Fundamental Freedom: Expression PDF

Fundamental Freedom: Expression Ryan Koo [email protected] Recap Freedom of religion (2(a))– Charter framework Analytical Framework (Amselem) Does the claimant sincerely believe in a belief or practice that has a nexus with religion? (subjective inquiry) Cla...

Fundamental Freedom: Expression Ryan Koo [email protected] Recap Freedom of religion (2(a))– Charter framework Analytical Framework (Amselem) Does the claimant sincerely believe in a belief or practice that has a nexus with religion? (subjective inquiry) Claimants must show they sincerely believe that a belief or practice is required by their religion. The belief must be asserted in good faith, and must not be capricious or an artifice No need for evidence demonstrating the validity of the beliefs or that the claimant’s beliefs conform to official religious doctrine Does the challenged state measure interfere with the claimant’s ability to act in accordance with her religious beliefs, in a manner that is more than trivial or insubstantial? (objective inquiry) Claimants need to show some objective evidence of state interference with the observance of their religious practice “Trivial or insubstantial” interference is interference that does not threaten actual religious beliefs or conduct (Hutterian Brethren) Charter framework – Oakes test Step 1 - The government that infringed the Charter right must explain the objective of its impugned law or conduct. The objective must be pressing and substantial. Step 2 - The government must demonstrate that the law or policy is rationally connected to the pressing and substantial objective. If the law or policy is arbitrary or serves no logical purpose, then it will not meet this standard. Step 3 - The government must demonstrate that the law or policy is minimally impairing of the Charter right. This means that the law must impair the Charter right as little as possible or is “within a range of reasonably supportable alternatives.” Step 4 - The government must demonstrate that the beneficial effects of the law or policy are not outweighed by its negative effects on the Charter right in question. This is commonly known as the proportionality requirement. If the government fails at any of the steps, the infringement is not justified. The court will invalidate the law or policy on the ground that is inconsistent with the Charter. Section 2 of the Charter “2. Everyone has the following fundamental freedoms: (a) freedom of conscience and religion; (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; (c) freedom of peaceful assembly; and (d) freedom of association.” Canadian Frontline Nurses v. Canada (Attorney General) Canadian Frontline Nurses v. Canada (Attorney General), 2024 FC 42 Federal court rules Emergencies Act invocation "not justified" - YouTube “On January 28, 2022, the Convoy arrived in Ottawa. At this point, it consisted of hundreds of vehicles of various types including tractor-trailer units and thousands of individuals who intended to protest Canada’s public health response to the COVID-19 pandemic and the new vaccination requirements for cross-border truckers.” s Canadian Frontline Nurses v. Canada (Attorney General) “The Applicants argue, the effect of the Regulations was to criminalize attendance at the protests by anyone, no matter if they participated in the actual conduct leading to a breach of peace. By criminalizing the entire protest, the Regulations limited the right to expression of protestors who wanted to convey dissatisfaction with government policies, but who did not intend on participating in the blockades.” “I agree with the Applicants that the scope of the Regulations was overbroad in so far as it captured people who simply wanted to join in the protest by standing on Parliament Hill carrying a placard. It is not suggested that they would have been the focus of enforcement efforts by the police. However, under the terms of the Regulations, they could have been subject to enforcement actions as much as someone who had parked their truck on Wellington Street and otherwise behaved in a manner that could reasonably be expected to lead to a breach of the peace…To the extent that peaceful protestors did not participate in the actions of those disrupting the peace, their freedom of expression was infringed.” Canadian Frontline Nurses v. Canada (Attorney General) Discussion Question #7: Do you agree or disagree with the Federal Court’s decision that the government's use of the Emergencies Act to shut down the Freedom Convoy protests infringed s. 2(b) of the Charter and that such infringement was not justified? Another recent case In July 2024, Justice Markus Koehnen granted the University of Toronto’s injunction application in University of Toronto (Governing Council) v Doe et al. Justice Koehnen decided not to determine whether the Charter applied in this case. However, he stated: “In the event I am wrong in this, I will nevertheless assess, in an alternative analysis whether the Charter applies and, if so whether the injunction the University seeks would breach Charter rights…That alternative analysis, however, makes no difference to the final outcome. In that alternative analysis I conclude that the Charter does not apply to the University in this situation. In the further alternative I conclude that if the Charter did apply, the restriction on the use of Front Campus breaches the respondents Charter rights but that the breach is justified under section 1 of the Charter (at para 116).” Purpose The protection of freedom of expression is premised upon fundamental principles and values that promote the search for and attainment of truth, participation in social and political decision- making and the opportunity for individual self-fulfillment through expression enabling participation in social and political decision-making encouraging the search for and attainment of truth through open exchanges (the “marketplace of ideas”) fostering individual self-fulfillment through expression Irwin Toy Ltd. v. Québec (Attorney General), 1 SCR 927 Scope Expression has both content and form: It is defined as “any activity or communication that conveys or attempts to convey meaning” Principle of content neutrality: All content is protected – no matter how offensive, unpopular, disturbing, controversial (Keegestra) or false (Zundel) The form taken by expression is also protected, except for expression that take the form of violence or threats of violence (Keegestra) Freedom of expression includes more than the right to express beliefs and opinions. It protects both speakers and listeners (Edmonton Journal) Freedom of expression, in certain circumstances, could impose positive obligations on government to facilitate expression by legislating or otherwise acting to provide persons with a platform for expression (Baier) Scope - exceptions The form taken by expression is also protected, except for expression that take the form of violence or threats of violence (Keegestra) Freedom of expression does not extend to all places Private property could fall outside the protected sphere of section 2(b) absent state-imposed limits on expression The basic question with respect to expression on government-owned property is whether the place is a public place where one would expect constitutional protection for free expression on the basis that expression in that place does not conflict with the purposes which section 2(b) is intended to serve, namely (1) democratic discourse, (2) truth finding and (3) self- fulfillment (Montréal (City); Committee for the Commonwealth of Canada) Scope - limitations “In most cases, freedom of expression cases will be decided under section 1 of the Charter, and the results have been mixed.” Sharpe and Roach, Chapter 9 “Freedom of Expression” Analytical Framework There is a three-part test (Irwin Toy): Does the activity in question have expressive content? Does the method or location of the expression remove this prima facie protection? Does the government action in question infringe the protected expression, either in purpose or effect? Even where the purpose is not to restrict expression, the effect of the law or government action may still infringe s. 2(b) if it is shown that the affected expression advances one of the three values underlying s. 2(b) Commercial Expression: Irwin Toy vs. Ford Irwin Toy Ltd. v. Québec (Attorney General), 1 SCR 927 Ford v. Québec (Attorney General), 2 SCR 712 Irwin Toy Ltd. v. Quebec (Attorney General) Ford v. Quebec (Attorney General) Irwin Toy Ltd. broadcasted advertisements A group of Quebec retailers challenged that violated the Québec Consumer certain provisions of the Québec Charter of Protection Act’s ban on children’s the French Language requiring that public advertising. Toy argued that the ban violated signs, commercial advertising and firm name the freedom of expression guaranteed by s. should be in French only on the basis that 2(b) of the Charter. the law violated the freedom of expression guaranteed by s. 2(b) of the Charter. Commercial Expression: Irwin Toy vs. Ford Irwin Toy Ltd. v. Quebec (Attorney General) Ford v. Quebec (Attorney General) “The objective of regulating commercial “While the material indicated a rational advertising directed at children accords with connection between protecting the French a general goal of consumer protection language and assuring that the reality of legislation -- to protect a group that is most Quebec society is communicated through vulnerable to commercial manipulation. the ‘visage linguistique,’ it did not Children are not as equipped as adults to demonstrate that the requirement of the evaluate the persuasive force of advertising. use of French only in ss. 58 and 69 is either The legislature reasonably concluded that necessary for the achievement of the advertisers should not be able to capitalize legislative purpose or proportionate to it” upon children's credulity”  Hate Speech: R. v. Keegstra R. v. Keegstra, 3 SCR 697 James Keegstra, an Alberta schoolteacher, communicated antisemitic statements to his students He was charged with the willful promotion of hatred under s. 319(2) of the Criminal Code, for allegedly anti-Semitic statements made during class He argued that the Criminal Code provision criminalizing hate speech violated his right to freedom of expression Hate Speech: R. v. Keegstra “Communications which are intended to promote hatred against identifiable groups do not fall within the ambit of a possible s. 2(b) exception concerning expression manifested in a violent form. This exception refers only to expression communicated directly through physical harm. Hate propaganda is not analogous to violence. It conveys a meaning that is repugnant, but the repugnance stems from the content of the message and not from its form” Discussion Question #8: Would you agree with the statement in bold? Hate Speech: R. v. Keegstra “Parliament's objective of preventing the harm caused by hate propaganda is of sufficient importance to warrant overriding a constitutional freedom. Parliament has recognized the substantial harm that can flow from hate propaganda and, in trying to prevent the pain suffered by target group members and to reduce racial, ethnic and religious tension and perhaps even violence in Canada, has decided to suppress the wilful promotion of hatred against identifiable groups” The provision “is an acceptably proportional response to Parliament's valid objective. There is obviously a rational connection between the criminal prohibition of hate propaganda and the objective of protecting target group members and of fostering harmonious social relations in a community dedicated to equality and multiculturalism” The provision “does not unduly impair freedom of expression. This section does not suffer from overbreadth or vagueness; rather, the terms of the offence indicate that s. 319(2) possesses definitional limits which act as safeguards to ensure that it will capture only expressive activity which is openly hostile to Parliament's objective, and will thus attack only the harm at which the prohibition is targeted” Hate Speech: R. v. Zundel R. v. Zundel, 2 SCR 731 Ernst Zundel published a pamphlet entitled Did Six Million Really Die? The publication suggested, inter alia, that there is not sufficient evidence that can confirm six million Jewish people died before and during World War II. It also alleged that the Holocaust is a myth and a conspiracy created by the Jewish people. He was charged and convicted for spreading false news contrary to s. 181 of the Criminal Code, which provided 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”  Hate Speech: R. v. Zundel “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-fulfillment. That purpose extends to the protection of minority beliefs which the majority regards as wrong or false” Hate Speech: R. v. Zundel “Section 181 of the Code, unlike s. 319 at issue in Keegstra, is not justifiable under s. 1 of the Charter” “Parliament has identified no social problem, much less one of pressing concern, justifying it” “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” “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” Pornography: R. v. Butler R. v. Butler, 1 SCR 452 Donald Butler was a video store owner who sold and rented pornographic videos and other materials. He was charged under the Criminal Code’s obscenity provision for selling, possessing, and publicly exposing obscene material. He argued this violated his freedom of expression under s. 2(b) of the Charter. Pornography: R. v. Butler Offences Tending to Corrupt Morals Section 163 of the Criminal Code (1) Every person commits an offence who makes, prints, publishes, distributes, circulates or has in their possession for the purpose of publication, distribution or circulation any obscene written matter, picture, model, phonograph record or any other obscene thing. (2) Every person commits an offence who knowingly, without lawful justification or excuse, (a) sells, exposes to public view or has in their possession for that purpose any obscene written matter, picture, model, phonograph record or any other obscene thing; or (b) publicly exhibits a disgusting object or an indecent show. (8) For the purposes of this Act, any publication a dominant characteristic of which is the undue exploitation of sex, or of sex and any one or more of the following subjects, namely, crime, horror, cruelty and violence, shall be deemed to be obscene. Pornography: R. v. Butler “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” “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” “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” Pornography: R. v. Sharpe R. v. Sharpe, 2001 SCC 2 John Sharpe was charged with the possession of child pornography for the purposes of distribution or sale. He challenged the constitutionality of the Criminal Code provisions prohibiting offences, arguing that the provisions violated his right to freedom of expression under s. 2(b) of the Charter Pornography: R. v. Sharpe “The possession of child pornography is a form of expression protected by s. 2(b) of the Charter. The right to possess expressive material is integrally related to the development of thought, opinion, belief and expression as it allows us to understand the thought of others or consolidate our own thought. The possession of expressive material falls within the continuum of intellectual and expressive freedom protected by s. 2(b)” Pornography: R. v. Sharpe “Parliament is not required to adduce scientific proof based on concrete evidence that the possession of child pornography causes harm to children. Rather, a reasoned apprehension of harm will suffice” “The evidence establishes several connections between the possession of child pornography and harm to children: (1) child pornography promotes cognitive distortions; (2) it fuels fantasies that incite offenders to offend; (3) it is used for grooming and seducing victims; and (4) children are abused in the production of child pornography involving real children” Pornography: R. v. Sharpe “HOWEVER, the law does capture the possession of two categories of material that one would not normally think of as “child pornography” and that raise little or no risk of harm to children: (1) written materials or visual representations created and held by the accused alone, exclusively for personal use; and (2) visual recordings created by or depicting the accused that do not depict unlawful sexual activity and are held by the accused exclusively for private use. The bulk of the material falling within these two classes engages important values underlying the s. 2(b) guarantee while posing no reasoned risk of harm to children” Discussion Question #9: The Court, in essence, declared that the Criminal Code provisions will not be interpreted so as to apply to (1) self-created expressive materials and (2) private recordings. Would you agree?