of 25 August 1993, Series A no. 266-B, pp. 35-36, §§ 24-25). In the present case, the
Court is satisfied that the Vienna Court of Appeal's application of section 23 of the Media
Act to the applicant's case did not go beyond what could be reasonably foreseen in the
circumstances.
Accordingly, the Court concludes that the impugned conviction was "prescribed by law".
B. Whether the interference pursued a legitimate aim
39. In the present case it was not contested that the applicant's conviction was aimed at
"maintaining the authority and impartiality of the judiciary" and that it thus pursued a
legitimate aim under the Convention.
40. In this regard, the Court has consistently held that the expression "authority and
impartiality of the judiciary" has to be understood "within the meaning of the
Convention". For this purpose, account must be taken of the central position occupied in
this context by Article 6 which reflects the fundamental principle of the rule of law (see,
inter alia, the Sunday Times v. the United Kingdom (no. 1) judgment of 26 April 1979,
Series A no. 30, p. 34, § 55).
The phrase "authority of the judiciary" includes, in particular, the notion that the courts
are, and are accepted by the public at large as being, the proper forum for the settlement
of legal disputes and for the determination of a person's guilt or innocence on a criminal
charge; further, that the public at large have respect for and confidence in the courts'
capacity to fulfil that function (ibid., mutatis mutandis).
"Impartiality" normally denotes lack of prejudice or bias (see the Piersack v. Belgium
judgment of 1 October 1982, Series A no. 53, p. 14, § 30). However, the Court has
repeatedly held that what is at stake in maintaining the impartiality of the judiciary is the
confidence which the courts in a democratic society must inspire in the accused, as far as
criminal proceedings are concerned, and also in the public at large (see, mutatis mutandis,
among many other authorities the Fey v. Austria judgment of 24 February 1993, Series A
no. 255-A, p. 12, § 30).
It follows that, in seeking to maintain the "authority and impartiality of the judiciary", the
Contracting States are entitled to take account of considerations going - beyond the
concrete case - to the protection of the fundamental role of courts in a democratic society.
41. In view of the above, the various reasons contained in the judgment of the Vienna
Court of Appeal of 19 October 1992 (see paragraphs 17 to 22 above) are to be regarded
as falling within the aim of "maintaining the authority and impartiality of the judiciary".
42. The Government submitted that the applicant's conviction also pursued the aim of
protecting Mr Androsch's right to the presumption of innocence. Having regard to its
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analysis in the preceding paragraphs, the Court does not find it necessary to address
this question separately.
C. Whether the interference was "necessary in a democratic society"
43. The applicant asserted that his right to freedom of expression had been restricted
beyond the limits imposed by the second paragraph of Article 10 of the Convention. He
submitted that since the subject matter of his report was the trial of a former Minister of
Finance for tax offences committed when in office, indisputably an issue of public
concern, the limits of permissible criticism should be wider. As to the risk of influencing
the outcome of Mr Androsch's trial, he pointed out that the passage where the latter's
responsibility for tax evasion was alluded to referred to activities for which Mr Androsch
had already been convicted and which were well-known to the court.
44. The Commission expressed the opinion that the Vienna Court of Appeal did not
weigh the public interest in preventing undue influence of the media on pending criminal
proceedings, against the public interest in receiving information relating to the conduct of
a former Minister of Finance facing charges of tax evasion. When examining whether the
incriminated text was likely to influence the outcome of the proceedings, the appeal
court, unlike the first-instance court, had not taken the wording and the content of the
two-page article as a whole into account. Having regard to its specific context, the
conclusion suggested by the applicant in one passage, namely that Mr Androsch was
evading taxes, appeared as merely describing a state of suspicion, which the members of
the trial court, including the lay judges, were in a position to evaluate independently. The
Commission further observed that the appellate court should have dealt with the
applicant's defence that the incriminated passage merely paraphrased a statement the
public prosecutor had made at the trial.
The Commission accordingly concluded that the reasons adduced by the Court of Appeal
were not sufficient for the purposes of Article 10 § 2. The interference with the
applicant's right to freedom of expression could thus not be said to have been "necessary
in a democratic society" for maintaining the "authority and impartiality of the judiciary".
45. At the hearing, the Delegate of the Commission submitted that the question of
necessity under Article 10 § 2 would have required that the domestic courts ascertain
whether any real influence had indeed been exerted on the lay judges.
46. For the Government, the applicant's conduct went beyond the limits of permissible
reporting on a pending trial. Even if the entire content of the article were to be taken into
account, there was no question that the incriminated statement amounted to a typical
predetermination by the media of an accused's guilt. If the statement at issue was indeed a
quotation of the public prosecutor, the applicant would have had to indicate it, which he
did not.
They further pointed out that although lay judges are likely to read press reports on the
cases they try, Austrian law, unlike other legal systems, does not seek to insulate them
from exposure to outside influence while they are exercising their functions. There was
therefore a high probability that the opinion of Mr Worm, leading expert of the "Causa
Androsch", would exert influence on those judges, thereby jeopardising the impartiality
of the court.
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The Government finally submitted that the fine imposed on the applicant was not
disproportionate to the aim pursued.
47. The Court recalls that freedom of expression constitutes one of the essential
foundations of a democratic society and that the safeguards to be afforded to the press are
of particular importance (see, among other authorities, the Jersild v. Denmark judgment
of 23 September 1994, Series A no. 298, p. 23, § 31).
As a matter of general principle, the "necessity" for any restriction on freedom of
expression must be convincingly established (see the Sunday Times v. the United
Kingdom (no. 2) judgment of 26 November 1991, Series A no. 217, pp. 28-29, § 50).
Admittedly, it is in the first place for the national authorities to assess whether there is a
"pressing social need" for the restriction and, in making their assessment, they enjoy a
certain margin of appreciation. In the present context, however, the national margin of
appreciation is circumscribed by the interest of democratic society in ensuring and
maintaining a free press. Similarly, that interest will weigh heavily in the balance in
determining, as must be done under paragraph 2 of Article 10, whether the restriction was
proportionate to the legitimate aim pursued.
The Court's task, in exercising its supervisory function, is not to take the place of the
national authorities but rather to review under Article 10 the decisions they have taken
pursuant to their power of appreciation. In so doing, the Court must look at the
"interference" complained of in the light of the case as a whole and determine whether
the reasons adduced by the national authorities to justify it are "relevant and sufficient"
(see, among many other authorities, the Goodwin v. the United Kingdom judgment of 27
March 1996, Reports of Judgments and Decisions 1996-II, pp. 500-501, § 40).
48. In the instant case, the Vienna Court of Appeal, after carefully examining the
character of the incriminated article, concluded that it was objectively capable of
influencing the outcome of the proceedings. The Court of Appeal also dealt with the
question of the applicant's intent in publishing the article, in particular saying that it could
be inferred from the article that he wished to usurp the position of the judges dealing with
the case (see paragraphs 16-21 above).
The reasons given by the Court of Appeal were therefore "relevant" with regard to the
aim pursued. It remains to be ascertained whether they were also "sufficient" for that
same purpose.
49. In assessing this question, the Court recalls that the domestic margin of appreciation
is not identical as regards each of the aims listed in Article 10 § 2. With respect to the
notion of the "authority and impartiality of the judiciary", the Court has already noted its
objective character and the fact that, in this area, the domestic law and practice of the
member States of the Council of Europe reveal a fairly substantial measure of common
ground (see, mutatis mutandis, the Sunday Times (no. 1) judgment, cited above, p. 36, §
59). This does not mean that absolute uniformity is required and, indeed, since the
Contracting States remain free to choose the measures which they consider appropriate,
the Court cannot be oblivious of the substantive or procedural features of their respective
domestic laws (ibid., pp. 37-38, § 61). It cannot thus hold that the applicant's conviction
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was contrary to Article 10 of the Convention simply because it might not have been
obtained under a different legal system.
50. Restrictions on freedom of expression permitted by the second paragraph of Article
10 "for maintaining the authority and impartiality of the judiciary" do not entitle States to
restrict all forms of public discussion on matters pending before the courts.
There is general recognition of the fact that the courts cannot operate in a vacuum. Whilst
the courts are the forum for the determination of a person's guilt or innocence on a
criminal charge (see paragraph 40 above), this does not mean that there can be no prior or
contemporaneous discussion of the subject matter of criminal trials elsewhere, be it in
specialised journals, in the general press or amongst the public at large (see, mutatis
mutandis, the Sunday Times (no. 1) judgment, cited above, p. 40, § 65).
Provided that it does not overstep the bounds imposed in the interests of the proper
administration of justice, reporting, including comment, on court proceedings contributes
to their publicity and is thus perfectly consonant with the requirement under Article 6 § 1
of the Convention that hearings be public. Not only do the media have the task of
imparting such information and ideas: the public also has a right to receive them (ibid.).
This is all the more so where a public figure is involved, such as, in the present case, a
former member of the Government. Such persons inevitably and knowingly lay
themselves open to close scrutiny by both journalists and the public at large (see, among
other authorities, the Lingens v. Austria judgment of 8 July 1986, Series A no 103, p. 26,
§ 42). Accordingly, the limits of acceptable comment are wider as regards a politician as
such than as regards a private individual (ibid.).
However, public figures are entitled to the enjoyment of the guarantees of a fair trial set
out in Article 6, which in criminal proceedings include the right to an impartial tribunal,
on the same basis as every other person. This must be borne in mind by journalists when
commenting on pending criminal proceedings since the limits of permissible comment
may not extend to statements which are likely to prejudice, whether intentionally or not,
the chances of a person receiving a fair trial or to undermine the confidence of the public
in the role of the courts in the administration of criminal justice.
51. The applicant was convicted of having attempted to exert prohibited influence on the
outcome of the criminal proceedings concerning Mr Androsch. He was sentenced to a
fine of ATS 48,000, or twenty days' imprisonment in case of default of payment (see
paragraph 15 above).
As summarised above (see paragraphs 17-22) the Vienna Court of Appeal first
considered whether the impugned article was objectively capable of influencing the
outcome of the proceedings pending at the material time before the Vienna Regional
Criminal Court.
It found that the applicant had commented unfavourably on the answers given by Mr
Androsch at the trial and not merely carried out a critical psychological analysis, as held
by the first-instance court. The court further considered that it could not be excluded that
the members of Mr Androsch's trial court, more particularly, the lay judges might read
the article. It concluded that the applicant's article fell within the ambit of section 23 of
the Media Act.
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The appellate court held that Mr Worm's long-standing involvement in the "Causa
Androsch" - he had been researching into the case since 1978 and had written more than
a hundred articles about it - reinforced the impression gained from the wording of the
article that he had written it with the intention of influencing the outcome of the
proceedings. From the beginning, the applicant had been convinced that Mr Androsch
had committed tax evasion and had stated so. In his article, he had not only criticised Mr
Androsch; he had deliberately attempted to lead the reader to conclude that Mr Androsch
was guilty of the charges against him and had predicted his conviction.
52. The Court of Appeal's judgment was not directed to restricting the applicant's right to
inform the public in an objective manner about the development of Mr Androsch's trial.
Its criticism went essentially to the unfavourable assessment the applicant had made of
the former minister's replies at trial, an element of evidence for the purposes of section 23
of the Media Act. The Court does not share the Commission's view that the passage
where it is implied that Mr Androsch was evading taxes merely described a state of
suspicion. In particular, the words "permits no other interpretation than that Androsch
was evading taxes" point rather to a clearly stated opinion that Mr Androsch was guilty of
the charges against him. This view was, moreover, formulated in such absolute terms that
the impression was conveyed to the reader that a criminal court could not possibly do
otherwise than convict Mr Androsch.
53. The Court considers that it transpires from the Court of Appeal's judgment that it did
take into account the incriminated article in its entirety. Further, the content of the article
cannot be said to be incapable of warranting the conclusion arrived at by the Vienna
Court of Appeal as to the article's potential for influencing the outcome of Mr Androsch's
trial.
54. Having regard to the State's margin of appreciation, it was also in principle for the
appellate court to evaluate the likelihood that at least the lay judges would read the article
as it was to ascertain the applicant's criminal intent in publishing it. As to the latter point,
the Court of Appeal pointed out that "it can be inferred from the article that [the
applicant] wished to usurp the position of the judges dealing with the case" (see
paragraph 20 above). In this respect, to paraphrase the Court's words in its judgment in
the Sunday Times v. the United Kingdom (no. 1) case (cited above), it cannot be excluded
that the public's becoming accustomed to the regular spectacle of pseudo-trials in the
news media might in the long run have nefarious consequences for the acceptance of the
courts as the proper forum for the determination of a person's guilt or innocence on a
criminal charge (p. 39, § 63). For this reason, the fact that domestic law as interpreted by
the Vienna Court of Appeal did not require an actual result of influence on the particular
proceedings to be proved (see paragraph 18 above) does not detract from the justification
for the interference on the ground of protecting the authority of the judiciary.
55. The above findings are not called into question by the assertion - disregarded by the
appellate court - that the incriminated passage was a quotation of a statement made by the
public prosecutor at trial. In the first place, even assuming that the public prosecutor
actually made such remarks, the applicant ought to have indicated that he was merely
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quoting them. In any event, it was the public prosecutor's role, and not that of the
applicant, to establish Mr Androsch's guilt.
56. Against this background, the Court concludes that the reasons adduced by the Vienna
Court of Appeal to justify the interference with the applicant's right to freedom of
expression resulting from his conviction were also "sufficient" for the purposes of Article
10 § 2. In particular, the respective interests of the applicant and the public in imparting
and receiving his ideas concerning a matter of general concern which was before the
courts were not such as to outweigh the considerations relied on by the Vienna Court of
Appeal as to the adverse consequences of the diffusion of the impugned article for the
authority and impartiality of the judiciary in Austria.
57. Given the amount of the fine and the fact that the publishing firm was ordered to be
jointly and severally liable for payment of it (see paragraph 15 above), the sanction
imposed cannot be regarded as disproportionate to the legitimate aim pursued.
58. The Court accordingly finds that the national courts were entitled to consider that the
applicant's conviction and sentence were "necessary in a democratic society" for
maintaining both the authority and the impartiality of the judiciary within the meaning of
Article 10 § 2 of the Convention.
59. In sum, there has been no violation of Article 10 of the Convention.
BOWMAN v. THE UNITED KINGDOM (141/1996/762/959) 19 February 1998:
prosecution following distribution of leaflets by abortion campaigner prior to
general election -- margin of appreciation in striking balance between rights to
free elections and freedom of expression –legitimate aim.
United Kingdom - prosecution following distribution of leaflets by abortion campaigner
prior to general election (Representation of the People Act 1983, section 75)
I. GOVERNMENT’S PRELIMINARY OBJECTION (applicant’s status as "victim")
Prosecution brought against applicant - indication to her that she ran risk of being
prosecuted again in future unless she modified her conduct - in these circumstances she
could claim to have been directly affected by law and therefore to be "victim" within
meaning of Article 25 § 1 of the Convention.
Conclusion: rejected (unanimously).
II. ARTICLE 10 OF THE CONVENTION
A. Existence of restriction
Prohibition in section 75 of 1983 Act of expenditure in excess of GBP 5 by unauthorised
persons on publications etc. during election period amounted to restriction on freedom of
expression.
B. "Prescribed by law"
Restriction was "prescribed by law".
C. Legitimate aim
Protection of rights of others, namely candidates for election and electorate.
D. "Necessary in a democratic society"
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States have margin of appreciation in striking balance between rights to free elections
and freedom of expression.
Section 75 of 1983 Act operated for all practical purposes as total barrier to applicant’s
publishing information with a view to influencing voters in favour of anti-abortion
candidate - not necessary to set limit on expenditure as low as GBP 5 to achieve aim of
securing equality between candidates - restriction disproportionate.
Conclusion: violation (fourteen votes to six).
I. THE CIRCUMSTANCES OF THE CASE
10. Mrs Phyllis Bowman was born in 1926 and lives in London. She is the executive
director of the Society for the Protection of the Unborn Child ("SPUC"), an organisation
of approximately 50,000 members which is opposed to abortion and human embryo
experimentation and seeks changes to the present United Kingdom law which permits
abortion up to 22 weeks and embryo experimentation up to 14 days.
11. The major political parties have no policies with regard to abortion and embryo
experimentation: these are regarded as moral issues and members of Parliament are
allowed to vote on proposed legislation according to their consciences. Mrs Bowman and
SPUC therefore took the view that, if electors were to be in a position to bring about
changes to the law through their choice of representative, it was important for them to be
informed of the opinions of candidates standing for election with regard to abortion and
related issues.
12. In the period immediately before the Parliamentary elections in April 1992, Mrs
Bowman therefore arranged to have some one and a half million leaflets distributed in
constituencies throughout the United Kingdom, including, in the constituency of Halifax,
25,000 copies of a leaflet which read as follows:
"We are not telling you how to vote, but it is essential for you to check on
Candidates’ voting intentions on abortion and on the use of the human embryo as
a guinea-pig…
13. Mrs Bowman was charged with an offence under subsections 75(1) and (5) of the
Representation of the People Act 1983 ("the 1983 Act"), which prohibits expenditure of
more than five pounds sterling ("GBP") by an unauthorised person during the period
before an election on conveying information to electors with a view to promoting or
procuring the election of a candidate (see paragraphs 19-21 below).
14. At Mrs Bowman’s trial at Southwark Crown Court on 27 September 1993, the judge
directed her acquittal, because the summons charging her with the offence had not been
issued within one year of the alleged prohibited expenditure, in accordance with the timelimit stipulated in section 176 of the 1983 Act. The proceedings were, nonetheless,
reported in the press.
15. In 1979, Mrs Bowman had been convicted of an offence under section 75 of the 1983
Act in respect of a leaflet distributed prior to the Ilford North by-election and in 1982 she
had also been convicted in respect of a leaflet distributed during the elections for the
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European Parliament. On both occasions she was ordered to pay a fine and the
prosecution costs
A. Existence of a restriction
31. The Government submitted that there had been no restriction of Mrs Bowman’s right
to freedom of expression, since section 75 of the 1983 Act restricted only the freedom of
unauthorised persons to incur expenditure with a view to promoting or procuring the
election of a particular candidate in a parliamentary election, but not their freedom to
express opinions or disseminate information more generally (see paragraph 19 above).
32. The Commission, like the applicant, observed that the fact that the prosecuting
authorities obviously regarded her conduct as falling within the statutory prohibition
caused, through the fear of prosecution, a restriction on her freedom of expression.
33. The Court notes that section 75 of the 1983 Act does not directly restrain freedom of
expression, but instead limits to GBP 5 the amount of money which unauthorised persons
are permitted to spend on publications and other means of communication during the
election period. Moreover, it does not restrict expenditure on the transmission of
information or opinions in general, but only that incurred during the relevant period "with
a view to promoting or procuring the election of a candidate".
Nonetheless, there can be no doubt that the prohibition contained in section 75 amounted
to a restriction on freedom of expression, which directly affected Mrs Bowman (see
paragraph 29 above).
34. It remains to be considered whether this restriction was "prescribed by law", pursued
a legitimate aim and was "necessary in a democratic society".
B. "Prescribed by law"
35. The Court considers, and indeed this was not disputed before it, that the restriction on
expenditure provided for by section 75 of the 1983 Act was "prescribed by law".
C. Legitimate aim
36. The Government maintained that the spending limit in section 75 of the 1983 Act
pursued the aim of protecting the rights of others in three ways. First, it promoted fairness
between competing candidates for election by preventing wealthy third parties from
campaigning for or against a particular candidate or issuing material which necessitated
the devotion of part of a candidate’s election budget, which was limited by law (see
paragraph 18 above), to a response. Secondly, the restriction on third-party expenditure
helped to ensure that candidates remained independent of the influence of powerful
interest groups. Thirdly, it prevented the political debate at election times from being
distorted by having the discussion shifted away from matters of general concern to centre
on single issues.
37. In the applicant’s view, section 75, far from pursuing a legitimate aim, only operated
to curtail democratic freedom of expression. It was improbable in the extreme that single
issue groups, such as SPUC, could distract voters from the mainstream political platforms
to such a degree as to hinder the electoral process. Furthermore, the restriction on
expenditure could not properly be said to ensure equality between candidates, because
they were already subject to inequalities depending on whether or not they received the
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support of one of the major political parties, which were free to spend unlimited
amounts on campaigning at national level as long as they did not attempt to promote or
prejudice any particular candidate (see paragraph 22 above).
38. The Court finds it clear that the purpose of section 75, particularly taken in the
context of the other detailed provisions on election expenditure in the 1983 Act, is to
contribute towards securing equality between candidates. It therefore concludes, as did
the Commission, that the application of this law to Mrs Bowman pursued the legitimate
aim of protecting the rights of others, namely the candidates for election and the
electorate in Halifax and, to the extent that the prosecution was intended to have a
deterrent effect, elsewhere in the United Kingdom.
It considers that the arguments advanced by the applicant on this point are of greater
relevance to the issue whether the restriction was "necessary in a democratic society", to
which question it now turns.
D. "Necessary in a democratic society"
39. The Government maintained that section 75 of the 1983 Act imposed only a partial
restriction on expenditure (see paragraph 31 above), which was no more extensive than
was necessary to achieve the legitimate aims pursued. They pointed out that there had
been other means of communication open to Mrs Bowman, for example, she could have
started her own newspaper, had letters or articles published in the press, given interviews
on radio or television, stood for election herself or published leaflets with the purpose of
informing the electorate without promoting or opposing any particular candidate.
40. The applicant, as did the Commission, considered that the restriction was
disproportionate. She contended that there was no pressing social need to suppress the
dissemination of factually accurate information about the position of candidates for
public office on important moral issues; on the contrary, there was a pressing need to
permit such matters to be put on the political agenda prior to elections. Despite the
Government’s submission that the restriction was necessary to ensure equality between
candidates, there was no indication that Mrs Bowman’s leaflets had operated to
disadvantage any particular candidate, since it was possible that the information they
contained attracted as many supporters as opponents of the different policies on abortion.
Furthermore, she asserted that the restriction was illogical since no limit was placed on
the powers of the mass media to publish material in support of or opposition to
candidates or on the political parties and their supporters to pay for advertising at national
or regional levels as long as they did not attempt to promote or prejudice the electoral
prospects of any particular candidate.
41. The Court observes, in the first place, that the limitation on expenditure prescribed by
section 75 of the 1983 Act is only one of the many detailed checks and balances which
make up United Kingdom electoral law. In such a context, it is necessary to consider the
right to freedom of expression under Article 10 in the light of the right to free elections
protected by Article 3 of the First Protocol to the Convention, which provides:
"The High Contracting Parties undertake to hold free elections at reasonable
intervals by secret ballot, under conditions which will ensure the free expression
of the opinion of the people in the choice of the legislature."
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42. Free elections and freedom of expression, particularly freedom of political debate,
together form the bedrock of any democratic system (see the Mathieu-Mohin and
Clerfayt v. Belgium judgment of 2 March 1987, Series A no. 113, p. 22, § 47 and the
Lingens v. Austria judgment of 8 July 1986, Series A no. 103-B, p. 26, §§ 41-42). The
two rights are inter-related and operate to reinforce each other: for example, as the Court
has observed in the past, freedom of expression is one of the "conditions" necessary to
"ensure the free expression of the opinion of the people in the choice of the legislature"
(see the above-mentioned Mathieu-Mohin and Clerfayt judgment, p. 24, § 54). For this
reason, it is particularly important in the period preceding an election that opinions and
information of all kinds are permitted to circulate freely.
43. Nonetheless, in certain circumstances the two rights may come into conflict and it
may be considered necessary, in the period preceding or during an election, to place
certain restrictions, of a type which would not usually be acceptable, on freedom of
expression, in order to secure the "free expression of the opinion of the people in the
choice of the legislature". The Court recognises that, in striking the balance between
these two rights, the Contracting States have a margin of appreciation, as they do
generally with regard to the organisation of their electoral systems (see the abovementioned Mathieu-Mohin and Clerfayt judgment, pp. 23 and 24, §§ 52 and 54).
44. Turning to the facts of the present case, the Court’s task is to determine whether, in
all the circumstances, the restriction on Mrs Bowman’s freedom of expression was
proportionate to the legitimate aim pursued and whether the reasons adduced by the
national authorities in justification of it were relevant and sufficient (see the abovementioned Lingens judgment, p. 26, § 40).
45. In this connection it finds it significant that the limitation on expenditure contained in
section 75 of the 1983 Act was set as low as GBP 5. It recalls that this restriction applied
only during the four to six weeks preceding the general election (see paragraphs 16 and
18-19 above). However, although it is true that Mrs Bowman could have campaigned
freely at any other time, this would not, in the Court’s view, have served her purpose in
publishing the leaflets which was, at the very least, to inform the people of Halifax about
the three candidates’ voting records and attitudes on abortion, during the critical period
when their minds were focussed on their choice of representative (see paragraph 11
above).
46. The Court notes the Government’s submission that the applicant could have made use
of alternative methods to convey the information to the electorate. However, it is not
satisfied that, in practice, she had access to any other effective channels of
communication. For example, it has not been demonstrated that she had any way of
ensuring that the material contained in the leaflets was published in a newspaper or
broadcast on radio or television. Although she could herself have stood for election and
thus become entitled to incur the statutory amount of expenses allowed to candidates, this
would have required her to pay a deposit of GBP 500, which she would in all probability
have forfeited (see paragraphs 17 and 18 above). Furthermore, it was not her desire to be
elected to Parliament, but only to distribute leaflets to voters.
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47. In summary, therefore, the Court finds that section 75 of the 1983 Act operated, for
all practical purposes, as a total barrier to Mrs Bowman’s publishing information with a
view to influencing the voters of Halifax in favour of an anti-abortion candidate. It is not
satisfied that it was necessary thus to limit her expenditure to GBP 5 in order to achieve
the legitimate aim of securing equality between candidates, particularly in view of the
fact that there were no restrictions placed upon the freedom of the press to support or
oppose the election of any particular candidate or upon political parties and their
supporters to advertise at national or regional level, provided that such advertisements
were not intended to promote or prejudice the electoral prospects of any particular
candidate in any particular constituency (see paragraph 22 above). It accordingly
concludes that the restriction in question was disproportionate to the aim pursued.
It follows that there has been a violation of Article 10 of the Convention.
SCHÖPFER v. SWITZERLAND (56/1997/840/1046) 20 May 1998: disciplinary
penalty imposed on lawyer following criticisms of the judiciary made at a press
conference -- proper administration of justice-- balance to be struck between
various interests involved, which include public’s right to receive information,
requirements of proper administration of justice and dignity of legal profession.
Switzerland – disciplinary penalty imposed on lawyer following criticisms of the
judiciary made at a press conference (Articles 12 and 13 of the Statute of the Bar of the
Canton of Lucerne)
ARTICLE 10 OF THE CONVENTION
Special status of lawyers gives them central position in administration of justice as
intermediaries between public and courts - legitimate to expect them to contribute to
proper administration of justice, and thus to maintain public confidence therein.
Applicant first publicly criticised administration of justice in Hochdorf and then
exercised a legal remedy which proved effective - conduct scarcely compatible with
contribution it is legitimate to expect lawyers to make to maintaining public confidence
in judicial authorities.
Freedom of expression secured to lawyers too, who are entitled to comment in public on
administration of justice, but their criticism must not overstep certain bounds - balance to
be struck between various interests involved, which include public’s right to receive
information about questions arising from judicial decisions, requirements of proper
administration of justice and dignity of legal profession.
General nature, seriousness and tone of complaints raised in public – applicant was
lawyer – criminal proceedings still pending – competent authorities not first applied to
via legal channels - modest amount of fine - margin of appreciation not exceeeded.
Conclusion: no violation (seven votes to two).
I. THE CIRCUMSTANCES OF THE CASE
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6. The applicant, who is a lawyer and former member of the Cantonal Council
(Großrat), lives in Root (Canton of Lucerne). At the material time he was an advocate
acting as defence counsel for a Mr S, who had been placed in detention pending trial
(Untersuchungshaft) on suspicion of committing a number of thefts.
7. On 6 November 1992 Mr S’s wife informed Mr Schöpfer that the two district clerks
(Amtsschreiber) of the Hochdorf district authority (Amtsstatthalteramt) had urged her to
instruct a different lawyer to defend her husband if he wished to be released.
A. The applicant’s public statements
On 9 November 1992 the applicant then held a press conference in his office in Lucerne
at which he declared that at the Hochdorf district authority offices both the laws of the
Canton of Lucerne and human rights were flagrantly disregarded, and had been for years
.He pointed out that he was speaking to the press because it was his last resort.
B. The disciplinary proceedings against the applicant
14. On 16 November 1992 the Lucerne Bar’s Supervisory Board (Aufsichtsbehörde über
die Rechtsanwälte) informed Mr Schöpfer that his conduct raised certain ethical
questions, relating in particular to the need for discretion (Zurückhaltung) with regard to
pending proceedings and to covert publicity, and asked him what he had to say on the
matter.
In a letter of 18 November which he communicated to the press, the applicant replied that
he had acted only in the general interest and in that of his client.
15. On 16 November 1992 the Hochdorf prefect had lodged a complaint (Anzeige) with
the Supervisory Board and asked for disciplinary proceedings to be brought against Mr
Schöpfer. He asserted that by his statements the latter had not only slandered the prefect
and his two district clerks but had also been guilty of a serious breach of lawyers’
professional ethics (Standesregeln) by spreading false accusations through the media
rather than making use of the available legal remedies.
16. On 21 December 1992 the Supervisory Board brought disciplinary proceedings
against the applicant.
On 15 March 1993, pursuant to Article 13 of the Statute of the Bar (Anwaltsgesetz) of the
Canton of Lucerne (see paragraph 18 below), it fined him CHF 500 for a breach of
professional ethics (Verletzung von Berufs- und Standespflichten).
ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
23. Mr Schöpfer alleged that the penalty imposed on him by the Lawyers’
Supervisory Board had breached Article 10 of the Convention.
24. The penalty in issue incontestably amounted to "interference" with the applicant’s
exercise of his freedom of expression. The participants in the proceedings agreed that it
was "prescribed by law" and pursued a legitimate aim for the purposes of Article 10 § 2,
namely maintaining the authority and impartiality of the judiciary. It is apparent from the
Supervisory Board’s decision of 15 March 1993 that the penalty in question was imposed
on the applicant because, inter alia, he had disparaged all the canton’s judicial authorities
(see paragraph 16 above)
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The Court, which agrees with the participants on this point, must now determine,
therefore, whether the interference was "necessary in a democratic society" in order to
achieve that aim.
29. The Court reiterates that the special status of lawyers gives them a central position in
the administration of justice as intermediaries between the public and the courts. Such a
position explains the usual restrictions on the conduct of members of the Bar (see the
Casado Coca v. Spain judgment of 24 February 1994, Series A no. 285-A, p. 21, § 54).
Moreover, the Court has already held that the courts - the guarantors of justice, whose
role is fundamental in a State based on the rule of law - must enjoy public confidence
(see the De Haes and Gijsels v. Belgium judgment of 24 February 1997, Reports of
Judgments and Decisions 1997-I, p. 234, § 37). Regard being had to the key role of
lawyers in this field, it is legitimate to expect them to contribute to the proper
administration of justice, and thus to maintain public confidence therein.
30. In the present case Mr Schöpfer held his press conference on 9 November 1992,
stating on that occasion, inter alia, that the journalists were his last resort (see paragraph
8 above). On 18 November 1992 he appealed to the Lucerne Court of Appeal against the
Hochdorf prefect’s refusal of the application for his client’s release. The Court of Appeal
dismissed the appeal for lack of standing, but upheld the complaint that bringing Mr
Schöpfer’s client before one of the district clerks had been unlawful. It accordingly
ordered its decision to be brought to the attention of the Public Prosecutor’s Office, as the
prefect’s supervisory authority (see paragraph 13 above).
31. Thus Mr Schöpfer first publicly criticised the administration of justice in Hochdorf
and then exercised a legal remedy which proved effective with regard to the complaint in
question. In so doing his conduct was scarcely compatible with the contribution it is
legitimate to expect lawyers to make to maintaining public confidence in the judicial
authorities.
32. The above finding is reinforced by the seriousness and general nature of the criticisms
made by the applicant and the tone in which he chose to make them. For example, he said
at the press conference that he was speaking to the journalists because they were his last
resort and because at the Hochdorf district authority offices the laws of the Canton of
Lucerne and human rights had for years been flagrantly disregarded (see paragraph 8
above). On 13 November 1992 a daily newspaper published a summary of a press release
in which Mr Schöpfer had stated that his client’s arrest had breached the Convention and
– "in a crude and unacceptable manner" – the cantonal Code of Criminal Procedure" (see
paragraph 12 above).
33. It is true that Article 10 protects not only the substance of the ideas and information
expressed but also the form in which they are conveyed (see the De Haes and Gijsels
judgment, cited above, p. 236, § 48). It also goes without saying that freedom of
expression is secured to lawyers too, who are certainly entitled to comment in public on
the administration of justice, but their criticism must not overstep certain bounds. In that
connection, account must be taken of the need to strike the right balance between the
various interests involved, which include the public’s right to receive information about
questions arising from judicial decisions, the requirements of the proper administration of
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justice and the dignity of the legal profession (see the Casado Coca judgment, cited
above, p. 21, § 55, and the De Haes and Gijsels judgment, cited above, pp. 233-34, § 37).
Because of their direct, continuous contact with their members, the Bar authorities and a
country’s courts are in a better position than an international court to determine how, at a
given time, the right balance can be struck. That is why they have a certain margin of
appreciation in assessing the necessity of an interference in this area, but this margin is
subject to European supervision as regards both the relevant rules and the decisions
applying them (see the Casado Coca judgment, cited above, pp. 20-21, §§ 50 and 55).
34. The Court notes that Mr Schöpfer – who was a lawyer – had raised in public his
complaints on the subject of criminal proceedings which were at that time pending before
a criminal court. In addition to the general nature, the seriousness and the tone of the
applicant’s assertions, the Court notes that he first held a press conference, claiming that
this was his last resort, and only afterwards lodged an appeal before the Lucerne Court of
Appeal, which was partly successful. He also omitted to apply to the other supervisory
body for the district authority, the Public Prosecutor’s Office, whose ineffectiveness he
did not attempt to establish except by means of mere assertions. Having regard also to the
modest amount of the fine imposed on the applicant, the Court considers that the
authorities did not go beyond their margin of appreciation in punishing Mr Schöpfer.
There has accordingly been no breach of Article 10.
ENGLAND
1 – 6: elaboration required
Summary and photocopies:
1. Hector v Attorney General of Antigua and Barbuda [1990] 2 All ER 103:
democratic society must balance needs.
2. Education Act 2 of 1986 regulates teaching of politics in schools. Forbids
partisan politics.
3. Media Freedom: balancing: Kaye v Robertson 1991 FSR: govt permits
newspapers to regulate themselves.
4. Content of Broadcasting: BBC’s Charter of License and Agreement made
under Broadcasting Act 1990: impartial treatment of news; accuracy. R v
Broadcasting Complaints Commission, ex parte Owen 1985 All ER: not
required to permit equal time to candidates.
5. Broadcasting Complaints Commission adjudicates complaints. Home
secretary has power to issue notice ordering broadcaster under licence to
broadcast something or refrain. House of Lords has upheld this power in R v
Sec of State for the Home Department, ex parte Brind 1991 All ER.
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6. Public Order Act of 1986:Incitement to racial hatred: s17 stir up ‘
behaviour/words. S18: publication incl speeches. S23: an offense to possess
racist material, if the material is intended to be published.
Consideration of the Actual Malice Rule in the United Kingdom
The courts in England have refused to adopt the "actual malice" standard. In
Derbyshire County Council v. Times Newspapers Ltd., [1993] 1 All E.R.
1011, the House of Lords considered an action brought by a municipal council
against the publisher of a Sunday newspaper. The claim for damages, which was
denied, arose from articles concerning the authority's management of its
superannuation fund. In his reasons, Lord Keith stated that public interest
considerations similar to those underlying the New York Times v. Sullivan, supra,
decision were involved in that it was "of the highest public importance that a
democratically elected governmental body, or indeed any governmental body,
should be open to uninhibited public criticism" (p. 1017). However, the
appropriateness of the "actual malice" standard was not considered and it was
not incorporated into the law of England. In fact, Lord Keith stated that if the
individual reputation of any of the local councillors had been wrongly damaged by
the impugned publication, they could have brought an action for defamation in
their personal capacity.15
(iv) The Position Taken by International Law Reform Commissions
International law reform organizations have also criticized the New York Times v.
Sullivan rule. The United Kingdom Report of the Committee on Defamation (the
Faulks Committee Report) (1975), held that the rule "would in many cases deny
a just remedy to defamed persons" (p. 169). Finally, the Irish Law Reform
Commission's Report on the Civil Law of Defamation (the Keane Final Report)
(1991), stated that "while the widest possible range of criticism of public officials
and public figures is desirable, statements of fact contribute meaningfully to
public debate only if they are true" (p. 82).16
CANADA
Constitution Act, 198217
15
Par 134, Hill v Church of Scientology 2 SCR 1130 (1995).
Ibid, Par 136.
17
Enacted as Schedule B to the Canada Act, 1982, (U.K.) 1982 c. 11, which came into force on April 17,
16
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Fundamental Freedoms
2. Everyone has the following fundamental freedoms:
(b) freedom of thought, belief, opinion and expression, including freedom of
the press and other means of communication.
Irwin Toy Ltd. v. Quebec (Attorney General) [1989] 1 S.C.R. 92: Commercial
advertising directed at persons under thirteen years of age -- protected sphere of conduct - whether the purpose or effect of the government action in issue was to restrict freedom
of expression -- restricting content --government's purpose – direct harmful physical
consequences -- meaning of the activity or the purported influence that meaning has on
the behaviour of others
In November 1980, the respondent sought a declaration from the Superior Court that ss.
248 and 249 of the ConsumerProtection Act, R.S.Q., c. P-40.1, which prohibited
commercial advertising directed at persons under (page 929) thirteen years of age, were
ultra vires the Quebec legislature and, subsidiarily, that they infringed the Quebec Charter
of Human Rights and Freedoms. The Superior Court dismissed the action. On appeal, the
respondent also invoked the Canadian Charter of Rights and Freedoms which entered into
force after the judgment of the Superior Court. The Court of Appeal allowed the appeal
holding that the challenged provisions infringed s. 2(b) of the Canadian Charter and that
the limit imposed on freedom of
expression by ss. 248 and 249 was not justified under s. 1. This appeal is to determine (1)
whether ss. 248 and 249 are ultra vires the Quebec legislature or rendered inoperative by
conflict with s. 3 of Broadcasting Act, R.S.C. 1970, c. B-11; (2) whether they are
protected from the application of the Canadian Charter by a valid and subsisting override
provision; (3) whether they infringe s. 2(b) of the Canadian Charter and s. 3 of the
Quebec Charter; and if so, (4) whether the limit imposed by ss. 248 and 249 is justifiable
under s. 1 of the Canadian Charter and s. 9.1 of the Quebec Charter; and (5) whether they
infringed s. 7 of the Canadian Charter. Held (Beetz and McIntyre JJ. dissenting): The
appeal should be allowed.
(3) Freedom of Expression
Per Dickson C.J. and Lamer and Wilson JJ.: When faced with an alleged violation of the
guarantee of freedom of expression, the first step is to determine whether the plaintiff's
activity falls within the sphere of conduct protected by the guarantee. Activity which (1)
does not convey or attempt to convey a meaning, and thus has no content of expression,
or (2) which conveys a meaning but through a violent form of expression, is not within
1982.
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the protected sphere of conduct. If the activity falls within the protected sphere of
conduct, the second step is to determine whether the purpose or effect of the government
action in issue was to restrict freedom of expression. If the government has aimed to
control attempts to convey a meaning either by directly restricting the content of
expression or by restricting a form of expression tied to content, its purpose trenches
upon the guarantee. Where, on the other hand, it aims only to control the physical
consequences of particular conduct, its purpose does not trench upon the guarantee. In
determining whether the government's purpose aims simply at harmful physical
consequences, the question becomes: does the mischief consist in the meaning of the
activity or the purported influence that meaning has on the behaviour of others, or does it
consist, rather, only in the direct physical result of the activity. If the government's
purpose was not to restrict free expression, the plaintiff can still claim that the effect of
the government's action was to restrict her expression. To make (page 932) this claim, the
plaintiff must at least identify the meaning being conveyed and how it relates to the
pursuit of truth, participation in the community, or individual self-fulfillment and human
flourishing. Here, respondent's activity is not excluded from the sphere of conduct
protected by freedom of expression. The government's purpose in enacting ss. 248 and
249 of the Consumer Protection Act and in promulgating ss. 87 to 91 of the Regulation
respecting the application of the Consumer Protection Act was to prohibit particular
content of expression in the name of protecting children. These provisions therefore
constitute limitations to s. 2(b) of the Canadian Charter and s. 3 of the Quebec Charter.
RWDSU v. DOLPHIN DELIVERY LTD. [1986] 2 S.C.R. 573: Picketing involves
some form of expression and enjoys Charter protection unless the action
includes violence, threats of violence or other unlawful acts.
Appellant was the federally certified bargaining agent for the locked out employees of
Purolator, an Ontario based courier. Prior to the lockout, respondent made deliveries for
Purolator in its area and afterwards, for Supercourier, a company connected with
Purolator. Appellant applied to the British Columbia Labour Relations Board for a
declaration that respondent and Supercourier were allies of Purolator in their dispute with
appellant. Such a finding would have rendered the picketing of respondent's business
premises lawful, and consequently would have affected its business in that its collective
agreement provided that its employees' refusal to cross a lawful picket line was not a
violation of the agreement or rounds for disciplinary action or discharge. When the
Board declined to hear the application for want of jurisdiction, the labour relations of the
appellant being within federal jurisdiction, the legality of appellant's proposed picketing
then fell for determination under the common law because the Canada Labour Code was
silent on the issue. No picketing occurred at respondent's premises as respondent was
(page 574) granted a quia timet injunction which was upheld on appeal. At issue here is
whether secondary picketing in a labour dispute is protected as freedom of expression
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under s. 2(b) of the Charter and accordingly not the proper subject of an injunction to
restrain it.
Held: The appeal should be dismissed.
Per Dickson C.J. and Estey, McIntyre, Chouinard and Le Dain JJ: All picketing
involves some form of expression and enjoys Charter protection unless some action on
the part of the picketers alters its nature and removes it from Charter protection. Charter
protection of this freedom does not encompass violence, threats of violence or other
unlawful acts. The picketing at issue, although intended to bring about economic pressure
and to induce the common law tort of breach of contract, was protected by the Charter.
Freedom of Expression (page 583)
As has been noted above, the only basis on which the picketing in question was defended
by the appellants was under the provisions of s. 2(b) of the Charter which guarantees the
freedom of expression as a fundamental freedom. Freedom of expression is not, however,
a creature of the Charter. It is one of the fundamental concepts that has formed the basis
for the historical development of the political, social and educational institutions of
western society. Representative democracy, as we know it today, which is in great part
the product of free expression and discussion of varying ideas, depends upon its
maintenance and protection.
The importance of freedom of expression has been recognized since early times: see
John Milton, Areopagitica; A Speech for the Liberty of Unlicenc'd Printing, to the
Parliament of England (1644), and as well John Stuart Mill, "On Liberty" in On Liberty
and considerations on Representative Government (Oxford 1946), at p. 14:
If all mankind minus one were of one opinion, and only one person were of the
contrary opinion, mankind would be no more justified in silencing that one person, than
he, if he had the power, would be justified in silencing mankind.
And, after stating that "All silencing of discussion is an assumption of infallibility", he
said, at p. 16:
Yet it is as evident in itself, as any amount of argument can make it, that ages are no
more infallible than individuals; every age having held many opinions which subsequent
ages have deemed not only false but absurd; and it is as certain that many opinions now
general will be rejected by future ages, as it is that many, once general, are rejected by the
present. Nothing in the vast literature on this subject reduces the importance of Mill's
words. The principle of freedom of speech and expression has been firmly accepted as a
necessary feature of modern democracy. The courts have recognized this fact. (page 584)
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For an American example, see the words of Holmes J. in his dissent in Abrams v.
United States, 250 U.S. 616 (1919), at p.630:
Persecution for the expression of opinions seems to me perfectly logical. If you have
no doubt of your premises or your power and want a certain result with all your heart you
naturally express your wishes in law and sweep away all opposition.... But when men
have realized that time has upset many fighting faiths, they may come to believe even
more than they believe the very foundations of their own conduct that the ultimate good
desired is better reached by free trade in ideas--that the best test of truth is the power of
the thought to get itself accepted in the competition of the market, and that truth is the
only ground upon which their wishes safely can be carried out.
Prior to the adoption of the Charter, freedom of speech and expression had been
recognized as an essential feature of Canadian parliamentary democracy. Indeed, this
Court may be said to have given it constitutional status. In Boucher v. The King, [1951]
S.C.R. 265, Rand J., who formed a part of the majority which narrowed the scope of the
crime of sedition, said, at p. 288:
There is no modern authority which holds that the mere effect of tending to create
discontent or disaffection among His Majesty's subjects or ill-will or hostility between
groups of them, but not tending to issue in illegal conduct, constitutes the crime, and this
for obvious reasons. Freedom in thought and speech and disagreement in ideas and
beliefs, on every conceivable subject, are of the essence of our life. The clash of critical
discussion on political, social and religious subjects has too deeply become the stuff of
daily experience to suggest that mere ill-will as a product of controversy can strike down
the latter with illegality. A superficial examination of the word shows its insufficiency:
what is the degree necessary to criminality? Can it ever, as mere subjective condition, be
so? Controversial fury is aroused constantly by differences in abstract conceptions;
heresy in some fields is again a mortal sin; there can be fanatical puritanism in ideas as
well as in mortals; but our compact of free society accepts and absorbs these differences
and they are exercised at large within the framework of freedom and order on broader
and (page 585) deeper uniformities as bases of social stability. Similarly in discontent,
affection and hostility: as subjective incidents of controversy, they and the ideas which
arouse them are part of our living which ultimately serve us in stimulation, in the
clarification of thought and, as we believe, in the search for the constitution and truth of
things generally.
In Switzman v. Elbling, [1957] S.C.R. 285, where this Court struck down Quebec's
padlock law, Rand J. again spoke strongly on this issue. He said, at p. 306:
But public opinion, in order to meet such a responsibility, demands the condition of a
virtually unobstructed access to and diffusion of ideas. Parliamentary government
postulates a capacity in men, acting freely and under self-restraints, to govern themselves;
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and that advance is best served in the degree achieved of individual liberation from
subjective as well as objective shackles. Under that government, the freedom of
discussion in Canada, as a subject-matter of legislation, has a unity of interest and
significance extending equally to every part of the Dominion. With such dimensions it is
ipso facto excluded from head 16 as a local matter.
This constitutional fact is the political expression of the primary condition of social
life, thought and its communication by language. Liberty in this is little less vital to man's
mind and spirit than breathing is to his physical existence. As such an inherence in the
individual it is embodied in his status of citizenship.
In the same case, Abbott J. said, at p. 326:
The right of free expression of opinion and of criticism, upon matters of public policy
and public administration, and the right to discuss and debate such matters, whether they
be social, economic or political, are essential to the working of a parliamentary
democracy such as ours.
He went on to make extensive reference to the words of Duff C.J. in Reference re
Alberta Statutes, [1938] S.C.R. 100, at pp. 132-33, strongly (page 586) supporting what
could almost be described as a constitutional position for the concept of freedom of
speech and expression in Canadian law, and then said, at p. 328:
Although it is not necessary, of course, to determine this question for the purposes of
the present appeal, the Canadian constitution being declared to be similar in principle to
that of the United Kingdom, I am also of opinion that as our constitutional Act now
stands, Parliament itself could not abrogate this right of discussion and debate. The power
of Parliament to limit it is, in my view, restricted to such powers as may be exercisable
under its exclusive legislative jurisdiction with respect to criminal law and to make laws
for the peace, order and good government of the nation.
It will be seen at once that Professor Peter W. Hogg, at p. 713 in his text,
Constitutional Law of Canada (2nd ed. 1985), is justified in his comment that:
Canadian judges have always placed a high value on freedom of expression as an
element of parliamentary democracy and have sought to protect it with the limited tools
that were at their disposal before the adoption of the Charter of Rights. The Charter has
now in s. 2(b) declared freedom of expression to be a fundamental freedom and any
questions as to its constitutional status have therefore been settled.
The question now arises: Is freedom of expression involved in this case? In seeking an
answer to this question, it must be observed at once that in any form of picketing there is
involved at least some element of expression. The picketers would be conveying a
message which at a very minimum would be classed as persuasion, aimed at deterring
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customers and prospective customers from doing business with the respondent. The
question then arises. Does this expression in the circumstances of this case have Charter
protection under the provisions of s. 2(b), and if it does, then does the injunction abridge
or infringe such
freedom? (page 587)
The appellants argue strongly that picketing is a form of expression fully entitled to
Charter protection and rely on various authorities to support the proposition, including
Reference re Alberta Statutes, supra; Switzman v. Elbling, supra; the American cases of
Thornhill v. Alabama, 310 U.S. 88 (1940) (per Murphy J., at p. 95); Milk Wagon Drivers
Union v. Meadowmoor Dairies, 312 U.S. 287 (1941), (per Black J., at p. 302), and
various other Canadian authorities. They reject the American distinction between the
concept of speech and that of conduct made in picketing cases, and they accept the view
of Hutcheon J.A. in the Court of Appeal, in adopting the words of Freedman C.J.M. in
Channel Seven Television Ltd. v. National Association of Broadcast Employees and
Technicians, [1971] 5 W.W.R. 328, that "Peaceful picketing falls within freedom of
speech".
The respondent contends for a narrower approach to the concept of freedom of
expression. The position is summarized in the respondent's factum:
4. We submit that constitutional protection under section 2(b) should only be given to
those forms of expression that warrant such protection. To do otherwise would trivialize
freedom of expression generally and lead to a downgrading or dilution of this freedom.
Reliance is placed on the view of the majority in the Court of Appeal that picketing in
a labour dispute is more than mere communication of information. It is also a signal to
trade unionists not to cross the picket line. The respect accorded to picket lines by trade
unionists is such that the result of the picketing would be to damage seriously the
operation of the employer, not to communicate any information. Therefore, it is argued,
since the picket line was not intended to promote dialogue or discourse (as would be the
case where its purpose was the exercise of freedom of expression), it cannot qualify for
protection under the Charter. (page 588)
On the basis of the findings of fact that I have referred to above, it is evident that the
purpose of the picketing in this case was to induce a breach of contract between the
respondent and Supercourier and thus to exert economic pressure to force it to cease
doing business with Supercourier. It is equally evident that, if successful, the picketing
would have done serious injury to the respondent. There is nothing remarkable about this,
however, because all picketing is designed to bring economic pressure on the person
picketed and to cause economic loss for so long as the object of the picketing remains
unfulfilled. There is, as I have earlier said, always some element of expression in
picketing. The union is making a statement to the general public that it is involved in a
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dispute, that it is seeking to impose its will on the object of the picketing, and that it
solicits the assistance of the public in honouring the picket line. Action on the part of the
picketers will, of course, always accompany the expression, but not every action on the
part of the picketers will be such as to alter the nature of the whole transaction and
remove it from Charter protection for freedom of expression. That freedom, of course,
would not extend to protect threats of violence or acts of violence. It would not protect
the destruction of property, or assaults, or other clearly unlawful conduct. We need not,
however, be concerned with such matters here because the picketing would have been
peaceful. I am therefore of the view that the picketing sought to be restrained would have
involved the exercise of the right of freedom of expression.
Rocket v. Royal College of Dental Surgeons of Ontario [1990] 2 S.C.R. 232:
Appellants were dentists who participated in an advertising campaign. As a
result, they were charged with violating the Health Disciplines Act --- The
freedom of expression protected by s. 2(b) of the Charter includes commercial
speech such as advertising, even though the Charter was not intended to protect
economic interests, because advertising aims to convey a meaning and hence
involves more than economics
The judgment of the Court was delivered by MCLACHLIN J.
Appellants were dentists who participated in an advertising campaign. As a result, they
were charged with violating two subsections of Regulation 447 made pursuant to the
Health Disciplines Act -- s. 37(39) which explicitly restricts dentists' advertising and s.
37(40) which was a general professional misconduct provision. They brought these
proceedings challenging the constitutionality of s. 37(39) and seeking a declaration that s.
37(40) was inapplicable. The Divisional Court dismissed the applications and the
decision with respect to s. 37(39) was appealed to the Court of Appeal and subsequently
reversed. The Court of Appeal found that s. 37(39) infringed the guarantee of free
expression under s. 2(b) of the Charter and could not be justified under s. 1. The
constitutional questions before this Court queried whether or not s. 37(39) of the
Regulation offends the guarantee of freedom of expression in s. 2(b) of the (page 233)
Charter, and if so, whether or not it was nevertheless justified under s. 1 of the Charter. A
further question arose as to what remedy this Court should grant should s. 37(39) be
found to violate the Charter.
Held: The appeal should be dismissed.
The freedom of expression protected by s. 2(b) of the Charter includes commercial
speech such as advertising, even though the Charter was not intended to protect economic
interests, because advertising aims to convey a meaning and hence involves more than
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economics. The advertising which was regulated by s. 37(39) did not take an offensive
or prohibited form so as to be excluded from the protection of s. 2(b).
Section 37(39) of the Regulation prohibits legitimate forms of expression and so
infringes s. 2(b) of the Charter. The provision effectively bans usual and acceptable forms
of advertising -- radio, television and even the newspapers apart from an announcement
upon commencement or change of location of practice -- even though nothing in their use
should deprive an otherwise legitimate expression of the protection afforded by s. 2(b).
The provision also infringes s. 2(b) in that it purposefully limits the content of the
advertising.
Two opposing factors -- that advertising is only to increase profit and that it plays an
important role in consumer choice --are usually present in varying degrees in commercial
advertising. Here, the element of consumer choice is significant. Consumers of dental
services would be highly vulnerable if advertising were unregulated. The practice of
dentistry, like other professions, calls for so much exercise of subjective personal
judgment that claims about the quality of different dentists may be inherently incapable
of verification. Furthermore, the choice of a dentist is a relatively important one.
Section 37(39) of the Regulations could not be justified under s. 1 of the Charter.
The objective of the Regulation is sufficiently important to override a Charter right
and s. 37(39) is rationally connected to this objective. The provinces have a legitimate
interest in regulating professional advertising in order to maintain a high standard of
professionalism (as opposed to commercialism) and to protect the public from
rresponsible and misleading advertising. A distinction can be drawn between restrictions
on information about standardized products and restrictions on claims that are inherently
not susceptible of verification. Professional regulation of advertising is clearly justified
(page 234) in circumstances where a claim is not inherently susceptible of verification.
The means used to achieve the legislative objective does not impair the freedom as
little as possible. Section 37(39) is very broadly drafted in that it starts with an absolute
prohibition on all advertising and then sets out exceptions to that prohibition. The effect
of the legislative measure, furthermore, is not proportionate to the objective. The aims of
promoting professionalism and preventing irresponsible and misleading advertising on
matters not susceptible of verification do not require the exclusion of much of the speech
which is prohibited by s. 37(39). Useful information is restricted without justification.
The impugned section should be struck. Overly broad legislation, if left in force, may
prevent people from engaging in lawful activities simply because the prohibition is still
"on the books". The section is drafted in such a way that it cannot be amended by striking
out those portions which are overly broad. Because the section is cast in the form of
limited exclusions to a general prohibition, the Court would be required to supply further
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exceptions. The profession and legislators, however, are in the best position to
determine the precise content and wording of such further exceptions as may be required.
It is not impossible to draft regulations which prohibit advertising which is unverifiable
and unprofessional while permitting advertising which serves a legitimate purpose in
providing the public with relevant information.
Professional bodies have a heavy duty to adopt appropriate regulations which do not
unduly restrict the freedom of expression of their members. The importance of
promoting professionalism and preventing irresponsible and misleading advertising,
however, outweighs the protection of any commercial interests of professionals.
Locate cases:
CBC v Lessard 1991 3 20-21
CBC v NB 1991 3
Hill v Church of Scientology 2 SCR 1130 (1995): Barrister held a press
conference on the courthouse steps. Unfounded allegations of criminal contempt
made against the crown attorney. Whether the common law of defamation is
consistent with the Canadian Charter.
Appellant, Barrister for the appellant Church of Scientology held a press
conference on the courthouse steps. Allegations of criminal contempt against the
crown attorney were made public including that he had misled a judge and
breached orders sealing documents belonging to the church. The allegations
were found to be untrue and without foundation. Respondent sued for damages
in libel. The major issues raised in this appeal are whether the common law of
defamation is consistent with the Canadian Charter of Rights and Freedoms and
whether the jury’s award of damages can stand.
A consideration of the common law of defamation in light of the values underlying
the Charter.
The ‘actual malice’ rule should not be adopted in Canada in an action between
private litigants, (as established in New York v Sullivan 376 US 254 (1964) as per
Brennan J: public officials have actions only for defamatory statements made
‘with knowledge that it was false or with reckless disregard of whether it was
false or not’. The law of defamation is not unduly restrictive or inhibiting. Freedom
of speech, like any other freedom, is subject to the law and must be balanced
against the essential need of individuals to protect their reputation.
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Qualified privilege attaches to the occasion upon which the communication is
made, and not to the communication itself. The legal effect of the defence of
qualified privilege is to rebut the inference, which normally arises from the
publication of defamatory words, that they were spoken with malice. Where the
occasion is shown to be privileged, the bona fides of the defendant is presumed
and the defendent is free to publish, with impunity, remarks which may be
defamatory and untrue about the plaintiff. The privilege is not absolute and can
be defeated if the dominant motive for publishing the statement is actual or
express malice. Malice is commonly understood, in the popular sense, as spite or
ill-will. However it also includes any indirect motive or ulterior purpose that
conflicts with the sense of duty or the mutual interest which the occasion created.
Malice may also be established by showing that the defendant spoke
dishonestly, or in knowing or reckless disregard for the truth. Qualified privilege
may also be defeated when the limits of the duty or interest have been exceeded.
The fact that an occasion is privileged does not necessarily protect all that is said
or written on that occasion. The information communicated must be reasonably
appropriate in the context of the circumstances existing on the occasion when
that information was given.
The traditional common law rule with respect to reports on documents (filed in or
referred to in court) relating to judicial proceedings is that, where there are
judicial proceedings before a properly constituted judicial tribunal exercising its
jurisdiction in open court, then the publication is privileged. Appellant failed to
take steps to confirm the allegations thus losing his qualified privilege when he
made grievious allegations of professional misconduct that were yet to be tested
in a court of law. His conduct was high-handed and careless and neither
necessary nor appropriate in the circumstances. It exceeded any legitmate
purpose the press conference may have served.
The Nature of Actions for Defamation: The Values to Be Balanced: There can be
no doubt that in libel cases the twin values of reputation and freedom of
expression will clash. As Edgerton J. stated in Sweeney v. Patterson, 128 F.2d
457 (D.C. Cir. 1942), at p. 458, cert. denied 317 U.S. 678 (1942), whatever is
"added to the field of libel is taken from the field of free debate". The real
question, however, is whether the common law strikes an appropriate balance
between the two (par 100):
Freedom of Expression: Much has been written of the great importance of free
speech. Without this freedom to express ideas and to criticize the operation of
institutions and the conduct of individual members of government agencies,
democratic forms of government would wither and die. See, for example,
Reference re Alberta Statutes, [1938] S.C.R. 100, at p. 133; Switzman v. Elbling,
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[1957] S.C.R. 285, at p. 306; and Boucher v. The King, [1951] S.C.R. 265, at p.
326. More recently, in Edmonton Journal, supra, at p. 1336, it was said:
It is difficult to imagine a guaranteed right more important to a democratic
society than freedom of expression. Indeed a democracy cannot exist without
that freedom to express new ideas and to put forward opinions about the
functioning of public institutions. The concept of free and uninhibited speech
permeates all truly democratic societies and institutions. The vital importance of
the concept cannot be over-emphasized.
However, freedom of expression has never been recognized as an absolute
right. Duff C.J. emphasized this point in Reference re Alberta Statutes, supra, at
p. 133:
The right of public discussion is, of course, subject to legal restrictions; those
based upon considerations of decency and public order, and others conceived
for the protection of various private and public interests with which, for example,
the laws of defamation and sedition are concerned. In a word, freedom of
discussion means . . . "freedom governed by law."
See also Cherneskey v. Armadale Publishers Ltd., [1979] 1 S.C.R. 1067, at
pp. 1072 and 1091.
Similar reasoning has been applied in cases argued under the Charter. Although
a Charter right is defined broadly, generally without internal limits, the Charter
recognizes, under s. 1, that social values will at times conflict and that some
limits must be placed even on fundamental rights. As La Forest J. explained in
United States of America v. Cotroni, [1989] 1 S.C.R. 1469, at p. 1489, this Court
has adopted a flexible approach to measuring the constitutionality of impugned
provisions wherein "the underlying values [of the Charter] must be sensitively
weighed in a particular context against other values of a free and democratic
society . . .".(103)
In R. v. Keegstra, [1990] 3 S.C.R. 697, for example, s. 319(2) of the Criminal
Code was found to be justified as a reasonable limit on the appellant's freedom to
spread falsehoods relating to the Holocaust and thus to promote hatred against
an identifiable group. Dickson C.J. adopted the contextual approach to s. 1 and
concluded that, since hate propaganda contributed little to the values which
underlie the right enshrined under s. 2(b), namely the quest for truth, the
promotion of individual self-development, and participation in the community, a
restriction on this type of expression might be easier to justify than would be the
case with other kinds of expression (104).
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In R. v. Butler, [1992] 1 S.C.R. 452, the obscenity provisions of the Criminal
Code, s. 163, were questioned. It was held, under the s. 1 analysis, that
pornography could not stand on an equal footing with other kinds of expression
which directly engage the "core" values of freedom of expression. Further, it was
found that the fact that the targeted material was expression motivated by
economic profit more readily justified the imposition of restrictions (105).
Certainly, defamatory statements are very tenuously related to the core values
which underlie s. 2(b). They are inimical to the search for truth. False and
injurious statements cannot enhance self-development. Nor can it ever be said
that they lead to healthy participation in the affairs of the community. Indeed, they
are detrimental to the advancement of these values and harmful to the interests
of a free and democratic society. This concept was accepted in Globe and Mail
Ltd. v. Boland, [1960] S.C.R. 203, at pp. 208-9, where it was held that an
extension of the qualified privilege to the publication of defamatory statements
concerning the fitness for office of a candidate for election would be "harmful to
that `common convenience and welfare of society'". Reliance was placed upon
the text Gatley on Libel and Slander in a Civil Action: With Precedents of
Pleadings (4th ed. 1953), at p. 254, wherein the author stated the following:
It would tend to deter sensitive and honourable men from seeking public
positions of trust and responsibility, and leave them open to others who have no
respect for their reputation.
See also Derrickson v. Tomat (1992), 88 D.L.R. (4th) 401 (B.C.C.A.), at p.
408.
(ii)The Reputation of the Individual
The other value to be balanced in a defamation action is the protection of the
reputation of the individual. Although much has very properly been said and
written about the importance of freedom of expression, little has been written of
the importance of reputation. Yet, to most people, their good reputation is to be
cherished above all. A good reputation is closely related to the innate worthiness
and dignity of the individual. It is an attribute that must, just as much as freedom
of expression, be protected by society's laws. In order to undertake the balancing
required by this case, something must be said about the value of reputation
(107).
Democracy has always recognized and cherished the fundamental importance of
an individual. That importance must, in turn, be based upon the good repute of a
person. It is that good repute which enhances an individual's sense of worth and
value. False allegations can so very quickly and completely destroy a good
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reputation. A reputation tarnished by libel can seldom regain its former lustre. A
democratic society, therefore, has an interest in ensuring that its members can
enjoy and protect their good reputation so long as it is merited (108).
Though the law of defamation no longer serves as a bulwark against the duel
and blood feud, the protection of reputation remains of vital importance. As David
Lepofsky suggests in "Making Sense of the Libel Chill Debate: Do Libel Laws
`Chill' the Exercise of Freedom of Expression?" (1994), 4 N.J.C.L. 169, at p. 197,
reputation is the "fundamental foundation on which people are able to interact
with each other in social environments". At the same time, it serves the equally or
perhaps more fundamentally important purpose of fostering our self-image and
sense of self-worth. This sentiment was eloquently expressed by Stewart J. in
Rosenblatt v. Baer, 383 U.S. 75 (1966), who stated at p. 92:
The right of a man to the protection of his own reputation from unjustified
invasion and wrongful hurt reflects no more than our basic concept of the
essential dignity and worth of every human being -- a concept at the root of any
decent system of ordered liberty (117).
Although it is not specifically mentioned in the Charter, the good reputation of the
individual represents and reflects the innate dignity of the individual, a concept
which underlies all the Charter rights. It follows that the protection of the good
reputation of an individual is of fundamental importance to our democratic society
(120).
Further, reputation is intimately related to the right to privacy which has been
accorded constitutional protection. As La Forest J. wrote in R. v. Dyment, [1988]
2 S.C.R. 417, at p. 427, privacy, including informational privacy, is "[g]rounded in
man's physical and moral autonomy" and "is essential for the well-being of the
individual". The publication of defamatory comments constitutes an invasion of
the individual's personal privacy and is an affront to that person's dignity. The
protection of a person's reputation is indeed worthy of protection in our
democratic society and must be carefully balanced against the equally important
right of freedom of expression. In order to undertake the requisite balancing of
values, let us first review the change to the existing common law proposed by the
appellants.
(e)Conclusion: Should the Law of Defamation be Modified by
Incorporating the Sullivan Principle?
137
The New York Times v. Sullivan decision has been criticized by judges
and academic writers in the United States and elsewhere. It has not been
followed in the United Kingdom or Australia. I can see no reason for adopting it in
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Canada in an action between private litigants. The law of defamation is
essentially aimed at the prohibition of the publication of injurious false
statements. It is the means by which the individual may protect his or her
reputation which may well be the most distinguishing feature of his or her
character, personality and, perhaps, identity. I simply cannot see that the law of
defamation is unduly restrictive or inhibiting. Surely it is not requiring too much of
individuals that they ascertain the truth of the allegations they publish. The law of
defamation provides for the defences of fair comment and of qualified privilege in
appropriate cases. Those who publish statements should assume a reasonable
level of responsibility.
138 The Canadian Daily Newspaper Association indicated, in its response to A
Consultation Draft of the General Limitations Act (September 1991) at p. 3, that
the law of libel is a "carefully-crafted regime" which has "functioned fairly for the
media and for complainants for many years". Freedom of speech, like any other
freedom, is subject to the law and must be balanced against the essential need
of the individuals to protect their reputation. The words of Diplock J. in Silkin v.
Beaverbrook Newspapers Ltd., [1958] 1 W.L.R. 743, at pp. 745-46, are worth
repeating:
Freedom of speech, like the other fundamental freedoms, is freedom under
the law, and over the years the law has maintained a balance between, on the
one hand, the right of the individual . . . whether he is in public life or not, to his
unsullied reputation if he deserves it, and on the other hand . . . the right of the
public . . .to express their views honestly and fearlessly on matters of public
interest, even though that involves strong criticism of the conduct of public
people.
139
None of the factors which prompted the United States Supreme Court to
rewrite the law of defamation in America are present in the case at bar. First, this
appeal does not involve the media or political commentary about government
policies. Thus the issues considered by the High Court of Australia in
Theophanous, supra, are also not raised in this case and need not be
considered.
140
Second, a review of jury verdicts in Canada reveals that there is no
danger of numerous large awards threatening the viability of media
organizations. Finally, in Canada there is no broad privilege accorded to the
public statements of government officials which needs to be counterbalanced by
a similar right for private individuals.
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141
In conclusion, in its application to the parties in this action, the common
law of defamation complies with the underlying values of the Charter and there is
no need to amend or alter it.
142
Consideration must now be given to the submission made on behalf of
Morris Manning that the defence of qualified privilege should be expanded to
include reports upon pleadings and court documents that have been filed or are
at the point of being filed.
(f)Should the Common Law Defence of Qualified Privilege be Expanded to
Comply with Charter Values?
143
Qualified privilege attaches to the occasion upon which the
communication is made, and not to the communication itself. 144
The legal
effect of the defence of qualified privilege is to rebut the inference, which
normally arises from the publication of defamatory words, that they were spoken
with malice. Where the occasion is shown to be privileged, the bona fides of the
defendant is presumed and the defendant is free to publish, with impunity,
remarks which may be defamatory and untrue about the plaintiff. However, the
privilege is not absolute and can be defeated if the dominant motive for
publishing
the statement is actual or express malice. See Horrocks v. Lowe, [1975] A.C. 135
(H.L.), at p. 149.
145
Malice is commonly understood, in the popular sense, as spite or ill-will.
However, it also includes, as Dickson J. (as he then was) pointed out in dissent
in Cherneskey, supra, at p. 1099, "any indirect motive or ulterior purpose" that
conflicts with the sense of duty or the mutual interest which the occasion created.
See, also, Taylor v. Despard, [1956] O.R. 963 (C.A.). Malice may also be
established by showing that the defendant spoke dishonestly, or in knowing or
reckless disregard for the truth. See McLoughlin, supra, at pp. 323-24, and
Netupsky v. Craig, [1973] S.C.R. 55, at pp. 61-62.
146
Qualified privilege may also be defeated when the limits of the duty or
interest have been exceeded. See The Law of Defamation in Canada, supra, at
pp. 13-193 and 13-194; Salmond and Heuston on the Law of Torts (20th ed.
1992), at pp. 166-67. As Loreburn E. stated at pp. 320-21 in Adam v. Ward,
supra:
. . . the fact that an occasion is privileged does not necessarily protect all that
is said or written on that occasion. Anything that is not relevant and pertinent to
the discharge of the duty or the exercise of the right or the safeguarding of the
interest which creates the privilege will not be protected.
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147
In other words, the information communicated must be reasonably
appropriate in the context of the circumstances existing on the occasion when
that information was given. For example, in Douglas v. Tucker, [1952] 1 S.C.R.
275, the defendant, during an election campaign, stated that the plaintiff, who
was the officer of an investment company, had charged a farmer and his wife an
exorbitant rate of interest causing them to lose their property. The plaintiff
maintained that the allegation was without foundation. In response, the defendant
asserted that the plaintiff was facing a charge of fraud which had been adjourned
until after the election. This Court held that the defendant had an interest in
responding to the plaintiff's denial, thereby giving rise to an occasion of qualified
privilege. However, it ruled that the occasion was exceeded because the
defendant's comments went beyond what was "germane and reasonably
appropriate" (p. 286).
148 In Sun Life Assurance Co. of Canada v. Dalrymple, [1965] S.C.R. 302, the
district manager of the defendant insurance company threatened to resign and
take the district agents with him. This Court held that it fell within the scope of the
privilege for the company to make certain defamatory comments about the
plaintiff in order to dissuade its agents from leaving.
152
In Edmonton Journal, supra, at pp. 1338-40, I noted that the public
scrutiny of our courts by the press was fundamentally important in our democratic
society and that s. 2(b) protected not only speakers, but listeners as well. This
right to report on court proceedings extended to pleadings and court documents
filed before trial, since access to these documents served the same societal
needs as reporting on trials. Even in private actions, such as those for wrongful
dismissal or for personal damages, the public may well have an interest in
knowing the kinds of submissions which can be put forward.
Dagenais v Canadian Broadcasting Corp. [1994] 3 SCR 835: Challenge of a
publication ban --airing of programmes. Common law rule on publication bans
conflicted with charter values -- the common law rule must be varied in such a
manner as to enable the court to consider both the objective of a publication ban
and the proportionality of the ban’s effect on protected charter rights
The respondents, former and present members of a Catholic religious order,
were charged with physical and sexual abuse of young boys in their care at
training schools. They applied to a superior court for an injunction restraining the
CBC from broadcasting a mini series which was a fictional account of sexual
abuse of children in a Catholic institution. At the time of the hearing, their trials
were being heard or were scheduled to be heard. The court granted the
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injunction prohibiting publication of the fact of the application, or any material
relating to it. Held: The appeal should be allowed and the publication set aside.
Constitutional law -- Charter of Rights -- Freedom of expression -- Fair trial -Publication bans – Whether common law rule governing publication bans
inconsistent with Charter principles -- Canadian Charter of Rights and Freedoms,
ss. 2(b), 11(d).
In Dagenais v Canadian Broadcasting Corp [1994] 3 SCR 835 the CBC
challenged a publication ban which prevented them from airing one of their
programmes. It was held that the common law rule on publication bans conflicted
with charter values, the common law rule must be varied in such a manner as to
enable the court to consider both the objective of a publication ban and the
proportionality of the ban’s effect on protected charter rights. The respondents,
former and present members of a Catholic religious order, were charged with
physical and sexual abuse of young boys in their care at training schools. They
applied to a superior court for an injunction restraining the CBC from
broadcasting a mini series which was a fictional account of sexual abuse of
children in a Catholic institution. At the time of the hearing, their trials were being
heard or were scheduled to be heard. The court granted the injunction prohibiting
publication of the fact of the application, or any material relating to it. Held: The
appeal should be allowed and the publication set aside.
Per Lamer C.J. and Sopinka, Cory, Iacobucci and Major JJ.:
Publication bans, however, should not always be seen as a clash between
freedom of expression for the media and the right to a fair trial for the accused.
The clash model is more suited to the American constitutional context and should
be rejected in Canada. Other important concerns have a place at each stage of
the analysis that is required when considering whether a particular publication
ban can be justified under the common law (page 840) rule. The efficacy of a
publication ban is also a relevant factor in this analysis.
The party claiming under the common law rule that a publication ban is
necessary to avoid a real and serious risk to the fairness of the trial bears the
burden of justifying the limitation on freedom of expression. He must prove that
the proposed ban is necessary, in that it relates to an important objective that
cannot be achieved by a reasonably available and effective alternative measure,
that the proposed ban is as limited as possible, and that there is a proportionality
between the salutary and deleterious effects of the ban. The fact that the party
seeking the ban may be attempting to safeguard a constitutional right must be
borne in mind when determining whether the proportionality test has been
satisfied. The judge should, where possible, review the publication ban at issue.
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He must consider all other options besides the ban and find that there is no
reasonable and effective alternative available. He must also limit the ban as
much as possible. Lastly, the judge must weigh the importance of the objectives
of the particular ban and its probable effects against the importance of the
particular expression that will be limited to ensure that the positive and negative
effects of the ban are proportionate.
The publication ban in this case cannot be upheld. While the ban was clearly
directed toward preventing a real and substantial risk to the fairness of the trial of
the four respondents, the initial ban was far too broad. It prohibited broadcast
throughout Canada and even banned reporting on the ban itself. In addition,
reasonable alternative measures were available to achieve the objective without
circumscribing the expressive rights of third parties. The publication ban
therefore cannot be supported under the common law. In purporting to order the
ban under her common law discretionary authority, the superior court judge thus
committed an error of law.
R v Lucas 1998 1 SCR 439: Accused convicted of defamatory libel -- Whether
defamatory libel provisions in Criminal Code infringe right to freedom of
expression -- If so, whether infringement justifiable
1997: October 15; 1998: April 2.
Present: Lamer C.J. and L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin,
Iacobucci, Major and Bastarache JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR SASKATCHEWAN
Constitutional law -- Charter of Rights -- Freedom of expression -- Accused convicted of
defamatory libel -- Whether defamatory libel provisions in Criminal Code infringe right
to freedom of expression -- If so, whether infringement justifiable -- Canadian Charter of
Rights and Freedoms, ss. 1, 2(b) -- Criminal Code, R.S.C., 1985, c. C-46, ss. 298, 299,
300.
Constitutional law -- Charter of Rights -- Fundamental justice -- Vagueness -- Accused
convicted of defamatory libel -- Whether defamatory libel provisions in Criminal Code so
vague that they violate principles of fundamental justice -- Canadian Charter of Rights
and Freedoms, s. 7 -- Criminal Code, R.S.C., 1985, c. C-46, ss. 298, 299, 300.
Criminal law -- Defamatory libel -- Mens rea -- Offence of defamatory libel requiring
knowledge of falsity and intention to defame -- Trial judge erroneously holding that mens
rea requirement satisfied by proof that accused should have known that statements were
false -- Whether there is sufficient evidence that accused had subjective knowledge of
falsity of defamatory statements to uphold their convictions.
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A police officer investigated allegations of sexual abuse made by three children. As a
result of the investigation, criminal charges were laid against a number of individuals, but
many of the charges were subsequently withdrawn or stayed. During the course of his
investigation, the officer had been informed that one of the children had sexually
assaulted his sisters on numerous occasions and that the people who ran the special care
foster home where the children had been placed were unable to stop him. However, as a
result of his reliance upon the opinion of the children's therapist, the officer kept them
together in the same home. The appellant Mr. L was active in a prisoners' rights group.
Four of the individuals whose charges had been stayed provided him with all of the
information and documentation they possessed regarding the charges. On the basis of
these documents, the appellants apparently understood that one of the children had raped,
sodomized and tortured one of his sisters and repeatedly participated in sexual activities
with the other sister. They concluded that the officer had knowledge of what was
transpiring and that he had a duty to intervene. As a result, the appellants and a small
group of others picketed outside the provincial court and the police headquarters where
the officer worked. Mrs. L was carrying a sign prepared by her husband which read on
one side: "Did [the officer] just allow or help with the rape/sodomy of an 8 year old?"
and on the other side: "If you admit it [officer] then you might get help with your
touching problem." She was arrested and charged with defamatory libel under ss. 300 and
301 of the Criminal Code. The following day, Mr. L again picketed in front of the
provincial court and police headquarters. This time, he carried a sign with a similar
statement. He was subsequently arrested and also charged under ss. 300 and 301. At trial,
the appellants argued that their freedom of expression as guaranteed by s. 2(b) of the
Canadian Charter of Rights and Freedoms had been infringed. The trial judge agreed but
concluded that s. 300 was saved by s. 1 of the Charter. He found both of the appellants
guilty of defamatory libel under s. 300 and held that they should have known that the
statements on their placards were false. The Court of Appeal upheld the convictions.
Held (McLachlin and Major JJ. dissenting on Mrs. L's appeal): The appeals should be
dismissed.
Per Lamer C.J. and Gonthier, Cory, Iacobucci and Bastarache JJ.: The defamatory libel
provisions in ss. 298, 299 and 300 of the Code are not so vague that they infringe s. 7 of
the Charter. The wording of the sections makes it abundantly clear what kind of conduct
is the subject of legal restrictions. Section 298 specifies the types of published matter
which are targeted, while s. 299 restricts liability to specific modes of publication. As
well, ss. 298 to 300 give a sufficient indication as to how prosecutorial decisions must be
reached. Nor are the impugned sections too vague to constitute a limit prescribed by law
within the meaning of s. 1 of the Charter.
While, as properly conceded by the Crown, ss. 298, 299 and 300 of the Code contravene
the guarantee of freedom of expression provided by s. 2(b) of the Charter since the very
purpose of these sections is to prohibit a particular type of expression, subject to the
severance of part of s. 299(c) they can be upheld as a justifiable limit under s. 1 of the
Charter.
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The objective of the impugned provisions, which is the protection of the reputation of
individuals, is a pressing and substantial one in our society. The protection of an
individual's reputation from wilful and false attack recognizes both the innate dignity of
the individual and the integral link between reputation and the fruitful participation of an
individual in Canadian society. As well, the measures adopted are rationally connected to
the objective in question.
With respect to minimal impairment, it is particularly important at this stage to bear in
mind the negligible value of defamatory expression, which significantly reduces the
burden on the Crown to demonstrate that the provision is minimally impairing. While on
its face s. 300 requires but one form of mens rea, namely knowledge of falsity, and there
is no express requirement that an accused have an intention to defame, a historical review
of the application of mens rea in the context of defamatory libel and the application of
traditional principles of statutory interpretation lead inevitably to the conclusion that such
an intention is required and that s. 300 should be read accordingly. The Crown can thus
only make out the offence of defamatory libel if it proves beyond a reasonable doubt that
the accused intended to defame the victim. This requirement places a sufficiently onerous
burden on the Crown to make the mens rea aspect of the provision minimally intrusive.
The defamatory libel provisions in the Code are not overbroad as a result of the civil
remedy in libel which also protects the reputation of individuals. The harm addressed by
s. 300 is so grave and serious that the imposition of a criminal sanction is not excessive
but rather an appropriate response. However, s. 299(c) of the Code provides that a
defamatory libel is published when the defamatory statement is shown or delivered "with
intent that it should be read or seen by the person whom it defames". This portion of the
defamatory libel scheme is too broad. Clearly, the fundamental element of libel is
publication to a person other than the one defamed. Section 299(c) is so contrary to this
principle that it cannot be justified. The phrase "by the person whom it defames or"
should therefore be severed from s. 299(c) so that it reads "A person publishes a libel
when he . . . shows or delivers it, or causes it to be shown or delivered, with intent that it
should be read or seen by any other person". Obviously, the phrase "any other person"
will not pertain to the situation where only the person defamed is shown the defamatory
libel.
When freedom of expression is at issue, it is logical that the nature of the violation should
be taken into consideration in determining whether an appropriate balance has been
struck between the deleterious effects of the impugned legislative provisions on the
infringed right and the salutary goals of that legislation. The further a particular form of
expression departs from the values underlying freedom of expression, the lower will be
the level of constitutional protection afforded to it. Defamatory libel is so far removed
from the core values of freedom of expression that it merits but scant protection. The
laudable objective of the defamatory libel provisions and their salutary effects on the
protection of reputation far outweigh any negative impact on freedom of expression.
The placards displayed by the appellants fall within those parts of ss. 298 and 299 which
are constitutionally valid: that is to say they were publicly displayed and objectively
likely to injure a person's reputation. While the trial judge erred when he held that the
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mens rea requirement for s. 300 was satisfied by proof that the appellants should have
known that the statements they published were false, there is ample evidence that the
appellants had the requisite knowledge of falsity to uphold their conviction under s. 300.
Per L'Heureux-Dubé J.: Subject to agreement with McLachlin J.'s analysis under s. 1 of
the Charter, Cory J.'s analysis and conclusions were concurred with.
Per Major J. (dissenting in part): Cory J.'s reasons are agreed with except with respect to
the disposition of Mrs. L's appeal. It has long been established that an appellate court
should exercise caution in upholding a conviction where, as here, the trial judge erred in
applying an objective mens rea test when the Criminal Code required a subjective
standard. There was no direct evidence that Mrs. L had subjective knowledge that the
message portrayed on the placard she carried was false. If the trial judge had found that
her knowledge was in fact based solely on the reports obtained by her husband, it might
have been possible to infer that she had subjective knowledge of falsity. However, no
such finding of fact was made. It is possible that Mrs. L's knowledge might have derived
at least in part from what she was told by Mr. L, and she may therefore have believed that
the message was true even though in fact it was not. In the absence of findings of fact by
the trial judge related to subjective knowledge, there is insufficient evidence before this
Court to prove beyond a reasonable doubt that Mrs. L knew that the messages on the
placard she carried were false. Accordingly, her conviction must be set aside and, in light
of the Crown's statement that in the circumstances the Crown would not proceed with a
new trial, an acquittal directed.
Per McLachlin J. (dissenting in part): Cory J.'s reasons are agreed with except with
respect to how the value of the expression at issue figures in the s. 1 analysis and with
respect to the disposition of Mrs. L's appeal, which should be allowed for the reasons
given by Major J. The content of the expression and its value fall for consideration only
at the final stage of the proportionality analysis. To allow the perceived low value of the
expression to lower the bar of justification from the outset is to run the risk that a judge's
subjective conclusion that the expression at issue is of little worth may undermine the
intellectual rigour of the Oakes test. Justice is better served if the Crown is required to
demonstrate a pressing and substantial objective, rational connection and minimal
impairment independent of the perception that the content of the expressive activity is
offensive or without value. At the third and final stage of the proportionality analysis the
judge is required to consider both the benefits and the detriments of limiting the
expression in issue. Legislative limits on expression that falls far from the core values
underlying s. 2(b) of the Charter are easier to justify, not because the standard of
justification is lowered, but rather because the beneficial effects of the limitation more
easily outweigh any negative effects flowing from the limitation. In this case the
objective of the impugned provisions, which is to protect reputation against deliberate
attack using statements that are known to be false, passes the first stage of the s. 1
analysis. The limit on expression is also rationally connected to this pressing and
substantial objective and meets the minimal impairment test. Finally, the balancing
process envisaged by the last step of the Oakes test leads inexorably to the conclusion
that the benefits gained from the limitation on expression outweigh by far any detriment.
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This conclusion rests not on the low value of the expression (although this figures in
the analysis), but on the fact that the benefits of limiting the right exceed any benefits that
might flow from leaving it untrammelled.
Canadian Broadcasting Corp. v. New Brunswick (Attorney General) [1996]
3 S.C.R. 480: -- Freedom of the press -- Trial judge excluding public and media
from courtroom during part of accused's sentencing proceedings -- Whether s.
486(1) of Criminal Code infringes freedoms of expression and of the press -- If
so, whether s. 486(1) justifiable in a free and democratic society
Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory,
McLachlin, Iacobucci and Major JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR NEW BRUNSWICK
Constitutional law -- Charter of Rights -- Freedom of expression -- Freedom of
the press -- Trial judge excluding public and media from courtroom
during part of accused's sentencing proceedings -- Whether s. 486(1) of Criminal
Code infringes freedoms of expression and of the press -- If so, whether
s. 486(1) justifiable in a free and democratic society -- Canadian Charter of
Rights and Freedoms, ss. 1, 2(b) -- Criminal Code, R.S.C., 1985, c. C-46,
s. 486(1).
Criminal law -- Exclusion of public from court -- Trial judge excluding public
and media from courtroom during part of accused's sentencing
proceedings -- Whether trial judge exceeded his jurisdiction in making such order
-- Criminal Code, R.S.C., 1985, c. C-46, s. 486(1).
The accused pleaded guilty to two charges of sexual assault and two charges
of sexual interference involving young female persons. On a motion by the
Crown, consented to by defence counsel, the trial judge ordered the exclusion of
the public and the media from those parts of the sentencing proceedings dealing
with the specific acts committed by the accused, pursuant to s. 486(1) of the
Criminal Code. The order was sought on the basis of the nature of the evidence,
which the court had not yet heard and which purportedly established that the
offence was of a "very delicate" nature. The exclusion order remained in effect
for approximately 20 minutes. Afterwards, following a request by the CBC, the
trial judge gave reasons for making the exclusion order, stating that it had been
rendered in the interests of the "proper administration of justice"; it would avoid
"undue hardship on the persons involved, both the victims and the accused". The
CBC challenged the constitutionality of s. 486(1) before the Court of Queen's
Bench. The court held that s. 486(1) constituted an infringement on the freedom
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of the press protected by s. 2(b) of the Canadian Charter of Rights and
Freedoms but that the infringement was justifiable under s. 1 of the Charter. The
court also held that the trial judge had not exceeded his jurisdiction in making the
exclusion order. The Court of Appeal affirmed the judgment.
Held: The appeal should be allowed.
(1) Constitutional law issue
The open court principle is one of the hallmarks of a democratic society,
fostering public confidence in the integrity of the court system and understanding
of the administration of justice. This principle is inextricably tied to the rights
guaranteed by s. 2(b) of the Charter. The freedom to express ideas and opinions
about the operation of the courts and the right of members of the public to obtain
information about them are clearly within the ambit of s. 2(b). As well, s. 2(b)
protects the freedom of the press to gather and disseminate this information.
Members of the public in general rely and depend on the media to inform them
and, as a vehicle through which information pertaining to courts is transmitted,
the press must be guaranteed access to the courts in order to gather information.
Measures that prevent the media from gathering that information, and from
disseminating it to the public, restrict the freedom of the press guaranteed by s.
2(b). To the extent that such measures prohibit public access to the courts and to
information about the courts, they may also be said to restrict freedom of
expression in so far as it encompasses the freedom of listeners to obtain
information that fosters public criticism of the courts. The recognition of the
importance of public access to the courts as a fundamental aspect of our
democratic society should not be understood, however, as affirming a right to be
physically present in the courtroom; there may be a shortage of space. Nor
should it be seen as extending public access to all venues within which the
criminal law is administered. By its facial purpose, s. 486(1) of the Code restricts
expressive activity, in particular the free flow of ideas and information, in
providing a discretionary bar on public and media access to the courts. This is
sufficient to ground a violation of s. 2(b).
The exclusion of the public under s. 486(1) of the Code is a means by which
the court may control the publicity of its proceedings with a view to protecting the
innocent and safeguarding privacy interests and thereby afford a remedy to the
underreporting of sexual offences. This provision constitutes a reasonable limit
on the freedoms guaranteed by s. 2(b) of the Charter. Section 486(1) is aimed at
preserving the general principle of openness in criminal proceedings to the extent
that openness is consistent with and advances the proper administration of
justice. In situations where openness conflicts with the proper administration of
justice, s. 486(1) purports to further the proper administration of justice by
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permitting covertness where necessary. This objective is of sufficient
importance to warrant overriding a constitutional freedom. Section 486(1) is also
proportionate to the legislative objective. First, the means adopted -- a
discretionary power in the trial judge to exclude the public where it is in the
interests of the proper administration of justice -- is rationally connected to the
objective. The trial judge must exercise his discretion in conformity with the
Charter and the grant of this judicial discretion necessarily ensures that any order
made under s. 486(1) will serve the objective of furthering the administration of
justice. If it is not rationally connected to the objective, then the order will
constitute an error of law. Second, s. 486(1) impairs the rights under s. 2(b) as
little as reasonably possible in order to achieve the objective. The discretion
conferred on trial judges by s. 486(1) is not overbroad. Section 486(1) provides
an intelligible and workable standard -- the proper administration of justice -according to which the judiciary can exercise the discretion conferred. It also
arms the judiciary with a useful and flexible interpretative tool to accomplish its
goal of preserving the openness principle, subject to what is required by the
proper administration of justice. Again, since the discretion must be exercised in
a manner that conforms with the Charter, the discretionary aspect of s. 486(1)
guarantees that the impairment is minimal. An order that fails to impair the rights
at stake as little as possible will constitute an error. Third, the salutary effects of
s. 486(1) outweigh the deleterious effects. Parliament has attempted to balance
the different interests affected by s. 486(1) by ensuring a degree of flexibility in
the form of judicial discretion, and by making openness the general rule and
permitting exclusion of the public only when public accessibility would not serve
the proper administration of justice. The discretion necessarily requires that the
trial judge weigh the importance of the interests the order seeks to protect
against the importance of openness and specifically the particular expression
that is limited. In this way, proportionality is guaranteed by the nature of the
judicial discretion. In deciding whether to order exclusion of the public pursuant to
s. 486(1), a trial judge should bear in mind whether the type of expression that
may be impaired by the order infringes upon the core values sought to be
protected.
(2) Criminal law issue
In applying s. 486(1) to order the exclusion of the public, the trial judge must
exercise his discretion in conformity with the Charter. He must (a) consider
available options and whether there are any other reasonable and effective
alternatives available; (b) consider whether the order is limited as much as
possible; and (c) weigh the importance of the objectives of the particular order
and its probable effects against the importance of openness and the particular
expression that will be limited in order to ensure that the positive and negative
effects of the order are proportionate. Additionally, the burden of displacing the
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general rule of openness lies on the party making the application. The applicant
bears the burden of proving: that the particular order is necessary, in terms of
relating to the proper administration of justice; that the order is as limited as
possible; and that the salutary effects of the order are proportionate to its
deleterious effects. In relation to the proportionality issue, if the order is sought to
protect a constitutional right, this must be considered. There must also be a
sufficient evidentiary basis from which the trial judge may assess the application
and upon which he may exercise his discretion judicially. In some cases in which
the facts are not in dispute the statement of counsel will suffice. If there is
insufficient evidence placed before the trial judge, or there is a dispute as to the
relevant facts, the applicant should seek to have the evidence heard in camera.
Since the trial judge considering an application to exclude the public is usually
in the best position to assess the demands in a given situation, where the record
discloses facts that may support the trial judge's exercise of discretion, it should
not lightly be interfered with. In this case, however, the trial judge erred in
excluding the public from any part of the proceedings. There was insufficient
evidence to support a concern for undue hardship to the complainants or to the
accused. The order was unnecessary to further the proper administration of
justice and its deleterious effects were not outweighed by its salutary effects. The
mere fact that the victims are young females is not, in itself, sufficient to warrant
exclusion. The victims' privacy was already protected by a publication ban and
there was no evidence that their privacy interests required more protection. While
the criminal justice system must be ever vigilant in protecting victims of sexual
assault from further victimization, the record before the trial judge did not
establish that undue hardship would befall the victims in the absence of a s.
486(1) order. Nor did the record reveal that there were any other reasons to
justify an exception to the general rule of openness. Finally, barring exceptional
cases, there is no issue of hardship to the accused arising from prejudicial
publicity once the accused has pleaded guilty.
RJR-MacDonald Inc. v. Canada (Attorney General) [1995] 3 S.C.R. 199:
Freedom of expression -- Commercial advertising -- Cigarette advertising banned
-- Whether or not legislation validly enacted under criminal law power or under
peace, order and good government clause -- If so, whether or not Act's
provisions infringing s. 2(b) Charter right to freedom of expression -- If so,
whether or not infringements justifiable under s. 1
Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory,
McLachlin, Iacobucci and Major JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC
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Constitutional law -- Division of powers -- Charter of Rights -- Freedom of expression
-- Commercial advertising -- Cigarette advertising banned -- Whether or not legislation
validly enacted under criminal law power or under peace, order and good government
clause -- If so, whether or not Act's provisions infringing s. 2(b) Charter right to freedom
of expression -- If so, whether or not infringements justifiable under s. 1 -- Canadian
Charter of Rights and Freedoms, ss. 1, 2(b) --Constitution Act, 1867, Preamble, s. 91(27)
-- Tobacco Products Control Act, S.C. 1988, c. 20, ss. 4, 5, 6, 8, 9.
The Tobacco Products Control Act (the "Act") broadly prohibited (with specified
exceptions) all advertising and promotion of tobacco products and the sale of a tobacco
product unless its package includes prescribed unattributed health warnings and a list of
toxic constituents. The legislative scheme targeted three distinct categories of commercial
activity: advertising, promotion and labelling. The Act, except for a prohibition on the
distribution of free samples of tobacco products, did not proscribe the sale, distribution or
use of tobacco products.
These proceedings began with two separate motions for declaratory judgments before the
Quebec Superior Court. The appellant RJR-MacDonald Inc. sought a declaration that the
Act was wholly ultra vires Parliament and invalid as an unjustified infringement of
freedom of expression guaranteed by s. 2(b) of the Canadian Charter of Rights and
Freedoms. The appellant Imperial Tobacco Ltd. sought the same order, but only in
respect of ss. 4 and 5 (advertisement of tobacco products), and ss. 6 and 8 (promotion of
tobacco products). The two motions were heard together in the Quebec Superior Court
which declared the whole of the Act ultra vires the Parliament of Canada and as well
found it to be of no force or effect as an unjustified infringement of s. 2(b) of the Charter.
The Quebec Court of Appeal reversed this judgment. The constitutional questions
considered by this Court queried: (1) whether Parliament had legislative competence to
enact the Act under either the peace, order and good government of Canada clause or the
criminal law power, and (2) whether the Act infringed the right to freedom of expression
protected by s. 2(b) of the Charter and, if so, whether it was saved under s. 1.
Held (La Forest, L'Heureux-Dubé, Gonthier and Cory JJ. dissenting): The appeals should
be allowed. The first constitutional question dealing with the legislative competence of
Parliament to enact the legislation under the criminal law power or for the peace, order
and good government of Canada should be answered in the positive. With respect to the
second constitutional question, ss. 4 (re advertising), 8 (re trade mark use) and 9 (re
unattributed health warnings) of the Act are inconsistent with the right of freedom of
expression as set out is 2(b) of the Charter and do not constitute a reasonable limit on
that right as can be demonstrably justified pursuant to s. 1 thereof. La Forest, L'HeureuxDubé, Gonthier and Cory JJ. would find that they constitute a reasonable limit. Given that
ss. 5 (re retail displays) and 6 (re sponsorships) could not be cleanly severed from ss. 4, 8
and 9, all are of no force or effect pursuant to s. 52 of the Constitution Act, 1982.
Division of Powers
(i) Criminal Law Power
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Per Lamer C.J. and La Forest, L'Heureux-Dubé, Gonthier, Cory, McLachlin and
Iacobucci JJ. (Sopinka and Major JJ. dissenting): The legislation was validly enacted
under the criminal law power.
Per Lamer C.J. and La Forest, L'Heureux-Dubé, Gonthier, Cory and Iacobucci JJ.: The
legislation was validly enacted under the criminal law power, and it was accordingly
unnecessary to consider whether it fell under the peace, order and good government
clause. The criminal law power is plenary in nature, defined broadly, and not frozen in
time or confined to a fixed domain of activity. The legislation must not, however, be
colourable; some legitimate public purpose must underlie the prohibition.
The Tobacco Products Control Act is, in pith and substance, criminal law. Parliament's
purpose was to prohibit three categories of acts: advertisement of tobacco products (ss. 4
and 5), promotion of tobacco products (ss. 6 to 8) and sale of tobacco products without
printed health warnings (s. 9). The penal sanctions accompanying these prohibitions
created a prima facie indication that the Act was criminal law. The Act also has an
underlying criminal public purpose directed at some injurious effect upon the public -the detrimental health effects caused by tobacco consumption which were clearly
demonstrated by the attorney general at trial.
"Health" is not an enumerated head under the Constitution Act, 1867, and may be dealt
with by valid federal or provincial legislation depending on the circumstances and nature
and scope of the problem in question. The protection of health is one of the ordinary ends
of the federal criminal law power. The scope of that power includes, for example, the
right to legislate with respect to dangerous goods, including health warnings on
dangerous goods. This legislation was not colourable. Its purpose is to protect Canadians
against the serious health hazards that flow from the consumption of tobacco.
Parliament's decision to criminalize tobacco advertisement and promotion is a valid
exercise of the criminal law power. The Act has the requisite "criminal public purpose"
even though Parliament has not criminalized the "evil" ultimately aimed at but rather an
activity ancillary to the "evil". A prohibition upon the sale or consumption of tobacco is
not now a practical policy option, given the addictive nature of tobacco products, and the
large number of Canadians who smoke. It would be absurd to limit Parliament's power to
legislate in this emerging area of public concern simply because it cannot as a practical
matter impose a prohibition more specifically aimed at the evil. The constitutionality of
such legislation has recently been upheld in other cases.
The legislation, while not serving a "public purpose commonly recognized as being
criminal in nature", is nevertheless a valid exercise of the criminal law power. The
definition of the criminal law is not "frozen as of some particular time" and the criminal
law power includes the power to create new crimes. The existence of exemptions within
the legislation does not transform it from criminal to regulatory legislation. Broad statusbased exemptions to criminal legislation do not detract from the legislation's criminal
nature; they help define the crime by clarifying its contours.
Per McLachlin J.: Parliament may impose advertising bans and require health warnings
on tobacco products under its criminal law power.
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Per Sopinka and Major JJ.: Section 9 of the Tobacco Products Control Act falls
within Parliament's power under s. 91(27) of the Constitution Act, 1867, but ss. 4, 5, 6,
and 8 which prohibit all advertising and promotion of tobacco products and restrict the
use of tobacco trademarks, do not. The criminal law power encompasses the right to
legislate against dangerous foods and drugs, including tobacco products. Manufacturers
of tobacco products are under a duty to disclose and warn of the dangers inherent in the
consumption of tobacco products and failure to do so can validly constitute a crime.
The prohibition of conduct which interferes with the proper functioning of society or
which undermines the safety and security of society as a whole lies at the heart of the
criminal law. Matters posing a significant and serious risk of harm or causing significant
and serious harm to public health, safety or security can be proscribed by Parliament as
criminal. Lesser threats to society and its functioning are addressed through non-criminal
regulation.
Care must be taken not to overstate the objective because its importance may be
exaggerated and the analysis compromised. The objective of the advertising ban and
trade mark usage restrictions is to prevent Canadians from being persuaded by
advertising and promotion to use tobacco products.
The undesirability of this form of expression does not pose such a grave and serious
danger to public health as to make it criminal. The Act lacked a typically criminal public
purpose and is too far removed from the injurious or undesirable effects of tobacco use to
constitute a valid exercise of the criminal law power. Those areas where ancillary
activities have been criminalized, rather than the core activity itself, concern matters
which have traditionally been subject to criminal sanctions and pose significant and
serious dangers in and of themselves. Parliament could have criminalized tobacco use but
chose not to.
Broad-based exemptions are a factor which may lead a court to conclude that the
proscribed conduct is not truly criminal. The prohibitions on advertising cannot be upheld
as a valid exercise of the criminal law power given the broad-based exemptions allowing
for tobacco advertising in imported publications and given that the Act does not engage a
typically criminal public purpose.
Charter Issues
(i) Infringement
Per Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin,
Iacobucci and Major JJ.: The impugned sections infringed freedom of expression
guaranteed in s. 2(b) of the Charter.
Per La Forest, L'Heureux-Dubé, Gonthier and Cory JJ.: The prohibition on advertising
and promotion under the Act infringed appellants' right to freedom of expression under s.
2(b) of the Charter.
Per Lamer C.J. and Sopinka, McLachlin, Iacobucci and Major JJ.: The prohibition on
advertising and promotion of tobacco products violated the right to free expression. Since
freedom of expression necessarily entails the right to say nothing or the right not to say
certain things, the requirement that tobacco manufacturers place an unattributed health
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warning on tobacco packages combined with the prohibition against displaying any
writing on their packaging other than the name, brand name, trade mark, and other
information required by legislation too infringed this right. Section 7, which prohibits the
free distribution of any tobacco product in any form, is closely connected to the law's
objective and should stand.
(ii) Section 1 Analysis
Per Lamer C.J. and Sopinka, McLachlin, Iacobucci and Major JJ.: The impugned
sections were not justified under s. 1 of the Charter. La Forest, L'Heureux-Dubé,
Gonthier and Cory JJ. (dissenting) would have found the impugned sections justified and
therefore saved under s. 1.
Per Sopinka, McLachlin and Major JJ.: The appropriate test in a s. 1 analysis is that
found in s. 1 itself: whether the infringement is reasonable and demonstrably justified in a
free and democratic society. No conflict exists between the words of s. 1 and the
jurisprudence founded upon Oakes. The word "demonstrably" in s. 1 is critical: the
process is neither one of mere intuition nor of deference to Parliament's choice. While
remaining sensitive to the social and political context of the impugned law and allowing
for difficulties of proof inherent in that context, the courts must nevertheless insist that,
before the state can override constitutional rights, there be a reasoned demonstration of
the good which the law may achieve in relation to the seriousness of the infringement.
Context, deference and a flexible and realistic standard of proof are essential aspects of
the s. 1 analysis. The Oakes test must be applied flexibly, having regard to the factual and
social context of each case. This contextual approach does not reduce the obligation on
the state to demonstrate that the limitation on rights imposed by the law is reasonable and
justified. The deference accorded to Parliament may vary with the social context but must
not be carried to the point of relieving the government of its Charter-based burden of
demonstrating the limits it has imposed on guaranteed rights to be reasonable and
justifiable. To do so would diminish the role of the courts in the constitutional process
and weaken the structure of rights. The civil standard of proof on a balance of
probabilities at all stages of the proportionality analysis is more appropriate.
Courts of appeal, as a general rule, decline to interfere with findings of fact by a trial
judge unless they are unsupported by the evidence or based on clear error. In the context
of the s. 1 analysis, more deference may be required where findings are based on
evidence of a purely factual nature whereas a lesser degree of deference may be required
where the trial judge has considered social science and other policy-oriented evidence.
Appellate courts generally are not as constrained by the trial judge's findings in the
context of the s. 1 analysis as they are in the course of non-constitutional litigation
because the impact of the infringement on constitutional rights must often be assessed by
reference to a broad review of social, economic and political factors in addition to
scientific facts.
The objective should not be overstated. The objective relevant to the s. 1 analysis is that
of the infringing measure, since only the infringing measure must be justified. If the
objective is stated too broadly, its importance may be exaggerated and the analysis
compromised. The objective of the impugned measures, however, is somewhat narrower
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than the objectives of the wider legislative and policy scheme in which the Act is
found. The advertising ban and trade mark usage restrictions are to prevent people in
Canada from being persuaded by advertising and promotion to use tobacco products. The
mandatory package warning is to discourage people who see the package from tobacco
use. Both constitute important objectives. The critical question, however, is not the evil
tobacco works generally in our society, but the evil which the legislation addresses.
The extent to which this Court should defer to the trial judge's findings depends on
whether the findings relate to purely factual matters or whether they relate to complex
social science evidence from which it is difficult to draw firm factual and scientific
conclusions. Less deference should be accorded to the trial judge's finding that the
complete ban on advertising was not rationally connected to the aim of reducing
advertising-induced consumption. Much of the evidence adduced on this point was social
science evidence predictive of human behaviour from which it was difficult to draw firm
factual conclusions.
The impugned provisions mandating a complete ban and unattributed package warnings
do not minimally impair the right to free expression. Under the minimal impairment
analysis, the trial judge did not rely on problematic social science data, but on the fact
that the government had adduced no evidence to show that less intrusive regulation
would not achieve its goals as effectively as an outright ban. Nor had the government
adduced evidence to show that attributed health warnings would not be as effective as
unattributed warnings on tobacco packaging.
The causal relationship between the infringement of rights and the benefit sought may
sometimes be proved by scientific evidence showing that as a matter of repeated
observation, one affects the other. Where, however, legislation is directed at changing
human behaviour, as in the case of the Tobacco Products Control Act, the causal
relationship may not be scientifically measurable. In such cases, this Court has been
prepared to find a causal connection between the infringement and benefit sought on the
basis of reason or logic, without insisting on direct proof of a relationship between the
infringing measure and the legislative objective. Here, no direct evidence of a scientific
nature showed a causal link between advertising bans and decrease in tobacco
consumption. A link, established on a balance of probabilities and based on reason,
existed between certain forms of advertising, warnings and tobacco consumption. No
causal connection existed however, whether based on direct evidence or logic and reason,
between the objective of decreasing tobacco consumption and s. 8's absolute prohibition
on the use of a tobacco trade mark on articles other than tobacco products. Section 8
failed the rational connection test.
A complete ban on a form of expression is more difficult to justify than a partial ban. The
government must show that only a full prohibition will enable it to achieve its objective.
Where, as here, no evidence is adduced to show that a partial ban would be less effective
than a total ban, the justification required by s. 1 to save the violation of free speech is not
established.
As a matter of reason and logic, lifestyle advertising is designed to increase consumption.
Purely informational or brand preference advertising, however, has not been shown to
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have this effect. Several less intrusive alternative measures would be a reasonable
impairment of the right to free expression, given the important objective and the
legislative context.
Allowing Parliament to choose such measures as it sees fit by contrasting the importance
of Parliament's objective with the low value of the expression at issue raises a number of
concerns. First, to argue that the importance of the legislative objective justifies more
deference to the government at the stage of evaluating minimal impairment, is to engage
in the balancing between objective and deleterious effect contemplated by the third stage
of the proportionality analysis in Oakes. Second, just as care must be taken not to
overvalue the legislative objective beyond its actual parameters, so care must be taken not
to undervalue the expression at issue. Third, a great deal of reliance is placed on the fact
that the appellants are motivated by profit. Motivation to profit is irrelevant to the
determination of whether the government has established that the law is reasonable or
justified as an infringement of freedom of expression.
The requirement that the warning be unattributed pursuant to s. 9 of the Act fails to meet
the minimum impairment requirement of proportionality. The government is clearly
justified in requiring the appellants to place warnings on tobacco packaging. For the
reasons given with respect to the advertising ban, a lower level of constitutional scrutiny
is not justified in deciding whether it was necessary to prohibit the appellants from
attributing the message to the government and whether it was necessary to prevent the
appellants from placing on their packaging any information other than that allowed by the
regulations.
Per Lamer C.J. and Iacobucci J.: The Tobacco Products Control Act did not minimally
impair the appellants' s. 2(b) Charter rights. An attenuated minimal impairment analysis
could unduly dilute the s. 1 principles as originally cast in Oakes and related cases
creating the risk that Charter violations would be too easily justified, with the result that
Charter values would be too easily undercut.
The Act was rationally connected to its goal of protecting Canadians from the health risks
associated with tobacco use. Rational connection is to be established, upon a civil
standard, through reason, logic or common sense. The existence of scientific proof is
simply of probative value in demonstrating this reason, logic or common sense but is by
no means dispositive or determinative. The Act, however, was not "social engineering".
Agreement was expressed with the approach described by La Forest J. relative to
appellate court intervention on legislative or social facts found by a trial judge.
Minimal impairment analysis requires consideration of whether or not the legislature
turned its mind to alternative and less rights-impairing means to promote its legislative
goal. Here, evidence related to the options considered as alternatives to the total ban was
withheld from the factual record. In cases like these involving wide public interest
constitutional litigation, government should remain non-adversarial and make full
disclosure. The total prohibition on advertising (the full rights-impairing option) is only
constitutionally acceptable if information is provided that such a total prohibition is
necessary in order for the legislation to achieve a pressing and substantial goal. When the
evidence is unclear whether a partial prohibition is as effective as a full prohibition, the
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Charter requires that the legislature enact the partial denial of the implicated Charter
right. The tailoring required to meet minimal impairment was not significant and yet very
necessary to the Act's being constitutional.
Section 9 of the Act, requiring the placing of unattributed health warnings, infringed s.
2(b) and was unjustifiable under s. 1 for the reasons of McLachlin J. Sections 4, 5, 6 and
8 should also be struck. Proof might exist for this total and absolute ban on advertising,
but without it, there is no justifiable basis for this ban.
Per La Forest, L'Heureux-Dubé, Gonthier and Cory JJ.: The infringement was justifiable
under s. 1. Protecting Canadians from the health risks associated with tobacco use, and
informing them about these risks, is a pressing and substantial objective. It meets the two
broad criteria set forth in Oakes. First, its objective is of sufficient importance to override
a guaranteed right. Second, it meets the proportionality requirements established in
Oakes. These requirements are not synonymous with nor have they been superseded by
those set forth in s. 1 of the Charter. The appropriate "test" is that found in s. 1 itself. The
courts are to determine whether an infringement is reasonable and can be demonstrably
justified in a "free and democratic society" and must strike a delicate balance between
individual rights and community needs. This balance cannot be achieved in the abstract,
with reference solely to a formalistic "test" uniformly applicable in all circumstances. The
section 1 inquiry is an unavoidably normative inquiry, requiring the courts to take into
account both the nature of the infringed right and the specific values and principles upon
which the state seeks to justify the infringement. An important "synergetic relation"
exists between Charter rights and the context in which they are claimed. The Oakes
requirements therefore must be applied flexibly, having regard to the specific factual and
social context of each case. A rigid or formalistic approach should be avoided in order to
overcome the risk of losing sight of this relation.
The evidentiary requirements under s. 1 vary substantially depending upon both the
nature of the legislation and the nature of the right infringed. Here, both these contextual
elements were highly relevant to a proper application of the s. 1 analysis. The application
of a "rigorous" civil standard of proof below resulted in a failure to take into account the
specific context in which the s. 1 balancing must take place.
The nature and scope of the health problems raised by tobacco consumption are highly
relevant to the s. 1 analysis, both in determining the appropriate standard of justification
and in weighing the relevant evidence. Despite the lack of definitive scientific
explanations of the causes of tobacco addiction, clear evidence does exist of the
detrimental social effects of tobacco consumption. Overwhelming evidence was
introduced at trial that tobacco consumption is a principal cause of deadly cancers, heart
disease and lung disease, and that tobacco is highly addictive. The most distressing aspect
of the evidence is that tobacco consumption is most widespread among the most
vulnerable, the young and the less educated, at whom much of the advertising is
specifically directed.
The significant gap between an understanding of the health effects of tobacco
consumption and of the root causes of tobacco consumption raises a fundamental
institutional problem that must be taken into account in undertaking the s. 1 balancing.
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Strictly applying the proportionality analysis in cases of this nature would place an
impossible onus on Parliament by requiring it to produce definitive social scientific
evidence respecting the root causes of a pressing area of social concern whenever
Parliament wished to address its effects. This would have the effect of virtually
paralyzing the operation of government in the socio-economic sphere. To require
Parliament to await definitive social science conclusions whenever it wishes to make
social policy would impose an unjustifiable and unrealistic limit on legislative power.
The Court has recognized that the Oakes standard of justification should be attenuated
when institutional constraints analogous to those in the present cases arise. Although
courts are specialists in the protection of liberty and the interpretation of legislation and
are, accordingly, well placed to subject criminal justice legislation to careful scrutiny -that is not so in the sphere of policy-making. Policy-making is a role properly assigned to
elected parliamentarians who have the necessary institutional resources to enable them to
compile and assess social science evidence, to mediate between competing social
interests and to reach out and protect vulnerable groups. In according a greater degree of
deference to social legislation than to ordinary criminal justice legislation, the courts
recognize these important institutional differences. The Act in issue is the type of
legislation generally accorded a high degree of deference and the considerations
addressed in Irwin Toy and McKinney are applicable.
Expression, depending on its nature, is entitled to varying levels of constitutional
protection and requires a contextual, as opposed to an abstract, approach. Although
freedom of expression is a fundamental value, other fundamental values are also
deserving of protection and consideration by the courts. When these values come into
conflict, the courts must make choices based not upon abstract analysis, but upon a
concrete weighing of the relative significance of each of the relevant values in our
community in the specific context. Freedom of expression claims must be weighed in
light of their relative connection to a set of even more fundamental or core values which
include the search for political, artistic and scientific truth, the protection of individual
autonomy and self-development, and the promotion of public participation in the
democratic process. State action placing such values in jeopardy is subject to a searching
degree of scrutiny. Where the expression in question is farther from the "core" of freedom
of expression values, a lower standard of justification may be applied.
The harm engendered by tobacco and the profit motive underlying its promotion place
this form of expression as far from the "core" of freedom of expression values as
prostitution, hate-mongering and pornography. Its sole purpose is to promote the use of a
product that is harmful and often fatal to the consumer by sophisticated advertising
campaigns often specifically aimed at the young and most vulnerable. This form of
expression must then be accorded a very low degree of protection under s. 1 and an
attenuated level of justification is appropriate. The Attorney General need only
demonstrate that Parliament had a rational basis for introducing the measures contained
in this Act.
The reliance on the trial judge's finding need not be adopted. An appellate court generally
may only interfere with the factual findings of a trial judge where the trial judge made a
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manifest error and where that error influenced the trial judge's final conclusion or
overall appreciation of the evidence. The trial judge's factual findings in these cases,
however, were not of the type that fall within the general rule of appellate "noninterference". The privileged position of the trial judge to appreciate and weigh
adjudicative facts does not extend to the assessment of "social" or "legislative" facts that
arise in the law-making process. The trial judge's factual findings concerning the
connection between tobacco advertising and consumption were therefore entitled to
minimal deference.
The legislative means chosen under the Act must be rationally connected to the objective
of protecting public health by reducing tobacco consumption, not according to a civil
standard of proof, but only to the extent that there was a reasonable basis for believing
such connection. A rational connection obviously exists between a prohibition on the
distribution of free samples of tobacco products under s. 7 and the protection of public
health. One also exists between the prohibition on advertising and promotion of tobacco
products under ss. 4, 5, 6, and 8 and the objective of reducing tobacco consumption.
Notwithstanding the want of a definitive study connecting tobacco advertising and
tobacco consumption, sufficient evidence was adduced at trial to conclude that the
objective of reducing tobacco consumption is logically furthered by the prohibition on
tobacco advertising and promotion under the Act. The large advertising budgets of the
tobacco companies of themselves suggest that advertising not only helps to maintain
brand loyalty but also to increase consumption and to induce smokers not to quit. The
government's concern with the health effects of tobacco can quite reasonably extend to
both potential smokers and current smokers who would prefer to quit but cannot. Three
categories of evidence capable of substantiating this rational connection were disregarded
at trial: internal tobacco marketing documents, expert reports, and international materials.
The internal marketing documents introduced at trial strongly suggest that the tobacco
companies perceive advertising to be a cornerstone of their strategy to reassure current
smokers and expand the market by attracting new smokers, primarily among the young.
The expert reports introduced at trial attest, at the very least, to the existence of a "body
of opinion" supporting the existence of a causal connection between advertising and
consumption. It is also significant that by 1990, over 40 countries had adopted measures
to restrict or prohibit tobacco advertising.
For the reasons discussed throughout the s. 1 analysis, the legislative means chosen
impair the right in question as little as possible, notwithstanding the fact that it imposes a
complete prohibition on tobacco advertising and promotion rather than a partial one. The
relevance of context is important in s. 1 balancing, particularly at the minimal impairment
stage, because it does not require that the least intrusive measures be used but only that
the measures employed were the least intrusive in light of both the legislative objective
and the infringed right. The measures taken here to control tobacco products, given the
legislative context and the fact that this profit-generated type of expression is far from the
"core" of the freedom of expression, satisfied the Oakes minimal impairment
requirement. While a complete prohibition on a type of expression is more difficult to
justify than a partial prohibition, ample evidence was adduced at trial to demonstrate the
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government's decision that a full prohibition on advertising was justified and
necessary. The measures were the product of an intensive 20-year period of
experimenting with less intrusive measures with the cooperation of the provinces and
expensive consultation with an array of national and international health groups. Over the
course of this period the government adopted a variety of less intrusive measures before
determining a full prohibition on advertising was necessary. Parallel developments in the
international community have taken place. There has been overwhelming legislative and
judicial acceptance of this type of prohibition by other democratic countries. Where
governments have instituted partial prohibitions, tobacco companies have devised
ingenious tactics to circumvent them. International health organizations support this kind
of prohibition.
A proportionality must exist between the deleterious and the salutary effects of the
measures. The legislative objective of reducing the number of direct inducements for
Canadians to consume these products outweighs the limitation on tobacco companies to
advertise inherently dangerous products for profit.
While a legitimate concern was raised with respect to the effect of governmental claims
to confidentiality in constitutional cases, the action of the government in these cases was
not fatal. The evidence was overwhelming that the prohibition was a reasonable one.
Compelling the tobacco companies to place unattributed health messages on tobacco
packages does not infringe their freedom of expression. These messages cannot be taken
as being an opinion endorsed by the tobacco companies. They are rather a requirement
imposed by government as a condition of participating in a legislated activity. Even if
they may infringe a form of expression protected by s. 2(b), they were fully justifiable
under s. 1. The warnings do nothing more than bring the dangerous nature of these
products to the attention of the consumer. They have no political, social or religious
content. Any concern arising from the tobacco companies' being prevented from printing
on their packaging the opinion that tobacco products are not harmful, even if it is a
technical infringement of their rights, was easily outweighed by the pressing health
concerns raised by tobacco consumption, especially to children. The Charter does not
require the elimination of "minuscule" constitutional burdens, and legislative action that
increases the costs of exercising a right should not be invalidated if the burden is "trivial".
Here, the only cost associated with the unattributed health warning requirement was a
potential reduction in profits; manufacturers of dangerous products can reasonably be
expected to bear this cost.
Disposition
Per Lamer C.J. and Sopinka, McLachlin, Iacobucci and Major JJ.: Sections 4, 8 and 9,
and ss. 5 and 6 which are not severable from them, are of no force or effect under s. 52 of
the Constitution Act, 1982. Iacobucci J., while declaring the impugned legislation
inoperable, would have made a suspensive declaration of invalidity of one year and Cory
J., had he found the impugned legislation inoperable, would have agreed with Iacobucci
J. in this respect.
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Per Lamer C.J. and Sopinka, McLachlin and Major JJ.: Sections 4, 8 and 9 of the
Tobacco Products Control Act constitute unjustified infringements on free expression and
cannot be severed cleanly from other provisions dealing with promotion and trade mark
usage, ss. 5 or 6. Sections 4, 5, 6, 8, and 9 are inconsistent with the Charter and hence are
of no force or effect by reason of s. 52 of the Constitution Act, 1982.
Per Iacobucci J.: A suspensive declaration of invalidity of one year should be made.
Immediately striking down the legislation would permit the tobacco companies the
untrammelled ability to advertise until minimally impairing legislation is drafted; the
suspensive veto would permit the government to design such legislation while the status
quo remains in force.
Per Cory J.: If the impugned legislation were inoperable, agreement was expressed for
the reasons of Iacobucci J. that a suspensive declaration of invalidity of one year be
made.
RJR -- MacDonald Inc. v. Canada (Attorney General) [1994] 1 S.C.R. 311:
Interlocutory motions to stay implementation of regulations pending final decision
on appeals and to delay implementation if appeals dismissed -- Leave to appeal
granted shortly after applications to stay heard -- Whether the applications for
relief from compliance with regulations should be granted -- Tobacco Products
Control Act,
Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory,
McLachlin, Iacobucci and Major JJ.
APPLICATIONS FOR INTERLOCUTORY RELIEF
Practice -- Interlocutory motions to stay implementation of regulations pending final
decision on appeals and to delay implementation if appeals dismissed -- Leave to appeal
granted shortly after applications to stay heard -- Whether the applications for relief
from compliance with regulations should be granted -- Tobacco Products Control Act,
S.C. 1988, c. 20, ss. 3, 4 to 8, 9, 11 to 16, 17(f), 18. -- Tobacco Products Control
Regulations, amendment, SOR/93-389 -- Canadian Charter of Rights and Freedoms, ss.
1, 2(b), 24(1) --Rules of the Supreme Court of Canada, SOR/83-74, s. 27 -- Supreme
Court Act, R.S.C., 1985, c. S-26, s. 65.1.
The Tobacco Products Control Act regulates the advertisement of tobacco products and
the health warnings which must be placed upon those products. Both applicants
successfully challenged the Act's constitutional validity in the Quebec Superior Court on
the grounds that it was ultra vires Parliament and that it violates the right to freedom of
expression in s. 2(b) of the Canadian Charter of Rights and Freedoms. The Court of
Appeal ordered the suspension of enforcement until judgment was rendered on the Act's
validity but declined to order a stay of the coming into effect of the Act until 60 days
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following a judgment validating the Act. The majority ultimately found the legislation
constitutional.
The Tobacco Products Control Regulations, amendment, would cause the applicants to
incur major expense in altering their packaging and these expenses would be
irrecoverable should the legislation be found unconstitutional. Before a decision on
applicants' leave applications to this Court in the main actions had been made, the
applicants brought these motions for stay pursuant to s. 65.1 of the Supreme Court Act,
or, in the event that leave was granted, pursuant to r. 27 of the Rules of the Supreme
Court of Canada. In effect, the applicants sought to be released from any obligation to
comply with the new packaging requirements until the disposition of the main actions.
They also requested that the stays be granted for a period of 12 months from the dismissal
of the leave applications or from a decision of this Court confirming the validity of
Tobacco Products Control Act.
This Court heard applicants' motions on October 4 and granted leave to appeal the main
action on October 14. At issue here was whether the applications for relief from
compliance with the Tobacco Products Control Regulations, amendment should be
granted. A preliminary question was raised as to this Court's jurisdiction to grant the
relief requested by the applicants.
Held: The applications should be dismissed.
The powers of the Supreme Court of Canada to grant relief in this kind of proceeding are
contained in s. 65.1 of the Supreme Court of Canada Act and r. 27 of the Rules of the
Supreme Court of Canada.
The words "other relief" in r. 27 of the Supreme Court Rules are broad enough to permit
the Court to defer enforcement of regulations that were not in existence when the appeal
judgment was rendered. It can apply even though leave to appeal may not yet be granted.
In interpreting the language of the rule, regard should be had to its purpose: to facilitate
the "bringing of cases" before the Court "for the effectual execution and working of this
Act". To achieve its purpose the rule can neither be limited to cases in which leave to
appeal has already been granted nor be interpreted narrowly to apply only to an order
stopping or arresting execution of the Court's process by a third party or freezing the
judicial proceeding which is the subject matter of the judgment in appeal.
Section 65.1 of the Supreme Court Act was adopted not to limit the Court's powers under
r. 27 but to enable a single judge to exercise the jurisdiction to grant stays in
circumstances in which, before the amendment, a stay could be granted by the Court. It
should be interpreted as conferring the same broad powers as are included in r. 27. The
Court, pursuant to both s. 65.1 and r. 27, can not only grant a stay of execution and of
proceedings in the traditional sense but also make any order that preserves matters
between the parties in a state that will, as far as possible, prevent prejudice pending
resolution by the Court of the controversy, so as to enable the Court to render a
meaningful and effective judgment. The Court must be able to intervene not only against
the direct dictates of the judgment but also against its effects. The Court therefore must
have jurisdiction to enjoin conduct on the part of a party acting in reliance on the
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judgment which, if carried out, would tend to negate or diminish the effect of the
judgment of this Court.
Jurisdiction to grant the relief requested by the applicants exists even if the applicants'
requests for relief are for "suspension" of the regulation rather than "exemption" from it.
To hold otherwise would be inconsistent with Manitoba (Attorney General) v.
Metropolitan Stores (MTS) Ltd. which established that the distinction between
"suspension" and "exemption" cases is made only after jurisdiction has been otherwise
established. If jurisdiction under s. 65.1 of the Act and r. 27 were wanting, jurisdiction
would be found in s. 24(1) of the Canadian Charter of Rights and Freedoms. A Charter
remedy should not be defeated because of a deficiency in the ancillary procedural powers
of the Court to preserve the rights of the parties pending a final resolution of
constitutional rights.
The three-part American Cyanamid test (adopted in Canada in Manitoba (Attorney
General) v. Metropolitan Stores (MTS) Ltd.) should be applied to applications for
interlocutory injunctions and as well for stays in both private law and Charter cases.
At the first stage, an applicant for interlocutory relief in a Charter case must demonstrate
a serious question to be tried. Whether the test has been satisfied should be determined by
a motions judge on the basis of common sense and an extremely limited review of the
case on the merits. The fact that an appellate court has granted leave in the main action is,
of course, a relevant and weighty consideration, as is any judgment on the merits which
has been rendered, although neither is necessarily conclusive of the matter. A motions
court should only go beyond a preliminary investigation into the merits when the result of
the interlocutory motion will in effect amount to a final determination of the action, or
when the constitutionality of a challenged statute can be determined as a pure question of
law. Instances of this sort will be exceedingly rare. Unless the case on the merits is
frivolous or vexatious, or the constitutionality of the statute is a pure question of law, a
judge on a motion for relief must, as a general rule, consider the second and third stages
of the Metropolitan Stores test.
At the second stage the applicant is required to demonstrate that irreparable harm will
result if the relief is not granted. `Irreparable' refers to the nature of the harm rather than
its magnitude. In Charter cases, even quantifiable financial loss relied upon by an
applicant may be considered irreparable harm so long as it is unclear that such loss could
be recovered at the time of a decision on the merits.
The third branch of the test, requiring an assessment of the balance of inconvenience to
the parties, will normally determine the result in applications involving Charter rights. A
consideration of the public interest must be taken into account in assessing the
inconvenience which it is alleged will be suffered by both parties. These public interest
considerations will carry less weight in exemption cases than in suspension cases. When
the nature and declared purpose of legislation is to promote the public interest, a motions
court should not be concerned whether the legislation has in fact this effect. It must be
assumed to do so. In order to overcome the assumed benefit to the public interest arising
from the continued application of the legislation, the applicant who relies on the public
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interest must demonstrate that the suspension of the legislation would itself provide a
public benefit.
As a general rule, the same principles would apply when a government authority is the
applicant in a motion for interlocutory relief. However, the issue of public interest, as an
aspect of irreparable harm to the interests of the government, will be considered in the
second stage. It will again be considered in the third stage when harm to the applicant is
balanced with harm to the respondent including any harm to the public interest
established by the latter.
Here, the application of these principles to the facts required that the applications for stay
be dismissed.
The observation of the Quebec Court of Appeal that the case raised serious constitutional
issues and this Court's decision to grant leave to appeal clearly indicated that these cases
raise serious questions of law.
Although compliance with the regulations would require a significant expenditure and, in
the event of their being found unconstitutional, reversion to the original packaging would
require another significant outlay, monetary loss of this nature will not usually amount to
irreparable harm in private law cases. However, where the government is the
unsuccessful party in a constitutional claim, a plaintiff will face a much more difficult
task in establishing constitutional liability and obtaining monetary redress. The
expenditures which the new regulations require will therefore impose irreparable harm on
the applicants if these motions are denied but the main actions are successful on appeal.
Among the factors which must be considered in order to determine whether the granting
or withholding of interlocutory relief would occasion greater inconvenience are the
nature of the relief sought and of the harm which the parties contend they will suffer, the
nature of the legislation which is under attack, and where the public interest lies.
Although the required expenditure would impose economic hardship on the companies,
the economic loss or inconvenience can be avoided by passing it on to purchasers of
tobacco products. Further, the applications, since they were brought by two of the three
companies controlling the Canadian tobacco industry, were in actual fact for a suspension
of the legislation, rather than for an exemption from its operation. The public interest
normally carries greater weight in favour of compliance with existing legislation. The
weight given is in part a function of the nature of the legislation and in part a function of
the purposes of the legislation under attack. The government passed these regulations
with the intention of protecting public health and furthering the public good. When the
government declares that it is passing legislation in order to protect and promote public
health and it is shown that the restraints which it seeks to place upon an industry are of
the same nature as those which in the past have had positive public benefits, it is not for a
court on an interlocutory motion to assess the actual benefits which will result from the
specific terms of the legislation. The applicants, rather, must offset these public interest
considerations by demonstrating a more compelling public interest in suspending the
application of the legislation. The only possible public interest in the continued
application of the current packaging requirements, however, was that the price of
cigarettes for smokers would not increase. Any such increase would not be excessive and
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cannot carry much weight when balanced against the undeniable importance of the
public interest in health and in the prevention of the widespread and serious medical
problems directly attributable to smoking.
Native Women's Assn. of Canada v. Canada [1994] 3 S.C.R. 627: -- Federal
government funding four national aboriginal associations alleged to be maledominated and inviting them to participate in constitutional discussions -Aboriginal women's association not provided with equal funding and rights of
participation to express its views -- Whether aboriginal women's freedom of
expression infringed -- Whether federal government obliged under ss. 2(b) and
28 of Canadian Charter of Rights and Freedoms to provide equal funding and
participation to aboriginal women's association
Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory,
McLachlin, Iacobucci and Major JJ.
ON APPEAL FROM THE FEDERAL COURT OF APPEAL
Constitutional law -- Charter of Rights -- Freedom of expression -- Federal government
funding four national aboriginal associations alleged to be male-dominated and inviting
them to participate in constitutional discussions -- Aboriginal women's association not
provided with equal funding and rights of participation to express its views -- Whether
aboriginal women's freedom of expression infringed -- Whether federal government
obliged under ss. 2(b) and 28 of Canadian Charter of Rights and Freedoms to provide
equal funding and participation to aboriginal women's association.
Constitutional law -- Charter of Rights -- Equality rights -- Sex discrimination -- Federal
government funding four national aboriginal associations alleged to be male-dominated
and inviting them to participate in constitutional discussions -- Aboriginal women's
association not provided with equal funding and rights of participation to express its
views -- Whether aboriginal women's equality rights infringed -- Canadian Charter of
Rights and Freedoms, s. 15(1).
Constitutional law -- Aboriginal and treaty rights -- Constitutional reform -- Right of
Aboriginal people of Canada to participate in constitutional discussions not derived from
any existing aboriginal and treaty rights protected by s. 35 of Constitution Act, 1982.
Courts -- Federal Court of Appeal -- Jurisdiction -- Declaratory relief -- Whether
Federal Court of Appeal had jurisdiction to grant declaratory relief when applicants
sought order of prohibition in Trial Division.
During the constitutional reform discussions which eventually led to the Charlottetown
Accord, a parallel process of consultation took place within the Aboriginal community of
Canada. The federal government provided $10 million to fund participation of four
national Aboriginal organizations: the Assembly of First Nations ("AFN"), the Native
Council of Canada ("NCC"), the Metis National Council ("MNC") and the Inuit Tapirisat
of Canada ("ITC"). The Native Women's Association of Canada ("NWAC") was
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specifically not included in the funding but a portion of the funds advanced was
earmarked for women's issues. As a result, AFN and NCC each paid $130,000 to NWAC
and a further $300,000 was later received directly from the federal government. The four
national Aboriginal organizations were invited to participate in a multilateral process of
constitutional discussions regarding the Beaudoin-Dobbie Committee Report. The
purpose of these meetings was to prepare constitutional amendments that could be
presented to Canada as a consensus package. NWAC was concerned that their exclusion
from direct funding for constitutional matters and from direct participation in the
discussions threatened the equality of Aboriginal women and, in particular, that the
proposals advanced for constitutional amendment would not include the requirement that
the Canadian Charter of Rights and Freedoms be made applicable to any form of
Aboriginal self-government which might be negotiated. This fear was based on NWAC's
perception that the national Aboriginal organizations are male-dominated so that there
was little likelihood that the male majority would adopt the pro-Charter view of NWAC.
In response to a letter from NWAC, the Minister responsible for Constitutional Affairs
indicated that the national organizations represent both men and women and encouraged
NWAC to work within the Aboriginal communities to ensure their views are heard and
represented. Despite the fact that they participated in the parallel process set up by the
four national Aboriginal organizations, NWAC remained fearful that they would be
unsuccessful at putting forward their pro-Charter view and commenced proceedings in
the Federal Court, Trial Division against the federal government, seeking an order of
prohibition to prevent any further disbursements of funds to the four Aboriginal
organizations until NWAC was provided with equal funding as well as the right to
participate in the constitutional review process on the same terms as the four recipient
groups. NWAC alleged that by funding male-dominated groups and failing to provide
them with equal funding, the federal government violated their freedom of expression
and right to equality. The application was dismissed by the Trial Division. The Federal
Court of Appeal also refused to issue an order of prohibition. It made a declaration,
however, that the federal government had restricted the freedom of expression of
Aboriginal women in a manner that violated ss. 2(b) and 28 of the Charter.
Held: The appeal should be allowed and the declaration made by the Federal Court of
Appeal should be set aside.
Per Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, Iacobucci and Major JJ.:
Although NWAC merely sought an order of prohibition at the Trial Division, the Federal
Court of Appeal had jurisdiction in the circumstances to make a declaration. It cannot be
said that the appellant was taken by surprise or prejudiced in any way since the
declaration granted hinged on the violation of Charter rights that was specifically argued
at the Trial Division. The inclusion of a "basket clause" requesting "such other relief as to
this Honourable Court may seem just" in the prayer for relief permits a court to exercise
its discretion to grant a declaration even though it was not specifically pleaded.
Moreover, s. 18.1 of the Federal Court Act now provides for a uniform procedure of an
application for judicial review in order to obtain the remedies available in s. 18 of that
Act.
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The federal government's decision not to provide equal funding and participation in
the constitutional discussions to NWAC did not violate their rights under ss. 2(b) and 28
of the Charter, since s. 2(b) does not generally guarantee any particular means of
expression or place a positive obligation upon the government to fund or consult anyone.
Even assuming that in certain extreme circumstances, the provision of a platform of
expression to one group may infringe the expression of another and thereby require the
government to provide an equal opportunity for the expression of that group, nothing in
this case suggests that the funding or consultation of the four Aboriginal groups infringed
NWAC's equal right of freedom of expression. NWAC had many opportunities to express
their views both directly to the government, through the Beaudoin-Dobbie Commission,
and through the four Aboriginal representative organizations. No evidence supports the
contention that the funded groups were less representative of the viewpoint of women
with respect to the Charter or that the funded groups advocate a male-dominated form of
self-government. Nor was there any evidence with respect to the level of support of
NWAC by women as compared to the funded groups. The four Aboriginal groups invited
to discuss possible constitutional amendments are all bona fide national representatives of
Aboriginal people in Canada and, based on the facts in this case, there was no
requirement under s. 2(b) of the Charter to also extend an invitation and funding directly
to NWAC.
The refusal to fund NWAC and to invite them to be equal participants at the round of
constitutional discussions does not violate their rights under s. 15(1) of the Charter. The
lack of an evidentiary basis for the arguments with respect to ss. 2(b) and 28 is equally
applicable to any arguments advanced under s. 15(1).
The right of the Aboriginal people of Canada to participate in constitutional discussions
does not derive from any existing Aboriginal or treaty right protected under s. 35 of the
Constitution Act, 1982. Therefore, s. 35(4), which guarantees Aboriginal and treaty rights
referred to in s. 35(1) equally to male and female persons, has no application in this case.
Per L'Heureux-Dubé J.: Although general agreement with Sopinka J.'s reasons was
expressed, the outcome of this case should not be interpreted as limiting Haig. Haig does
not establish the principle that generally the government is under no obligation to fund or
provide a specific platform of expression to an individual or a group. Rather, it stands for
the proposition that, while s. 2(b) of the Charter does not include the right to any
particular means of expression, where a government chooses to provide one, it must do so
in a fashion that is consistent with the Constitution. Thus, while the government may
extend such a benefit to a limited number of persons, it may not do so in a discriminatory
fashion. The circumstances in which a government may be held to a positive obligation in
terms of providing a specific platform of expression depend on the nature of the evidence
presented by the parties. Here, the evidence demonstrates that the NWAC was not
prevented from expressing its views and therefore, on its facts, this case does not give
rise to a positive obligation analogous to the type referred to in Haig since not providing
NWAC with the funding and constitutional voice requested did not amount to a breach of
its freedom of expression.
Per McLachlin J.: The freedom of governments to choose and fund their advisors on
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matters of policy is not constrained by the Charter. It is unnecessary to determine
whether the evidence was capable of demonstrating a violation of NWAC's rights under
s. 2(b) or s. 15 of the Charter.
R. v. S. (T.) [1994] 3 S.C.R. 952: Publication bans -- Young offender charged
with sexual offences on two children -- Youth court judge banning publication of
evidence and proceedings at young offender's trial until trials of other accused
involving same complainants completed -- Whether media can challenge
publication ban.
Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory,
McLachlin, Iacobucci and Major JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR SASKATCHEWAN
Criminal law -- Publication bans -- Young offender charged with sexual offences on two
children -- Youth court judge banning publication of evidence and proceedings at young
offender's trial until trials of other accused involving same complainants completed -Whether media can challenge publication ban.
Appeal -- Publication bans -- Publication ban imposed in criminal proceedings -- Ban
issued under judge's common law or legislated discretionary authority -- Avenues
available for third parties to challenge ban.
A young offender was charged with a number of criminal offences, including sexual
assaults on two children. Her trial was the first of a series of related trials involving the
same complainants. The other accused were all adults. The Crown in the youth court trial
applied for a non-publication order and the CBC and other news media were granted
status to make representations on the application. The youth court judge banned the
publication of the evidence and proceedings at the young offender's trial until the trials of
the other accused were completed. The CBC challenged the order on the ground that the
youth court judge had gone too far in applying the common law rule governing
publication bans, and in so doing had violated the CBC's freedom of expression. The
Court of Appeal dismissed the appeal, holding that the CBC had no right of appeal to the
Court of Appeal and that the court had no jurisdiction to hear the appeal.
Held: The appeal should be dismissed.
Per Lamer C.J. and Sopinka, Gonthier, Cory, Iacobucci and Major JJ.: The general
principles and practices enunciated in Dagenais v. Canadian Broadcasting Corp., [1994] 3
S.C.R. 835, on the jurisdictional issue should be adopted. The Crown's application for a
ban was correctly brought before the judge in charge of the youth court trial and the CBC
should have made an application for certiorari to a superior court judge to challenge the
publication ban order. The Court of Appeal did not have jurisdiction to hear the CBC's
appeal. While this Court has jurisdiction to hear the appeal from the Court of Appeal's
decision, it does not have jurisdiction to review the order itself. Had the CBC applied for
certiorari to a superior court judge, an appeal would have been available to the Court of
Appeal under s. 784(1) of the Criminal Code and then to this Court under s. 40(1) of the
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Supreme Court Act. It is not open to this Court to grant leave to appeal the order itself
proprio motu, nunc pro tunc, ex post facto since there is no direct appeal avenue to this
Court from an order banning publication made by a provincial court judge.
Per La Forest J.: Subject to the comments in Dagenais v. Canadian Broadcasting Corp.,
[1994] 3 S.C.R. 835, Lamer C.J.'s reasons were agreed with.
Per L'Heureux-Dubé J.: The CBC had no right of appeal to the Saskatchewan Court of
Appeal or to this Court since there is no third party right of appeal from an interlocutory
criminal order. While a third party can challenge an interlocutory criminal order by way
of certiorari where such an order was issued by a provincial court judge, the CBC made
no such challenge.
Where the order being reviewed is the product of a provincial court judge's legally
authorized discretion, a challenge by way of certiorari should only rarely succeed. This
extraordinary remedy cannot be used to substitute one judge's discretion for that of
another. Furthermore, a discretionary order per se cannot be challenged on Charter
grounds as the Charter does not apply to court orders per se. While the Charter applies to
common law rules authorizing such court orders, the common law rule governing the
issuance of publication bans in criminal proceedings is consistent with the Charter and,
consequently, any challenge to this aspect of the common law must fail. The question of
whether the remedial powers of certiorari ought to be enlarged should be left for an
appropriate case.
Per McLachlin J.: For the reasons given on the jurisdictional issue in Dagenais v.
Canadian Broadcasting Corp., [1994] 3 S.C.R. 835, Lamer C.J.'s disposition is agreed
with.
New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of
Assembly) [1993] 1 S.C.R. 319: --Provincial legislature refusing media access to
public gallery to film proceedings with their own cameras -- Whether refusal
infringes guarantee of freedom of expression
Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory,
McLachlin, Stevenson and Iacobucci JJ.
ON APPEAL FROM THE NOVA SCOTIA SUPREME COURT, APPEAL DIVISION
Constitutional law -- Charter of Rights -- Application of Charter -- Provincial
legislatures -- Parliamentary privileges -- Nova Scotia House of Assembly refusing media
access to public gallery to film proceedings with their own cameras -- Whether Charter
applicable to a legislative assembly -- Whether exercise of privileges by members of a
legislative assembly subject to Charter review -- Canadian Charter of Rights and
Freedoms, s. 32(1)(b).
Constitutional law -- Charter of Rights -- Freedom of expression --Provincial legislature
refusing media access to public gallery to film proceedings with their own cameras -Whether refusal infringes guarantee of freedom of expression -- Canadian Charter of
Rights and Freedoms, s. 2(b).
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Constitutional law -- Parliamentary privileges -- Provincial legislatures -- Whether
privileges of a provincial legislature part of Constitution of Canada -- Constitution Act,
1867, preamble.
The respondent made an application to the Nova Scotia Supreme Court, Trial Division
for an order allowing it "to film the proceedings of the House of Assembly with its own
cameras". The application was based on s. 2(b) of the Canadian Charter of Rights and
Freedoms, which guarantees freedom of expression, including freedom of the press. The
media have regular access to the public gallery in the House where they may witness the
proceedings and they also have access to Hansard, but the House of Assembly, in the
exercise of its parliamentary privileges, has prohibited the use of television cameras in
the House, except on special occasions. The respondent claimed that it was possible to
film the proceedings from the public gallery with modern hand-held cameras which were
both silent and required no special lighting or electrical equipment. In his evidence, the
Speaker indicated that the respondent's proposal would interfere with the decorum and
orderly proceedings of the House. Apart from controlling decorum, the House would
have no control over the production and use of the film. The trial judge granted the
respondent's claim and the Appeal Division confirmed its right of access, pursuant to s.
2(b) of the Charter, to televise the proceedings of the House from the gallery with its
own unobtrusive cameras. The question as to whether any limits could be placed on this
right of access was left open.
Since the judgment of the Appeal Division, the House of Assembly's proceedings have
been televised through a system approved and controlled by the House. The cameras of
the "electronic Hansard" record only the member recognized by the Speaker as having the
floor. A direct feed of the "electronic Hansard" is available to the media who are able to
broadcast the proceedings live or tape them.
The constitutional questions stated here queried (1) whether the Charter applies to the
members of the House of Assembly when exercising their privileges as members; (2) if
so, whether exercising a privilege so as to refuse access to the media to the public gallery
to record and relay to the public proceedings of the House of Assembly by means of their
cameras contravenes s. 2(b) of the Charter; and (3) if so, whether such refusal is
justifiable under s. 1 of the Charter.
Held (Cory J. dissenting): The appeal should be allowed.
Per La Forest, L'Heureux-Dubé, Gonthier, McLachlin and Iacobucci JJ.: The Charter
does not apply to the members of the Nova Scotia House of Assembly when they
exercise their inherent privileges, since the inherent privileges of a legislative body such
as the Nova Scotia House of Assembly enjoy constitutional status.
------------Per L'Heureux-Dubé, Gonthier, McLachlin and Iacobucci JJ.: A textual and purposive
approach to s. 32(1) of the Charter does not support the conclusion that a legislative
assembly can never be subject to the Charter. By the terms of the Charter itself, the word
"legislature" in s. 32(1) cannot conclusively be narrowly defined to cover only those
actions for which the legislative body and the Queen's representative are jointly
responsible. Further, the tradition of curial deference does not extend to everything a
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legislative assembly might do, but is firmly attached to certain specific activities -- the
privileges -- of legislative assemblies. Without deciding that the legislative assembly is a
government actor for all purposes, as a public body it might be capable of impinging on
individual freedoms in areas not protected by privilege. The legislative assembly could,
therefore, fall within the rationale for regarding such bodies as government actors subject
to the Charter. Absent specific Charter language to the contrary, however, the long
history of curial deference to the independence of the legislative body, and to the rights
necessary to the functioning of that body, cannot be lightly set aside, even conceding that
our notions of what is permitted to government actors have been significantly altered by
the enactment and entrenchment of the Charter.
The Charter does not apply to the House of Assembly's action at issue in this appeal. The
privilege of the legislative assembly to exclude strangers enjoys constitutional status as
part of the Constitution of Canada, and hence cannot be abrogated by another part of the
Constitution. The House of Assembly has the constitutional power to exclude strangers
from its chamber by virtue of the preamble to the Constitution Act, 1867, which
proclaims an intention to establish "a Constitution similar in Principle to that of the
United Kingdom". This preamble constitutionally guarantees the continuance of
Parliamentary governance and, given Canadian federalism, this guarantee extends to the
provincial legislatures in the same manner as to the federal Parliament. The Constitution
of the United Kingdom recognized certain privileges in the British Parliament. Since the
Canadian legislative bodies were modelled on the Parliamentary system of the United
Kingdom, they possess similar, although not necessarily identical, powers. Given the
clear and stated intention of the founders of our country that Canada retain the
fundamental constitutional tenets upon which British parliamentary democracy rested, it
seems indisputable that the inherent privileges of Canada's legislative bodies, historically
recognized as necessary to their proper functioning, fall within the group of principles
constitutionalized by virtue of the preamble. This is not a case of importing an
unexpressed concept into our constitutional regime, but rather of recognizing a legal
power fundamental to the constitutional regime which Canada has adopted. The
definition of "Constitution of Canada" in s. 52(2) of the Constitution Act, 1982 is not
clearly meant to be exhaustive and the interpretation of that section should not be
restricted in such a way as to preclude giving effect to the intention behind the preamble
to the Constitution Act, 1867, thereby denying recognition to the minimal, but long
recognized and essential, inherent privileges of Canadian legislative bodies.
From an historical perspective, Canadian legislative bodies had, from their inception,
those privileges which were necessary for the maintenance of order and discipline during
the performance of their duties. These privileges are part of the fundamental law of our
land, and hence are constitutional. While courts may determine if the privilege claimed is
necessary to the capacity of the legislature to function, they have no power to review the
rightness or wrongness of a particular decision made pursuant to the privilege.
Finally, from a practical point of view, a legislative body must possess such
constitutional powers as are necessary for its proper functioning. An absolute right to
exclude strangers from its chamber, when it deems them to be disruptive of its efficacious
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operation, is a valid category of privilege founded on necessity. This privilege is as
necessary to modern Canadian democracy as it has been to democracies here and
elsewhere in past centuries.
The Speaker of the House of Assembly ruled against the media's demands because he
was of the view that they would interfere with the decorum and efficacious proceedings
of the House. In doing so, he acted within the ambit of his constitutional power to control
attendance in the House. It follows that this constitutional power cannot be abrogated by
the Charter. At issue is a valid constitutional power. To subject this power to the Charter
would be to negate this power. Were the issue here an action taken pursuant to a valid
power, that action might be subject to Charter scrutiny.
La Forest J.'s reasons were also agreed with.
Per La Forest J.: The reasons of McLachlin J. were generally agreed with, subject to the
following comments. When the British government granted a legislative assembly to a
colony, the grant carried with it, as an adjunct, the powers (or parliamentary privileges)
necessary for that body to carry out its functions, in particular the power to regulate its
internal processes, but not the broader parliamentary privileges of the British Parliament.
The legislative assembly, with its concomitant privileges, was part of the colony's
constitution, and in the case of the pre-existing provinces, like Nova Scotia, was
continued by the Constitution Act, 1867. Parliamentary legislative privileges in Nova
Scotia are, therefore, ultimately anchored in the grant of a legislative assembly and
incorporated into the Constitution Act, 1867. The new legislative bodies created by that
Act and subsequent constitutional instruments are governed by the same principle. The
preambular statement in the Constitution Act, 1867, that what was desired was "a
Constitution similar in Principle to that of the United Kingdom", among other things,
gives expression to the nature of the legislative bodies that were continued or established
by it. The privileges of these bodies are similar in principle, though not identical, to those
of the Parliament of the United Kingdom.
Per Lamer C.J.: The Houses of Parliament and the provincial legislative assemblies, and
their members, hold and exercise parliamentary privileges which are necessary to the
discharge of their legislative function. These privileges are held as against the Crown and
the judiciary. Courts can inquire into the existence and extent of privilege, but not its
exercise. Since general categories of privilege are deemed necessary to the discharge of
the Assembly's function, each specific instance of the exercise of a privilege need not be
shown to be necessary. In the United Kingdom, privilege evolved from a history of
conflict between the Houses of Parliament, the Crown and the courts. Given its historical
development, the source of those privileges is constitutional in the most fundamental
sense in that it has everything to do with the relationships between the different branches
of government. In Canada, however, the colonial legislative assemblies were held to have
certain inherent powers simply by virtue of their creation. The inherent powers of the
Canadian assemblies are not as broad as those of the Houses of Parliament of the United
Kingdom. Powers beyond the inherent privileges of the Canadian legislatures can be
granted to them by statute.
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While the Constitution of Canada is undoubtedly founded upon many of the same
broad principles as is the Constitution of the United Kingdom, the wording of the
preamble of the Constitution Act, 1867 -- "a Constitution similar in Principle to that of
the United Kingdom" -- cannot, without specific reference, be taken to transplant directly
art. 9 of the English Bill of Rights of 1689 into our Constitution, and thereby incorporate
the privileges of legislative bodies. History makes clear that the different paths of
evolution of government in the two jurisdictions led to significant differences in the
branches of government themselves from the very beginning. Canada has diverged
further in recent years with the patriation of its Constitution in 1982. Similar in principle
does not mean identical in the powers granted.
In light of the conclusion below concerning s. 32 of the Charter, it is unnecessary to
determine whether the privileges of provincial legislative assemblies have a constitutional
status which would make them immune to Charter review.
Section 32, as it relates to the application of s. 2(b) of the Charter, does not encompass
the members of the House of Assembly when exercising their inherent privileges. The
House of Assembly does not fall within the words "legislature" or "government" in s. 32
since the term "government" refers to the executive or administrative branch of
government and the term "legislature" refers to the body capable of enacting legislation,
and not to its component parts taken individually. The House of Assembly is a
component of the legislature but only together with the Lieutenant Governor does it
comprise the legislature. The language, structure and history of the constitutional text
support that conclusion. Section 32 specifically refers to "all matters within the authority
of the legislature". This is the language of legislation and is a clear reference to
legislative authority. Section 33 of the Charter strengthens this interpretation. Further, the
distinction between the federal or provincial legislatures and their component parts is
observed with reasonable consistency in the Constitution Act, 1867 and in the language
employed in the amending provisions set out in Part V of Schedule B of the Constitution
Act, 1982. There are certain provisions in the Charter, notably ss. 5, 17 and 18, in relation
to which the specific context requires a different meaning. While these sections show that
usage is not completely consistent, they by no means take away from the general rule that
"legislature" in s. 32 means the body that enacts legislation. The place and importance of
legislative privileges in our political life and the long-standing practice of judicial noninterference resolve any residual ambiguity concerning the interpretation of s. 32 as it
relates to the application to the House of the rights guaranteed under s. 2(b) of the
Charter.
Privileges are clearly "matters within the authority of the legislatures of each province" in
the sense that the provincial legislatures have the power to legislate in relation to
privileges. The legislation that the provinces have enacted with respect to privileges will
be reviewable under the Charter as is all other legislation. It does not follow, however,
that the exercise by members of the House of Assembly of their inherent privileges
(which are not dependent on statute for their existence) is subject to Charter review.
Here, given the long-standing acceptance of the power to exclude strangers and to control
the internal proceedings of the House as valid categories of privilege founded on
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necessity, in this country as well as in the United Kingdom, the ban by the members of
the House of Assembly on the use of independent video cameras in the House fell within
their inherent privileges.
Per Sopinka J.: The impugned rule or practice of the legislative assembly is not immune
from Charter scrutiny. The privileges of the members of the legislative assembly are
subject to legislation by the province as part of the constitution of the province. The
exercise of those privileges, whether by legislation or by rules or practices of the
legislative assembly, are matters "within the authority of the legislature" and therefore
subject to s. 32 of the Charter. One implication of treating those privileges as part of the
Constitution of Canada is that they would arguably not be subject to provincial legislation
and any change would require an amendment pursuant to s. 43 or s. 38 of the Constitution
Act, 1982. One would expect something more than a general reference to "a Constitution
similar in Principle" in a preamble in order to have this effect.
With the system currently used to broadcast the proceedings of the House of Assembly,
the media are not allowed to have their hand-held cameras in the public gallery. The
effect on the publication of news is that they are prevented from obtaining the reaction of
the members who are not speaking. The inability to gather news can occasion a
restriction on freedom of the press if it interferes with disseminating the news, but this
Court has not yet determined whether the protection of s. 2(b) of the Charter extends to
the means by which the gathering and dissemination of news is done. In any event,
assuming that the restriction complained of constitutes a violation of s. 2(b), it is
justifiable under s. 1 of the Charter. The exercise of the historic privilege in issue in this
appeal is a pressing and substantial objective. That objective is to maintain order and
decorum and ensure the smooth functioning of the legislative assembly. The present
restriction on the number and location of cameras is rationally connected with the
objective. While some other method might have been equally effective, the procedure
which has been adopted appears eminently sensible and the Court should not second
guess the legislative assembly who studied the matter and adopted a method which
ensures that in essence the proceedings of the Assembly are made available to the
television viewing audience. Finally, given the importance of preserving the decorum of
the House of Assembly, the alleged intrusion on the freedom of the press is not out of
proportion to this objective.
Per Cory J. (dissenting): Given a broad and liberal interpretation, the words "legislature"
and "government" in s. 32(1) of the Charter include the House of Assembly. The
underlying purpose of s. 32(1) is to restrict the application of the Charter to public actors.
The legislative assembly is an institution that is not only essential to the operation of
democracy but is also an integral part of democratic government. It is a public actor. It
follows that the Charter should apply to the actions of the House of Assembly, which
include not only the legislation passed by the Assembly but also its own rules and
regulations. The rules and regulations, if they are found to violate the Charter, can, like
the Acts passed by the Assembly, be saved under s. 1. Such a procedure would ensure
that the courts never unduly interfere with the inherent and enacted rights and privileges
possessed by a legislature which enable it to effectively carry out its role.
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The ban on television cameras is an exercise of privilege by the legislative assembly
subject to the Charter scrutiny. While the legislatures of this country possess such
constitutional privileges as are necessary for their operation, courts may, when properly
called upon, enquire as to whether a particular exercise of parliamentary privilege falls
within the privileged jurisdiction of the legislature. The exercise of the constitutional
power of privilege is not entrenched in the Constitution of Canada and the Charter must
apply to the exercise of that parliamentary privilege. Here, the privilege of the House of
Assembly represents an exercise of legislative authority over itself and members of the
media and is reviewable. The test for review is one of necessity. A complete prohibition
on cameras is not essentially necessary to the operation of the House, nor would the
presence of cameras automatically constitute an immediate obstruction. Such a rule falls
outside the constitutional scope of parliamentary privilege. The House of Assembly,
when it banned all cameras, exceeded the jurisdiction inherent in parliamentary privilege.
There is an infringement of s. 2(b) of the Charter when a legislative assembly denies any
media, or one form of media, access to its public debates. The protection of news
gathering does not constitute a preferential treatment of an elite or entrenched group -the media -- but rather constitutes an ancillary right essential for the meaningful exercise
of the Charter. Since the television media constitute an integral part of the press, a
prohibition on television cameras is by definition a restriction on freedom of the press. So
long as the camera is neither too pervasive nor too obtrusive, there can be no good reason
for excluding it. The legislative assembly does have a right, in appropriate circumstances,
to exclude or remove visitors including members of the press. It may also, with regard to
the attendance of television media, limit the number of cameras and their location and
regulate their manner of operation. What the Assembly cannot do is to exclude television
entirely by means of regulation without infringing s. 2(b). A balance must be kept
between efficient and dignified operation of the legislative assembly and the right of
freedom of expression. The system currently used in the House of Assembly is eminently
fair and suitable and would be justifiable under s. 1 of the Charter. The refusal to permit
any television cameras, however, contravenes s. 2(b) of the Charter and cannot be
justified under s. 1.
Ramsden v. Peterborough (City) [1993] 2 S.C.R. 1084: Postering -- Municipal
by-law banning posters on public property -- Whether postering a form of
expression -- If so, whether protected by s. 2(b) -- If infringement of s. 2(b),
whether justified under s. 1
Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory,
McLachlin, Iacobucci and Major JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO
Constitutional law -- Charter of Rights -- Freedom of expression -- Postering -Municipal by-law banning posters on public property -- Whether postering a form of
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expression -- If so, whether protected by s. 2(b) -- If infringement of s. 2(b), whether
justified under s. 1 -- Canadian Charter of Rights and Freedoms, ss. 1, 2(b).
This appeal concerned the constitutional validity of a municipal by-law prohibiting all
postering on public property. The issue was whether the absolute ban on such postering
infringed the Charter guarantee of freedom of expression, and if so whether that
infringement was justified under s. 1 of the Charter.
The accused advertised upcoming performances of his band on two occasions by affixing
posters to hydro poles contrary to a city by-law banning posters on public property. On
both occasions, he was charged under the by-law. The accused, while not denying the
offences, took the position that the by-law was unconstitutional because it was
inconsistent with the guarantee of freedom of expression in s. 2(b) of the Canadian
Charter of Rights and Freedoms.
A Justice of the Peace found that the by-law did not violate the Charter and convicted the
accused. The appeal to Provincial Court, which was dismissed, was based on the agreed
facts that postering on utility poles can constitute a safety hazard to workers climbing
them, a traffic hazard if placed facing traffic, and visual and aesthetic blight contributing
to litter if left too long. A majority of the members of the Court of Appeal found that the
by-law infringed the accused's freedom of expression and was not justifiable under s. 1 of
the Charter. The constitutional questions in this Court queried if the by-law limited the
right guaranteed by s. 2(b) of the Charter, and if so, whether such limits were
demonstrably justified under s. 1.
Held: The appeal should be dismissed.
In determining whether postering falls within the scope of s. 2(b), it must first be decided
that it constitutes expression, and if so, whether postering on public property is protected
by s. 2(b). The second step requires a determination of whether the purpose or effect of
the by-law is to restrict freedom of expression.
Postering conveys or attempts to convey a meaning, regardless of whether it constitutes
advertising, political speech or art. The first part of the s. 2(b) test is satisfied.
Postering on public property, including utility poles, clearly fosters political and social
decision-making and thereby furthers at least one of the values underlying s. 2(b). No
persuasive distinction existed between using public space for leaflet distribution and
using public property for the display of posters. The question was not whether or how the
speaker used the forum, but whether that use of the forum either furthered the values
underlying the constitutional protection of freedom of expression or was compatible with
the primary function of the property.
The by-law was aimed at the consequences of the particular conduct in question and was
not tied to content. On its face, it was content-neutral and prohibited all messages from
being conveyed in a certain manner and at certain places. The purpose of the by-law -avoiding the consequences associated with postering -- was "meritorious". The absolute
prohibition of postering on public property, however, prevented the communication of
political, cultural and artistic messages and therefore, infringed s. 2(b).
The objective of the by-law was pressing and substantial and the total ban was rationally
connected to these objectives. By prohibiting posters entirely, litter, aesthetic blight and
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associated hazards were avoided. The complete ban on postering, however, did not
restrict expression as little as is reasonably possible. The by-law extended to trees, all
types of poles, and all other public property. Worker safety was only affected when
posters were attached to wooden utility poles and traffic safety was affected only where
posters were displayed facing roadways. Many alternatives to a complete ban exist.
Proportionality between the effects and the objective was not achieved because the
benefits of the by-law were limited while the abrogation of the freedom was total. While
the legislative goals were important, they did not warrant the complete denial of access to
a historically and politically significant form of expression.
R. v. Butler [1992] 1 S.C.R. 452: -- Obscenity -- Obscene materials -- Whether
definition of obscenity in Criminal Code infringes s. 2(b) of Canadian Charter of
Rights and Freedoms -- If so, whether infringement justifiable under s. 1
Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory,
McLachlin, Stevenson and Iacobucci JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR MANITOBA
Constitutional law -- Freedom of expression -- Obscenity -- Obscene materials -Whether definition of obscenity in Criminal Code infringes s. 2(b) of Canadian Charter
of Rights and Freedoms -- If so, whether infringement justifiable under s. 1 of Charter -Criminal Code, R.S.C., 1985, c. C-46, s. 163(8).
Criminal law -- Obscenity -- Obscene materials -- Whether definition of obscenity in
Criminal Code infringes freedom of expression guaranteed in s. 2(b) of Canadian
Charter of Rights and Freedoms -- If so, whether infringement justifiable under s. 1 of
Charter -- Criminal Code, R.S.C., 1985, c. C-46, s. 163(8).
The accused owned a shop selling and renting "hard core" videotapes and magazines as
well as sexual paraphernalia. He was charged with various counts of selling obscene
material, possessing obscene material for the purpose of distribution or sale, and exposing
obscene material to public view, contrary to s. 159 (now s. 163) of the Criminal Code.
Section 163(8) of the Code provides that "any publication a dominant characteristic of
which is the undue exploitation of sex, or of sex and any one or more of . . . crime,
horror, cruelty and violence, shall be deemed to be obscene". The trial judge concluded
that the obscene material was protected by the guarantee of freedom of expression in s.
2(b) of the Canadian Charter of Rights and Freedoms, and that prima facie only those
materials which contained scenes involving violence or cruelty intermingled with sexual
activity or depicted lack of consent to sexual contact or otherwise could be said to
dehumanize men or women in a sexual context were legitimately proscribed under s. 1.
He convicted the accused on eight counts relating to eight films and entered acquittals on
the remaining charges. The Crown appealed the acquittals. The Court of Appeal, in a
majority decision, allowed the appeal and entered convictions with respect to all the
counts. The majority concluded that the materials in question fell outside the protection
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of the Charter since they constituted purely physical activity and involved the undue
exploitation of sex and the degradation of human sexuality.
Held: The appeal should be allowed and a new trial directed on all charges. Section 163
of the Criminal Code infringes s. 2(b) of the Charter but can be justified under s. 1 of the
Charter.
Per Lamer C.J. and La Forest, Sopinka, Cory, McLachlin, Stevenson and Iacobucci JJ.:
While the constitutional questions as stated concern s. 163 in its entirety, this appeal
should be confined to an examination of the constitutional validity of the definition of
obscenity in s. 163(8). Section 163(8) provides an exhaustive test of obscenity with
respect to publications and objects which exploit sex as a dominant characteristic. In
order for a work or material to qualify as "obscene", the exploitation of sex must not only
be its dominant characteristic, but such exploitation must be "undue". The courts have
attempted to formulate workable tests to determine when the exploitation of sex is
"undue". The most important of these is the "community standard of tolerance" test. This
test is concerned not with what Canadians would not tolerate being exposed to
themselves, but with what they would not tolerate other Canadians being exposed to.
There has been a growing recognition in recent cases that material which may be said to
exploit sex in a "degrading or dehumanizing" manner will necessarily fail the community
standards test, not because it offends against morals but because it is perceived by public
opinion to be harmful to society, particularly women. In the appreciation of whether
material is degrading or dehumanizing, the appearance of consent is not necessarily
determinative. The last step in the analysis of whether the exploitation of sex is undue is
the "internal necessities" test or artistic defence. Even material which by itself offends
community standards will not be considered "undue" if it is required for the serious
treatment of a theme. Thus far the jurisprudence has failed to specify the relationship of
these tests to each other.
The courts must determine as best they can what the community would tolerate others
being exposed to on the basis of the degree of harm that may flow from such exposure.
Harm in this context means that it predisposes persons to act in an anti-social manner, in
other words, a manner which society formally recognizes as incompatible with its proper
functioning. The stronger the inference of a risk of harm, the lesser the likelihood of
tolerance. The portrayal of sex coupled with violence will almost always constitute the
undue exploitation of sex. Explicit sex which is degrading or dehumanizing may be
undue if the risk of harm is substantial. Explicit sex that is not violent and neither
degrading nor dehumanizing is generally tolerated in our society and will not qualify as
the undue exploitation of sex unless it employs children in its production. If material is
not obscene under this framework, it does not become so by reason of the person to
whom it is or may be shown or by reason of the place or manner in which it is shown.
The need to apply the "internal necessities" test arises only if a work contains sexually
explicit material that by itself would constitute the undue exploitation of sex. The
portrayal of sex must then be viewed in context to determine whether undue exploitation
of sex is the main object of the work or whether the portrayal of sex is essential to a
wider artistic, literary or other similar purpose. The court must determine whether the
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sexually explicit material when viewed in the context of the whole work would be
tolerated by the community as a whole. Any doubt in this regard must be resolved in
favour of freedom of expression.
Section 163 of the Code seeks to prohibit certain types of expressive activity and thereby
infringes s. 2(b) of the Charter. Activities cannot be excluded from the scope of the
guaranteed freedom on the basis of the content or meaning being conveyed.
The infringement is justifiable under s. 1 of the Charter. Section 163(8), as interpreted in
prior judgments and supplemented by these reasons, prescribes an intelligible standard.
The overriding objective of s. 163 is not moral disapprobation but the avoidance of harm
to society, and this is a sufficiently pressing and substantial concern to warrant a
restriction on freedom of expression. One does not have to resort to the "shifting
purpose" doctrine in order to identify the objective as the avoidance of harm to society.
There is a sufficiently rational link between the criminal sanction, which demonstrates
our community's disapproval of the dissemination of materials which potentially
victimize women and restricts the negative influence which such materials have on
changes in attitudes and behaviour, and the objective. While a direct link between
obscenity and harm to society may be difficult to establish, it is reasonable to presume
that exposure to images bears a causal relationship to changes in attitudes and beliefs.
Section 163 of the Code minimally impairs freedom of expression. It does not proscribe
sexually explicit erotica without violence that is not degrading or dehumanizing, but is
designed to catch material that creates a risk of harm to society. Materials which have
scientific, artistic or literary merit are not caught by the provision. Since the attempt to
provide exhaustive instances of obscenity has been shown to be destined to fail, the only
practical alternative is to strive towards a more abstract definition of obscenity which is
contextually sensitive. The standard of "undue exploitation" is thus appropriate. Further,
it is only the public distribution and exhibition of obscene materials which is in issue
here. Given the gravity of the harm, and the threat to the values at stake, there is no
alternative equal to the measure chosen by Parliament. Serious social problems such as
violence against women require multi-pronged approaches by government; education and
legislation are not alternatives but complements in addressing such problems. Finally, the
effects of the law do not so severely trench on the protected right that the legislative
objective is outweighed by the infringement.
Per L'Heureux-Dubé and Gonthier JJ.: Sopinka J.'s reasons were generally agreed with,
subject to the following comments. The subject matter of s. 163 of the Code, obscene
materials, comprises the dual elements of representation and content, and it is the
combination of the two that attracts criminal liability. Obscenity is not limited to the acts
prohibited in the Code: Parliament ascribed a broader content to it because it involves a
representation. Obscenity leads to many ills. Obscene materials convey a distorted image
of human sexuality, by making public and open elements of human nature that are
usually hidden behind a veil of modesty and privacy. These materials are often evidence
of the commission of reprehensible actions in their making, and can induce attitudinal
changes which may lead to abuse and harm.
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Parliament through s. 163 prohibits, and does not regulate, the circulation of obscene
materials. In determining whether they are obscene, the impugned materials must
therefore be presumed available to the Canadian public at large, since restrictions on
availability are the result of regulatory measures which fall outside the purview of these
provisions.
Explicit sex with violence will generally constitute undue exploitation of sex, and explicit
sex that is degrading or dehumanizing will be undue if it creates a substantial risk of
harm, as outlined by Sopinka J. Explicit sex that is neither violent nor degrading or
dehumanizing may also come within the definition of obscene in s. 163(8). While the
content of this category of materials is generally perceived as unlikely to cause harm,
there are exceptions, such as child pornography. As well, it is quite conceivable that the
representation may cause harm, even if its content as such is not seen as harmful. While
the actual audience to which the materials are presented is not relevant, the manner of
representation can greatly contribute to the deformation of sexuality, through the loss of
its humanity, and make it socially harmful. The likelihood of harm, and the tolerance of
the community, may vary according to the medium of representation, even if the content
stays the same. The overall type or use of the representation may also be relevant. The
assessment of the risk of harm here depends on the tolerance of the community. If the
community cannot tolerate the risk of harm, then the materials, even though they may
offer a non-violent, non-degrading, non-dehumanizing content, will constitute undue
exploitation of sex and fall within the definition of obscenity.
Section 163 of the Code is aimed at preventing harm to society, a moral objective that is
valid under s. 1 of the Charter. The avoidance of harm to society is but one instance of a
fundamental conception of morality. In order to warrant an override of Charter rights the
moral claims must be grounded; they must involve concrete problems such as life, harm
and well-being, and not merely differences of opinion or taste. A consensus must also
exist among the population on these claims. The avoidance of harm caused to society
through attitudinal changes certainly qualifies as a fundamental conception of morality. It
is well grounded, since the harm takes the form of violations of the principles of human
equality and dignity.
R. v. Zundel [1992] 2 S.C.R. 731: Spreading false news -- Criminal Code
prohibiting wilful publication of false statement or news that person knows is false
and that is likely to cause injury or mischief to a public interest (s. 181) -Whether s. 181 of Code infringes s. 2(b) of Canadian Charter of Rights and
Freedoms -- If so, whether s. 181 justifiable under s. 1
Present: La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin and Iacobucci
JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO
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Constitutional law -- Charter of Rights -- Freedom of expression -- Spreading false
news -- Criminal Code prohibiting wilful publication of false statement or news that
person knows is false and that is likely to cause injury or mischief to a public interest (s.
181) -- Whether s. 181 of Code infringes s. 2(b) of Canadian Charter of Rights and
Freedoms -- If so, whether s. 181 justifiable under s. 1 of Charter -- Vagueness -Canadian Charter of Rights and Freedoms, ss. 1, 2(b) -- Criminal Code, R.S.C., 1985, c.
C-46, s. 181.
Criminal law -- Spreading false news -- Freedom of expression --Criminal Code
prohibiting wilful publication of false statement or news that person knows is false and
that is likely to cause injury or mischief to a public interest (s. 181) -- Whether s. 181 of
Code infringes the guarantee of freedom of expression in s. 2(b) of Canadian Charter of
Rights and Freedoms -- If so, whether limit imposed by s. 181 upon s. 2(b) justifiable
under s. 1 of Charter -- Canadian Charter of Rights and Freedoms, ss. 1, 2(b) -- Criminal
Code, R.S.C., 1985, c. C-46, s. 181.
The accused was charged with spreading false news contrary to s. 181 of the Criminal
Code, which provides 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 . . .". The charge
arose out of the accused's publication of a pamphlet entitled Did Six Million Really Die?
The accused had added a preface and afterword to an original document, which had
previously been published by others in the United States and England. The pamphlet, part
of a genre of literature known as "revisionist history", suggests, inter alia, that it has not
been established that six million Jews were killed before and during World War II and
that the Holocaust was a myth perpetrated by a worldwide Jewish conspiracy. The
accused was convicted after a lengthy trial. On appeal, his conviction was upheld on
constitutional grounds but struck down for errors in admitting evidence and in the charge
to the jury. The matter was sent back for a new trial. The accused was again convicted
and his conviction was affirmed by the Court of Appeal. This appeal is to determine
whether s. 181 of the Code infringes 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.
Held (Gonthier, Cory and Iacobucci JJ. dissenting): The appeal should be allowed.
Section 181 of the Criminal Code is unconstitutional.
Per La Forest, L'Heureux-Dubé, Sopinka and McLachlin JJ.: Section 181 of the Code
infringes the guarantee of freedom of expression. Section 2(b) of the Charter protects the
right of a minority to express its view, however unpopular it may be. All communications
which convey or attempt to convey meaning are protected by s. 2(b), unless the physical
form by which the communication is made (for example, a violent act) excludes
protection. The content of the communication is irrelevant. The purpose of the guarantee
is to permit free expression to the end of promoting truth, political or social participation,
and self-fulfilment. That purpose extends to the protection of minority beliefs which the
majority regards as wrong or false. Section 181, which may subject a person to criminal
conviction and potential imprisonment because of words he published, has undeniably the
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effect of restricting freedom of expression and, therefore, imposes a limit on s. 2(b).
Given the broad, purposive interpretation of the freedom of expression guaranteed by s.
2(b), those who deliberately publish falsehoods are not, for that reason alone, precluded
from claiming the benefit of the constitutional guarantees of free speech. Before a person
is denied the protection of s. 2(b), it must be certain that there can be no justification for
offering protection. The criterion of falsity falls short of this certainty, given that false
statements can sometimes have value and given the difficulty of conclusively
determining total falsity.
Section 181 of the Code, unlike s. 319 at issue in Keegstra, is not justifiable under s. 1 of
the Charter. In determining the objective of a legislative measure for the purposes of s. 1,
the Court must look at the intention of Parliament when the section was enacted or
amended. It cannot assign objectives, nor invent new ones according to the perceived
current utility of the impugned provision. Although the application and interpretation of
objectives may vary over time, new and altogether different purposes should not be
devised. Here, while s. 181 may be capable of serving legitimate purposes, Parliament
has identified no social problem, much less one of pressing concern, justifying it. The
provision originally focused on the prevention of deliberate slanderous statements against
the nobles of the realm to preserve political harmony in the state. To suggest now that its
objective is to combat hate propaganda or racism is to go beyond its history and its
wording and to adopt the "shifting purpose" analysis this Court has rejected. Such an
objective, moreover, hardly seems capable of being described as a "nuisance", the rubric
under which Parliament has placed s. 181, nor as the offence's target of mere "mischief"
to a public interest. Furthermore, if the simple identification of the (content-free) goal of
protecting the public from harm could constitute a "pressing and substantial" objective,
virtually any law would meet the first part of the onus imposed upon the Crown under s.
1. Justification under s. 1 requires more than the general goal of protection from harm
common to all criminal legislation; it requires a specific purpose so pressing and
substantial as to be capable of overriding the Charter's guarantees. The lack of any
ostensible purpose justifying s. 181 led the Law Reform Commission of Canada to
recommend repeal of the section, labelling it as "anachronistic". It is also significant that
the Crown could point to no other free and democratic country with criminal legislation
of this type. The fact that s. 181 has been rarely used despite its long history supports the
view that it is hardly essential to the maintenance of a free and democratic society. The
retention of s. 181 is not necessary to fulfil any international obligation undertaken by
Parliament. In the absence of an objective of sufficient importance to justify overriding
the right of free expression, s. 181 cannot be upheld under s. 1 of the Charter. Other
provisions, such as s. 319(2) of the Code, deal with hate propaganda more fairly and
more effectively. Still other provisions seem to deal adequately with matters of sedition
and state security.
Even if the Court were to attribute to s. 181 the objective of promoting racial and social
tolerance and to conclude that such objective was so pressing and substantial as to be
capable of overriding a fundamental freedom, s. 181 would still fail to meet the
proportionality test which prevailed in Keegstra. First, assuming a rational link between
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s. 181 and the objective of social harmony, the section is too broad and more invasive
than necessary to achieve that aim. The phrase "statement, tale or news", while it may not
extend to the realm of true opinion, obviously encompasses a broad range of historical
and social speech, going well beyond what is patent or provable to the senses as a matter
of "pure fact". What is an assertion of fact, as opposed to an expression of opinion, is a
question of great difficulty and the question of falsity of a statement is often a matter of
debate. But the greatest danger of s. 181 lies in the undefined phrase "injury or mischief
to a public interest", which is capable of almost infinite extension. To equate the words
"public interest" with the protection and preservation of certain Charter rights or values,
such as those in ss. 15 and 27, is to engage in an impermissible reading in of content
foreign to the enactment. The range of expression potentially caught by the vague and
broad wording of s. 181 extends to virtually all controversial statements of apparent fact
which might be argued to be false and likely to do some mischief to some public interest,
regardless of whether they promote the values underlying s. 2(b). Not only is s. 181 broad
in contextual reach; it is particularly invasive because it chooses the most draconian of
sanctions to effect its ends -- prosecution for an indictable offence under the criminal law.
There is thus a danger that s. 181 may have a chilling effect on minority groups or
individuals, restraining them from saying what they would like for fear that they might be
prosecuted. Second, when the objective of s. 181 is balanced against its potential invasive
reach, the limitation of freedom of expression is disproportionate to the objective
envisaged. The value of liberty of speech, one of the most fundamental freedoms
protected by the Charter, needs no elaboration. By contrast, the objective of s. 181, in so
far as an objective can be ascribed, falls short of constituting a countervailing interest of
the most compelling nature. Further, s. 181 could support criminalization of expression
only on the basis that the sanction was closely confined to situations of serious concern.
Per Gonthier, Cory and Iacobucci JJ. (dissenting): The deliberate publication of
statements known to be false, which convey meaning in a non-violent form, falls within
the scope of s. 2(b) of the Charter. The sphere of expression protected by the section has
been very broadly defined to encompass all content of expression irrespective of the
particular meaning sought to be conveyed unless the expression is communicated in a
physically violent form. Freedom of expression is so important to democracy in Canada
that even those statements on the extreme periphery of the protected right must be
brought within the protective ambit of s. 2(b). In enacting s. 181 of the Code, Parliament
sought to restrict, not all lies, but only those that are wilfully published and that are likely
to injure the public interest. Although the targeted expression is extremely limited, the
provision does have as its purpose the restriction of free expression. Section 181,
therefore, constitutes an infringement of s. 2(b).
Section 181 of the Code is sufficiently precise to constitute a limit prescribed by law
under s. 1 of the Charter. The citizen knows that to be at risk under this section, he must
wilfully publish a false statement knowing it to be false. Further, the publication of those
statements must injure or be likely to injure the public interest. The fact that the term
"public interest" is not defined by the legislation is of little significance. The courts play a
significant role in the definition of words and phrases used in the Code and other
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enactments. The term "public interest", which is widely used in federal as well as
provincial statutes, must be interpreted in light of the legislative history of the particular
provision in which it appears and the legislative and social context in which it is used. In
the context of s. 181, the term "public interest" should be confined to those rights
recognized in the Charter as being fundamental to Canadian democracy. It need not be
extended beyond that. As an example, the rights enacted in ss. 7, 15 and 27 of the
Charter should be considered in defining a public interest. A "public interest" likely to be
harmed as a result of contravention of s. 181 is the public interest in a free and
democratic society that is subject to the rule of law. A free society is one built upon
reasoned debate in which all its members are entitled to participate. As a fundamental
document setting out essential features of our vision of democracy, the Charter provides
us with indications as to which values go to the very core of our political structure. A
democratic society capable of giving effect to the Charter's guarantees is one which
strives toward creating a community committed to equality, liberty and human dignity. It
is thus only if the deliberate false statements are likely to seriously injure the rights and
freedoms set out in the Charter that s. 181 is infringed. This section, therefore, provides
sufficient guidance as to the legal consequence of a given course of conduct and cannot
be said to be too vague.
Section 181 of the Code is justifiable under s. 1 of the Charter. Parliament's objective of
preventing the harm caused by the wilful publication of injurious lies is sufficiently
pressing and substantial to justify a limited restriction on freedom of expression. The
objective of s. 181 is evident from the clear wording of the provision which prohibits the
publication of a statement that the accused knows is false and "that causes or is likely to
cause injury". This specific objective in turn promotes the public interest in furthering
racial, religious and social tolerance. There is a pressing and substantial need to protect
groups identifiable under s. 15 of the Charter, and therefore society as a whole, from the
serious harm that can result from such "expression". The work of numerous study groups
has shown that racism is a current and present evil in our country. It is a cancerous
growth that is still alive. Section 181, which provides protection, by criminal sanction, to
all vulnerable minority groups and individuals against the harms caused by deliberate and
injurious lies, still plays a useful and important role in encouraging racial and social
tolerance, which is so essential to the successful functioning of a democratic and
multicultural society. The focus of s. 181 is on manipulative and injurious false
statements of fact disguised as authentic research. The international instruments against
national, racial or religious hatred signed by Canada, the various provisions similar to s.
181 found in other free and democratic countries, the tragedy of the Holocaust and
Canada's commitment to the values of equality and multiculturalism in ss. 15 and 27 of
the Charter emphasize the importance of s. 181's aim.
The purpose attributed to s. 181 is not new. The predecessors of s. 181 were always
aimed at preventing the harm caused by false speech and thereby protecting the safety
and security of the community. While initially the protection of the public interest from
harm focused on the prevention of deliberate slanderous statements against the great
nobles of the realm to preserve the security of the state, the purpose has evolved over the
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years to extend the protections from harm caused by false speech to vulnerable social
groups and therefore to safeguard the public interest against social intolerance and public
alarm. Thus, rather than creating a new and different purpose, the aim of the section has
been maintained. The wording of s. 181, however, includes a permissible shift in
emphasis with its test which is based on injury to the public interest. Looking back to the
inclusion of the offence in the Code, and the last amendment to the section, one can
reasonably conclude that there has been a shift in the values that inform the public
interest. Since this shift has been incorporated into the language of the section itself, it is
therefore permissible. The test of defining "injury . . . to a public interest" takes into
account the changing values of Canadian society. Those values encompass
multiculturalism and equality, precepts specifically included in the Charter.
Section 181 of the Code is an acceptably proportional response to Parliament's objective.
First, there is a rational connection between the suppression of the publication of
deliberate and injurious lies and Parliament's objective of protecting society from the
harms caused by calculated falsehoods and thereby promoting the security and safety of
the community. Where racial and social intolerance is fomented through the deliberate
manipulation of people of good faith by unscrupulous fabrications, a limitation on the
expression of such speech is rationally connected to its eradication.
Second, s. 181 does not unduly infringe the right of freedom of expression. Under s. 181,
the accused is not judged on the unpopularity of his beliefs. It is only where the deliberate
publication of false facts is likely to seriously injure a public interest that the impugned
section is invoked. Any uncertainty as to the nature of the speech inures to the benefit of
the accused. The infrequent use of s. 181 can be attributed to the extremely onerous
burden on the Crown to prove each element of the offence. The fact that the section is
seldom used, however, should not militate against its usefulness. Further, s. 181 is not
overly broad. An application of the appropriate criteria makes it possible to draw a
coherent distinction between statements of opinion and assertions of fact. When applied
to the pamphlet at issue in this case, these criteria indicate that statements couched as
"revisionist history" may be taken to be allegations of fact rather than submissions of
opinion. The jury, as instructed by the trial judge, was clearly capable of drawing that
distinction. While it is true that no theory of history can be proved or disproved, the
accused has not been convicted for misinterpreting factual material but for entirely and
deliberately misrepresenting its contents, manipulating and fabricating basic facts in
order to support his theories. Courts deal with the question of truth and falsity of
statements on a daily basis. With reference to reliable historical documents, "historical
facts" can also be shown to be true or false in the context of s. 181 -- a section well suited
to respond to the harm caused by vilification campaigns disguised as pseudo-science.
Finally, the fact that Parliament has enacted hate propaganda legislation does not
invalidate s. 181. The government may legitimately employ a variety of measures in
order to achieve its objective. Human rights legislation may, in certain circumstances, be
sufficient to deal with a particular problem in this area, but the strength of the criminal
law is needed and reserved for the extreme cases, such as the case at hand, to send a clear
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message and to discourage and punish those who knowingly publish falsehoods that
are likely to injure a public interest.
Third, the prohibition of the wilful publication of what are known to be deliberate lies is
proportional to the importance of protecting the public interest in preventing the harms
caused by false speech and thereby promoting racial and social tolerance in a
multicultural democracy. Section 181, at best, limits only that expression which is
peripheral to the core values protected by s. 2(b) of the Charter. The falsehoods of the
type caught by s. 181 serve only to hinder and detract from democratic debate. The
section is narrowly defined in order to minimally impair s. 2(b). It also provides
maximum protection for the accused.
Committee for the Commonwealth of Canada v Canada [1991] 1 S.C.R. 139:
Airport officials forbidding distributing of political pamphlets -- Federal regulations
prohibiting advertising or soliciting at airports -- Whether regulations infringe s.
2(b) of Canadian Charter of Rights and Freedoms -- If so, whether infringement
justifiable under s. 1
Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory and
McLachlin JJ.
ON APPEAL FROM THE FEDERAL COURT OF APPEAL
Constitutional law -- Charter of Rights -- Freedom of expression -- Airport officials
forbidding distributing of political pamphlets -- Federal regulations prohibiting
advertising or soliciting at airports -- Whether regulations infringe s. 2(b) of Canadian
Charter of Rights and Freedoms -- If so, whether infringement justifiable under s. 1 of
Charter -- Government Airport Concession Operations Regulations, SOR/79-373, s. 7(a),
(b).
Constitutional law -- Charter of Rights -- Reasonable limits -- Airport officials forbidding
distributing of political pamphlets -- Respondent's freedom of expression infringed -Federal regulations prohibiting advertising or soliciting at airports -- Whether regulations
encompass political activities -- Whether action of officials constitutes a limit prescribed
by law -- Canadian Charter of Rights and Freedoms, s. 1 -- Government Airport
Concession Operations Regulations, SOR/79-373, s. 7(a), (b).
Transportation -- Airports -- Airport officials forbidding distributing of political
pamphlets -- Federal regulations prohibiting advertising or soliciting at airports -Whether regulations infringe freedom of expression guaranteed in s. 2(b) of Canadian
Charter of Rights and Freedoms -- Whether government's proprietary rights allow it to
control all activity on its property as it sees fit -- Government Airport Concession
Operations Regulations, SOR/79-373, s. 7(a), (b).
Respondents L and D were at an airport telling passers-by about the respondent
committee and its goals and recruiting members when they were asked by an R.C.M.P.
officer to cease their activities. The airport's assistant manager confirmed to them that
such political propaganda activities were not permitted, as ss. 7(a) and 7(b) of the
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Government Airport Concession Operations Regulations prohibited the conducting of
any business or undertaking, commercial or otherwise, and any advertising or soliciting at
an airport, except as authorized in writing by the Minister. The trial judge granted
respondents' action for a declaration that appellant had not respected their fundamental
freedoms. The Federal Court of Appeal affirmed the judgment. This appeal is to
determine whether ss. 7(a) and 7(b) of the Regulations are inconsistent with the freedom
of expression guaranteed in s. 2(b) of the Canadian Charter of Rights and Freedoms, and
if so, whether they are a reasonable limit under s. 1 of the Charter.
Held: The appeal should be dismissed; respondents' freedom of expression was infringed.
Per Lamer C.J. and Sopinka J.: The government's right of ownership, as a consequence of
its special nature, cannot of itself authorize an infringement of the freedom guaranteed by
s. 2(b) of the Charter. When a person claims that his freedom of expression was infringed
while he was trying to express himself in a place owned by the government, the interests
at issue must be examined, namely the interest of the individual wishing to express
himself in a place suitable for such expression and the interest of the government, which
must ensure effective operation of the place owned by it. An individual will thus only be
free to communicate in such a place if the form of expression he uses is compatible with
the principal function or intended purpose of the place and does not have the effect of
depriving the citizens as a whole of the effective operation of government services and
undertakings. If the expression takes a form that contravenes the function of the place,
such a form of expression will not fall under s. 2(b). It is only after the complainant has
proved that his form of expression is compatible with the function of the place that the
justifications which may be put forward under s. 1 of the Charter can be analysed.
In this case respondents' activities at the airport benefited from the protection of s. 2(b) of
the Charter. The distribution of pamphlets and discussion with certain members of the
public are in no way incompatible with the airport's primary function, that of
accommodating the needs of the travelling public. An airport is a thoroughfare, which in
its open areas or waiting areas can accommodate expression without the effectiveness or
function of the place being in any way threatened. There was thus a limitation on the
freedom of expression enjoyed by respondents when the airport manager ordered them to
cease their activities. However, in the absence of a limit prescribed by law, this limitation
cannot be justified under s. 1 of the Charter. The language of ss. 7(a) and 7(b) of the
Regulations, analysed in the context of the section and of the Regulations as a whole,
prohibits only undertakings of a commercial nature and does not cover political
propaganda. Section 7 is accordingly not applicable in this case. The limitation imposed
on respondents' freedom of expression arose from the action taken by the airport
manager, a government official, who ordered them to cease their activities. Although this
action was based on an established policy or internal directive, it cannot be concluded
from this that there was a "law" which could be justified under s. 1 of the Charter. The
government's internal directives or policies differ essentially from statutes and
regulations in that they are generally not published and so are not known to the public.
Moreover, they are binding only on government officials and may be amended or
cancelled at will.
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Per La Forest J.: Freedom of expression, while it does not encompass the right to use
any and all government property for purposes of disseminating views on public matters,
does include the right to use streets and parks which are dedicated to the use of the
public, subject to reasonable limitation to ensure their continued use for the purposes to
which they are dedicated. This should include areas of airports frequented by travellers
and members of the public. The blanket prohibition against the use of such areas for the
purpose of the expression of views violated the freedom of expression guaranteed by s.
2(b) of the Charter, and is not justifiable under s. 1. Section 7 of the Regulations does not
cover political activities, but in prohibiting expression of political views at the airport, the
officials were exercising the Crown's legal right to manage its property, and the
prohibition was thus prescribed by law.
Per L'Heureux-Dubé J.: Section 7 of the Regulations has the effect of restricting political
expression, even if that is not its purpose, and thus breaches s. 2(b) of the Charter. Where
a restriction on expressive activity is content-neutral, the government must demonstrate
that the restriction is not an unreasonable restriction on the time, place and manner of the
expressive activity. This must be demonstrated under s. 1 of the Charter.
Although the expressive activity took place on government property, the government
cannot have complete discretion to treat its property as would a private citizen. If
members of the public had no right whatsoever to engage in expressive activity on
government-owned property, little opportunity would exist to exercise their freedom of
expression. While s. 2(b) of the Charter does not provide a right of access to all
government property, some property will be constitutionally open to the public. This
analysis is properly dealt with under s. 1 of the Charter. A number of factors are helpful
to determine whether the restrictions by the government have been applied to property
which is a "public arena". These factors include: the traditional openness of such property
for expressive activity; whether the public is ordinarily admitted to the property as of
right; the compatibility of the property's purpose with such activity; the impact of the
property's availability on the achievement of s. 2(b)'s purposes; the property's symbolic
significance for the message being communicated; and the availability of other public
arenas in the vicinity. The "traditional" component of the public arena analysis must
appreciate the "type" of place historically associated with public discussion, and should
not be restricted to the actual places themselves. Bus, train and airport terminals, which
draw large numbers of travellers, are contemporary crossroads or modern thoroughfares
and should thus be accessible to those seeking to communicate with the passing crowds.
Similarly, while the symbolism of a courthouse lawn or Parliament Hill is self-evident,
streets and parks have also acquired special significance as places where one can address
one's fellow citizens on any number of matters, and the same holds true for airport
terminals. The non-security zones within airport terminals are thus properly regarded as
public arenas, and the government cannot simply assert property rights, or claim that the
expression is unrelated to an airport's function, in order to justify the restriction.
Section 7 of the Regulations is too vague and does not constitute a limit "prescribed by
law" and thus cannot be saved under s. 1 of the Charter. Section 7(a) prohibits "any
business or undertaking, commercial or otherwise" at the airport. It has failed to offer an
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intelligible standard which would enable a citizen to regulate his or her conduct. The
Regulation can be read as an attempt to eradicate all types of expression or, more
narrowly, to exclude only certain types of expression, and thus creates confusion. This
does not allow fundamental freedoms to be fully exercised. The plenary discretion given
to the Minister may also create a vague standard which does not accord with the
requirement in s. 1 of the Charter that a limit on a right or freedom be "prescribed by
law".
Section 7 of the Regulations is also overbroad and thus does not impair freedom of
expression as little as possible. The Regulation applies not only to the activity at issue but
also to virtually all conceivable activity involving freedom of expression at airports.
Although some objectives would be reasonable in justifying restrictions on expression in
an airport, the time, place, and manner restrictions are not reasonable in the context and
circumstances of this case. They bear no rational connection to the government's possible
objectives and are broad to the point of being unintelligible. Section 7 of the Regulations
does not, for the same reason, pass the proportionality test. Its impairment, far from being
minimal, could not be greater.
Per McLachlin J.: The test for the constitutional right to use government property for
public expression should be based on the values and interests at stake and should not be
confined to the characteristics of particular types of government property. This test
should reflect the concepts traditionally associated with free expression and should
extend constitutional protection to expression on some but not all government property.
The analysis under s. 2(b) of the Charter should be primarily definitional, and the test
should be sufficiently generous to ensure that valid claims are not excluded for want of
proof.
The test for whether s. 2(b) applies to protect expression in a particular forum depends on
the class into which the restriction at issue falls. Section 2(b) of the Charter would usually
be infringed if the government's purpose was to restrict the content of expression by
limiting the forums in which it can be made. A content-neutral restriction, however, may
not infringe freedom of expression at all. Section 2(b) of the Charter would apply if it
were established that the expression (including its time, place and manner) promoted one
of the purposes underlying the guarantee of free expression: the seeking and obtaining of
truth; participation in social and political decision-making; and the encouragement of
diversity in forms of individual self-fulfilment by cultivating a tolerant, welcoming
environment for the conveyance and reception of ideas. A link must be established
between the use of the forum for public expression and at least one of these purposes if
the protection of s. 2(b) of the Charter is to apply.
The policy of the airport officials of prohibiting all political propaganda was contentneutral; it was aimed at the consequences of such expression rather than the particular
messages communicated. The restriction had the effect of limiting expression, and the
expression in question promoted one of the purposes of the guarantee of free expression,
namely participation in political or social issues in the community. The government's
action thus constituted a limitation of respondents' rights under s. 2(b) of the Charter.
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The limitation of respondents' rights is not justifiable under s. 1 of the Charter. The
words "advertise" and "solicit" in s. 7(b) of the Regulations are broad enough to cover
non-commercial publicity and solicitation, and respondents' conduct thus falls within the
regulation. Even if it did not, the act of the airport officials in preventing respondents
from handing out leaflets and soliciting members constitutes a limit prescribed by law
because the officials were acting pursuant to the Crown's legal rights as owner of the
premises. The government's objective in imposing the limit is not of sufficient
importance to warrant overriding a Charter right, since there is nothing in the function or
purpose of an airport which is incompatible with respondents' conduct. Further, the
means chosen to attain the objective are neither reasonable nor proportionate to
respondents' interest in conveying their message pursuant to their right under s. 2(b) of
the Charter. The practice of airport authorities of preventing all "political propaganda
activities" constitutes a blanket exclusion of political solicitation in the airport unrelated
to concerns for its function and devoid of safeguards to protect against over-reaching
application. The limitation is overbroad and hence not saved by s. 1.
Per Gonthier J.: While in agreement with the several elements put forward by Lamer C.J.
and L'Heureux-Dubé J. pertinent to a determination of the extent of freedom of
expression on government property, the application of ss. 1 and 2(b) of the Charter
should be structured as outlined by McLachlin J. The reasons of L'Heureux-Dubé J. as to
the application of s. 7 of the Regulations to the conduct of the respondents were agreed
with.
Per Cory J.: Notwithstanding agreement with the reasons of Lamer C.J. in so far as they
deal with the use of government-owned property by members of the public for the
purposes of expressing themselves on various issues, the impugned Regulation
contravenes s. 2(b) and cannot be saved by s. 1 of the Charter, as found by L'HeureuxDubé J.
Canadian Broadcasting Corp. v. Lessard [1991] 3 S.C.R. 421: -- Search
warrants issued for premises of the press -- Seized videotapes already aired -Affidavit supporting application not indicating other sources of information -Whether or not search warrant valid -- Whether or not Charter right to freedom of
the press infringed
ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC
Constitutional law -- Charter of Rights -- Freedom of the press -- Search warrants issued
for premises of the press -- Seized videotapes already aired -- Affidavit supporting
application not indicating other sources of information -- Whether or not search warrant
valid -- Whether or not Charter right to freedom of the press infringed -- Canadian
Charter of Rights and Freedoms, ss. 1, 2(b).
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Criminal law -- Search warrants -- Premises of the press -- Seized videotapes already
aired -- Affidavit supporting application not indicating other sources of information
available -- Whether or not search warrant valid -- Whether or not Charter right to
freedom of the press infringed -- Criminal Code, R.S.C., 1985, c. C-46, ss. 487(1)(b), (d),
(e) -- Canadian Charter of Rights and Freedoms, ss. 1, 2(b).
A CBC camera crew videotaped a group of people occupying and damaging a post office
building and both CBC's English and French language networks aired portions of the
videotape. There is no indication that the police were at the scene or were aware of the
incident at the time the tape was made. The police sought an authorization from a justice
of the peace to search for the videotapes the day after the broadcast. The parties agreed
that nothing in the affidavit would permit the justice of the peace to determine if there
were an alternative source of information and, if there were such a source, whether
reasonable steps had been taken to get the information from that source. Nonetheless, a
warrant was granted to enter, search and seize the videotapes at the CBC's head office in
Montreal on the basis of the information.
Several tapes were seized and, at the request of CBC officials, were placed in a sealed
envelope while the validity of the warrant was contested. To that end, the CBC brought
an application for certiorari to quash the search warrant. The Quebec Superior Court
dismissed the application but a majority of the Court of Appeal allowed CBC's appeal.
Held (McLachlin J. dissenting): The appeal should be allowed.
Per Sopinka, Gonthier, Cory and Stevenson JJ.: Warrants for the search of any premises
constitute a significant intrusion on the privacy of individuals and corporations alike. The
privacy interests of individuals in a democratic society must be carefully weighed in a
search warrant application against the interests of the state in investigating and
prosecuting crimes. This weighing and balancing will vary with the facts on each
application. Even after the requirements of s. 487 of the Criminal Code have been met,
the process of determining if a search warrant should issue may still be a difficult and
complex process. Among commercial premises, the media are entitled to particularly
careful consideration, both as to the issuance of a search warrant and as to the conditions
that may be attached to a warrant to ensure that any disruption of the gathering and
dissemination of news is limited as much as possible. The media are entitled to this
special consideration because of the importance of their role in a democratic society.
The following factors should be considered in issuing a search warrant for media
premises. (1) The requirements of s. 487(1)(b) of the Criminal Code must be met. (2) The
justice of the peace should then consider all of the circumstances in determining whether
to exercise his or her discretion to issue a warrant and (3) ensure that a delicate balance is
struck between the competing interests of the state in the investigation and prosecution of
crimes and the right to privacy of the media in the course of their news gathering and
news dissemination. The press is truly an innocent third party; this factor is most
important in attempting to strike an appropriate balance, including the consideration of
imposing conditions on that warrant. (4) The affidavit in support of the application must
contain sufficient detail to enable a proper exercise of discretion as to whether or not to
issue a search warrant. (5) Although not constitutionally required, the affidavit material
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should ordinarily disclose whether there are alternative sources, and if reasonable and
alternative sources exist, whether those sources have been investigated and all reasonable
efforts to obtain the information have been exhausted. (6) Dissemination of the
information by the media in whole or in part will be a factor favouring the issuance of the
search warrant. (7) If a justice of the peace determines that a warrant should be issued for
the search of media premises, consideration should then be given to the imposition of
some conditions on its implementation. (8) The search warrant may be found to be
invalid if, after its issuance, it is found that pertinent information was not disclosed, or (9)
if the search is unreasonably conducted.
The crucial factor here was that the media had broadcast portions of the videotape
depicting the commission of a crime before the application for the warrant. The failure to
set out that there was either no alternative source of information to the police or, if there
were, that the information sought could not be obtained from that alternative source, is a
basis upon which the justice of the peace could refuse to issue the search warrant. This
information should in most cases be placed before the justice of the peace. It is not,
however, a constitutionally required condition for the issuance of a search warrant.
The search here was conducted reasonably and did not affect the operations of the news
media. There was no indication that the police were at the scene or even aware of the
crime when the film was made. It is reasonable to infer that they learned the details of the
crime from the broadcast.
All members of the community have an interest in seeing that crimes are investigated and
prosecuted and the media might accordingly even consider voluntarily delivering their
videotapes to the police. Once the news media have published the gathered information,
that information then passes into the public domain. The publication of that information
is a very important factor for the justice of the peace to consider. The publication or
broadcasting of the information was a sufficiently important factor to enable the justice of
the peace to issue the search warrant notwithstanding the failure of the police to explain
that there was no alternative source available that would give them the information
contained in the videotape.
The failure to set out the lack of alternative sources was simply another factor to be taken
into account in assessing the reasonableness of the search. Here, the actual search was
conducted reasonably and properly. There was no interference with the operation of the
news media, nor was the freedom of the press threatened. The media had already
completed their basic function of news gathering and news dissemination and the seizure
of the tapes at this stage therefore could not be said to have a chilling effect on the
media's sources of news.
Per La Forest J.: As long as they are strictly confined to situations similar to the present
case, Cory J.'s reasons were generally agreed with.
Freedom of the press is vital to a free society and comprises the right to disseminate
news, information and beliefs. The gathering of information could in many circumstances
be seriously inhibited, if government had too ready access to information in the hands of
the media. The press should not be turned into an investigative arm of the police. Thus,
the fear that the police can easily gain access to a reporter's notes could well hamper the
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ability of the press to gather information. Barring exigent circumstances, the seizure of
a reporter's handwritten notes and "contact book" and items of this nature should only be
permitted when it is clear that all reasonable alternative sources have been exhausted.
A line should be drawn, however, between films and photographs of an event and items
such as a reporter's personal notes, recordings of interviews and source "contact lists".
The "`chilling effect' on newsgathering" argument was unpersuasive in so far as it
pertained to films and photographs taken of an event because the chill is already there.
Absent a promise of confidentiality, no one can reasonably believe that there is no danger
of identification when he or she is being captured on film by the press. With respect to
films and photographs, the exhaustion of alternative sources should not necessarily be
required, unless there has been a guarantee of confidentiality.
The possibility that the police will uncover other confidential sources in the course of
searching for the relevant material is too attenuated to add restrictions against searches of
press organizations under all circumstances. This concern can probably best be addressed
by limiting the warrant to specifically delineated items.
The search here was reasonable under s. 8 of the Charter. There was no violation of s.
2(b) in the specific circumstances of this case, and it was not necessary to speculate about
possible infringements resulting from a search in other circumstances. Even given an
infringement, the search would be reasonable under s. 1 when the compelling
requirements of law enforcement are weighed against the highly tenuous interference
with the right. The question whether a search constitutes a reasonable limit under s. 1 is
probably not different from the question whether a search is reasonable under s. 8.
Per L'Heureux-Dubé J.: The sole issue in this case concerns the right of the police to
obtain a warrant to search the premises of an innocent third party (the CBC) in order to
obtain evidence of the commission of a crime. The freedom of the press was not at issue,
the more so here since the material sought had already been broadcast on two occasions
before the search warrant was issued. These reasons addressed only the specific facts of
this case; other sets of circumstances could warrant different considerations. No notion of
confidentiality was attached or implied to the object of the search warrant in this case.
Once the conditions set out in s. 487 are met, the justice of the peace has jurisdiction to
issue a search warrant to retrieve evidence of the commission of a crime even absent a
statement as to the availability of alternative sources. Neither the law nor jurisprudence
mandate such a statement even when the premises searched are those of an innocent third
party, here a member of the media. A balancing process is neither mandated by s. 487 nor
is it practical with regard both to the functions of the justice of the peace and to the
burden on those requesting the search warrant.
Notwithstanding its importance, the constitutional protection of the freedom of the press
does not go as far as guaranteeing the press special privileges which ordinary citizens,
also innocent third parties, would not enjoy in a search for evidence of a crime. The law
does not make such a distinction and the Charter does not warrant it. In fact, the press
generally does not request special privileges.
Conditions can be imposed by a justice of the peace as to the manner in which a warrant
can be executed and, in that regard, particular considerations for the media are quite
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relevant. These conditions, however, have nothing to do with the jurisdiction of the
justice of the peace to issue the warrant once the conditions of s. 487 are established,
notwithstanding the fact that the premises to be searched belong to innocent third persons
or members of the press. There is no justification to add distinctions or nuances to the
text of the Criminal Code based on the nature of the premises to be searched.
Per McLachlin J. (dissenting): Freedom of the press under the Charter must be
interpreted in a generous and liberal fashion having regard to the history of the guarantee
and focusing on the purpose of the guarantee.
The Charter guarantee is to protect the values underlying freedom of the press, like
freedom of expression, and includes the pursuit of truth. Freedom of the press, like
freedom of expression, is important to the pursuit of truth, to participation in the
community and to individual self-fulfillment. In achieving these means, an effective and
free press is dependent on its ability to gather, analyze and disseminate information,
independent from any state imposed restrictions on content, form or perspective except
those justified under s. 1 of the Charter.
The ways in which police search and seizure may impinge on the values underlying
freedom of the press are manifest and can adversely affect the role of the media in
furthering the search for truth, community participation and self-fulfillment. It is not
every state restriction on the press, however, which infringes s. 2(b). Press activities
which are not related to the values fundamental to freedom of the press may not merit
Charter protection. The press activity at issue here - gathering and disseminating
information about a labour demonstration - was directly related to the furtherance of the
values underlying the guarantee of free expression. Such search and seizure accordingly
infringes freedom of the press as guaranteed by s. 2(b) of the Charter.
A search and/or seizure on press premises which infringes s. 2(b) can be justified under s.
1 where:
(l) The search/seizure is necessary because there are no alternative sources for the
information required;
(2) The importance of the search/seizure outweighs the damage to be caused by the
infringement of freedom of the press; and
(3) The warrant ensures that the search/seizure interferes with the press's freedom as little
as possible.
Given the seriousness of any violation of freedom of the press, the justice of the peace
must be satisfied that the special requirements for the issuance of a warrant of search and
seizure against a press agency are clearly established and made out with some
particularity.
Canadian Broadcasting Corp. v. New Brunswick (Attorney General) [1991] 3
S.C.R. 459: -- Search warrants issued for premises of the press -- Alternative
sources of information available -- Affidavit supporting application not indicating
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other sources of information -- Whether or not search warrant valid -- Whether
or not Charter right to freedom of the press infringed
ON APPEAL FROM THE COURT OF APPEAL FOR NEW BRUNSWICK
Constitutional law -- Charter of Rights -- Freedom of the press -- Search warrants issued
for premises of the press -- Alternative sources of information available -- Affidavit
supporting application not indicating other sources of information -- Whether or not
search warrant valid -- Whether or not Charter right to freedom of the press infringed -Canadian Charter of Rights and Freedoms, s. 2(b).
Criminal law -- Search warrants -- Premises of the press -- Alternative sources of
information available -- Affidavit supporting application not indicating other sources of
information available -- Whether or not search warrant valid -- Whether or not Charter
right to freedom of the press infringed -- Criminal Code, R.S.C., 1985, c. C-46, ss.
487(1)(b), (d), (e) -- Canadian Charter of Rights and Freedoms, s. 2(b).
Appellant's reporters videotaped a demonstration during which a company guardhouse
was destroyed. Police, including identification specialists, were present. The RCMP
sought a search warrant to seize these tapes. The sworn information or affidavit in
support of the warrant explained that other sources of information existed but that they
either provided insufficient evidence or were unavailable or unwilling to testify. The
affidavit did not reveal that police identification experts were present at the scene. A
justice of the peace issued a search warrant on the basis of the affidavit. The RCMP and
appellant's officials agreed that the videotapes should be placed in a sealed envelope to be
held by a judge of the Provincial Court until the outcome of these proceedings.
Appellant successfully brought an application in the Court of Queen's Bench to quash the
warrant and to order the return of the seized tapes. The Court of Appeal allowed the
Crown's appeal and upheld the issuance of the warrant. At issue here was whether
freedom of the press, as protected by s. 2(b) of the Canadian Charter of Rights and
Freedoms, requires that a justice of the peace, before issuing a warrant to search media
offices, be satisfied that no reasonable alternative source of the information exists.
Held (McLachlin J. dissenting): The appeal should be dismissed.
Per Sopinka, Gonthier, Cory and Stevenson JJ.: Freedom of expression, protected by s.
2(b) of the Charter, does not import any new or additional requirements for the issuance
of search warrants. It provides a backdrop against which the reasonableness of the search
may be evaluated and requires that careful consideration be given not only to whether a
warrant should issue but also to the conditions which might properly be imposed upon
any search of media premises.
Whether the search of a media office can be considered reasonable will depend on a
number of factors including the nature of the objects to be seized, the manner in which
the search is to be conducted and the degree of urgency of the search. In particular, the
justice of the peace must consider the effects of the search and seizure on the ability of
the particular media organization in question to fulfil its function as a news gatherer and
news disseminator. If a search will impede the media from fulfilling these functions and
the impediments cannot reasonably be controlled through the imposition of conditions on
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the execution of the search warrant, then a warrant should only be issued where a
compelling state interest is demonstrated. There must be no alternative source of
information available or, if there is, reasonable steps must have been taken to obtain the
information from that source. Alternatively, the search might be justified on the grounds
of the gravity of the offence under investigation and the urgent need to obtain the
evidence expected to be revealed by the search.
The factors to be weighed with regard to issuing a warrant to search any premises will
vary with the circumstances presented. Two factors -- whether other sources exist, and
whether reasonable efforts to obtain information from them have been exhausted and
proved unsuccessful -- had been identified in earlier jurisprudence as being necessary to
the issuance of a search warrant for press facilities. It is impossible, however, to isolate
these two factors from the numerous considerations which bear on assessment of the
reasonableness of a search and label them as conditional prerequisites. The essential
question is whether, taking into account all the circumstances and viewing them fairly
and objectively, it can be said that the search was reasonable.
Less can be said for refusing to make that material available to the police where the
media have fulfilled their role by gathering the news and publishing it. Arguments based
on the "drying up" of the media's sources of information and on the "chilling effect" on
their sources become more difficult to sustain after the information has been released to
the public. Should it be necessary, appropriate steps might be taken by the media to have
the court determine what protection could properly be obtained.
Section 8 of the Charter protects the overall reasonableness of a search. The potentially
damaging effect of a search and seizure upon the freedom and the functioning of the
press is highly relevant to the assessment of the reasonableness of the search. Neither s.
2(b) nor s. 8 of the Charter requires that other sources of information be exhausted. Some
flexibility in the balancing process must be preserved so that all the factors relevant to the
individual case may be taken into consideration and properly weighed.
The following factors should be considered in issuing a search warrant for media
premises. (1) The requirements of s. 487(1)(b) of the Criminal Code must be met. (2) The
justice of the peace should then consider all of the circumstances in determining whether
to exercise his or her discretion to issue a warrant and (3) ensure that a delicate balance is
struck between the competing interests of the state in the investigation and prosecution of
crimes and the right to privacy of the media in the course of their news gathering and
news dissemination. The press is truly an innocent third party; this factor is most
important in attempting to strike an appropriate balance, including the consideration of
imposing conditions on that warrant. (4) The affidavit in support of the application must
contain sufficient detail to enable a proper exercise of discretion as to whether or not to
issue a search warrant. (5) Although not constitutionally required, the affidavit material
should ordinarily disclose whether there are alternative sources, and if reasonable and
alternative sources exist, whether those sources have been investigated and all reasonable
efforts to obtain the information have been exhausted. (6) Dissemination of the
information by the media in whole or in part will be a factor favouring the issuance of the
search warrant. (7) If a justice of the peace determines that a warrant should be issued for
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the search of media premises, consideration should then be given to the imposition of
some conditions on its implementation. (8) The search warrant may be found to be
invalid if, after its issuance, it is found that pertinent information was not disclosed, or (9)
if the search is unreasonably conducted.
Section 487 of the Criminal Code does no more than require that a justice of the peace,
before issuing a search warrant, be satisfied that there are reasonable grounds to believe
that something which will afford evidence with respect to the commission of a crime will
be found in the described premises. The affidavit here met these requirements. The search
did not impede the media's news gathering function and did not violate s. 8
notwithstanding any deficiency in the affidavit concerning alternative sources. There was
no finding of bad faith with respect to the police affidavit which declared that alternative
sources were pursued but proved unsuccessful and there was nothing nefarious in the
failure to mention the presence of the identification officers at the scene.
Per La Forest J.: The appeal should be dismissed for the reasons given in Canadian
Broadcasting Corp. v. Lessard.
Per L'Heureux-Dubé J.: The appeal should be dismissed for the reasons expressed in
Canadian Broadcasting Corp. v. Lessard.
Per McLachlin J. (dissenting): The legal principles set out in Canadian Broadcasting
Corp. v. Lessard apply here. The warrant violated the Charter and cannot be upheld. The
justice of the peace, in the absence of information as why other sources would not dare to
testify or could not be subpoenaed to testify, was not in a position to determine if the
issuance of the warrant was really necessary, or whether it was justified given the
violation of Charter rights which it entailed.
Rocket v The Royal College of Dental Surgeons of Ontario [1990] 2 S.C.R.
232: Freedom of expression -- Profession restricting members' advertising -Whether or not restrictions an infringement of freedom of expression -- If so,
whether or not restrictions justified
Present: Dickson C.J. and Lamer, Wilson, La Forest, Sopinka, Gonthier and McLachlin
JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO
Constitutional law -- Charter of Rights -- Freedom of expression -- Profession restricting
members' advertising -- Whether or not restrictions an infringement of freedom of
expression -- If so, whether or not restrictions justified -- Regulation 447 of the Health
Disciplines Act, R.R.O. 1980, ss. 37(39), (40) -- Canadian Charter of Rights and
Freedoms, ss. 1, 2(b).
Appellants were dentists who participated in an advertising campaign. As a result, they
were charged with violating two subsections of Regulation 447 made pursuant to the
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Health Disciplines Act -- s. 37(39) which explicitly restricts dentists' advertising and s.
37(40) which was a general professional misconduct provision. They brought these
proceedings challenging the constitutionality of s. 37(39) and seeking a declaration that s.
37(40) was inapplicable. The Divisional Court dismissed the applications and the
decision with respect to s. 37(39) was appealed to the Court of Appeal and subsequently
reversed. The Court of Appeal found that s. 37(39) infringed the guarantee of free
expression under s. 2(b) of the Charter and could not be justified under s. 1. The
constitutional questions before this Court queried whether or not s. 37(39) of the
Regulation offends the guarantee of freedom of expression in s. 2(b) of the Charter, and if
so, whether or not it was nevertheless justified under s. 1 of the Charter. A further
question arose as to what remedy this Court should grant should s. 37(39) be found to
violate the Charter.
Held: The appeal should be dismissed.
The freedom of expression protected by s. 2(b) of the Charter includes commercial
speech such as advertising, even though the Charter was not intended to protect economic
interests, because advertising aims to convey a meaning and hence involves more than
economics. The advertising which was regulated by s. 37(39) did not take an offensive or
prohibited form so as to be excluded from the protection of s. 2(b).
Section 37(39) of the Regulation prohibits legitimate forms of expression and so infringes
s. 2(b) of the Charter. The provision effectively bans usual and acceptable forms of
advertising -- radio, television and even the newspapers apart from an announcement
upon commencement or change of location of practice -- even though nothing in their use
should deprive an otherwise legitimate expression of the protection afforded by s. 2(b).
The provision also infringes s. 2(b) in that it purposefully limits the content of the
advertising.
Two opposing factors -- that advertising is only to increase profit and that it plays an
important role in consumer choice -- are usually present in varying degrees in
commercial advertising. Here, the element of consumer choice is significant. Consumers
of dental services would be highly vulnerable if advertising were unregulated. The
practice of dentistry, like other professions, calls for so much exercise of subjective
personal judgment that claims about the quality of different dentists may be inherently
incapable of verification. Furthermore, the choice of a dentist is a relatively important
one.
Section 37(39) of the Regulations could not be justified under s. 1 of the Charter.
The objective of the Regulation is sufficiently important to override a Charter right and s.
37(39) is rationally connected to this objective. The provinces have a legitimate interest
in regulating professional advertising in order to maintain a high standard of
professionalism (as opposed to commercialism) and to protect the public from
irresponsible and misleading advertising. A distinction can be drawn between restrictions
on information about standardized products and restrictions on claims that are inherently
not susceptible of verification. Professional regulation of advertising is clearly justified in
circumstances where a claim is not inherently susceptible of verification.
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The means used to achieve the legislative objective does not impair the freedom as
little as possible. Section 37(39) is very broadly drafted in that it starts with an absolute
prohibition on all advertising and then sets out exceptions to that prohibition. The effect
of the legislative measure, furthermore, is not proportionate to the objective. The aims of
promoting professionalism and preventing irresponsible and misleading advertising on
matters not susceptible of verification do not require the exclusion of much of the speech
which is prohibited by s. 37(39). Useful information is restricted without justification.
The impugned section should be struck. Overly broad legislation, if left in force, may
prevent people from engaging in lawful activities simply because the prohibition is still
"on the books". The section is drafted in such a way that it cannot be amended by striking
out those portions which are overly broad. Because the section is cast in the form of
limited exclusions to a general prohibition, the Court would be required to supply further
exceptions. The profession and legislators, however, are in the best position to determine
the precise content and wording of such further exceptions as may be required. It is not
impossible to draft regulations which prohibit advertising which is unverifiable and
unprofessional while permitting advertising which serves a legitimate purpose in
providing the public with relevant information.
Professional bodies have a heavy duty to adopt appropriate regulations which do not
unduly restrict the freedom of expression of their members. The importance of promoting
professionalism and preventing irresponsible and misleading advertising, however,
outweighs the protection of any commercial interests of professionals.
Moysa v The Labour Relations Board of Alberta [1989] 1 S.C.R. 1572:
Evidence -- Privilege -- Press -- Journalist refusing to testify at a labour relations
board hearing -- Journalist claiming privilege against the disclosure of
communications from sources -- Whether journalist has a privilege at common
law or under the Canadian Charter to refuse to answer questions involving her
sources
Evidence -- Privilege -- Press -- Journalist refusing to testify at a labour relations board
hearing -- Journalist claiming privilege against the disclosure of communications from
sources -- Whether journalist has a privilege at common law or under the Canadian
Charter to refuse to answer questions involving her sources -- Canadian Charter of Rights
and Freedoms, s. 2(b).
Constitutional law -- Charter of Rights -- Freedom of the press -- Labour relations board
ordering journalist to answer questions involving her sources -- Whether compelling
journalist to testify violation of s. 2(b) of the Canadian Charter of Rights and Freedoms.
A week after the appellant, a journalist, wrote an article on the Union organizing
campaign at several department stores, the Hudson Bay Co. terminated the employment
of six employees. The Union alleged that the employees were fired because of their
organizing activities and brought an unfair labour practices claim against the Bay. The
appellant was summoned to attend the Labour Relations Board hearing. The Union
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proposed to ask her whether she had spoken with someone at the Bay and, if so, what
the details of the conversation were. The appellant objected to being compelled to testify
alleging that she has a right to protect her sources of information on the basis of a
qualified privilege either at common law or under s. 2(b) of the Canadian Charter of
Rights and Freedoms. The Board held that the appellant had no privilege and ordered her
to testify. The Alberta Court of Queen's Bench dismissed appellant's application for
certiorari to quash the Board's decision and the judgment was affirmed by the Court of
Appeal. This Court granted appellant's leave to appeal and, pursuant to Rule 32 of the
Supreme Court Rules, the parties submitted the following constitutional questions: (1)
Does requiring a journalist witness to disclose communications from a source violate s.
2(b) of the Charter? (2) Does requiring a journalist witness to disclose communications to
some other person violate s. 2(b) of the Charter? and (3) If the answer to either questions
1 or 2 is in the affirmative, can compulsive disclosure be justified under s. 1 of the
Charter?
Held: The appeal should be dismissed.
Appellant has no privilege to refuse to testify before the Board. Even if a qualified form
of testimonial privilege exists in Canada, appellant's claim of privilege in this case must
be dismissed as she does not fall within any of the possible tests which establish the
conditions necessary to justify a refusal to testify. In any event, the Union was primarily
interested in the information that the appellant gave to the Bay's official concerning the
organizing campaign. This information would not come within the ambit of any qualified
privilege with respect to information received from sources.
Despite the importance of ascertaining the extent of the s. 2(b) rights, the disposition of
this appeal does not require that the constitutional questions be answered. The facts of
this case do not warrant an answer to these broad and important constitutional questions.
To address the questions would require this Court to make pronouncements well beyond
the issues presented in the actual appeal.
Assuming that the right to gather the news is constitutionally enshrined in s. 2(b) of the
Charter, the appellant has not demonstrated that compelling journalists to testify before
bodies such as the Labour Relations Board would detrimentally affect journalists' ability
to gather information. No evidence was placed before the Court suggesting that such a
direct link exists. Absent any evidence that there is a tie between the impairment of the
alleged right to gather information and the requirement that journalists testify before the
Labour Relations Board, this Court cannot find that there has been a breach of s. 2(b) in
this case.
Hate Propaganda cases
R. v. Andrews [1990] 3 S.C.R. 870: Criminal Code prohibiting wilful promotion of
hatred against identifiable groups (s. 319(2)) -- Defence of truth to be established
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by accused on balance of probabilities (s. 319(3)(a)) -- Whether s. 319(2) of
Code infringes s. 2(b) of Canadian Charter of Rights and Freedoms -- If so,
whether infringement justifiable under s. 1
Present: Dickson C.J. and Wilson, La Forest, L'Heureux-Dubé, Sopinka, Gonthier and
McLachlin JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO
Constitutional law -- Charter of Rights -- Freedom of expression -- Hate propaganda -Criminal Code prohibiting wilful promotion of hatred against identifiable groups (s.
319(2)) -- Defence of truth to be established by accused on balance of probabilities (s.
319(3)(a)) -- Whether s. 319(2) of Code infringes s. 2(b) of Canadian Charter of Rights
and Freedoms -- If so, whether infringement justifiable under s. 1 of Charter.
Constitutional law -- Charter of Rights -- Presumption of innocence -- Reverse onus
provision -- Criminal Code prohibiting wilful promotion of hatred against identifiable
groups (s. 319(2)) -- Defence of truth to be established by accused on balance of
probabilities (s. 319(3)(a)) -- Whether s. 319(3)(a) of Code infringes s. 11(d) of Canadian
Charter of Rights and Freedoms -- If so, whether infringement justifiable under s. 1 of
Charter.
The accused were charged with the wilful promotion of hatred against an identifiable
group under s. 319(2) of the Criminal Code. A was the leader and S the secretary of the
Nationalist Party of Canada, a white nationalist political organization. Both were
members of the party's central committee, the organization responsible for the publication
of the Nationalist Reporter, which promoted the theory of white supremacy. The accused
were convicted and their convictions upheld by the Court of Appeal. This appeal is to
determine whether ss. 319(2) and 319(3)(a) of the Code are constitutionally valid.
Held (La Forest, Sopinka and McLachlin JJ. dissenting): The appeal should be dismissed.
Sections 319(2) and 319(3)(a) of the Code are constitutional.
Per Dickson C.J. and Wilson, L'Heureux-Dubé and Gonthier JJ.: For the reasons given by
the majority in Keegstra, s. 319(2) of the Code infringes the freedom of expression
guaranteed in s. 2(b) of the Canadian Charter of Rights and Freedoms, and s. 319(3)(a) of
the Code infringes the presumption of innocence entrenched in s. 11(d) of the Charter.
Sections 319(2) and 319(3)(a) are both justifiable, however, under s. 1 of the Charter.
Per La Forest, Sopinka and McLachlin JJ. (dissenting): For the reasons given by the
minority in Keegstra, s. 319(2) of the Code is an unjustifiable limit on the guarantee of
freedom of expression in s. 2(b) of the Charter.
Per Sopinka and McLachlin JJ. (dissenting): For the reasons given by McLachlin J. in
Keegstra, s. 319(3)(a) of the Code is an unjustifiable limit on the right to be presumed
innocent in s. 11(d) of the Charter.
Per La Forest J. (dissenting): It is unnecessary to consider the issues respecting the right
to be presumed innocent in s. 11(d) of the Charter.
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Canada (Human Rights Comm.) v. Taylor (1990), 13 C.H.R.R. D/435
(S.C.C.) [Eng./Fr. 53 pp.] Communication of Hate Messages by Telephone
Prohibited -- Canadian Human Rights Act, which prohibits the communication of
hate messages by telephone, does not violate the Canadian Charter
Keywords: HATE PROPAGANDA -- exposure to hatred on the basis of race or
religion -- COMMUNICATIONS -- telephonic transmission of hate message -CANADIAN CHARTER OF RIGHTS AND FREEDOMS -- s. 2(b) (freedom of
expression) -- s. 1 (reasonable limits) on freedom of expression -- FREEDOM OF
EXPRESSION -- freedom of speech and communication of hate message
BOARDS OF INQUIRY / TRIBUNALS -- HUMAN RIGHTS COMMISSIONS -appointment process and independence of Board members -- bias -- CANADIAN
BILL OF RIGHTS -- application of s. 2(e) (right to a fair hearing) -JURISDICTION -- waiver of right to challenge jurisdiction
Summary: In a split 4-3 decision, the Supreme Court of Canada rules that s.
13(1) of the Canadian Human Rights Act, which prohibits the communication of
hate messages by telephone, does not violate the Canadian Charter of Rights
and Freedoms.
Section 13(1) of the Canadian Human Rights Act prohibits the communication of
messages by telephone which are likely to expose a group to hatred or contempt
because of, inter alia, their race or religion. In 1979 complaints were filed with the
Canadian Human Rights Commission alleging that John Ross Taylor and the
Western Guard Party were repeatedly communicating messages by telephone
which were likely to expose Jewish people to hatred and contempt. Taylor and
the Western Guard Party produced recorded messages which played to those
who called a number listed under "White Power Message" in the Toronto
telephone book.
Taylor and the Western Guard Party were finds to have contravened s. 13(1) of
the Act, and a Canadian Human Rights Tribunal issued a cease and desist order.
When Taylor and the Western Guard Party continued to communicate hate
messages by telephone, the Canadian Human Rights Commission filed its order
in Federal Court. Taylor and the Western Guard Party were subsequently finds
guilty of contempt of court because they failed to obey the order. Taylor was
sentenced to one year's imprisonment and the Western Guard Party was fined
$5,000.
In 1983, the Canadian Human Rights Commission filed a new application in
Federal Court alleging that Taylor and the Western Guard Party were still
communicating hate messages and were again in contempt of the cease and
desist order.
This is an appeal by Taylor and the Western Guard Party against the Canadian
Human Rights Commission's action to have the Tribunal order enforced for a
second time. The appellants argue that s. 13(1) of the Canadian Human Rights
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Act is now of no force and effect because it violates s. 2(b), the guarantee of
freedom of expression in the Canadian Charter of Rights and Freedoms. The
Federal Court Trial Division, and the Federal Court of Appeal rejected this claim.
In the Supreme Court of Canada this case was heard with R. v. Keegstra and R.
v. Andrews which challenged the hate propaganda provisions of the Criminal
Code.
The issues in this appeal are: 1) whether s. 13(1) of the Canadian Human Rights
Act and the Tribunal's cease and desist order violate the Charter and 2) whether
the Tribunal's order is invalid because of bias.
For the majority, Dickson C.J. (as he then was) (Wilson, L'Heureux-Dubé. and
Gonthier JJ. concurring) finds that s. 13(1) violates the s. 2(b) guarantee of
freedom of expression. The hate messages communicated by Taylor and the
Western Guard Party constitute "expression" and s. 2(b) protects expression no
matter what the content, as long as it is not communicated in violent forms.
However, the majority finds s. 13(1) is a justifiable limit on freedom of expression
within the meaning of s. 1 of the Charter. Hate propaganda undermines the
dignity and self-worth of minority racial and religious groups and erodes the
tolerance and open-mindedness which are essential in a multicultural society.
The purpose of s. 13(1) is to promote equality and to prevent the harm which
hate propaganda causes to targeted groups. This is a pressing and substantial
concern. It is of heightened importance because it is supported by other sections
of the Charter, namely ss. 15 and 27, and by international human rights
instruments to which Canada is signatory.
Having determined that the objective of s. 13(1) is of sufficient importance to
warrant overriding a fundamental freedom, the majority considered whether the
means are proportionate. To meet the Oakes test of proportionality, the state
must show that 1) there is a rational connection between the impugned measure
and the objective; 2) the measure impairs the Charter right as little as possible;
and 3) the effects of the measure are not so severe as to represent an
unacceptable abridgment of the right.
The majority finds that hate propaganda produces effects that are deleterious to
the objective of equality of opportunity. Thus, there is clearly a rational
connection between the restriction on communicating hate messages and the
objective of promoting equality for racial and religious minorities. The majority
rejects the argument that there is no rational connection because s. 13(1) does
not, in fact, reduce hate propaganda. In combatting discrimination, legislative
efforts to suppress hate propaganda are not the only means available but they
are considered an important weapon against intolerance by the international
community.
Considering whether s. 13(1) impairs the right to freedom of expression as little
as possible, the majority rejects a number of arguments advanced by the
appellants and the intervener, the Canadian Civil Liberties Association. The
Canadian Civil Liberties Association argued that the right is not impaired as little
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as possible because the words "hatred" and "contempt" are inherently vague
and do not precisely define the scope of the discriminatory practices. Because of
this, expression which does not contribute to discrimination may be caught.
However, the majority finds that these terms are sufficiently precise, when read in
light of the objects of the Act, to prevent unacceptable chilling of expressive
activity.
The majority also rejects the argument that the absence of a requirement to show
that there was an intent to expose a group to hatred makes it a serious and
unnecessary impairment of the right to freedom of expression. The Canadian
Civil Liberties Association argued that individuals who are oblivious of the
consequences of their communications, or who intend to reduce discrimination,
may be caught by s. 13(1) because it is only effects which need be considered.
In answer, the majority rules that the important objective of s. 13(1) can only be
achieved by ignoring intent and therefore the minimal impairment requirement of
the Oakes test is satisfied.
In addition, the majority rejects the argument that s. 13(1) does not impair the
right as little as possible because it interferes with telephone communication
which is generally considered private. The majority of the Court finds that
telephonic communication is a particularly effective means of conveying hate
messages since the message is subject to no counter-argument in that particular
communications context. Also, the Court finds that it is repeated communication
of hate messages which is prohibited.
The majority concludes that the effect of s. 13(1) on the right to freedom of
expression is not needlessly severe. The chill placed upon expression by a
human rights statute is not the same as that caused by criminal law. A criminal
conviction carries a degree of stigma and punishment, whereas the emphasis of
human rights laws is on protection of the victim.
The year of imprisonment imposed on John Ross Taylor was not the result of the
order of the Tribunal, but the result of the Federal Court's ruling that Taylor was
in contempt of court when he ignored the order and continued to communicate
hate messages. A cease and desist order which must necessarily precede a
contempt order brings to the attention of the person the fact that his messages
are likely to have a harmful effect. Continuing such messages, after such a
ruling, cannot be said to occur without intent regarding the effect of the message.
The majority concludes that s. 13(1) is a reasonable limit on the right to freedom
of expression within the meaning of s. 1.
The majority also rejects the appellants' argument that the cease and desist
order violated the right to freedom of expression because it was too vague to
allow the appellants to determine what expressive activity was prohibited. The
order was a part of a lengthy decision which allowed for no doubt as to the
subject matter which Taylor and the Western Guard Party were enjoined from
communicating.
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Finally, the appellants argue that the Tribunal was biased because it was
appointed by the Canadian Human Rights Commission which investigated the
complaints. This position relied on the 1985 decision of the Federal Court of
Appeal in MacBain v. Canada (Human Rights Comm.) which decided that ss.
39(1) and 39(5) of the Canadian Human Rights Act were of no effect to the
extent that they allowed the Commission to appoint the tribunal before which it
appeared as the prosecuting party. In the present case, the issue of bias was not
raised by the appellants until 1987, about eight years after the Tribunal's decision
was released. The majority agreed with the reasoning of the Federal Court of
Appeal on this question. The Federal Court of Appeal finds that since the
appellants had made no effort to raise allegations of a reasonable apprehension
of bias over a period of years, their inaction constituted a waiver.
Section 13(1) and the order of the Tribunal are upheld. The appeal is dismissed.
Writing for the minority, McLachlin J. (Sopinka and La Forest JJ. concurring)
finds that s. 13(1) violates s. 2(b) for reasons similar to those given by the
majority of the Court.
However, the minority concludes that s. 13(1) is not a reasonable limit on
freedom of expression within the meaning of s. 1. McLachlin J. agrees that the
objective of s. 13(1) is a substantial and pressing concern: to discourage
discrimination against groups traditionally discriminated against.
But the minority takes issue with the means used by s. 13(1) to pursue this
objective. Section 13(1) is broad and vague, the minority finds. It prohibits a great
deal of defensible speech without accommodating the important right to freedom
of expression.
To establish whether there is a rational connection between a law and its
purpose the minority considers not just the intention of the legislators but whether
the law is likely to achieve its ends, and whether it may have an effect contrary to
its objective. Rational connection may also be absent when the law goes beyond
what can be justified by its objects. The minority concludes that s. 13(1) fails the
rational connection test because it is not closely tailored to its objectives and
because it infringes freedom of speech in unjustified and essentially irrational
ways.
The terms "hatred" and "contempt" are vague and subjective; they will catch
much expression which presents little threat of fostering discrimination against
protected groups. Also, the breadth of the section is widened by the absence of
any requirement of intent. While the absence of a requirement to show intent is
consistent with human rights laws, it has the effect of extending the section's
application. In addition, no proof of harmful effect is required. This means, the
minority finds, that the section is capable of catching expression which clearly
goes beyond the scope of its objects. It is no answer to the absence of rational
connection to say that, in practice, Commissions and members of Tribunals may
choose not to enforce the overbroad aspects of s. 13(1).
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In addition to finding a lack of rational connection between the measure and its
objects, the minority also concludes that s. 13(1) does not impair the right to
freedom of expression as little as possible. It interferes with strictly private
communication of ideas. Also no defence of truth is provided and therefore true
statements can be prohibited by s. 13(1).
In conclusion, the minority of the Court finds that s. 13(1) intrudes on the
fundamental freedom of expression in ways that cannot be justified by the
objectives it seeks to promote. It catches speech which is neither intended nor
calculated to foster discrimination, which may be accurate and truthful, and which
merely communicates information by telephone to a single person. In short, s.
13(1) seriously overshoots the mark.
The minority agrees with the conclusion of the majority with regard to the issue of
bias.
The minority would strike down s. 13(1) of the Canadian Human Rights Act. They
would quash the order of the Tribunal, but affirm the convictions registered
against the appellants in 1984 for contempt. They would vary the sentence
imposed on John Ross Taylor by reducing it to three months' imprisonment.
Canada (Human Rights Comm.) v. Canadian Liberty Net (No. 1) (1992), 26
C.H.R.R. D/194 (F.C.T.D.) [Eng./Fr. 26 pp.]: Injunction issued to stop telephonic
messages -- -- exposure to hatred on the basis of race or religion
Keywords: HATE PROPAGANDA -- exposure to hatred on the basis of race or
religion -- COMMUNICATIONS -- telephonic transmission of hate message -FREEDOM OF EXPRESSION -- freedom of speech and communication of hate
messages -- human rights legislation provides for reasonable limits to freedom of
expression -- CANADIAN CHARTER OF RIGHTS AND FREEDOMS -- s. 2(b)
(freedom of expression) -- application of s. 1 (reasonable limits) -- HUMAN
RIGHTS -- nature and purpose of human rights legislation
INJUNCTION -- application for injunction by human rights commission -injunction restraining telephonic messages -- survey of the law -- COURTS -JURISDICTION -- court of competent jurisdiction to order injunction
Summary: This is an application by the Canadian Human Rights Commission for
an interlocutory injunction to prevent Canadian Liberty Net and Derek J. Paterson
from playing telephonic messages which according to the Commission, are likely
to expose persons to hatred and contempt because of their race, colour, and
ancestry. The Commission seeks an injunction to prevent the respondents from
continuing to play the impugned messages until such time as a Canadian Human
Rights Tribunal can determine whether they contravene s. 13 of the Canadian
Human Rights Act.
The issues before the Court are: (1) can the Court issue an injunction in these
circumstances, and (2) should the Court do so?
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The Commission argues that ss. 25 and 44 of the Federal Court Act gives the
Federal Court authority to issue the injunction requested. Section 25 provides
that the Federal Court Trial Division has original jurisdiction between subject and
subject in any case for which a claim for relief or remedy is made by virtue of the
laws of Canada if no other court has jurisdiction in respect of that claim or
remedy. Section 44 provides that in addition to other relief, the Court may grant
an injunction in all cases in which it appears to be just or convenient to do so.
The Federal Court Trial Division finds that it was given these powers pursuant to
s. 101 of the Constitution Act, 1867 which allows the Parliament of Canada to
establish courts "for the better administration of the laws of Canada." The Court
finds that in order to have jurisdiction there must be a statutory grant of authority
and an existing body of federal law. The Court finds that ss. 25 and 44 are a
statutory grant of authority, and the Canadian Human Rights Act is a federal law
which nourishes the grant of jurisdiction to the Court.
The Canadian Human Rights Act discourages discriminatory practices and can
ultimately enjoin a party from committing such a practice by the order of a
Canadian Human Rights Tribunal. The Court notes that it has no jurisdiction to
hear and decide a human rights complaint and issue a final cease and desist
order, because this is exclusively within the jurisdiction of a Canadian Human
Rights Tribunal. It also notes that Tribunals, however, have no jurisdiction to
issue interlocutory injunctions as the Act provides them with no such power.
The Court concludes that it has jurisdiction to grant an interlocutory injunction in
these circumstances, since this Court is established to provide for the better
administration of the laws of Canada, including the Canadian Human Rights Act.
The Court also concludes that it should grant the injunction. It rejects the
respondents' argument that enjoining them from playing the messages on the
Canadian Liberty Net line violates their freedom of speech and expression. The
Court finds that Canadian Liberty Net's messages disparage and ridicule Jews
and non-whites as sub-human and make light of the lethal fury of the Nazis'
Holocaust. The Charter does not guarantee the right to disseminate such
messages. There is an inherent limitation on freedom of speech and expression
when they conflict with rights articulated in ss. 7, 12, 15, 27, and 28 of the
Charter. Also, the limits on freedom of speech are prescribed by law in the
Canadian Human Rights Act.
The Court issues an interlocutory injunction enjoining the respondents by
themselves or by their servants, agents, volunteers, or co-operants from
continuing to play the impugned messages until such time as the human rights
complaint filed against them is heard and decided.
Canada (Human Rights Comm.) v. Canadian Liberty Net (No. 2) (1996), 26
C.H.R.R. D/242 (F.C.A.) [Eng./Fr. 18 pp.] Authority to Issue Injunction
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Before Tribunal Ruling -- exposure to hatred on the basis of race or religion -survey of the law
Keywords: HATE PROPAGANDA -- exposure to hatred on the basis of race or
religion -- survey of the law -- COMMUNICATIONS -- telephonic transmission of
hate message -- FREEDOM OF EXPRESSION -- freedom of speech and
communications of hate messages -- CANADIAN CHARTER OF RIGHTS AND
FREEDOMS -- application of s. 1 (reasonable limits) -- s. 2(b) (freedom of
expression) -- CANADIAN BILL OF RIGHTS -- s. 1(d) (freedom of speech)
APPEALS AND JUDICIAL REVIEW -- appeal of injunction -- INJUNCTIONS -injunction restraining telephonic messages -- survey of the law -- JURISDICTION
-- court of competent jurisdiction to order injunction -- COURTS -- authority of
court to order injunction -- BOARDS OF INQUIRY / TRIBUNALS -- authority to
award remedy for respondent to cease discriminatory action
Summary: The Federal Court of Appeal rules that the Federal Court has no
authority to issue an interlocutory injunction before a Canadian Human Rights
Tribunal has made a finding that the communication of telephonic hate messages
contravenes s. 13(1) of the Canadian Human Rights Act.
This is an appeal from an interlocutory injunction that was issued by the Federal
Court Trial Division in March 1992 to enjoin Canadian Liberty Net (CLN) and
Tony McAleer from communicating by telephone messages that would expose
Jewish and non-white persons to hatred until such time as a Canadian Human
Rights Tribunal could hear and decide on a complaint alleging that CLN and
Tony McAleer were contravening s. 13(1) of the Canadian Human Rights Act.
The Tribunal was appointed to hear and decide complaints against CLN and
McAleer in March 1992 (Khaki v. Canadian Liberty Net), but its decision was not
issued until September 1993. In the meantime, the Canadian Human Rights
Commission applied for an interlocutory injunction enjoining the appellants from
communicating or causing to be communicated messages that would expose
Jewish and non-white persons to hatred until a final order was rendered by the
Tribunal. The injunction was issued in March 1992. In June 1992 the
Commission applied for a show cause order on the grounds that the appellants
were disobeying the injunction. They were finds guilty of contempt of court in July
1992 and sentence was imposed on August 26, 1992. That decision and
sentence were appealed, and the appeal was heard at the same time as this
appeal from the interlocutory injunction.
The issue in this appeal is whether the Federal Court has the authority to issue
an injunction in these circumstances. There is no express authority in the
Canadian Human Rights Act to issue an injunction. The Act specifically precludes
a Tribunal from ordering compensation in s. 13(1) cases and Tribunals cannot
impose penalties in any case. The issue is, in spite of these carefully limited
sanctions, should it be assumed that Parliament has authorized interlocutory
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measures to stop the communication of messages before a Tribunal has
determined that they are in violation of s. 13(1)?
The Federal Court of Appeal concludes that the Canadian Human Rights Act
sets out a measured, deliberate approach to the regulation of hate messages
communicated telephonically, including investigations, mediation, and possible
disposition by a Tribunal. While this regime does not require proof of intent to
expose a group to hatred, it provides sanctions which can only be imposed after
a Tribunal has determined that s. 13(1) has been contravened, and which include
no penalty and no compensation, but only a cease and desist order. No prior
restraint of hate communications is specifically provided for.
It is apparent that this measured approach was thought necessary in order to
support as fully as possible freedom of speech. The cautious approach taken by
the Parliament in structuring the Canadian Human Rights Act, and by the
Supreme Court of Canada in its decision in Canada (Human Rights Comm.) v.
Taylor militates against there being an implied authority for the courts to issue
interlocutory injunctions to stop communications prior to their being finds to
contravene the Act.
The Federal Court of Appeal concludes that the Federal Court does not have the
authority to issue interlocutory injunctions to restrain hate communications prior
to their being finds to violate s. 13(1) of the Canadian Human Rights Act. If
Tribunals cannot act more quickly in these cases, then the Act should be
amended to explicitly authorize the Tribunal or the Court to issue interlocutory
injunctions. Whether such measures would be considered justifiable under s. 1 of
the Charter might require further judicial consideration. In any case, the authority
to issue injunctions does not currently exist.
The appeal was allowed and the appellants were entitled to their costs. However,
the Court notes that the appellants have not paid the fines ordered against them
for violating the injunction, and it orders that no costs be paid until the fines owing
are paid by the appellants.
Canada (Human Rights Comm.) v. Canadian Liberty Net (No. 3) (1996), 26
C.H.R.R. D/260 (F.C.A.) [Eng./Fr. 11 pp.] Contempt order upheld despite lack of
authority to issue injunction before tribunal ruling
Keywords: HATE PROPAGANDA -- COMMUNICATIONS -- telephonic
transmission of hate message -- APPEALS AND JUDICIAL REVIEW -- appeal of
contempt order and of sentence -- error of law in interpreting legislation -INJUNCTIONS -- contempt of court proceeding for breach of injunction order -validity of injunction -- COURTS -- contempt of court -- ARREST AND
DETENTION -- appropriateness of sentence -- INTERPRETATION OF
STATUTES -- definition of "cause to be ... communicated"
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Summary: This is an appeal by Canadian Liberty Net (CLN) and Tony
McAleer (alias Derek J. Peterson) from a contempt order issued by the Federal
Court Trial Division which finds the appellants in breach of an injunction.
In March 1992 the Federal Court Trial Division issued an injunction prohibiting
CLN and Tony McAleer from communicating messages telephonically which
would be likely to expose Jewish and non-white persons to hatred pending the
resolution of a complaint which alleged that they had violated s. 13(1) of the
Canadian Human Rights Act. In July 1992, the appellants were finds guilty of
contempt of court for disobeying that injunction. The Federal Court Trial Division
finds that CLN and Tony McAleer had placed a message on the CLN telephone
line in Canada referring callers to a new telephone number for CLN "in exile". By
telephoning the new number, located in Blaine, Washington, callers could hear
hate messages of the same type that they were enjoined from communicating by
the interlocutory injunction. The Federal Court Trial Division finds CLN and
McAleer had deliberately circumvented the order of the court. It rules that they
were in contempt of court, and sentenced McAleer to two months in prison. He
was also fined $2,500 and CLN was fined $5,000.
In this appeal, the issues are: (1) was the Trial Judge correct in finding that there
was a breach of the injunction; (2) if the injunction was invalid could it be the
basis for a contempt order; and (3) was the sentence appropriate?
The Federal Court of Appeal finds that there was a breach of the injunction. The
injunction specifically enjoined the appellants from "causing to be communicated"
certain types of hate messages. The fact that the messages were conveyed from
an American-based telephone line is not sufficient to evade the injunction. If the
appellants had not placed a message on the CLN line in Canada, the messages
could not have been communicated. Consequently, the appellants breached the
injunction by giving callers the CLN number "in exile" and continuing to provide
hate messages.
Also, the Federal Court of Appeal finds that even though it has decided in a
companion decision, that the Federal Court Trial Division had no authority to
issue its 1992 injunction, while the injunction was in effect it was a valid order of
the court and breaching it can be the basis for a contempt of court order.
Injunctions, as well as any other orders, must be complied with until reversed or
stayed, even if they are not valid.
Finally, the Federal Court of Appeal decides that the prison sentence given to Mr.
McAleer should be reduced to the two days he has already served, in light of the
finding of the Court that the injunction was not valid. The fines, however, are
affirmed.
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McAleer v. Canada (Human Rights Comm.) (1996), 26 C.H.R.R. D/280
(F.C.T.D.) [Eng./Fr. 15 pp.]: exposure to hatred on the basis of sexual orientation
-- Tribunal decision upheld in hate messages case
Keywords: HATE PROPAGANDA -- exposure to hatred on the basis of sexual
orientation -- COMMUNICATIONS -- telephonic transmission of hate message -SEXUAL ORIENTATION -- sexual orientation as ground of discrimination in
human rights legislation -- definition of sexual orientation -- DISCRIMINATION -protection based on non-enumerated grounds of discrimination
CANADIAN CHARTER OF RIGHTS AND FREEDOMS -- s. 1 (reasonable limits)
and application of Oakes test -- s. 2(a) (freedom of conscience and religion) -- s.
2(b) (freedom of expression) -- s. 7 (security of the person) -- CONSTITUTIONAL
LAW -- constitutional validity of human rights legislation -- FREEDOM OF
EXPRESSION -- freedom of speech and communication of hate messages -JURISDICTION -- federal/provincial jurisdiction over telecommunications
services
Summary: This is an application for judicial review of a decision of a Canadian
Human Rights Tribunal which finds that Tony McAleer and Canadian Liberty Net
(CLN) violated s. 13(1) of the Canadian Human Rights Act by transmitting
telephonically messages which exposed persons to hatred and contempt
because of their sexual orientation.
The applicants argue that: (1) s. 13(1) of the Canadian Human Rights Act which
prohibits transmission of telephonic messages which expose a group of persons
to hatred or contempt represents an interference in the province's exclusive
jurisdiction over property and civil rights; (2) s. 13(1) of the Canadian Human
Rights Act contravenes ss. 2(a) and (b) and s. 7 of the Charter of Rights and
Freedoms which guarantee freedom of speech and liberty; (3) the Tribunal's
interpretation of "sexual orientation" was vague and overly broad and therefore
infringes ss. 2(a) and (b) and s. 7 of the Charter; and (4) the Canadian Human
Rights Commission failed to show that s. 13(1) should be saved under s. 1
because there is no "pressing social ill" at stake.
The Federal Court Trial Division rules that there is no jurisdictional issue here.
Telecommunications falls under federal jurisdiction and the messages at issue
here were relayed through telecommunications. It also finds that Counsel for
Tony McAleer has already unsuccessfully challenged the constitutionality of s.
13(1) of the Canadian Human Rights Act in the Canada (Human Rights Comm.)
v. Taylor case. The Supreme Court of Canada ruled in that case that freedom of
expression was breached by s. 13(1) of the Canadian Human Rights Act, but it
upheld the infringement under s. 1 of the Charter. Section 13(1) of the Canadian
Human Rights Act was held to constitute a reasonable limit upon freedom of
expression.
Given the similarity of the issues in this case, the Federal Court Trial Division
adopts certain aspects of the Supreme Court's analysis in Taylor. The Court
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acknowledges that s. 13(1) infringes s. 2 of the Charter and proceeds to
determine whether the infringement may be justified as a reasonable limit under
s. 1. The parties invoking s. 1, in this case the Canadian Human Rights
Commission and John Payzant, must show that the objective of s. 13(1) is
sufficiently important to warrant overriding the right to freedom of expression, and
in addition that it does it in a way that meets the proportionality test set out in R.
v. Oakes.
The Supreme Court of Canada in Taylor found that Parliament's objective of
promoting equal opportunity, free of discriminatory penalties, was of sufficient
importance to warrant overriding the rights set out in s. 2, and the Court finds that
this ruling should be respected.
With regard to the minimal impairment test, the Court notes that the applicants
argue that the expression "sexual orientation" is vague and overly broad and may
be interpreted as including practices such as bestiality and pedophilia. The Court
finds, however, that s. 13(1) is not vague or overly broad, as it offers sufficient
guidance for legal debate. The Court also finds that the effects of s. 13(1) are not
so deleterious as to make its existence intolerable in a free and democratic
society.
Regarding the issue of sexual orientation, CLN and Tony McAleer argue that s.
13(1) might be applied "whenever political correctness says so." However, the
Court finds that while this might be a concern, the application of s. 13(1) has not
reached an abusive state. Furthermore, the Court finds that the argument that
the inclusion of sexual orientation is tantamount to legitimizing or legalizing
bestiality and pedophilia has little merit. Pedophilia is a sexual desire directed
towards children. Bestiality refers to copulation between a human being and an
animal. Sexual orientation refers to an individual's preference with respect to
gender. It is not vague or overly broad, and has been found to be an analogous
ground under s. 15 of the Charter.
In conclusion, the Court finds that the Tribunal did not err with respect to
jurisdiction or otherwise, and consequently there are no grounds for intervention.
Ross v. New Brunswick School Dist. No. 15 (1996), 25 C.H.R.R. D/175
(S.C.C.) [Eng./Fr. 38 pp.] Supreme Court of Canada upholds the decision of a
Board of Inquiry which ruled that a Board of School Trustees discriminated with
respect to a public service because it failed to take appropriate action against a
teacher who made repeated public attacks on Jewish people.
Keywords: HATE PROPAGANDA -- exposure to hatred on the basis of religion - EDUCATION -- PUBLIC SERVICES AND FACILITIES -- RELIGION AND
CREED -- discrimination against students on the basis of religious belief -poisoned atmosphere at public school -- impact of teacher抯beliefs on students -teacher抯right to freely express opinion on any subject -- teacher抯beliefs and
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impact on students -- conflict between teacher抯expression of religious belief
and teacher抯religious rights -- school board condones discrimination -- school
board is liable for teacher抯conduct and has a right to discipline teacher for offduty conduct
ADMINISTRATIVE TRIBUNALS -- BOARDS OF INQUIRY / TRIBUNALS -COURTS -- standard of review of court over administrative tribunals -- privative
clause -- APPEALS AND JUDICIAL REVIEW -- findings of fact are patently
unreasonable -- LIABILITY -- employer liability for teacher -- REMEDIES -- leave
without pay from employment -- employment termination
CANADIAN CHARTER OF RIGHTS AND FREEDOMS -- s. 1 (reasonable limits)
and application of Oakes test -- s. 2(a) (freedom of conscience and religion) -- s.
2(b) (freedom of expression) -- FREEDOM OF EXPRESSION -- freedom of
speech and the right to freely express opinion on any subject -- HUMAN RIGHTS
-- nature and purpose of human rights legislation
Summary: In a unanimous ruling the Supreme Court of Canada upholds the
decision of a Board of Inquiry which ruled that the Board of School Trustees,
District No. 15 discriminated with respect to a public service because it failed to
take appropriate action against a teacher, Malcolm Ross, who made repeated
public attacks on Jewish people.
David Attis, a Jewish parent, complained in 1988 that Malcolm Ross, a teacher in
School District No. 15, publicly made racist and discriminatory comments about
Jewish people during his off-duty time, and that this created a "poisoned
environment" in the school district, negatively affecting the Jewish children and
other minority students. Mr. Ross抯writings and statements communicating his
anti-Semitic views included books, letters and interviews with local media. The
Board of Inquiry found that, despite mounting complaints about Mr. Ross抯
activities between 1978 and 1987, the School Board reprimanded Mr. Ross
ineffectively, and, by its almost indifferent response to the complaints and by
continuing his employment, it endorsed his out-of-school activities and writings.
This resulted in an atmosphere in the school district where anti-Jewish
sentiments flourished, where students engaged in anti-Semitic acts, and where
Jewish students were subject to a "poisoned environment."
The Board of Inquiry issued a two part order. Clause 1 of the order required the
Department of Education to take a number of steps to prevent discriminatory
treatment in the schools. In clause 2 the Board of Inquiry ordered the School
Board to (a) immediately place Malcolm Ross on a leave of absence without pay
for a period of eighteen months; (b) appoint Mr. Ross to a non-teaching position if
one came available for which he was qualified during this period; (c) terminate
his employment at the end of eighteen months if he had not been offered and
accepted a non-teaching position; and (d) terminate his employment with the
School Board immediately if at any time he published or wrote about a Jewish
conspiracy or attacked followers of the Jewish religion, or published, sold or
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distributed Web of Deceit, The Real Holocaust, Spectre of Power, or
Christianity vs. Judeo-Christianity (The Battle for Truth).
The New Brunswick Court of Queen's Bench quashed clause 1 of the Board of
Inquiry's order on the grounds that it was beyond the jurisdiction of the Board of
Inquiry. The complaint was against the School Board, and no investigation was
made with respect to the practices of the Department of Education. It also ruled
that the Board of Inquiry had no jurisdiction to make the order contained in clause
2(d) which placed restrictions on Malcolm Ross抯activities outside the classroom
when he was no longer a classroom teacher. The remaining parts of the order
were upheld.
Malcolm Ross appealed this decision to the New Brunswick Court of Appeal.
There the majority found that the Board of Inquiry's order could not stand
because it was the respondent's activities outside the school that attracted the
complaint. In these circumstances, it ruled that the remedy did not meet a
specific purpose so pressing and substantial as to override the Mr. Ross抯
constitutional right of freedom of expression.
This is an appeal by David Attis from that decision. The issues in this appeal are
(1) whether a school board, which employs a teacher who publicly makes
invidiously discriminatory statements, discriminates with respect to services it
offers to the public pursuant to s. 5(1) of the New Brunswick Human Rights Act,
and (2) whether an order to rectify the discrimination which seeks to remove the
teacher from his teaching position, infringes upon the teacher's freedom of
expression and freedom of religion guaranteed under ss. 2(a) and 2(b) of the
Charter.
The Court finds that two standards of review are in play in this case -- an
administrative law standard and a Charter standard. The administrative law
standard applies to the Board's finding of discrimination and to its order. The
Charter standard applies to the Board's order only.
In the administrative law context, and in light of the wording of the privative
clause in the New Brunswick Human Rights Act, the Court rules that it is
appropriate to exercise a degree of deference to the findings of fact of a human
rights Board of Inquiry. Also, the Court finds that the Board of Inquiry clearly had
the discretionary power to issue the order that it did. However, the Court finds
that an administrative tribunal exceeds its jurisdiction if it makes an order that
infringes the Charter.
The Court upholds the Board of Inquiry's finding that although there was no
evidence that students engaging in anti-Jewish behaviour were directly
influenced by Malcolm Ross抯teachings, it was reasonable to anticipate that,
given the high degree of publicity surrounding his publications and media
interviews, his off-duty conduct was a factor influencing discriminatory conduct by
the students.
The Court finds that teachers are inextricably linked to the integrity of the school
system. They occupy positions of trust and confidence and exert considerable
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influence over their students as a result of their positions. Where a "poisoned
environment" within the school system is traceable to the off-duty conduct of a
teacher, that is likely to produce a loss of confidence in the teacher and in the
system as a whole. A reasonable inference concerning the effect of Mr. Ross抯
conduct is sufficient in this case to support a finding that his continued
employment impaired the educational environment generally, by creating an
environment characterized by a lack of equality and tolerance.
The Court also upholds the Board of Inquiry's conclusion that the School Board
had a duty to maintain a positive school environment for all persons served by it,
and that it failed to maintain that positive environment.
Regarding the order of the Board of Inquiry, the Court finds that the order
infringed Malcolm Ross抯rights to freedom of expression and freedom of religion.
The purpose of the order is to restrict the respondent's expression, including the
expression of his religious beliefs.
The Court considers whether the order can be saved by s. 1 of the Charter as a
reasonable limit on these rights by considering the educational context, the
employment context, and the context of anti-Semitism. The Court finds that the
educational context here is the education of young children who are less likely to
make an intellectual distinction between comments a teacher makes in the
school and those the teacher makes outside the school. Children are also more
likely to feel threatened and isolated by a teacher who makes comments that
denigrate personal characteristics of a group to which they belong. The children
have the right to be educated in a school system that is free from bias, prejudice
and intolerance. It is this right that must be balanced against the respondent's
right to make discriminatory statements.
Regarding the employment context, the Court finds that the state, as employer,
has a duty to ensure that the fulfilment of public functions is undertaken in a
manner that does not undermine public trust and confidence.
It also finds, considering the context of anti-Semitism, that Malcolm Ross must
not be permitted to use the Charter to roll back advances made by Jewish
persons to combat discrimination against them.
The Court concludes that the Board's order asserts a commitment to the
eradication of discrimination in the provision of educational services to the public,
and that this is a pressing and substantial objective which justifies overriding Mr.
Ross抯rights to freedom of expression and religion.
The Court also finds that there is a rational connection between Mr. Ross抯
conduct and the harm -- the poisoned educational environment -- when he was in
a teaching position. Clauses 2(a),(b) and (c) which remove Mr. Ross from his
teaching position are rationally connected to the objective of the order. However,
the Court rules that clause 2(d), which restricts Mr. Ross off-duty conduct when
he is not in a teaching position, does not meet the minimal impairment test; it
impairs the right to freedom of expression more than is necessary. The evidence
does not support the conclusion that the residual poisoned effect would last
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indefinitely once Ross was placed in a non-teaching role. Clause 2(d) of the
order is not justified under s. 1.
The appeal is allowed, and clauses 2(a), (b) and (c) of the Board of Inquiry's
order are restored. Costs are awarded to the appellant Attis.
United States
Constitution for the United States of America
Amendment I
Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of speech, or of the
press; or the right of the people peaceably to assemble, and to petition the
Government for a redress of grievances.
The New York Times v. Sullivan "Actual Malice" Rule18
In New York Times v. Sullivan, supra, the United States Supreme Court ruled
that the existing common law of defamation violated the guarantee of free
speech under the First Amendment of the Constitution. It held that the citizen's
right to criticize government officials is of such tremendous importance in a
democratic society that it can only be accommodated through the tolerance of
speech which may eventually be determined to contain falsehoods. The solution
adopted was to do away with the common law presumptions of falsity and malice
and place the onus on the plaintiff to prove that, at the time the defamatory
statements were made, the defendant either knew them to be false or was
reckless as to whether they were or not (122).
At the outset, it is important to understand the social and political context of the
times which undoubtedly influenced the decision in New York Times v. Sullivan,
supra. The impugned publication was an editorial advertisement, placed in the
appellant's newspaper, entitled "Heed Their Rising Voices". It criticized the
widespread segregation which continued to dominate life in the southern states
in the late 1950s and early 1960s. Prominent and well respected individuals,
including Mrs. Eleanor Roosevelt, lent their name to the advertisement. It
communicated information, recited grievances, protested abuses and sought
financial support. The group or movement sponsoring the advertisement was
18
Source: Hill v Church of Scientology
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characterized by Brennan J. as one "whose existence and objectives are
matters of the highest public interest and concern" (p. 266). Black J. described
the controversy at the heart of the suit in the following terms at p. 294:
One of the acute and highly emotional issues in this country arises out of
efforts of many people, even including some public officials, to continue statecommanded segregation of races in the public schools and other public places,
despite our several holdings that such a state practice is forbidden by the
Fourteenth Amendment (123).
The advertisement did not mention by name the plaintiff, who was a white
elected commissioner from Montgomery, Alabama. Only 35 copies of the edition
of the New York Times which carried that advertisement were circulated in
Montgomery, and only 394 were circulated in the entire state of Alabama. The
trial took place in 1960, in a segregated court room in Montgomery, before a
white judge and all-white jury (124).
The Supreme Court, in overturning the verdict, clearly perceived the libel action
as a very serious attack not only on the freedom of the press but, more
particularly, on those who favoured desegregation in the southern United States.
It was concerned that such a large damage award could threaten the very
existence of, in Black J.'s words, "an American press virile enough to publish
unpopular views on public affairs and bold enough to criticize the conduct of
public officials" (p. 294). This concern was intensified by the fact that a second
libel verdict of $500,000 U.S. had already been awarded to another Montgomery
commissioner against the New York Times. In addition, 11 other libel suits,
arising out of the same advertisement, were pending against the newspaper
(125).
Another motivating factor for this radical change to the common law was the
American jurisprudence to the effect that the statements of public officials which
came "within the outer perimeter of their duties" were privileged unless actual
malice was proved. The rationale behind this privilege was that the threat of
damage suits would "dampen the ardor of all but the most resolute, or the most
irresponsible, in the unflinching discharge of their duties": Barr v. Matteo, 360
U.S. 564 (1959), at p. 571. The Supreme Court in the Sullivan decision held that
analogous considerations supported the protection which it accorded to critics of
the government (126).
(d)Critiques of the "Actual Malice" Rule
(i)Comments on the Decision in the United States
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The "actual malice" rule has been severely criticized by American judges and
academic writers. It has been suggested that the decision was overly influenced
by the dramatic facts underlying the dispute and has not stood the test of time.
See, for example, R. A. Epstein, "Was New York Times v. Sullivan Wrong?"
(1986), 53 U. Chi. L. Rev. 782, at p. 787; Dun & Bradstreet, Inc. v. Greenmoss
Builders, Inc., 472 U.S. 749 (1985), at p. 767. Commentators have pointed out
that, far from being deterred by the decision, libel actions have, in the postSullivan era, increased in both number and size of awards. They have, in this
way, mirrored the direction taken in other tort actions. See Epstein, supra; R. P.
Bezanson, "Libel Law and the Realities of Litigation: Setting the Record Straight"
(1985), 71 Iowa L. Rev. 226, at pp. 228-29. It has been said that the New York
Times v. Sullivan, decision has put great pressure on the fact-finding process
since courts are now required to make subjective determinations as to who is a
public figure and what is a matter of legitimate public concern. See Christie,
supra, at pp. 63-64.
128 Perhaps most importantly, it has been argued the decision has shifted the
focus of defamation suits away from their original, essential purpose. Rather than
deciding upon the truth of the impugned statement, courts in the U.S. now
determine whether the defendant was negligent. Several unfortunate results flow
from this shift in focus. First, it may deny the plaintiff the opportunity to establish
the falsity of the defamatory statements and to determine the consequent
reputational harm. This is particularly true in cases where the falsity is not
seriously contested. See Bezanson, supra, at p. 227.
129 Second, it necessitates a detailed inquiry into matters of media procedure.
This, in turn, increases the length of discoveries and of the trial which may
actually increase, rather than decrease, the threat to speech interests. See D. A.
Barrett, "Declaratory Judgments for Libel: A Better Alternative" (1986), 74 Cal. L.
Rev. 847, at p. 855.
130
Third, it dramatically increases the cost of litigation. This will often leave a
plaintiff who has limited funds without legal recourse. See P. N. Leval, "The NoMoney, No-Fault Libel Suit: Keeping Sullivan in its Proper Place" (1988), 101
Harv. L. Rev. 1287, at p. 1288; A. Lewis, "New York Times v. Sullivan
Reconsidered: Time to Return to `The Central Meaning of the First Amendment'"
(1983), 83 Colum. L. Rev. 603; M. London, "The `Muzzled Media': Constitutional
Crisis or Product Liability Scam?" in At What Price? Libel Law and Freedom of
the Press (1993), at pp. 17-20.
131 Fourth, the fact that the dissemination of falsehoods is protected is said to
exact a major social cost by deprecating truth in public discourse. See L. C.
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Bollinger, "The End of New York Times v Sullivan: Reflections on Masson v
New Yorker Magazine", [1991] Sup. Ct. Rev. 1, at p. 6; J. A. Barron, "Access to
the Press -- A New First Amendment Right" (1966-67), 80 Harv. L. Rev. 1641, at
pp. 1657-58.
132 A number of jurists in the United States have advocated a reconsideration
of the New York Times v. Sullivan standard. These include one of the justices of
the Supreme Court who participated in that decision. In Dun & Bradstreet, Inc.,
supra, White J. stated, in a minority concurring opinion with which Burger C.J.
concurred on this point, that he had "become convinced that the Court struck an
improvident balance in the New York Times case between the public's interest in
being fully informed about public officials and public affairs and the competing
interest of those who have been defamed in vindicating their reputation" (p. 767).
He went on to state at pp. 767-69:
In a country like ours, where the people purport to be able to govern
themselves through their elected representatives, adequate information about
their government is of transcendent importance. That flow of intelligence
deserves full First Amendment protection. Criticism and assessment of the
performance of public officials and of government in general are not subject to
penalties imposed by law. But these First Amendment values are not at all
served by circulating false statements of fact about public officials. On the
contrary, erroneous information frustrates these values. They are even more
disserved when the statements falsely impugn the honesty of those men and
women and hence lessen the confidence in government. As the Court said in
Gertz: "(T)here is no constitutional value in false statements of fact. Neither the
intentional lie nor the careless error materially advances society's interest in
`uninhibited, robust, and wide-open' debate on public issues." . . . Yet in New
York Times cases, the public official's complaint will be dismissed unless he
alleges and makes out a jury case of a knowing or reckless falsehood. Absent
such proof, there will be no jury verdict or judgment of any kind in his favor, even
if the challenged publication is admittedly false. The lie will stand, and the public
continue to be misinformed about public matters. . . . Furthermore, when the
plaintiff loses, the jury will likely return a general verdict and there will be no
judgment that the publication was false, even though it was without foundation in
reality. The public is left to conclude that the challenged statement was true after
all. Their only chance of being accurately informed is measured by the public
official's ability himself to counter the lie, unaided by the courts. That is a
decidedly weak reed to depend on for the vindication of First Amendment
interests . . .
Also, by leaving the lie uncorrected, the New York Times rule plainly leaves
the public official without a remedy for the damage to his reputation. Yet the
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Court has observed that the individual's right to the protection of his own good
name is a basic consideration of our constitutional system, reflecting "`our basic
concept of the essential dignity and worth of every human being -- a concept at
the root of any decent system of ordered liberty.'" . . .
The New York Times rule thus countenances two evils: first, the stream of
information about public officials and public affairs is polluted and often remains
polluted by false information; and second, the reputation and professional life of
the defeated plaintiff may be destroyed by falsehoods that might have been
avoided with a reasonable effort to investigate the facts. In terms of the First
Amendment and reputational interests at stake, these seem grossly perverse
results.
133
In the subsequent case of Coughlin v. Westinghouse Broadcasting &
Cable, Inc., 476 U.S. 1187 (1986), the majority of the United States Supreme
Court refused to grant certiorari. Burger C.J. and Rehnquist J. dissented because
of their view that the court should re-examine New York Times v. Sullivan, supra,
and "give plenary attention to this important issue" (p. 1187).
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