B. Is s.163 a limit prescribed by law? Yes
• “does the law provide an intelligible standard according to which the judiciary must do its work?”

I) P&SO? Yes
• harm caused by the proliferation of materials seriously offend the values fundamental to our society

II) Proportionality
• type of expression which is sought to be advanced does not stand on equal footing with other kinds of expression which directly engage “core” of FOE values
• Targeted material is expression which is motivated by economic profit

i) Rational Connection Yes
• Inconclusive social science evidence (Irwin Toy)
• Sufficient rational link b/w criminal sanction and objective to restrict negative societal influence of dissemination of materials

ii) Minimal Impairment Yes
• Not necessary that the legislative scheme be the “perfect” scheme, but that it be appropriately tailored in context of the infringed right (Irwin Toy – “least ambitious means”)
• Provision is designed to catch material that creates a risk of harm to society
• Materials which have scientific, artistic or literary merit are not captured by the provision
• Not subject to the PRIVATE use or viewing of obscene materials, it is only the PUBLIC distribution and exhibition of obscene materials at issue here

iii) Deleterious Effects Yes
• This kind of expression lies far from the CORE of FOE guarantee
• Appeals only to most base aspect of individual fulfillment, and is primarily economically motivated
• Legislative Objective is aimed at avoiding harm to society as a whole by the distribution of these materials (fundamental importance)
• Restriction on FOE does not outweigh the importance of the legislative objective

Sex and s.2b in 2001:
R. v. Sharpe [2001] SCC Criminalizing Possession
Facts: Sharpe charged under CC for possession of child porn; challenged CC section on basis that it violated his FOE; Crown conceded violation of s.2b but argued justified by s.1
Issue: Does Canada’s law banning possession of child pornography injustifiably intrude on the constitutional right to freedom of expression?
Holding: • Law strikes a constitutional balance between FOE and prevention of harm to children; constitutional except for two peripheral applications relating to expressive material privately created for personal use
• Two categories of material (self-created expressive, privately held materials; and private visual recordings of lawful sexual activity made by or depicting the persons in possession, intended only for private use) are READ IN as exceptions to definition of child porn in CC
• Possession of child porn is a form of expression protected by s.2b
• Criminalizing possession of child porn that posed reasoned risk of harm to children was P&SO
• Means chosen by gov’t were RC to this Objective
• Provision, however, did not constitute MI insofar as it applied to written material or visual recordings created by accused or held by the accused exclusively for personal use

Analysis:
Majority
McLachlin Values at stake: importance of FOE balanced against the countervailing societal interest in protecting children from the evils associated with possession of child porn

s.163.1(4) criminalizes: Possession of range of material posing risk of harm to children; incidentally catches forms of expression that seriously implicate self-fulfillment and do not pose risk of harm to children; Highly valuable/low risk categories (above)

A. Does CC provision against possession of child porn violates FOE under section 2(b)? Yes
• Possession of expressive materials is protected by s.2b
• FOE extends to even offensive speech

B. Section 1 Analysis:
I) P&SO? Yes
• Objective is to criminalize possession of child porn that poses a reasoned risk of harm (abuse and exploitation) to children by principally targeting clear forms of child pornography
• Incidental to the law’s main purpose in the reduction assertion of inherent value of children

II) Proportionality between the limitations of the right and the benefits of the law
i) Rational Connection (Is the law rationally connected to Parliament’s goal) Yes
• Parliament must show that possession of child porn (as opposed to its manufacture, distribution or use) causes harm to children
• No need for concrete scientific evidence (Butler);“reasoned apprehension of harm” is adequate
• Common Sense: Private use/viewing of child porn increases the risk of child abuse

ii) Minimal Impairment (Does the law impair the right of free expression only minimally) Yes
• Not necessary to show that Parliament adopted least restrictive means of achieving its end;
• Law must be reasonably tailored to its objectives
• Law must impair the right no more than reasonably necessary
• Legislation construed narrowly to avoid problems of overbreadth

iii) Deleterious Effects Yes and No
• Do the benefits the law may achieve in preventing harm to children outweigh the detrimental effects of the law on the right of free expression?
• Main impact of the law and the restrictions on FOE are outweighed by the risk of harm to children
• Two problematic categories are not justified

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)

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)

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

RJR MacDonald Inc. v. AG (1995)    Gov’t concedes prohibition on advertising constitutes an infringement of FOE; and objective is P&S
Facts:    Tobacco Products Control Act prohibited the advertising & promotion of tobacco products and required manufacturers to add to packages an unattributed health warning (dangers of smoking); Tobacco companies challenged the Act on basis of section 2(b) infringement; The prohibition against advertising being a violation of s.2(b) is uncontested
Issue:    1.    What is the Proper Approach to s.1 Analysis?
2.    Do unattributable health warnings violate s.2(b)?

Dissent Analysis:
LaForest    Issue 1: What is the Proper Approach to s.1 Analysis?
•    Is infringement reasonable and can it be demonstrably justified in a free & democratic society?
•    Need to strike delicate balance b/w individual rights and community needs
•    Need to focus on contextual elements such as nature of legislation and nature of infringed right
•    Strict application of proportionality analysis would place impossible onus on gov’t by requiring it to produce definitive social science evidence of the causes of a pressing social concern
•    Gov’t is mediating b/w different groups and ∴ Judicial Deference to legislative decisions
•    Courts are specialists in the protection of liberty and interpretation of legislation and are well placed to subject criminal justice legislation to careful scrutiny
•    Courts are NOT  and should not be specialists in realm of policy-making – this is a role properly assigned to the elected representatives of the people, who can:
o    Assess social science information
o    Mediate between competing social interests
o    Protect vulnerable groups
•    Harm of tobacco, and underling profit motive place this form of expression far from the “core” FOE values as prostitution, hate speech, porn, ∴ VERY LOW degree of protection under s.1
•    Serves no political, scientific or artistic end
•    Does not promote participation in political process

Proportionality
i) Rational Connection: Yes - RC b/w the prohibition on ads and consumption of tobacco
•    Tobacco co. would not spend millions of dollars every year on advertising if this didn’t increase consumption of their product
•    Appellants argue that advertising is for promoting brand loyalty only (arg rejected by crt)
•    Sufficient for gov’t to demonstrate reasonable basis for believing RC exists; Common sense observation
•    Evidence: Internal tobacco marketing docs; expert reports; intn’l materials

ii) Minimal Impairment: Yes.  Passes the Oakes test.
•    Relevance of context cannot be understated in this stage (degree of required fit b/w means and ends will vary depending upon nature of the right and the nature of legislation)
•    Deferential Approach b/c expression falls far from CORE of FOE values
•    Many other jurisdictions have complete bans of tobacco advertising
•    Not up to the courts to decide that a partial ban would be as effective as a total one; this is the type of “line drawing” that this court has identified as being within the institutional competence of legislatures and not courts

iii) Deleterious Effects
•    The deleterious effects of restricting the rights of tobacco to advertise do not outweigh the legislative objective of reducing the inducements on Cdns to consume harmful products

Issue 2:  Do unattributable health warnings violate s.2(b)? *one of the rare times that we’re discussing the violation itself, and not whether it’s justified under s.1 or not  No
•    They can’t reasonably be said to put words into RJR’s mouth, relying on Lavigne
•    They are unattributed!
•    Common knowledge that government regulations require such statements ie: POISON on hazardous products
•    Even if it were found to be an infringement, would be justified under s.1
•    Stresses the importance of context ie: big corporation, selling a product for profit
•    “I believe a lower level of constitutional scrutiny is justified in this context”

Majority Analysis:
(McLachlin)

Issue 1: What is the Proper Approach to s.1 Analysis?
•    Impugned law must be considered in social and economic context, but this contextual approach does not reduce obligation on gov’t to meet burden of demonstrating limitation is reasonable and justified
•    Deference must not be taken too far so as to relieve gov’t of burden of proof (civil stnd)
•    Must be a reasoned demonstration of good the law will achieve in relation to the seriousness of the infringement – even if this means the court will confront the “tide of popular public opinion”

I) Is Objective Pressing & Substantial?  Yes
•    Only Objective of the infringing measure is relevant
•    Important to state objective narrowly
•    (Narrow) Objective of advertising ban is to prevent ppl from being persuaded to use tobacco products
•    (Narrow) Objective of mandatory warnings is to discourage ppl who see pckg from use
•    Both are P&SOs; sufficient to justify overriding FOE

II) Proportionality Test
i) Rational Connection: Yes
•    When legislation is aimed at changing human behaviour, causal relationship may not be scientifically measurable
•    Use reason or logic to find connection b/w infringing measure and legislative objective (causal link b/w tobacco advertising, unattributed health warnings, and tobacco use)

ii) Minimal Impairment: No
•    Gov’t must show the measure at issue impairs the right of free expression “as little as reasonably possible” in order to achieve the legislative objective
•    The law must be carefully tailored so that rights are impaired no more than necessary, regardless of how ‘low value’ speech is (profit is irrelevant)
•    Gov’t produced no evidence to show partial ban wd be less effective than total ban (onus on gov’t)∴justification under s.1 is NOT established
•    Gov’t had study on alternatives that it did not offer to the court as evidence – we can deduce from this that it didn’t help the gov’ts case

Commercial speech (for profit), while arguably less important than other forms of speech, should not be lightly dismissed: “motivation to profit is irrelevant to the determination of whether the gov’t has established that the law is reasonably justified as an infringement of FOE”

Issue 2:  Do unattributable health warnings violate s.2(b)? Yes
•    Rely on Straight “FOE necessarily entails the right to say nothing or the right not to say certain things”
•    Gov’t FAILED to show that unattributed warning was req’d in order to achieve its objective of reducing tobacco consumption, ∴this req’d warning is not justified under s.1

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

P&S Objective: Yes
•    Children are the most vulnerable members of our society
•    Provision protects both children and society by attempting to eradicate the sexual exploitation of children

Minimal Impairment: Yes
•    No evidence to support notion that sexually explicit videos of teenagers “reinforce healthy sexual relationships and self-actualization” (as per McLachlin)
•    Parliament doesn’t have to show provision is perfectly tailored to its objective
•    Firmly disagree with McLachlin’s  “read in” areas that should be exempted from prohibition of possession
•    Parliament was justified in restricting teenagers from creating a permanent record of their sexual activity

Proportionality of Effects: Yes
•    Benefits of legislation far outweigh any harms of FOE and interests of privacy
•    Legislation hinders self-fulfillment of a few, but this form of self-fulfillment is base level
•    Legislation fosters and supports the dignity of children and sends the message that they are to be accorded equal respect with other members of the community.

Little Sisters Books v. Canada (2000)    Right of importers versus state interest in preventing importation of harmful materials
Treatment of Prior Restraint Regimes under s.2b and s.1
Facts:    LS is bookstore that sells literature written by and for homosexual men and women.  Most of its products were imported from U.S.  LS claimed destruction and undue delay of importation of material infringed s.2b and that Customs legislation was applied in discriminatory manner on basis of homosexuality.  Defendants conceded legislation infringed s.2b b/c obscenity is expression.
Issues:    1.  Is Customs Tariff unconstitutional or is it just being applied unconstitutionally?
•    Treatment of “prior restraint” regimes under s.2b and s.1

2.  What is proper application of Butler definition of depictions of homosexual sex?
•    Is gay/lesbian erotica covered by Butler/s.163 CC, and therefore by customs legislation? No
•    Butler and harm prevention are not restricted to heterosexual acts
•    Butler Community Standards Test includes concern for minority expression
o    Looks for harm incompatible with proper functioning of society
Ratio:    1.  Customs legislation constitutes violation of s.2b; s.1 analysis considers law properly operated without the maladministration
•    Unjustifiable infringements resulted form the administrative procedures and not from the law itself; therefore s.1 is not applicable
•    Failures at implementation level can be dealt with at that level
•    Parliament can confer powers to deal with out-of-court Charter sensitivities w/o being req’d to legislate special procedures

2.   Butler analysis does not discriminate against the gay and lesbian community
•    Butler is directed to the prevention of harm and is indifferent to whether such harm arises in context on heterosexuality or homosexuality
•    Gay and Lesbian community is not being discriminated against in Customs legislation;
•    Leg does not draw distinction on basis of sexual pref; neutral on its face/applied to all obscenity
•    Gov’t is entitled to impose broader inspections of expressive material
Section 1
Justification:    Prescribed by Law:
•    Rejects argument that Butler standard is so vague as not to be a limitation “prescribed by law”
•    Customs Tariff prohibition is not void for vagueness or uncertainty and is validly “PbyL”
P&SO:
•    Objective of legislation (to protect moral fibre/well-being of the state and prevent Canada from being inundated with imported obscene materials) is sufficiently important to justify interfering with protected freedom
RC:
•    Customs procedure is RC  to legislative objective of preventing obscenity
MI:
•    Customs officials have no authority to deny entry to sexually explicit material unless it comes w/in the narrow category of porn that Parliament has validly criminalized as obscene
•    Unlike Butler, not dealing with the denial of expressive right but with temporary dealy in obtaining possession of lawful materials while importation is being processed
Deleterious Effects versus Salutary Benefits:
•    Test is whether the deleterious effects of the Customs legislation, properly administered, exceed the salutary effect of the Customs legislation
•    Leg is designed to prevent entry of obscene material that is likely to cause harm in excess of the community’s standard of tolerance
•    If administered properly, deleterious effects would be outweighed by its salutary benefit

Equality:
•    Since there was a disproportionate effect on LS (in that literature was very important for their community), LS had been disadvantaged in a way that was directly related to their homosexuality
•    Distinctive treatment was not due Customs legislation and ∴ did not infringe s.15
•    If the disproportionate effect on homosexuals did result from the legislation, the distinction was not discriminatory
Remedy:
Majority    s.52:
Declaratory Remedy denied; no unconstitutional law
s.24(1):
Remedy denied; too long since trial

Analysis:
Dissent
Customs legislation not saved by s.1
•    Border procedures “grossly inadequate”
•    Legislation lacks “meaningful accommodation” for expressive freedoms
Remedy:
Dissent    •    Strike down Customs Tariff
•    “Invite parliament to remedy the constitutional infirmities”

Who is Protected by the Charter?
s.2 “everyone” → interpreted as extending to corporations (but not including freedom of religion)
s.15 “every individual” → restricted to natural persons

Eldridge v. British Columbia (A.G.) (1997)    Section 24(1) Remedy
Declaratory Relief and Suspension
Ratio:    Where sign language interpreters are necessary for effective communication in delivery of medical services, failure to provide them constitutes denial of s.15(1) and is not a reasonable limit under s.1
Remedy:    •    Pursuant s.24(1); no law in question;
•    Grant declaration that this is unconstitutional and direct B.C. gov’t to administer Act in manner consistent with requirements of s.15(1)
•    Declaration, as opposed to injunctive relief, is appropriate remedy b/c of the myriad options available to the government to rectify current system
•    Not Court’s role to decide how this should be accomplished
•    Appropriate to suspend the effectiveness of the declaration for 6 months to enable the gov’t to explore its options and formulate an appropriate response
•    Court “hinting”/telling legislature what to do under the constitution; “Dynamic Interaction”, “Dialogue” b/w courts and legilsature

Vriend v. Alberta (1998) SCC    Section 52(1) remedy
Application of Lamer’s Test in Schachter
Under-inclusive legislation
Facts:    Vriend brought action for declaration that (deliberate) omission of sexual orientation from Alberta’s Individual’s Rights Protection Act offended Charter (action NOT about the discrimination itself)
Attempt to file complaint under the Act was rejected b/c of the omission
Held:    Sexual orientation Read In to remedy under-inclusive legislation
Ratio:    •    Charter applied to challenges to an Act of the legislature that was under-inclusive as a result of an omission
•    The Act regulated private activity but this did not preclude the application of the Charter
Reasoning:    •    In its under-inclusive state, the Act created a distinction that resulted in the denial of equal benefit and protection of the law on the basis of sexual orientation (c/s.15)
•    Legislation not saved by section 1; no evidence omission had P&SO
•    Reading in sexual orientation minimized interference with its legitimate legislative purpose.
Para 168:  Indeed … if reading in is always deemed an inappropriate remedy where a government has expressly chosen a course of action, this amounts to the suggestion that whenever a government violates a Charter right, it ought to do so in a deliberate manner so as to avoid the remedy of reading in….[T]his is a wholly unacceptable result.

NB: Careful not to push the legislature too far; threaten to invoke the override b/c this was considered VERY intrusive
Remedy:    Pursuant s.52(1); Application of Schachter Test
1.  Define extent of the Charter inconsistency:
•    Exclusion of sexual orientation from the protected grounds of the IRPA
2.  Determine appropriate Remedy:
•    Reading Down is not available b/c violation is omission;
•    Severance is not available b/c wd result in striking down entire Act given # of ss. at issue
•    **Reading In focus on “twin guiding principles” of respect for role of legislature and respect for the purposes of the Charter; most appropriate way of remedying this under-inclusive legislation

Freedom of Expression
s.2.  Everyone has the following fundamental freedoms:
b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication

Questions to ask when considering s.2b:
➢    “How is expression defined?”
➢    “Is the freedom positive (Freedom to say what you want) and negative (freedom not to express what you don’t believe)?”
➢    How are “time, place and manner” restrictions and “content” based bans treated differently?
➢    Is there any obligation on the government to positively support expression? Ought there be?
➢    In the s.1 analysis, how does the characterization of the content of the expression lessen/heighten the burden on the government to justify the infringement?

Model s.2b Analysis:
1. Is the particular expression protected under s.2b? *almost always YES b/c s.2b is very BROAD
Consider:
A)    Form
B)    Content

2.  Was the right infringed?
a) Did the law in purpose (what mischief was being addressed) or effect restrict FOE?
b) If only restrictive in effect, the claimant must show that the meaning restricted is linked to the values underlying FOE (McLachlin Keegstra Dissent):
1.    Pursuit of Political, Artistic and Scientific Truth
2.    Political and Social Participation
3.    Individual Autonomy and Self-Development

CON DD decision:
o    Mandel and Hutchinson; laissez-faire economy is potential threat to private power and needs to be taken seriously
o    Private power threatens individual rights and Charter is able to protect individuals
o    Intent of Framers:  framers did not want it to apply to private actors; through Living Tree analysis, shd expect that to stay constant, need to change to meet current needs
o    Setting up this way would allow for inconsistent use of Charter

Post Dolphin Delivery: Finding Government Action

McKinney v. University of Guelph [1990] SCC
Facts:    Faculty members challenge mandatory retirement policy of four universities, arguing that universities’ policies violate s.15 (equality rights) for age discrimination
Issue 1:    Is Charter applicable to the actions of universities (are they gov’t actors under s.32)? NO
Does Charter apply to subordinate bodies that are created and supported by Parliament/Legislature? NO
Issue 2:    In the alternative, does the provincial human rights code violate s.15 by only protecting ppl b/w the ages of 18 and 65 (allowing for discrimination against ppl over 65)? YES (∴ subject to challenge)
LaForest (Majority): Charter was NOT directly applicable to retirement policy
Need to limit Charter application to disputes b/w individual and state (DD)
Very narrow definition of gov’t
NB: If universities are not under Charter scrutiny, very few entities will be viewed as part of gov’t
•    Just b/c universities are creatures of statute, and given legal attributes of natural person, is not sufficient to make it subject to Charter scrutiny
o    To hold otherwise wd undermine purpose of s.32 b/c many private entities exist be virtue of statute (ALL private corporations are also created by statutes!)
•    Just b/c universities perform an important public service/purpose is not enough to render them part of the gov’t
o    Public service test is too vague and wd capture too may institutions in our society thereby defeating purpose of s.32
•    Just b/c universities are regulated by and dependent upon (for funding) gov’t does not mean university is organ of government
o    Universities do not act at the direction of gov’t but in the interest of the university (academic freedom); they manage their own affairs and allocate gov’t funds; they have legal autonomy to make own policy decisions
•    Nothing to indicate that in entering collective agreements including the retirement provision that universities were in any way following the dictates of the government; they were acting purely on their own initiative.
•    Duty not to act at the discretion of gov’t, but in the interests of the university; the gov’t ∴has no legal power to control the university even if it wished to do so
•    No statutory requirement imposing mandatory retirement on the universities
*Distinction: What IS or ISN’T a “Quintessential gov’t function”

Charter may apply to non-governmental entities otherwise considered ‘private’ where:
•    specific activities can fairly be said to be the decision of the government, or that the government partakes in the decision so as to make it an act of the government
•    Private entity is implementing a specific government policy or program
•    Private actor implements the program, but gov’t retains responsibility for it
Wilson (Dissent):  Must take broad view of ‘gov’t’ b/c otherwise the impact of the Charter will be limited and the protection of the individual rights it is meant to offer will be minimized

Two Part Test for Determining Governmental Action:
(Since Charter may be invoked if found to be act of government)
1.    Is the entity in question part of ‘government’ (this wd include those bodies exercising statutorily delegated powers of law-making or decision making; legislative, executive, or administrative branches but also non-traditional gov’t bodies)?
2.    If act is not performed by ‘government’, is the action in question subject to such significant governmental control that it may be considered an act of gov’t for Charter purposes?

Eldridge v. BC (Attorney General) [1997]    Application of McKinney Test
Facts:    •    3 individuals who were born deaf sought a declaration that the failure to provide public funding for sign language interpreters when they received medical services violated s.15 of the Charter (inability to communicate increased risk of misdiagnosis and ineffective treatment)
•    Trial judge found NO Charter infringement – any disadvantage suffered was not the result of the gov’ts failure to provide services, but rather result of limitations that existed outside the legislation
•    C.A held that b/c hospitals are not “gov’t” within the meaning of s.32 and ∴Charter inapplicable; Absence of funding was not from legislation, but from each hospital’s budgetary discretion
Issue:    Does Provincial govt’s failure to provide funding for sign language interpreters to deaf persons when receiving medical services violate s.15 of the Charter? YES
Does the Charter actually apply to decision makers? (is entity part of gov’t within the meaning of s.32?)
Holding:    •    Charter applies to private entities in so far as they act in furtherance of a specific governmental program or policy, i.e., while a private actor actually implements the program, it is the gov’t that retains responsibility for it (McKinney)
Reasoning:
(LaForest)    1.Does Charter apply to decision not to provide interpreters as part of publicly funded scheme?
2.Does this decision violate s.15?
3.If so, can it be saved by s.1?
4.If not saved, what is appropriate remedy?

•    Source of alleged violation: The actions of the particular entities exercising decision-making authority pursuant to the legislation infringe Charter, and not the impugned legislation itself (neither statute, explicitly or implicitly, prohibits the provision of interpreters)
•    Nature of legislation such that government, not hospitals, is responsible for defining content
•    Hospital is carrying out specific governmental objective; is merely vehicle the legislature has chosen to deliver program
•    Acting in this capacity, hospital is an expression of government policy; is agent for government
•    While hospital may be autonomous in day-to-day operations, they act as agents for the gov’t in providing specific medical services set out in Act
•    Legislature cannot evade its obligations under s.15 by appointing hospitals (private entity) to carry out that objective
Remedy:    •    Legislation remains valid, but remedy sought under s.24(1)

s.1.  The CCRF guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
•    Text indicates Charter rights are NOT absolute; gov’t can limit them

Two main structural components of s.1:
1.    Requirement that all limits on rights be “Prescribed by Law”
2.    Requirement that all limits on rights be “Reasonable” as well as “Demonstrably justified in a free and democratic society”

“Prescribed by Law”:
•    Narrows the chance to argue for justification of an infringement of a guaranteed right or freedom; must be prescribed by the law
•    Serves as a “gatekeeper function”, restricting the instances a court can justify a Charter infringement
•    Related to “vagueness”: a law that has been found to infringe Charter rights will not satisfy the principles of fundamental justice if it is too vague
•    Protect rights by requiring that any limitations on rights have been carefully considered and authorized by the legislature

“Justification”:
•    Legal academics though SCC’s approach to s.1 justification wd be to balance rights claims a/g communal interests based on a reasonableness
•    SCC began to set down relatively narrow view of the values that wd justify limitation of rts under s.1
•    Pre-Oakes, rts were the norm, limits were the exception; limits were subject to stringent justification

R v. Oakes [1986]
Facts:    Oakes challenged the “reverse onus” re: possession/trafficking in the NCA, arguing it violated s.11(d) of CCRF
Held:    •    section of the NCA did violate s.11(d) of Charter
•    Court established “The Oakes Test” re: when the infringement could be upheld under s.1
•    Objective of protecting society from ills associated w/ drug trafficking was of sufficient importance to warrant overriding C’lly protected R&F
•    However, failed RC step (means chosen to implement the objective was not rationally connected to objective) since no rational connection b/w possession of small amt of narcotics and intent to traffic
•    Appeal dismissed
Reasoning:    Dickson: Two functions of s.1:
1.    Guarrantees the rights & freedoms set in the Charter
2.    Sets out the criteria against which limitations on those R&F must be measured
•    Crt is guided by values and principles “essential to a free and democratic society” (i.e. human dignity, social justice, equlity, variety of beliefs, participatory social/political institutions)
•    Crt will limit if these values are being furthered
•    R&F are NOT absolute; may need to limit them for collective goals of fundamental importance
•    Dual function of s.1 as both guarantee and justificatory basis for limitations on R&F

Two contextual considerations:
1.  Violation of C’lly guaranteed R&F
2.  Fundamental principles of a free and democratic society
stringent standard of justification
OAKES
TEST:    When is a limit reasonable and demonstrably justified in a free and democratic society?
•    ONUS of proving a limit is justified rests on party invoking s.1 and seeking to uphold limitation (gov’t)
•    Standard of Proof is b.o.p. (civil standard)
•    If gov’t fails any of these → NOT a reasonable limit.

I.   Pressing & Substantial Objective (P&SO)
•    Objective must be of sufficient importance to warrant overriding C’ly protected R&F
•    Standard must be high so that trivial matters do not gain s.1 protection
II.  Proportionality
•    Crt needs to balance the interests of society with those of individuals and groups
•    Means proportional to the ends
1.    Rational Connection (RC)
•    Measures must not be arbitrary, unfair or based on irrational consideration;
•    Means must be rationally connected to the objective
2.    Minimal Impairment (MI)
•    Means (even if rationally connected to obj) should impair “as little as possible” the RorF in question
3.    Balancing of Seriousness of the Effects a/g the Importance of Objectives
•    Must be proportionality b/w effects of the measures responsible for limiting the R&F and objective identified as of “sufficient importance”
•    Possibility that deleterious effects of measure on individuals/groups will not be justified by the purposes it is intended to serve
•    The more severe the deleterious effects of a measure, the more imp the obj must be if the measure is to be reasonably and demonstrably justified in free and democratic society
•    See Dagenais for this part of test

Approach to s.1 Post-Oakes
o    Trend towards more deferential, flexible, reasonable-based approach (Edwards, Irwin)
o    More deference to gov’t means more rights violations are justified

APPLICATION OF THE CHARTER:

s. 32: Application of the Charter
•    “Government of Canada”: refers to the executive government (party in power, PM’s office)
•    “Parliament”: all parties in government (everybody)
•    applies to the legislative, executive, and administrative branches of government

The Debate About Application to Private Action

Dolphin Delivery Ltd. [1986] SCC
Facts:
•    Union wanted to “secondary-picket” DD, an ally of their employer, Purolator
•    Under the Labour Code of BC, secondary picketing was lawful
•    Purolator was an interprovincial courier and employment fell under federal jurisdiction (Canada Labour Code) which was silent on secondary picketing
•    Determination ∴ fell under CmL which finds secondary picketing to be unlawful interference w/ k’ual relations
•    Dolphin applied for injunction based on CmL to restrain the threatened picketing
Issue 1:    Does the Charter apply to the Common Law?
Holding:    YES; BUT only in so far as the Common Law is the basis for some government action which is alleged to infringe the Charter
Reasoning:    Language of s.52(1) is broad enough to illustrate that the Charter DOES apply to Common Law

Issue 2:    Does the Charter apply to private litigation divorced completely from any connection with govt?
Holding:    NO (Hogg)
•    Charter regulates government vs. private persons, not private vs. private
•    “the rights guaranteed by the Charter take effect only as restrictions on the power of gov’t over the persons entitled to rights.
•    i.e, actions such as er restricting ee’s freedom of speech, parent restricting mobility of child, landlord discriminating on basis of race cannot be breaches of Charter b/c no action by gov’t or leg. (must resort to branches of private law: tort, contract, human rights code, labour law, etc.)
Reasoning:    •    S.32 specifies who Charter applies to (legislative, executive, administrative branches of gov’t)
•    Need action by one of these actors, otherwise wd be immeasurable increase in scope of Charter
•    Don’t want Charter invading area of private litigation
o    McIntyre rejects Hogg’s position that a court order is governmental action, and that therefore, the Charter will apply to that private arrangement
o    This would widen the scope of the Charter application to virtually ALL private litigation
Issue 3:    What element of government intervention makes the Charter applicable in an otherwise private action?
Holding:    RULE:  “Where one private party invokes or relies upon government action to produce an infringement of the Charter rights of another, the Charter will be applicable”
•    Difficult to define
•    For Charter to apply, need direct and precisely defined connection b/w the element of gov’t action and the claim advanced (ie: Blaney [private vs. private], girl wants to play hockey; Charter was applied b/c one of the parties acted on the authority of a statutory provision which infringed the Charter rights of another)

Case at Hand:    •    No offending statutory provision specifically outlawing secondary picketing
•    No exercise of or reliance upon governmental action which would invoke the Charter
•    Appeal fails