Freedom of Expression & Language Rights

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

Criminal Code of Canada (1990) Sections on Hate • Sec. 181. Every one who willfully publishes a statement, tale or news that he knows is false and that causes or is likely to cause injury or mischief to a public interest is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.

Criminal Code of Canada (1990) Sec. 319 • (2) Every one who, by communicating statements, other than in private conversation, willfully promotes hatred against any identifiable group is guilty of • (a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or • (b) an offence punishable on summary conviction. • (3) No person shall be convicted of an offence under subsection (2) • (a) if he establishes that the statements communicated were true; • (b) if, in good faith, he expressed or attempted to establish by argument an opinion on a religious subject; • (c) if the statements were relevant to any subject of public interest, the discussion of which was for the public benefit, and if on reasonable grounds he believed them to be true; or • (d) if, in good faith, he intended to point out, for the purpose of removal, matters producing or tending to produce feelings of hatred towards an identifiable group in Canada.

J.S. Mill’s harm principle • The object of this Essay is to assert one very simple principle, as entitled to govern absolutely the dealings of society with the individual in the way of compulsion and control, whether the means used be physical force in the form of legal penalties, or the moral coercion of public opinion. That principle is, that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinion of others, to do so would be wise, or even right... The only part of the conduct of anyone, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.

Keegstra was a high school teacher in Eckville, AB. Taught students 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'Heureux-Dubé 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 (1990)

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 self-development, 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 (2)

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 suppressed. b) S. 319(2) is overbroad. Dn of “hate” is too subjective. True statements about a group might appear as hate. c) Harm outweighs 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. Keegstra (3)

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 (1992)

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 (2)

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

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. Zundel dissenters (2)

Butler (1992) 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 themselves, 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) • Oakes test passed: • I: Objective of preventing harm is pressing & substantial • II: a) rational con. exists between suppressing 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 outweighs harm • Dissenters: (L’Herueux-Dube & Gonthier): generally agree with Sopinka, but think that sometimes materials that don’t combine sex and violence, or sex not 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.”

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. Consensual sex among15-year-olds) Sharpe (2001)

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. 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 “high-handed” in applying a stricter standard to homosexual than to heterosexual materials. Actions of public servants ruled unconstitutional, not the law. Little Sisters (2000)

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) • 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 contradicted 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.

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 Ford & Devine cases

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. 1988 SCC decision: Ford

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 re-enact French-only signs law over next 5 years, debate in Quebec concluded SCC was right. Even the PQ government did not re-enact the override. This is how S. 33 is supposed to work. Devine & After

Manitoba Language Rights Case (1985) • Manitoba Act of 1870: 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.

Freedom of Expression & Language Rights