Constitutional Law

NB - Chilling Effect:
➢    Drawn from US First Amendment jurisprudence
➢    Describes the concern that a restriction of speech by means of a broad and imprecisely worded law will deter or “chill” legitimate speech by individuals who will exercise self-censorship to avoid violation of the law
➢    In Charter analysis, a chilling effect will involve a violation of the MI test b/c it will result in the restriction of more speech than necessary to prevent the harm the government is concerned about

Zundel    As opposed to Keegstra, in which the court upheld the hate literature provision of CC, here the court strikes down the false news provision
Holding:    False news provision violates s.2b and cannot be justified as reasonable limit under s.1
Ratio:    McLachlin (Majority)
•    Distinguished Keegstra on basis that provision entailed a much broader and vaguer class of speech (false stmts deemed likely to injure or cause mischief to any public interest)
•    Lack of identifiable purpose behind prohibition
•    Court’s rejection of Doctrine of Shifting Purposes (Big M)
o    False news originally aimed at seditious talk; can’t claim new P&SO
•    Lies ARE protected by the Charter
•    While falsehoods are not prima facie denied Charter protection, they may be accorded less value in balancing exercise under s.1 if gov’t demonstrates significant harm from their expression

Ross (1996)
Facts:    Expression created negative school environment; Jewish parent brought human rights complaint against School teacher’s (Ross) expression of anti-Semitic views outside of the classroom (through number of published writings and t.v. appearances alleging an international Jewish conspiracy)
Holding:    Upheld order removing Ross from classroom as reasonable limit on FOE
Ratio:    Context of s.2b violation leads to deference at s.1 analysis
o    LaForest stressed importance of educational context
o    Nature of audience; young children are especially vulnerable to messages conveyed by teachers
o    Importance of ensuring an equal and discriminatory-free education environment

II.  REGULATION OF SEXUALLY EXPLICIT EXPRESSION:

MacKinnon: “Not a Moral Issue”
•    Obscenity law is concerned with morality, specifically morals from male p.o.v., meaning stndpt of male dominance
•    Feminist critique of porn is politics, from women’s p.o.v., meaning stndpt of subordination of women to men
•    Obscenity is a moral idea; Porn is a political practice
•    Obscenity and Pornography represent two entirely different things
•    Feminist view of Pornography:
•    form of forced sex;
•    institution of gender inequality;
•    institutionalizes the sexuality of male supremacy

Standard Liberal view:         -Porn has some value; is a form of speech and deserves protection
-value results from preferences, interests, desires
Standard Conservative view:    -Porn is of no value and is highly immoral
-value results from virtue
- porn may be ‘victimless’, but is assault on virtue

R. v. Butler [1992] SCC
Sopinka    Community Standards Test
Facts:    Butler owned and operated shop that sold and rented hard core porn; charged w/ selling obscene materials and possessing obscene materials for purpose of distribution.
Trial judge held that obscene material was protected by s.2b; only materials containing violence or cruelty intermingled with sexual activity or dehumanizing activity were legitimately proscribed under s.1.
New Trial ordered.
Issue:    Can Parliament legitimately criminalize obscenity?
Holding:    o    s.163 CC infringed s.2b, but infringement justified under s.1
o    Avoidance of harm to society was a sufficiently P&SO to warrant infringement
o    Sufficient RC b/w criminal sanction and objective
o    Provision only prohibited the distribution and exhibition of sexually explicit material that was violent, and degrading or dehumanizing
o    There was no alternative measure to protect the societal values at stake
Ratio:    Community Standards Test:
•    Apply in order to determine whether exploitation was “undue”
•    Relevant standard is tolerance, not taste
•    Determine what Cdns would not tolerate other Cdns being exposed to on the basis of harm that may flow from such exposure
Sex exploited in a “degrading or dehumanizing manner” will fail this test, not because it offends against morals, but b/c it is perceived by the public to be harmful to society (particularly to women)

Related posts:

• Constitutional Laws for Immigrants (0)
• Constitutional Law Briefs (0)
• Constitutional Law Attorney (0)