SCOPE OF FREEDOM OF EXPRESSION (FOE):
What is Expression?
• Activity conveying, or attempting to convey, meaning is expression
• All expression has:
o Content: the meaning conveyed
o Form: the method used to convey the meaning
• Cannot exclude activity from scope of FOE on basis of content or meaning being conveyed
• Human activity that is purely physical and does not convey or attempt to convey meaning is not protected
• FOE protects all content of expression except for violence
• FOE entails the right to say nothing or the right not to say certain things (Slaight)
Restrictions on Speech
Generally speaking, violations of the Charter can be seen through looking at either the purpose or the effect of a government action/law.
This applies to s.2b, and you will see it again in s.15.
The purpose of the action/law will violate s.2b where:
• the government is restricting content,
• the government is restricting form in order to restrict access to the meaning or impede ability to convey meaning.
The effects of the action/law will violate s.2b where they restrict expression. The legislation was not aimed at an expressive form, or expressive content, but rather the physical consequences of certain activities.
Purpose/Effects Examples
These violate s.2b (examples from Irwin Toy)
• Restriction on pamphleting even if supposedly aimed at preventing litter. It restricts a manner of expression and controls access to meaning in its purpose.
• Restriction on noise (physical consequence of certain human activity). Purpose is fine, but will have effect of restricting shouting out “Ban the Bomb” or “Freeze Tuition”. The form/content of such chants could be linked to “political and social participation”(core value of what is protected by FOE)
AG of Quebec v. Irwin Toy (1989) SCC NB: Gov’t is acting as a mediator between claims of competing groups (as opposed to acting as the “Singular Antagonist”)
Facts: Challenge to Quebec Consumer Protection Act, and regulations governing children’s advertising: “no person may make use of commercial advertising directed at persons under 13 years of age”; Legislation restricted the nature of advertising designed to protect children from the harmful effects of commercial advertising.
Issue: Does legislation infringe s.2b?
If so, is such limit justified under s.1?
Holding: While legislation did infringe s.2b, the infringement was justified under s.1 of the Charter
Analysis:
Step I: Does Irwin Toy’s activity (advertising aimed at children) fall w/in scope of FOE?
• Yes - Advertising aimed at children conveys a meaning and cannot be excluded as having no expressive content
• Cannot exclude human activity from the scope of FOE on basis of the content (meaning conveyed)
• If activity conveys or attempts to convey a meaning, it has expressive content and prima facie falls w/in scope of s.2b
Step II: Was the Purpose or Effect of the government action to restrict FOE? Yes.
Purpose Test: Does the gov’ts purpose (the mischief) consist of the meaning of the activity, or influence that the meaning has on behaviour of others, or does it consist only in the direct physical result of the activity?
➢ Gov’ts purpose is to prohibit particular content of expression in the name of protecting children and therefore provisions are limitations to s.2b
Two Extremes:
Objective Test – some aspect of gov’t purpose is virtually always to restrict expression
Subjective Test – gov’t can always claim that its subjective purpose was to address social need, not to restrict expression
• To avoid extremes, gov’t purpose must always be assessed from standpoint of guarantee in question
If gov’t purpose is to:
Restrict the content of expression by singling out particular meanings that are not to be conveyed
o Necessarily limits guarantee of FOE
Restrict the form of expression in order to control access by others to meaning being conveyed, or the ability of individual conveying the meaning to do so
o Necessarily limits guarantee of FOE
Control only the harmful physical consequences of certain human activity (regardless of meaning being conveyed)
o Purpose is not to control expression
Effects Test: Even if gov’t purpose was NOT to control attempts to convey a meaning, the court must still decide if the effect of gov’t action was to restrict the plaintiff’s FOE
• Burden is on Plaintiff to demonstrate that activity promotes at least one of principles underlying FOE
Step III: Can the limit on FOE be justified under s.1? Yes
Is it Prescribed by Law? “Intelligible Standard”
• “does the law provide an intelligible standard according to which the judiciary must do its work?”
A) Pressing and Substantial Objective (P&SO): Yes
• Concern is for the protection of a vulnerable group (children)
• Gov’t must rely on the objective it had at the time the law was passed
➢ Protection of children IS a P&SO
B) Proportionality Test
i) Rational Connection: easily satisfied (no info)
ii) Minimal Impairment: Did the government have a reasonable basis for concluding that the ban on all advertising directed to children impaired FOE as little as possible? Yes.
• Deferential Approach:
o Legislative competence when mediating b/w claims of competing groups
• Assessment of conflicting scientific evidence
• Allocation of scarce resources
• Courts must be mindful of legislature’s representative function; not for crt to second guess line drawn by gov’t
o Where one group is vulnerable and gov’t aims to protect
o Court will not take restrictive approach to social science evidence
o Court will not req’r legislature to choose “least ambitious means” when protecting vulnerable groups
o Note difference from Classical Oakes Test of MI
o Just need sound evidentiary basis for gov’t conclusion (which there is)
• Reasonable Basis for Gov’t conclusion:
1. International report suggesting ban on all ads is req’d
2. Not a blanket ban (there are limits to it)
3. Similar legislation exists in other jurisdictions
iii) Deleterious Effects:
• Effects of the ban are not serious enough to outweigh the gov’ts P&SO
0 comments ↓
There are no comments yet...Kick things off by filling out the form below.
Leave a Comment