January 27, 2006
Freedom of Expression & Language Rights
• Freedom of expression cases:
– Hate speech: Keegstra, Zundel
– Obscenity: Butler, Sharpe, Little Sisters
– Regulation of tobacco advertising: RJR
MacDonald
• Language cases
– Quebec Protestant School Boards case
– Language of expression: Ford, Devine
– Manitoba Language Rights Case
Keegstra (1990)
• Keegstra was a high school
teacher in Eckville, AB. Taught
stuedents anti-Semitic
theories.
• charged with violating
s. 319(2) of the Criminal Code
-- “wilfully promoting hatred
against an identifiable group
by communicating anti-semitic
statements to his students.”
• convicted at trial
• AB Ct of Appeal: s. 319(2)
violates S. 2 of Charter
• SCC: The violation of S. 2 can
be justified under s. 1 of the
Charter.
• 4-3 decision: Majority is CJ
Dickson, Wilson, L'HeureuxDubé and Gonthier; minority is
La Forest, Sopinka and
McLachlin JJ.
• Majority decision:
– Section 2(b) should be
given a “large and liberal”
interpretation, and so it
covers even hate speech.
– Oakes test:
• I) Substantial
importance test: gov’t
objective: prevent harm
caused by hate
propaganda, is of
sufficient importance
Keegstra (2)
• Part II: Proportionality test
– a) rational connection: yes.
Prohibiting hate propaganda
prevents harm resulting from
it. (historical examples)
– b) fr of exp limited as little as
necessary? Yes: only “most
severe” forms of hatred
covered. Private
communications not covered.
There’s a defence of “truth,” if
accused can prove on bal of
probabilities. Promotion must
be willful, so mens rea
protected.
– c) good outweighs harm.
Hate propaganda does not
contribute to selfdevelopment, quest for truth,
participative democracy.
• Dissent:
– K’s communications offensive,
but not threats. Not violent,
didn’t advocate violence.
Difficult to draw line between
hate speech, and valid
criticism. Speech that
advocates changing the basic
conceptions about our society
must be protected.
Keegstra (3)
• Oakes Test:
– Gov’t objective is of
sufficient importance.
– Part II: (proportionality)
• a) rational connection: not
necessarily. Hate might
just go underground, or be
disguised to fit the law.
Prosecution might create
sympathy. Publicizing the
case might have the
opposite of effect
intended. Valuable
speech might be
inadvertently supressed.
– b) S. 319(2) is overbroad. Dn
of “hate” is too subjective.
True statements about a
group might result in hate.
– c) Harm outweights good.
Might have a “chilling effect.”
It prevents free and open
debate. No proof that
S.319(2) promotes social
harmony & indiv dignity.
• Reverse onus issue:
– can’t be convicted if you prove
statements are true. Maj:
violates presumption of
innocence, but passes Oakes
test for same reason as the
rest of 319(2) does.
Zundel (1992)
• Charged with violating S. 181
of Crim Code: publishing “a
statement, tale or news that he
knows is false and causes or is
likely to cause injury or
mischief to a public interest.”
Zundel published pamphlet,
“Did Six Million Really Die?”
• convicted at trial; upheld by
Ont CA. Zundel: S. 181
violates S. s(b) of Charter:
freedom of expression.
• SCC: 4-3 upholding Zundel’s
claim.
• Majority: La Forest,
L’Heureux-Dube, Sopinka,
McLachlin. Dissenters:
Gonthier, Cory, Iacobucci.
(Dickson, Wilson gone).
• Majority: S. 181 infringes 2(b).
All expression covered, except
violent. Purpose: free
expression to promote truth,
pol & soc participation, and
self-fulfillment. Includes
beliefs majority of Canadians
find wrong, false or unpopular.
Content irrelevant.
Zundel (2)
• False statements that
someone believes true can
sometimes have value.
• Parliament’s purpose re 181:
copied UK legis to prevent
slander against nobles, to
preserve order. Rejects
“shifting purpose” argument.
Even if accepted that current
purpose is to prevent harm,
that’s not specific enough to
pass Part I of Oakes Test. S.
319(2) is more specific.
• Even if Part I had been
passed, S. 181 fails on Part II.
– a) rational connection: no
rational connection between
promoting social harmony,
and means used. S. 181
could cover nearly any
controversial statement. It
could have a chilling effect,
producing the opposite of the
result intended.
– b) certainly does not restrict
rights as little as necessary to
achieve objective
– c) clearly S. 181 does more
harm than good.
Zundel: dissenters
• S. 181 violates S 2(b) of
charter. However, it is saved
by S. 1.
– S. 181 is vague, but a
judge’s job is to define
vague phrases in law, eg.
“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 democracy promotes free
public discussion, equality,
liberty and human dignity.
– S. 181 is clear enough
to provide a
substantially important
objective (prevent
harm [injury], promote
tolerance) to pass Part
I of Oakes. Original
medieval purpose has
changed, as
Parliament has
amended the
legislation over time.
Zundel dissenters (2)
– Part II is also passed.
• a) rational connection:
rational connection
between suppressing
deliberate lies that
could result in unrest,
and preventing harm.
Used rarely because
hard to prove deliberate
lies, and that they could
result in unrest.
• b) not overbroad:
courts can tell
difference between
opinion and fact.
• c) good outweighs
harm. Spreading
willful lies does not
further public
debate.
Butler (1992)
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Impugned: s. 163 of Crim Code: prohibits sale of obscene materials, i.e.
where a dominant characteristic is the undue exploitation of sex, or sex and
crime, horror, cruelty and violence.
Butler: convicted of selling & renting hard core video & magazines. Butler's
Argument: s. 163 violates s. 2(b) of Charter.
Trial judge: obscenity restricted to materials that depict sex & cruelty, lack
of consent, or dehumanization. Convicted on 8 counts only (he'd been
charged with over one hundred offences)
Court of Appeal: All of S. 163 is a reasonable limit. Convict on all counts,
not just 8.
SCC (unanimous 9-judge decision): clarified meaning of obscenity. S. 163
infringed 2(b), but SCC’s dn of obscenity can pass the Oakes test. Butler to
be tried again.
Butler (2)
• Sopinka (+6): The test for obscenity: Is exploitation of sex “undue”
according to “community standards test”? This is not what Can’s
would tolerate for selves, but what they’d tolerate others being
exposed to re harm to society.
• Consent is important, but not necessarily determinative.
• Re works of art: “internal necessities” test: is the material required
for serious treatment of a theme?
• Judges apply the “reasonable person” test: what would a
“reasonable person,” informed of the relevant facts, decide?
• sex & violence: nearly always undue exploitation
• sex that’s dehumanizing: undue if risk of harm substantial
• sex that’s not violent or degrading is tolerated unless it involves
children
• “internal necessities” test: judge must determine whether material is
really necessary, or the work is an excuse for exploitation. If in
doubt, err on side of freedom of expression
Butler (3)
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Oakes test passed:
I: Objective of preventing harm is pressing & substantial
II: a) rational conn exists between supressing obscene materials and
preventing harm. Community standards test is sufficiently clear.
b) rights minimally impaired. Only potentially harmful material caught,
and there’s an internal necessities test
c) good outweights harm
Dissenters: (L’Herueux-Dube & Gonthier): generally agree with Sopinka,
but think that sometimes materials that don’t combine sex and violence, or
sex considered
dehumanizing, can be obscene because there’s a community consensus
that the materials may result in harm by contributing to the “deformation of
sexuality.”
Sharpe (2001)
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late 1990s, John Robin Sharpe of
Vancouver was charged with two
counts of possession of
pornographic materials under the
part of S. 163 of CC prohibiting
possession of child pornography,
and with possession of these
materials for the purposes of
distribution.
Sharpe argued the legislation
intended to protect children was
over-broad, unnecessarily
interfering with his privacy and his
freedom of expression. Some of
the stories/drawings came from
his own imagination. Won at trial
and CA, crown appealed to SCC,
heard in 2000.
• SCC: 4-3 legislation valid, but
majority “read in” two
restrictions:
– the leg would not be
construed so as to apply to
"(1) self-created expressive
material: i.e., any written
material or visual rep’tion
created by the acc’d alone,
and held by the acc’d alone,
exclusively for his/her own
personal use; and (2) private
recordings of lawful sexual
activity ... created by or
depicting the accused,
provided it does not depict
unlawful sexual activity and is
held by the accused
exclusively for private use."
(eg. of 17-year-olds legally
married)
Little Sisters (2000)
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Impugned: the section of the
federal Customs Tariff Act that
prohibits importation of obscene
materials, and creates a “reverse
onus” on importer to prove that
materials are not obscene.
Little Sisters bookstore: imported
gay/lesbian erotica, and had
materials confiscated by customs
officials. Bookstore challenged
the customs legislation as a
violation of S. 2(b) of Charter:
freedom of expression.
SCC: 6-3: reverse onus provision
is unconstitutional. However, the
prohibition against importing
obscene materials is
constitutional.
The CT Act is a prima facie
violation of the Charter, but
passes the Oakes test.
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Objective of legislation: prevent
Canada from being inundated by
obscene material from abroad
– I: Substantially important: yes
– II: proportionality: a) customs
procedures rationally
connected to objective. b)
there’s minimal impairment if
Butler test applied, and c)
there’s an overall balance
Butler definition of obscenity must
be applied by customs officers.
The wording of the Act allows for
that.
Customs officials delayed
unnecessarily (30 days
reasonable), and were “highhanded” in applying a stricter
standard to homosexual than to
heterosexual materials. Actions of
public servants ruled
unconstitutional, not the law.
Little Sisters (2)
• Dissenters (Iacobucci, Arbour & LeBel)
– The Act is not minimally intrusive. The Act contains
neither procedural safeguards, nor a guarantee that
customs officers understand the Butler test.
– Allowing appeals to a superior court rather than a
specialized tribunal is “completely impractical” given
the “sheer number of contested prohibitions.”
– The defects of the impugned legislation outweigh its
benefits. Some have been denied “important
literature” (how to prevent AIDS), and some artists
have their work labeled as “obscene” when it’s not
obscene according to the Butler test.
RJR-MacDonald v. AG Can (1995)
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Impugned: fed Tobacco Products Control Act, which regulated tobacco
advertising
Div of powers issue: this is valid legislation under criminal law power.
Charter issue: decided 5-4 that legislation is a violation of 2(b) of Charter.
All 9 judges agree that the legis violates 2(b). Disagreed over application of
Oakes test.
Majority: Part I: objective is to prevent Can’s from being persuaded by
tobacco advertising, and discouraging people who see package from
smoking.
Oakes Test:
These are important objectives, so Pt I passed.
Part II:
a) rational connection: social science evidence not conclusive that the
means used are likely to work (dissenters disagreed)
b) minimal impairment: no. No evidence to show that less obtrusive
measures are just as effective.
c) harm of legislation therefore outweighs any good it does.
RJR MacDonald (2)
• Dissenters: (La Forest, L’Heureux-Dube, Gonthier,
Cory): The legislation passes the Oakes test. The
courts must defer to the policy choices of legislatures in
• cases like this where leg. is trying to prevent something
extremely harmful. Oakes test must be applied less
strictly. Courts should not second-guess legislative
policy choices.
• Following SCC decision: Parliament enacted new
tobacco advertising legislation that complied with SCC
decision.
• Janet Hiebert, who wrote Charter Conflicts (2002):
Parliament didn’t need to defer. Could have come back
with a more persuasive case, as in the rape shield issue.
Quebec Protestant School Boards
Case (1984)
• Bill 101, Quebec Charter of the French Language,
enacted in 1977
• “Quebec clause:” only parents who had received their
primary education in Quebec in English could have their
children educated in English (sibling clause too)
• This contradited the “Canada clause” in S. 23 of the
Charter of Rights
• The Deschenes decision of Quebec Court of Appeal:
detailed examination of evidence re S. 1.
• Supreme Court of Canada: the Quebec clause is a
“complete denial” of the Canada clause, not just a limit.
A complete denial can never be justified under S. 1.
Ford & Devine cases
• 1977: Bill 101, Charter of
the French Language.
– Prohibited English on most
commercial signs to
encourage immigrants to
assimilate with the
francophone culture.
• Quebec Charter of
Human Rights (1975)
– guarantees freedom of
expression
– Contains a limitations
clause like s. 1 of Charter
• PQ: Blanket override of
existing legislation
enacted in 1982
• 1984: Ford & Brown
claimed right to post
bilingual outdoor signs
• 1978: Devine & Singer
displayed signs in English
only & convicted under B
101
1988 SCC decision: Ford
• Is blanket override under
s33 constitutional?
– SCC: procedural only
– part of 101 subject to Can
Charter; override expired.
1984 amendment: subject
only to Quebec Charter as
5-year override still valid.
• Freedom of expression
– Does it apply to ideas only,
or language of expression
too?
– Commercial expression
too?
• Does 101 violate Fr of
Exp in Canadian &
Quebec Charters? Yes
• Can the violation be
justified by s.1 etc.?
– Sociolinguistic studies
– Substantial importance of
preserving Fr culture: yes
– rational connection yes
– Limit rights as little as
necessary: no. Studies
conclude bilingual signs
work if French
predominates.
Devine & After
• Devine:
– Following Ford, Devine
must use bilingual signs
– 101 violates fed criminal
law power? No: 92(13)
– Guarantee of equality in
Quebec Charter of Rights
violated? Yes, but bilingual
requirements are a
reasonable limit
• Bourassa could have
amended 101 to allow for
bilingual signs, French
predominating
– instead, used S. 33 to reenact French-only signs
law
– over next 5 years, debate
in Quebec concluded SCC
was right. Even the PQ
government did not reenact the override. This is
how S. 33 is supposed to
work.
Manitoba Language Rights Case (1985)
• Manitoba Act of 1970: similar provisions to S. 133 of CA,
1867, protecting use of English and French
• 1890: The English became the majority, and legislature
enacted the “Official Language Act,” making English the
only official language. Statutes passed only in English.
A clear violation of Manitoba Act.
• 1892: francophone litigant challenged OLA and won in
County Court. Decision ignored by gov’t. Litigant
couldn’t appeal to a higher court because he had won.
• 1978: francophone litigant (Forest) brought an
application in Man QB, and was “fortunate enough to
lose.” He appealed to Man CA and won; Man gov’t
appealed to SCC
• Forest won in SCC; Man Off Lang Act declared
unconstitutional
Manitoba Language Rights Case (2)
• In Blaikie No. 1 (1979), Quebec’s new “Official Language Act” also
declared unconstitutional. Within 24 hours, all new Quebec
legislation was re-enacted in both English and French.
• To clarify Manitoba situation, feds sent a reference question to SCC
re status of Manitoba laws.
• SCC declared that all of Manitoba’s laws passed since 1890 were
invalid. No obvious means of fixing this.
• SCC invented “the doctrine of necessity.” A rule of law country
cannot exist without laws. The laws of an illegal government can be
declared valid for a temporary period until the legislature re-enacts
laws in both French and English.
• Manitoba was given 3 years to translate all its laws into French, and
to re-enact in French and English.
Mercure case (1988)
• Mercure case: Alberta and Saskatchewan, when created, had
clauses similar to S. 133 of CA, 1867 in the acts creating them in
1905, except that there was a provision that this provision could be
repealed. It hadn’t.
• Fr Mercure applied for a trial for a speeding ticket in French in Sask.
When denied, he appealed to SCC. (He died but SCC heard
anyway.)
• SCC stated all AB and Sask laws were invalid as in Man, but said
that the situation could be remedied if AB and Sask simply repealed
the bilingual provision. They could do this, the SCC said, simply by
repealing the bilingual provisions, which the AB and Sask Acts
allowed them to do.
• Mercure argued that the “some but not all” formula applied: the
bilingual provision could only be amended with the agreement of the
province and Parliament.
• AB and Sask repealed the bilingual provisions.