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Freedom of Expression Jan 27, Poli Sci 3NN6

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Political Science
Greg Flynn

Lecture at: 03/10/2014 C LASS N OTES FOR : P OLI S CI 3NN6 McMaster University, Fall 2013 C LASS N OTES FOR : 3NN6 McMaster University, Fall 2013 st 1 Stage - Are the limits on expression prescribed (contained) in law? nd - Does the legislation prescribe containment of expression in law? 2rdtage - Whether the purpose of infringing is important? (Pressing and substantial) 3thtage - Are the means chosen to achieve the purpose rationally connected to this purpose? 4 Stage - Are the means chosen to achieve the purpose impair or interfere with the right as little as pthsible (minimal impairment) 5 Stage - are the means too much of an imposition to achieve the purpose (proportionality) M ONDAY , MARCH 10,Y - Does the charter apply? (Section 32 and 33) o Look at all of the section 32 and whether the gov’t has exempted o If the charter does not apply, there are no more arguments to make - Has a right been violated? o Yes…let’s assume for argument’s sake it’s been violated (2)(b) o If and only if we find that there has been a violation by the government then we have to see if that violation is justifiable under section 1 F REEDOM OF EXPRESSION Three core reasons for free speech: key to an individual’s self‐expression, essential for democracy, enables the search for truth and the “marketplace for ideas”. Unlike US, Canadian courts rank the value of speech. InAmerica, all speech is considered sacred and the argument that free speech is good needs no explanation. Canadian courts regulate speech in the same way that other markets are regulated. Government can ban actions without worry under s. 2(b) but this is rarely used as most activities communicate a message. Onus is on the government to prove that no violation of s. 2(b) occurred (unique, speech is so valuable that it creates a de facto reverse onus) and then to proceed under s. 1. Even if a government doesn’t act to intentionally restrict speech, people can still argue that speech has been restricted. Temporarily exceptions to bans may be granted (political speech can’t violate a noise bylaw). Violence can’t be protected by depictions of violence are. Liberalism wants a level playing field and is extremely hesitant to limit any speech. Social democracy wants an equal playing field and is willing to restrict those with advantages to get there. Thus the government must determine the value of the speech and whether a restriction restores balance. The bar for restricting speech is Angie © McMaster University 1 Winter 2014 Lecture at: 03/10/2014 significantly higher when the government is a direct antagonist as opposed to when it is mediating between two parties. 1. Test for Freedom of Expression a. Does expression fall within 2(b) of the charter of rights and freedoms? i. PURPOSE? (IRWIN TOY; Harper) 1. Pursuit of truth 2. Democratic Participation 3. Individual self-fulfillment ii. Does it attempt to convey a meaning? (Keegstra) iii.Form? iv. Content? b. Is there a limitation of expression by government? (IRWIN TOY) Irwin Toy V. Quebec FACT: Manufacturer of Toys - Advertisement the sale of goods during cartoons - Quebec government prohibited the advertisement of toys during cartoons to avoid child marketing - SUPREME COURT OF CANADA: Found that the law violated the ‘expression’rights of the corporations but in doing so set out a two stage test. o Not allowing people to advertise was a limitation on their expression - The high water mark of courts deference to legislatures - Courts found an infringement of s. 2(b) – freedom of expression – but justified under s. 1 as a reasonable limit in a free and democratic society - Three considerations that lead to a more deferential approach to legislative choices 1. The legislation involves a polycentric problem – mediation between many different groups.  Government must draw a line somewhere using its best judgment – this is hard in complex issues and the court should not second guess the legislative wisdom  Give deference to the democratic choice of where to draw the line 2. Legislation protecting vulnerable groups will be given more deference – social justice issue  Edwards Books – courts must be cautious not to allow the charter to be used by more advantaged persons to roll back legislation designed to help the disadvantaged  Those with more money have better access to the courts 3. Less deference when government is acting as a “singular antagonist”  Full government power against one individual – criminal cases mostly  Because of the power and resource difference between the sate and the individual  Courts should make government prove strictly the justification  The pressing and substantial objective: the protection of children from manipulation by advertising  There is a rational connection between advertising and manipulation  Minimal impairment – clear guidelines, did not prohibit all toy advertising 2 Lecture at: 03/10/2014  Proportionality - Important purpose (protection of vulnerable group) vs. commercial speech Irwin challenges legislation that prevents advertising to children. Not all activity is protected under s. 2(b), only that which conveys meaning, including advertising. S. 2(b) is content neutral, can’t ban something people don’t like without reason. Ban does have a pressing objective. Court can’t substitute their estimate of what restrictions on advertising are valuable for the legislature’s best estimate. Irwin fails. Dissent says proportionally test fails. Court defers to Parliament for four reasons: Protection of vulnerable groups (children), value of the speech (low), social science evidence (inconclusive), mediating interesting or the state as an antagonist (mediating).  IRWIN TOY left judges with a three-part test for assessing claimed breaches of freedom of expression under section 2(b) of the Charter.  (1) Does the activity in question constitute a non-violent attempt to convey meaning?  (2) Does the relevant legislation have the purpose of restricting the content - not just the physical consequences - of the expression?  IF THEANSWER to (2) is NO  Does the legislation have the effect of restricting expression that promotes o Asearch of truth o Democracy o Individual self-fulfillment - Freedom of expression cases are often determined in the context of SECTION 1 (where the question is often whether the government is justified in restricting more questionable forms of a very fundamental right) 2. What constitutes expression? The content has to fall within one of these three purposes an
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