Lecture at: 03/10/2014
C LASS N OTES FOR : 3NN6
McMaster University, Fall 2013
T UESDAY , JANUARY 28, 2014
FORMS OF EXPRESSION
- Violence is excluded as a form of expression, there are purely physical acts that would not be
considered an expression
o Where you parked your car, however if you park it in the middle of an intersection in Toronto
and throw the keys down the sewer, there ‘might’be an expression.
o It has to have some kind of expressive meaning associated with it!
- Concern whether the expression falls within the meaning of 2(b) has to fit within certain principles
and associated meaning.
- Second stage - whether the government actually and physically limited the right for you to
o Difference as to how and where we express ourselves (the form of our expression) v. the
content of our expression
o Both of these elements HOW, WHERE and WHAT we say! May attract some degree of
- What is said
- The actual words that are expressed and the words, but it also covers ACTIVITY.
- Does the act attempt to convey a meaning of some kind?
- Protecting expressiotrying to draw a line between acts that do not have meaning
associated with them as opposed to those activities where we are attempting to convey a
meaning of some kind! (We have to differentiate)
- Protected authority under section 2(b)
- Where can we draw the line? If we are saying that in order for expression fall within
2(b) it has to convey a meaning, be for democratic truth and fulfillment, where do we draw
the line between what is acceptable and not acceptable.
1. It should be obvious that certain expressions and content will be contrary to
public opinion and governmental power.
2. How do we go about protecting this, even though we do not appreciate this?
3. One has to be able to express an unsavory opinion in order for it to be
subjected to contestation. There has to be the pursuit of truth, there needs to
be an expression in order for it to be allowed to be pursued. We need to draw
a line between acceptable, or what is not, but we can’t!
ii.SUPREME COURT APPROACHED IDEAin a principle known as content
b. CONTENT NEUTRALITY
i. Do not examine what is being expressed in general, but trying to determine whether it
warrants protection because it conveys a meaning for one of these purposes.
Angie © McMaster University 1
Winter 2014 Lecture at: 03/10/2014
ii. We cannot judge where certain contents are worthy of protection and which ones are
not without actually listening to the messages they’re trying to convey. We have to
allow for expression of content that we might not appreciate and like.
R. v. Keegstra (CONTENT NEUTRALITY)
FACT: Keegstra was a schoolteacher inAlberta who held strong anti-sematic views.
Believed that all the evils in the world could be attributed to the Jews. Everything wrong
was the fault of the Jews. Views informed his teaching.
- Brought these opinions into the classroom.
- Forced the students to accept the opinions (if they contradicted them, he would give
them poor grades). There were ramifications for disagreeing.
- Charged with hate propaganda
ARGUMENT: Working with a high school, he was merely expressing his own opinion that
was protected under the charter of rights and freedoms, and therefore he could not be
- In speaking to this idea of the content, the supreme court stated the two things
• No matter how obnoxious the expression may be, it still warrants protection
under section 2(b) if it expresses a meaning and fits within the three purposes!
• The courts have to ignore the meaning of the content and try to discover
whether there is an attempt to convey a meaning.
• Keegstra freedom of expression was violated, but it was justifiable under a
free and democratic society under section 1!
Keegstra lost! Due to the criminal code…
• We can’t look at the content its only whether its to express a meaning.
Justifiable under the criminal code (limits were in the code) purpose of
infringing on his expression was to prevent the promotion of hatred against
other groups was substantial.
• Sec. 2(b)
o Threats of violence are protected, just violent form of expression is not (content neutral) –
the fact that the speech is unpopular, vulgar or obnoxious is beside the point, meaning
conveyed is not important when including it under sec. 2(b)
o Here, sec. 319(2) of the criminal code aims to restrict the content of expression and is thus in
purpose limiting sec. 2(b) – no need to look at effects
o Scope of sec. 2(b) is not to be limited by reference other values of charter; they come in
under s. 1.
• Sec. 1
o Must be guided by the value and principles essential to a free and democratic society
o The context of the expression gives different values (Political speech vs. matrimonial dispute
– Edmonton journal) – allows for a better determination of whether the means fit the ends
o Pressing and substantial objective
To prevent pain to target group and reduce racial, ethnic and religious tension
Two kinds of injury for hate speech
1. Harm done to members of target group – emotional damage,
humiliation, degradation, sense of self-worth
2. Influence on society at large – possibility that hate message takes hold
and leads o violence against minority groups
2 Lecture at: 03/10/2014
S. 15(1) and 27 commitment to equality and multiculturalism support objective
International commitment to eradicate hate propaganda
o Proportionality (1)
Value of speech is important here – how does it relate to the core values of freedom
• Truth and common good through free speech
o Expression can be used to detriment search for truth and rationality
will not always overcome falsehood in the marketplace of ideas
o Little chance that expression prohibited will lead to truth
o Hater speech muzzles participation and undermines commitment to
democracy of equal consideration and dignity
• Self fulfillment
o Hate speech works against the self fulfillment of those targeted
Free expression is furthered by limiting some expression, and by prohibiting hate
speech we are actually furthering the values central to the freedom of expression.
o Rational connection (2)
Court reject arguments that suppression of hate expression is counterproductive to the
objective, and finds a rational connection
o Minimal impairment (3)
Because of the criminal nature of the legislation court must be vigilant to ensure that
it does not unduly curtail free speech (state as singular antagonist)
Over breadth – catching expression that is not needed for the objective
Vagueness – chilling effect; will discourage those be mere possibility of being caught
by it if its unclear what the legislation catches
The following features are enough for precision
• Exemption of private conversation form targeted speech
• Necessity that promotion of hatred be willful
• Not important that proof of actual hatred is not required – its enough that risk
of hatred is real and the harm that results is serious
• Inclusion of the word promotes
• Definition of “hatred” as an extreme emotion
The fact that the section has been abused by officials is not seen as bearing on
Although there are different methods for meeting the objective, and that criminal
sanction may be the most invasive and not the most effecti