Constitutional Law | Constitutional Attorneys | Constitutional Law Cases

Constitutional Law Cases

Iacobucci:

Providing hints to government:
•    Concern about LaForest’s dilution of s.1; risk that Charter violations will be too easily justified
•    Concern about gov’t withholding evidence:  “gov’t should remain non-adversarial and make full disclosure”
•    Evidentiary burden wholly borne by the government
•    Agreed that unattributed health warning is a violation of 2(b)
•    Agrees with dissent about the contextual approach taken, that due to profit purpose of big Tobacco, “the amount of legislative tailoring required to sustain minimal impairment analysis would not be significant”
•    BUT, the gov’t here did not do any tailoring at all – this proves the unconstitutionality of the Act
Hints:
•    Partial bans on lifestyle advertisements and those directed at adolescents
•    He would have suspended declaration to allow the gov’t time to draft minimally impairing legislation due to the deleterious effects of tobbaco

CONTENT BASED RESTRICTIONS ON EXPRESSION:

I.  HATE SPEECH
- SCC has chosen to give greater weight to equality values

R v. Keegstra [1990] SCC
Dickson (Majority); McLachlin (Dissent)
Facts:    Hate propaganda; statements wilfully promoting hatred against an identifiable group;
Keegstra, high school teacher, charged under s. 319(2) of CCC for communicating anti-Semitic statements to his students.  Keegstra challenges constitutionality of law as violating s.2b

Issue:    Are statements, which wilfully promote hatred against others, protected by FOE?
•    Does s. 319(2) CC infringe s.2b?
•    If so, are the limits justified as reasonable under s. 1 of the Charter?
Held:    Section s.319(2) CC infringes s.2b; but justified under s. 1
Reasoning:    Statutory infringement served a sufficiently important legislative objective; it was proportional, and rationally connected, to the objective; and the impairment was not excessive
Majority:
Dickson    Is Hate Speech considered expression under s.2b?
•    Application of broad definition of expression in Irwin Toy – Communication which wilfully promotes hatred clearly conveys, or attempts to convey a meaning; type of meaning conveyed is irrelevant to the question of whether s.2b is infringed
•    Hate speech is not a form of violence that would fall under Irwin Toy exception
•    Only activities where expression is communicated directly through form of physical violence are excluded from Charter protection
•    Threats of violence, b/c they can only be classified by reference to content of meaning, do not fall w/in exception

Is infringement justified under s.1?
Rigid/formalistic approach to s.1 must be avoided
Application of s.1 requires discussion of ‘values’ of free and democratic society
•    Need to place speech in context of Charter values (seeking truth; self-fulfillment; participation in political process; democratic commitment)
•    At the core of FOE lies the need to ensure that truth and the common good are attained
•    Although suppression of hate propaganda inhibits the participation of a few ind. in the democratic process, and therefore detracts somewhat from FOE values, degree of limitation is not substantial
•    FOE can undermine our commitment to democracy where used to advance ideas anathemic to democratic values

I) Is Objective [of s.319(2) CC] Pressing & Substantial? Yes
•    Presence of hate propaganda in Canada is sufficiently substantial to warrant concern
•    Existence of material causes substantial harm (both to members of target group and Canadian society as a whole)
•    International Human Rights instruments

II) Proportionality Test (w.r.t. nature of hate speech)
i) Rational Connection: Yes
•    Suppression of hate propaganda reduces the harm such expression does to individuals of targeted groups and to relations b/w various cultural and religious groups w/in Canada
ii) Minimal Impairment (Criminal Law): Yes
•    Focus on nature and impact of specific features of provision
iii) Deleterious Effects:
•    Emphasis on importance of objective of s.319(2); dissipation of racism is central to concept of free and democratic society
•    Effects of legislation restrict expression that is largely removed form the heart of FOE values, and do not outweigh advantages of limiting such expression

Dissent
McLachlin:

I)  Is Objective [of s.319(2) CC] Pressing & Substantial? Yes
•    Legislative goals of protecting social harmony and individual dignity are of substantial nature

II) Proportionality Test
i) Rational Connection: No
Intent may be rationally connected, but effect of legislation is irrational means of carrying out Govt’s purpose:
a.    Provision may promote the cause of hate-mongers by earning them media coverage (Zundel)
b.    Public may believe there is truth to the racist expression if government is trying to suppress it

ii) Minimal Impairment: No
•    Possibility of punishing expression that is not hate propaganda and should be protected
•    Legislation is over-broad/unduly vague; terms so wide as to include expression not related to gov’ts objective
•    Overbreadth and vagueness will have a chilling effect on legitimate activities by subjecting innocent persons to constraints born out of fear of the criminal process; self-censorship for fear of prosecution
•    Given vagueness of the prohibition of expression, speakers will have hard time knowing if speech encroaches forbidden area

Related posts:

Comments

Leave a Reply