Transcript CONSTITUTIONAL LAW 1 What is the Constitution?

CONSTITUTIONAL
LAW
37 FREEDOM OF
EXPRESSION I: GENERAL
FRAMEWORK
Shigenori Matsui
1
INTRODUCTION
 “Freedom of thought, belief, opinion and
expression, including freedom of the press
and other means of communication” under s.
2(b)
 Freedom of expression is generally protected
in every countries of the world, yet the
specific details of the protection are
significantly different.
2
I Values of Freedom of Expression
 What kind of values does freedom of
expression have?
 R. v. Keegstra [1990]

“…the Court has attempted to articulate more precisely
some of the convictions fueling the freedom of
expression, these being summarized in Irwin Toy… as
follows: (1) seeking and attaining truth is an inherently
good activity; (2) participation in social and political
decision-making is to be fostered and encouraged; and
(3) diversity in forms of individual self-fulfillment and
human flourishing ought to be cultivated in a tolerant
and welcoming environment for the sake of both those
who convey a meaning and those to whom meaning is
conveyed.”
3
 McLachlin, J. dissenting



“Various philosophical justifications exist for freedom of
expression. Some of these posit free expression as a
means to other ends. Others see freedom of
expression as an end in itself.
Salient among the justifications for free expression in
the first category is the postulate that the freedom is
instrumental in promoting the free flow of ideas
essential to political democracy and the functioning of
democratic institutions. This is sometimes referred to
as the political process rationale.
The validity of the political process rationale for
freedom of expression is undeniable. It is, however,
limited. It justifies only a relatively narrow sector of free
expression…”
4


“Another venerable rationale for freedom of expression … is
that it is an essential precondition of the search for truth. Like
the political process model, this model is instrumental in
outlook. Freedom of expression is seen as a means of
promoting a "marketplace of ideas", in which competing
ideas vie for supremacy to the end of attaining the truth….
This approach, however, has been criticized on the ground
that there is no guarantee that the free expression of ideas
will in fact lead to the truth.
Notwithstanding the cogency of this critique, it does not
negate the essential validity of the notion of the value of the
marketplace of ideas. While freedom of expression provides
no guarantee that the truth will always prevail, it still can be
argued that it assists in promoting the truth in ways which
would be impossible without the freedom.”
5

“But freedom of expression may be viewed as more
than a means to other ends. Many assert that free
expression is an end in itself, a value essential to the
sort of society we wish to preserve. This view holds
that freedom of expression "derives from the widely
accepted premise of Western thought that the proper
end of man is the realization of his character and
potentialities as a human being". It follows from this
premise that all persons have the right to form their
own beliefs and opinions, and to express them. “For
expression is an integral part of the development of
ideas, of mental exploration and of the affirmation of
self"…Freedom of expression is seen as worth
preserving for its own intrinsic value.”
6
 “This Court has adopted a purposive approach in
construing the rights and freedoms guaranteed by the
Charter. …it is appropriate to consider the ends
which freedom of speech may serve in determining
its scope and the justifiability of infringements upon it.
These ends include the maintenance of our
democratic rights and the benefits to be gained from
the pursuit of truth and creativity in science, art,
industry and other endeavours. At the same time,
the emphasis which this Court has placed upon the
inherent dignity of the individual in interpreting
Charter guarantees suggests that the rationale of
self-actualization should also play an important part
in decisions under s. 2(b) of the Charter.”
7
 Is the Supreme Court of Canada right in invoking
three different values? What about the value as a
safety valve, as pointed out by Professor T.I.
Emerson? Any other rationales?
 What kind of function does this analysis play? To
exclude some expressive conduct that does not
deserve constitutional protection? To give stronger
protection to freedom of expression than to other
rights and freedoms? To employ different standards
of review depending upon the value of speech
involved?
8
II What Is Expression?
 A. The Framework
 Irwin Toy Ltd v. Quebec [1989]

“We cannot, then, exclude human activity from the
scope of guaranteed free expression on the basis of
the content or meaning being conveyed. Indeed, if the
activity conveys or attempts to convey a meaning, it
has expressive content and prima facie falls within the
scope of the guarantee. Of course, while most human
activity combines expressive and physical elements,
some human activity is purely physical and does not
convey or attempt to convey meaning.”
9

“It might be difficult to characterize certain day-to-day
tasks, like parking a car, as having expressive content.
To bring such activity within the protected sphere, the
plaintiff would have to show that it was performed to
convey a meaning. For example, an unmarried person
might, as part of a public protest, park in a zone
reserved for spouses of government employees in
order to express dissatisfaction or outrage at the
chosen method of allocating a limited resource. If that
person could demonstrate that his activity did in fact
have expressive content, he would, at this stage, be
within the protected sphere and the s. 2(b) challenge
would proceed.”
10

“The content of expression can be conveyed through
an infinite variety of forms of expression: for example,
the written or spoken word, the arts, and even physical
gestures or acts. While the guarantee of free
expression protects all content of expression, certainly
violence as a form of expression receives no such
protection. It is not necessary here to delineate
precisely when and on what basis a form of expression
chosen to convey a meaning falls outside the sphere of
the guarantee. But it is clear, for example, that a
murderer or rapist cannot invoke freedom of
expression in justification of the form of expression he
has chosen… Indeed, freedom of expression ensures
that we can convey our thoughts and feelings in nonviolent ways without fear of censure.”
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 B. Is the use of language a form of
expression?
 Ford v. Quebec [1988]

“Language is so intimately related to the form and
content of expression that there cannot be true
freedom of expression by means of language if one is
prohibited from using the language of one's choice.
Language is not merely a means or medium of
expression; it colours the content and meaning of
expression. It is, as the preamble of the Charter of the
French Language itself indicates, a means by which a
people may express its cultural identity. It is also the
means by which the individual expresses his or her
personal identity and sense of individuality. ”
12
 C. Is the hate speech an expression
deserving constitutional protection?
 R. v. Keegstra [1995]

“Apart from rare cases where expression is
communicated in a physically violent form, the Court
thus viewed the fundamental nature of the freedom of
expression as ensuring that "if the activity conveys or
attempts to convey a meaning, it has expressive
content and prima facie falls within the scope of the
guarantee" … In other words, the term "expression" as
used in s. 2(b) of the Charter embraces all content of
expression irrespective of the particular meaning or
message sought to be conveyed. ”
13

“Turning specifically to the proposition that hate propaganda
should be excluded from the coverage of s. 2(b), I begin by
stating that the communications restricted by s. 319(2)
cannot be considered as violence, which on a reading of
Irwin Toy I find to refer to expression communicated directly
through physical harm. Nor do I find hate propaganda to be
analogous to violence, and through this route exclude it from
the protection of the guarantee of freedom of
expression….all activities conveying or attempting to convey
meaning are considered expression for the purposes of s.
2(b); the content of expression is irrelevant in determining
the scope of this Charter provision. … Section 319(2) of the
Criminal Code prohibits the communication of meaning that
is repugnant, but the repugnance stems from the content of
the message as opposed to its form. For this reason, I am of
the view that hate propaganda is to be categorized as
expression so as to bring it within the coverage of s. 2(b).”
14

“While the line between form and content is not always
easily drawn, in my opinion threats of violence can only
be so classified by reference to the content of their
meaning. As such, they do not fall within the exception
spoken of in Irwin Toy, and their suppression must be
justified under s. 1. As I do not find threats of violence
to be excluded from the definition of expression
envisioned by s. 2(b), it is unnecessary to determine
whether the threatening aspects of hate propaganda
can be seen as threats of violence, or analogous to
such threats, so as to deny it protection under s. 2(b).”
15
 “It has been argued in support of excluding hate
propaganda from the coverage of s. 2(b) that the use
of ss. 15 and 27 of the Charter -- dealing respectively
with equality and multiculturalism -- and Canada's
acceptance of international agreements requiring the
prohibition of racist statements make s. 319(2)
incompatible with even a large and liberal definition of
the freedom … The general tenor of this argument is
that these interpretative aids inextricably infuse each
constitutional guarantee with values supporting equal
societal participation and the security and dignity of
all persons. Consequently, it is said that s. 2(b) must
be curtailed so as not to extend to communications
which seriously undermine the equality, security and
dignity of others.”
16


“I believe, however, that s. 1 of the Charter is
especially well suited to the task of balancing, and
consider this Court's previous freedom of expression
decisions to support this belief. It is, in my opinion,
inappropriate to attenuate the s. 2(b) freedom on the
grounds that a particular context requires such; the
large and liberal interpretation given the freedom of
expression in Irwin Toy indicates that the preferable
course is to weigh the various contextual values and
factors in s. 1.
I thus conclude on the issue of s. 2(b) by finding that s.
319(2) of the Criminal Code constitutes an
infringement of the Charter guarantee of freedom of
expression…”
17
 D. Is the child pornography an expression
deserving constitutional protection?
 R. v. Sharpe [2001]

“The law challenged in this appeal engages mainly the
justification of self-fulfilment. Child pornography does
not generally contribute to the search for truth or to
Canadian social and political discourse. Some question
whether it engages even the value of self-fulfilment,
beyond the base aspect of sexual exploitation. The
concern in this appeal, however, is that the law may
incidentally catch forms of expression that more
seriously implicate self-fulfilment and that do not pose
a risk of harm to children.”
18

“As to the contention that prohibiting possession of
expressive material does not raise free expression
concerns, I cannot agree. The right conferred by s. 2(b)
of the Charter embraces a continuum of intellectual
and expressive freedom -- "freedom of thought, belief,
opinion and expression". The right to possess
expressive material is integrally related to the
development of thought, belief, opinion and
expression. The possession of such material allows us
to understand the thought of others or consolidate our
own thought. Without the right to possess expressive
material, freedom of thought, belief, opinion and
expression would be compromised. Thus the
possession of expressive materials falls within the
continuum of rights protected by s. 2(b) of the Charter.”
19
 E. What about the commercial speech?
 Ford v. Quebec [1988]

“It is necessary only to decide if the
respondents have a constitutionally protected
right to use the English language in the signs
they display, or more precisely, whether the
fact that such signs have a commercial
purpose removes the expression contained
therein from the scope of protected freedom.”
20

“In our view, the commercial element does not have
this effect. Given the earlier pronouncements of this
Court to the effect that the rights and freedoms
guaranteed in the Canadian Charter should be given a
large and liberal interpretation, there is no sound basis
on which commercial expression can be excluded from
the protection of s. 2(b) of the Charter…. Over and
above its intrinsic value as expression, commercial
expression which… protects listeners as well as
speakers plays a significant role in enabling individuals
to make informed economic choices, an important
aspect of individual self-fulfillment and personal
autonomy. The Court accordingly rejects the view that
commercial expression serves no individual or societal
value in a free and democratic society and for this
reason is undeserving of any constitutional protection.”
21
 Irwin Toy Ltd. v. Quebec [1989]

“Does the advertising aimed at children fall
within the scope of freedom of expression?
Surely it aims to convey a meaning, and
cannot be excluded as having no expressive
content. Nor is there any basis for excluding
the form of expression chosen from the sphere
of protected activity… ”
22
 F. Is picketing a form of expression?
 Retail, Wholesale and Department Stores
Union, Local 580 v. Dolphin Delivery
Ltd.[1986]

“There is, as I have earlier said, always some
element of expression in picketing. The union
is making a statement to the general public
that it is involved in a dispute, that it is seeking
to impose its will on the object of the picketing,
and that it solicits the assistance of the public
in honouring the picket line.”
23

“Action on the part of the picketers will, of course,
always accompany the expression, but not every
action on the part of the picketers will be such as to
alter the nature of the whole transaction and remove it
from Charter protection for freedom of expression. That
freedom, of course, would not extend to protect threats
of violence or acts of violence. It would not protect the
destruction of property, or assaults, or other clearly
unlawful conduct. We need not, however, be
concerned with such matters here because the
picketing would have been peaceful. I am therefore of
the view that the picketing sought to be restrained
would have involved the exercise of the right of
freedom of expression.”
24
 Retail, Wholesale and Department Store
Union, Local 558 v. Pepsi-Cola Canada
Beverages (West) Ltd. [2002]

“Picketing, however defined, always involves
expressive action. As such, it engages one of
the highest constitutional values: freedom of
expression, enshrined in s. 2(b) of the Charter.
This Court's jurisprudence establishes that
both primary and secondary picketing are
forms of expression, even when associated
with tortious acts”
25
III Analytical Framework
 A. infringement
 Irwin Toy Ltd v. Quebec

“Having found that the plaintiff's activity does fall within
the scope of guaranteed free expression, it must next
be determined whether the purpose or effect of the
impugned governmental action was to control attempts
to convey meaning through that activity… If the
government's purpose, then, was to restrict attempts to
convey a meaning, there has been a limitation by law
of s. 2(b) and a s. 1 analysis is required to determine
whether the law is inconsistent with the provisions of
the Constitution. If, however, this was not the
government's purpose, the court must move on to an
analysis of the effects of the government action.”
26

“If the government's purpose is to restrict the content of
expression by singling out particular meanings that are
not to be conveyed, it necessarily limits the guarantee
of free expression. If the government's purpose is to
restrict a form of expression in order to control access
by others to the meaning being conveyed or to control
the ability of the one conveying the meaning to do so, it
also limits the guarantee. On the other hand, where the
government aims to control only the physical
consequences of certain human activity, regardless of
the meaning being conveyed, its purpose is not to
control expression…”
27

“Even if the government's purpose was not to
control or restrict attempts to convey a
meaning, the Court must still decide whether
the effect of the government action was to
restrict the plaintiff's free expression. Here, the
burden is on the plaintiff to demonstrate that
such an effect occurred. In order so to
demonstrate, a plaintiff must state her claim
with reference to the principles and values
underlying the freedom.”
28

“In showing that the effect of the government's action was to
restrict her free expression, a plaintiff must demonstrate that
her activity promotes at least one of these principles. It is not
enough that shouting, for example, has an expressive
element. If the plaintiff challenges the effect of government
action to control noise, presuming that action to have a
purpose neutral as to expression, she must show that her
aim was to convey a meaning reflective of the principles
underlying freedom of expression. The precise and complete
articulation of what kinds of activity promote these principles
is, of course, a matter for judicial appreciation to be
developed on a case by case basis. But the plaintiff must at
least identify the meaning being conveyed and how it relates
to the pursuit of truth, participation in the community, or
individual self-fulfillment and human flourishing.”
29
 B. Justification: Contextual Analysis
 Thomson Newspapers Co. v. Canada
 “I agree …that it is difficult to draw a sharp
distinction between legislation in which the
state is the antagonist of the individual, and
that in which it is acting as a mediator between
different groups. Indeed, nothing in these
cases suggests that there is one category of
cases in which a low standard of justification
under s. 1 is applied, and another category in
which a higher standard is applied.”
30

“In my view, these cases further the contextual
approach to s. 1 by indicating that the vulnerability of
the group which the legislator seeks to … that group's
own subjective fears and apprehension of harm … and
the inability to measure scientifically a particular harm
in question, or the efficaciousness of a remedy … are
all factors of which the court must take account in
assessing whether a limit has been demonstrably
justified according to the civil standard of proof. They
do not represent categories of standard of proof which
the government must satisfy, but are rather factors
which go to the question of whether there has been a
demonstrable justification.”
31

“Another contextual factor to be considered is
the nature of the activity which is infringed.
The degree of constitutional protection may
vary depending on the nature of the
expression at issue... This is not because a
lower standard is applied, but because the low
value of the expression may be more easily
outweighed by the government objective. In
this case, the speech infringed is political
information.”
32


What are the legislative objectives?
“The danger of the systematically overreliant voter is
suggested in the purpose … as the need for "a rest
period" so that the frenzy of polls will die down and
voters will be encouraged to forget about the polls and
concentrate on issues…. The second purpose of the
legislation, to guard against an inaccurate poll which
occurs late in the campaign, has nothing to do with a
period of repose or reflection. Rather, the purpose is to
provide an opportunity for the last opinion surveys on
which the voter might base his or her vote to be
subjected to public scrutiny. In this way, the voter will
have the best information possible about the accuracy
of the latest polls, and will not cast a vote without a
potentially inaccurate opinion survey having been
publicly scrutinized. ”
33
 Are these objective pressing and substantial?

“An examination of this purpose reveals some
disturbing assumptions. First, this purpose does not
rely on the inaccuracy of any opinion survey results.
Rather, it suggests that Canadians will become so
mesmerized by the flurry of polls appearing in the
media that they will forget the issues upon which they
should actually be concentrating. This reasoning
cannot be countenanced. Canadian voters must be
presumed to have a certain degree of maturity and
intelligence. They have the right to consider the results
of polls as part of a strategic exercise of their vote. It
cannot be assumed that in so doing they will be so
naïve as to forget the issues and interests which
motivate them to vote for a particular candidate.”
34

“I am thus unable to perceive, and nor has the
government seriously argued before us, that
any pressing and substantial objective is
served by the existence of a "rest period" for
polls prior to the election date. I would,
therefore, find that s. 322.1 is not justified
under s. 1 according to this objective.”
35

“Although the overall influence of polls may not have
been scientifically established as "undue", I would
nevertheless conclude that there is evidence of
significant influence of polls on the electoral process
and on individual electoral choice. Although the overall
effect of these polls may be difficult to discern or
predict, this evidence suggests that an uncertain
number of voters might be influenced in their electoral
choice by this false information. The pernicious aspect
of an inaccurate poll is that no voter could discover its
true nature because of the lack of response time.”
36


“There is also evidence of public and
governmental concern to guard against
inaccurate polls which are published late in the
campaign and which thus cannot be subject to
the same scrutiny as polls published earlier in
the election.
…I conclude that the purpose of guarding
against the possible influence of inaccurate
polls late in the election campaign by allowing
for a period of criticism and scrutiny
immediately prior to election day, is a pressing
and substantial objective.”
37
 Was there a rational connection?
 “The three-day blackout period on the
publication of polls will serve, to some degree,
the purpose of preventing the use of
inaccurate polls by voters. The blackout period
gives critics the opportunity to assess the
methodological information made available by
the pollster and to question the validity of the
poll on that basis. To that extent, the ban is
rationally connected to the purpose of the
legislation…”
38
 Minimal impairment?

“Section 322.1 does not minimally impair the
right to freedom of expression guaranteed in
the Charter and is, therefore, not justified
under s. 1. Indeed, it is my view that s. 322.1
is a very crude instrument in serving the
purpose articulated by the government in this
case. ”
39

“The provision in this case is also overbroad and
underbroad in relation to the purpose of the legislation.
The ban imposed in this case is overbroad because it
prohibits in the final three days of an election campaign
the publication and use by voters of all those polls
which would meet the usual standards of accuracy. Its
underbreadth has already been mentioned in the
rational connection analysis: the blackout period may
not adequately disabuse voters of an erroneous
impression left by a poll which did not disclose its
methodology to critics or the public. Indeed, as a
matter of logic, the utility of the ban as a period of
response and criticism is gravely undermined by the
failure to require the publication of methodological
information. ”
40

“In assessing whether this provision is
narrowly tailored, the obvious alternative
which Parliament could have adopted was a
mandatory disclosure of methodological
information without a publication ban…The
failure to address or explain the reason for not
adopting a significantly less intrusive measure
which appears as effective as that actually
adopted weighs heavily against the justifiability
of this provision. ”
41


Final Balance
“My view is that, given the state of the evidence before
the Court on this issue, the postulated harm will
seldom occur. The benefits of the ban are, therefore,
marginal. The deleterious effects are substantial. First,
the ban sends the general message that the media can
be constrained by government not to publish factual
information. Second, it interferes with the reporting
function of the media with respect to the election,
which is an interference with the freedom of the media
when its participation is most crucial to selfgovernance. These are the deleterious effects as they
relate to the freedom of the speaker…”
42


“But third, the ban denies access to electoral information
which some voters may consider very useful in deciding their
vote. If they feel that their votes are better informed as a
result of having this information, then the ban not only
interferes with their freedom of expression, but with their
perception of the freeness and validity of their vote. This
undermines the very faith in the electoral process which the
government suggests is one of the rationales for this ban.
In my view, the doubtful benefits of this ban are outweighed
by its significant and tangible deleterious effects and
therefore is not justified under the third stage of the
proportionality analysis. The very serious invasion of the
freedom of expression of all Canadians is not outweighed by
the speculative and marginal benefits postulated by the
government. ”
43
 The United States Supreme Court has
developed the dichotomy between contentbased restriction and content-neutral
restriction. Is the framework adopted by the
Supreme Court of Canada somewhat
different from this dichotomy? If it is, which
approach is more appropriate?
44
 In considering s. 1 analysis, the Supreme
Court of Canada emphasizes the contextual
factors including the type of regulation and
the value of speech involved. Is this an
appropriate approach?
45