Week 12 - Freedom of Expression

Has the Supreme Court defined constitutionally protected expression broadly or narrowly? On what grounds has the Court justified its approach?

• They interpret broadly, as seen in Irwin Toy

  • In this case they said expression is any activity that conveys or attempts to convey meaning 

  • Actions without words may have expression content 

  • Most expressive activities will find protection under 2(b)

  • Things like communicating to engage in prostitution, threats of violence, porn, have all been found to be protected

  • Might even include perjury, fraud 

  • The Court said it was imperative that it protect offensive speech, it can be distasteful and morally offensive to the general public, can be protected even if offensive

  • An act of violence can not gain constitutional protection though

• Why does expression need to be protected in a broad way

  • It is to protect freedom of thought and freedom of belief, to ensure a pluralistic society

According to the Court, what values ground freedom of expression?

• There are three rationales

  • Truth, self-realization, and democracy 

  • Truth: The market place of ideas (john stuart mill), seeking the truth is important and suppressing it is bad, the best way of getting to the truth is letting people put out their ideas freely and the only way you find out if it is untrue is if it scrutinised, from political theory 

  • Self-realization: the inherent value of expression for individuals, supporting personal autonomy, development, and fulfillment, and playing a key role in human flourishing

  • Democracy: Free expression is critical to democratic rule, being able to criticise the government is important for democracy

In Irwin Toy, the Supreme Court of Canada introduced a distinction between purpose-based claims and effect-based claims. What criticisms have been levelled against this distinction?

• In Irwin toy the court drew a distinction between legislation whose purpose is supposed to limit expression and legislation that just has the effect (purpose-based claim v. effect-based), the outcome will be different 

  • Purpose based s. 2(b), this happens when there is legislation that is aimed at words or expression that is thought to be harmful, its purpose is to limit expression, comes down to the intention of the law 

  • Do you have to establish a connection between the infringement of the expression and one of the rationales? No there does not need to be a connection established, this is why a lot of things end up being protected because you don’t have to connect them

• Effect based claim 

  • These are cases where you have legislation that doesn’t have the purpose of limiting expression but it has the effect of limiting expression, same to adverse impact claims 

• Ramsden v. Peterborough (1993) (SCC)

  • In this case, Peterborough said you couldn’t put posters on public property (bylaw)

  • Ramsden was putting up posters to promote his band 

  • He was fined by the by law but said it was a violation of his 2(b)

  • Peterborough thought it was a safety hazard and litter, the Supreme court agreed 

  • This was because it was not aimed at words they were more worried about safety and litter

  • But it still restricted expressive freedom, so it was an effect based claim 

  • If you have an effect-based claim you have to establish a connection between the rationales of expression (you don’t have to for purpose based)

  • If you can’t establish this, then it is not a violation of 2(b)

  • Ramsden was able to establish a rationale somehow

• Cameron

  • She says it's unfair for this distinction

  • She says it places an unfair burden on the claimants to have to establish the connection with the rationale while they are making an effects based claim

• What do critics say?

  • The purpose effect distinction creates the possibility that the exact same expressive activity will be protected in one kind of claim but not the other 

  • It is inconsistent protection, the distinction between purpose and effect is incoherent 

According to the Court, whose expressive interests are engaged by s. 2(b)? What does the distinction between access-based claims and content-based claims tell us?

• Both the speaker and listeners are engaged 

• But who does the court prefer?

  • This can be seen in access-based versus content-based claims 

• Access based

  • Brought by people who want to access expression

  • People who come for the government on restricted areas of expression

  • The rationale is if they can’t gain access to expression, how are they supposed to gain knowledge about something and engage in public discourse 

  • Judges are pretty sympathetic to access based claims 

• Southam (No. 1) (1983) (OCA)

  • This is an example of a section 2(b) access based claim 

  • Juvenile delinquency act, all trials involving minors had to be held privately, no one else in the court room

  • This was challenged by Southam so they could find on what was going on in the trial and report back to the public, and they couldn’t report back to the public in the interest of being informed 

  • They did an access based claim 

  • When people have access to courts it fosters trust in the court system because its transparent 

  • The absolute ban on public access was too broad and failed a part of the Oakes test 

• Content based claim 

  • This is for someone who wants to engage in the expression, comes from someone who wants to do the expressing rather than the listener 

  • They are less sympathetic with this 

  • Even though they said it was important to protect offensive speech, they are still harder on content based claims 

• Butler (1992) (SCC)

  • Butler challenged criminal code provision that prohibits the sale of obscene material 

  • The purpose of the legislation was to prevent women and children from sexual abuse, the means to achieve this was to prohibit the sale and distribution of obscenity 

  • The question here is like can you prove that viewing obscenity is linked to sexual violence?

  • There was social science data that was presented to the court in butler but it was inconclusive and the government then couldn’t really do anything 

  • The court passed it through Oakes and it was good 

• Keegstra (1990) (SCC)

  • Another content based claims, hate speech case

  • Keegstra taught a social studies class where he said that the holocaust was fake and jewish people were evil 

  • He gets charged with the willful promotion of hatred against an identifiable group 

  • He challenged the provision of the criminal code as a violation of expressive freedom 

  • The court found this was protected though and was a reasonable limit to the right 

• These cases illustrate a second way the court is sensitive to listeners 

  • The court is trying to protect women and children

  • When there is a vulnerable third party, the court is going to take that into consideration and that is going to impact how they consider these cases 

  • They are going to try to protect them

• Ward v. Quebec (2021) (SCC)

  • This is not a charter case and it was a complaint brought under Quebec's human rights code 

  • This code protects individual dignity and that be weighed against free speech 

  • So under the human rights code, dignity has more protection than it does under the charter 

  • Ward is a quebecer who made jokes about someone named jeremy gabriel, he has a weird syndrome that leads to malformations of his ears and head and stuff, he rose to fame in Quebec for his singing when he was younger 

  • When Gabriel was 13, Ward began mocking Gabriel in a stand up comedy bit

  • His parents launched a complaint under the human rights code, but Ward defended himself under free expression 

  • It went to the Supreme Court, with a 5-4 split

  • They said while his words were distasteful, it was discrimination, he was only being mocked because he's a public figure, not because of his disability

What is the core v. periphery distinction? Why does it lead scholars to characterize the Court's approach to s. 2(b) as a value-based approach?

• Core/periphery distinction

  • The supreme court does distinguish between different kinds of expression and some kinds of expression as more valuable than others, they assign value through the core/periphery distinction 

• Core expression 

  • Core expression is expression that goes to the core of section 2(b)s purpose, truth, self-realization, democracy 

  • If the expressive activity is closely related to the rationals, its more valuable and should receive the highest degree of protection under the charter 

• Peripheral 

  • Further removed from the core rationale 

  • For example, commercial advertising, propaganda, porn 

  • Further removed from these values and therefore less valuable, and then gets less protection

• This is why the courts approach to section (2) is a values based approach 

  • Because how protected it is depends on its value and therefore, how closely it is to the rationale’s

How does the Court go about affording different levels of protection to core and peripheral expression

• It does it under section one and changing the standard of review under section one

  • The standard of review used to determine reasonable limits will shift if the court has found the expression to be core or periphery 

  • Where the expression is peripheral, the court will take a more relaxed approach when applying the Oakes test, where the expression is found to be peripheral, they’re going to lower the standard the government must meet to be a reasonable limit (peripheral)

  • They can make it easier for the government to establish a reasonable limit 

• What if it is a core expression?

  • They'll make it harder for the government to get through the Oakes test and make it harder to establish a reasonable limit 

  • This is where there will be more judicial activism 

• This stuff while be really reflected in the Oakes test 

  • It’ll be made either harder or easier based on its value 

• Cameron 

  • Does not like this distinction 

  • The Supreme Court does not protect controversial speech enough if it applies different standards instead of the same test in all cases.

What was the nature of the expressive interest at stake in Harper? What was the outcome of the case?

• Harper v. Canada (2004) (SCC)

  • This case was about third-party election advertising

  • This is advertising non-political parties running ads, they had monetary limits on how much third parties could spend when engaging in advertising for elections

  • This is political expression which is at the very heart of section 2(b)

  • No more than 3000 in any electoral district and a limit of 150,000 dollars nationally 

  • The Harper government challenged this saying the spending limit violated their section 2(b)

  • The government’s legislative objective was the limits were needed to protect electoral fairness and there is a connection between economic resources and real world politics and the right to freedom of expression does not ensure people have the resources to make their opinions known 

  • Freedom of speech also does not level the playing field to have their voices heard

  • Without the spending limits, the wealthy would dominate political discourse and dominant the opponents of having their point heard, voters would not be able to get all the info, affluent interests could manipulate voters

  • Harper did not win as the reasonable spending limits were a reasonable limit to 2(b)

  • They were reasonable because it makes it legitimate as the electoral system is fair, also allows all voices to be heard and it is necessary for the meaningful participation of citizens in the electoral process, also making sure voters have adequate access to all relevant information and all points of view 

  • This is a content based claim because it was individuals wanting rights to more expression (more political advertising)

  • Notice how the court emphasized the listeners 

Irwin Toy (1989) (SCC)

• In this case they said expression is any activity that conveys or attempts to convey meaning 

• Actions without words may have expression content 

• Most expressive activities will find protection under 2(b)

• Things like communicating to engage in prostitution, threats of violence, p*rn, have all been found to be protected

• Might even include perjury, fraud 

• The Court said it was imperative that it protect offensive speech, it can be distasteful and morally offensive to the general public, can be protected even if offensive

• An act of violence can not gain constitutional protection though

Purpose-Based Claim v. Effect-Based Claim

• Purpose based s. 2(b), this happens when there is legislation that is aimed at words or expression that is thought to be harmful, its purpose is to limit expression, comes down to the intention of the law 

• Do you have to establish a connection between the infringement of the expression and one of the rationales? No there does not need to be a connection established, this is why a lot of things end up being protected because you don’t have to connect them

• Effect based claim 

  • These are cases where you have legislation that doesn’t have the purpose of limiting expression but it has the effect of limiting expression, same to adverse impact claims 

Ramsden v. Peterborough (1993) (SCC)

• In this case, Peterborough said you couldn’t put posters on public property (bylaw)

• Ramsden was putting up posters to promote his band 

• He was fined by the by law but said it was a violation of his 2(b)

• Peterborough thought it was a safety hazard and litter, the Supreme court agreed 

• This was because it was not aimed at words they were more worried about safety and litter

• But it still restricted expressive freedom, so it was an effect based claim 

• If you have an effect-based claim you have to establish a connection between the rationales of expression (you don’t have to for purpose based)

• If you can’t establish this, then it is not a violation of 2(b)

• Ramsden was able to establish a rationale somehow

Southam (No. 1) (1983) (OCA)

• This is an example of a section 2(b) access based claim 

• Juvenile delinquency act, all trials involving minors had to be held privately, no one else in the court room

• This was challenged by Southam so they could find on what was going on in the trial and report back to the public, and they couldn’t report back to the public in the interest of being informed 

• They did an access based claim 

• When people have access to courts it fosters trust in the court system because its transparent 

• The absolute ban on public access was too broad and failed a part of the Oakes test 

Butler (1992) (SCC)

• Butler challenged criminal code provision that prohibits the sale of obscene material 

• The purpose of the legislation was to prevent women and children from sexual abuse, the means to achieve this was to prohibit the sale and distribution of obscenity 

• The question here is like can you prove that viewing obscenity is linked to sexual violence?

• There was social science data that was presented to the court in butler but it was inconclusive and the government then couldn’t really do anything 

• The court passed it through Oakes and it was good

Keegstra (1990) (SCC)

• Another content based claims, hate speech case

• Keegstra taught a social studies class where he said that the holocaust was fake and jewish people were evil 

• He gets charged with the willful promotion of hatred against an identifiable group 

• He challenged the provision of the criminal code as a violation of expressive freedom 

• The court found this was protected though and was a reasonable limit to the right

Ramsden v. Peterborough (1993) (SCC) (?), Southam (No. 1) (1983) (OCA), Butler (1992) (SCC), Keegstra (1990) (SCC)

• These cases illustrate a second way the court is sensitive to listeners 

  • The court is trying to protect women and children

  • When there is a vulnerable third party, the court is going to take that into consideration and that is going to impact how they consider these cases 

  • They are going to try to protect them

Ward v. Quebec (2021) (SCC) and Jeremy Gabriel

• This is not a charter case and it was a complaint brought under Quebec's human rights code 

• This code protects individual dignity and that be weighed against free speech 

• So under the human rights code, dignity has more protection than it does under the charter 

• Ward is a quebecer who made jokes about someone named Jeremy Gabriel, he has a weird syndrome that leads to malformations of his ears and head and stuff, he rose to fame in Quebec for his singing when he was younger 

• When Gabriel was 13, Ward began mocking Gabriel in a stand up comedy bit

• His parents launched a complaint under the human rights code, but Ward defended himself under free expression 

• It went to the Supreme Court, with a 5-4 split

• They said while his words were distasteful, it was discrimination, he was only being mocked because he's a public figure, not because of his disability

Core/Periphery Distinction

• The supreme court does distinguish between different kinds of expression and some kinds of expression as more valuable than others, they assign value through the core/periphery distinction 

• Core expression 

  • Core expression is expression that goes to the core of section 2(b)s purpose, truth, self-realization, democracy 

  • If the expressive activity is closely related to the rationals, its more valuable and should receive the highest degree of protection under the charter 

• Peripheral 

  • Further removed from the core rationale 

  • For example, commercial advertising, propaganda, porn 

  • Further removed from these values and therefore less valuable, and then gets less protection

• This is why the courts approach to section (2) is a values based approach 

  • Because how protected it is depends on its value and therefore, how closely it is to the rationale’s

Strict v. Relaxed Application of s. 1

• How the Court will approach and apply the Oakes Test

• It does it under section one and changing the standard of review under section one

  • The standard of review used to determine reasonable limits will shift if the court has found the expression to be core or periphery 

  • Where the expression is peripheral, the court will take a more relaxed approach when applying the Oakes test, where the expression is found to be peripheral, they’re going to lower the standard the government must meet to be a reasonable limit (peripheral)

  • They can make it easier for the government to establish a reasonable limit 

• What if it is a core expression?

  • They'll make it harder for the government to get through the Oakes test and make it harder to establish a reasonable limit 

  • This is where there will be more judicial activism 

• This stuff while be really reflected in the Oakes test 

  • It’ll be made either harder or easier based on its value 

• Cameron 

  • Does not like this distinction 

  • The SSC is not offering adequate expression to controversial speech, the same tests and standards have to be used no matter what or else it does not protect it enough

Harper v. Canada (2004) - Third-Party Election Advertising

• This case was about third-party election advertising

• This is advertising non-political parties running ads, they had monetary limits on how much third parties could spend when engaging in advertising for elections

• This is political expression which is at the very heart of section 2(b)

• No more than 3000 in any electoral district and a limit of 150,000 dollars nationally 

• The Harper government challenged this saying the spending limit violated their section 2(b)

• The government’s legislative objective was the limits were needed to protect electoral fairness and there is a connection between economic resources and real world politics and the right to freedom of expression does not ensure people have the resources to make their opinions known 

• Freedom of speech also does not level the playing field to have their voices heard

• Without the spending limits, the wealthy would dominate political discourse and dominant the opponents of having their point heard, voters would not be able to get all the info, affluent interests could manipulate voters

• Harper did not win as the reasonable spending limits were a reasonable limit to 2(b)

• They were reasonable because it makes it legitimate as the electoral system is fair, also allows all voices to be heard and it is necessary for the meaningful participation of citizens in the electoral process, also making sure voters have adequate access to all relevant information and all points of view 

• This is a content based claim because it was individuals wanting rights to more expression (more political advertising)

• Notice how the court emphasized the listeners