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Lecture 12

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McMaster University
Political Science
Greg Flynn

Freedom of expression Cases: ­ Categories of FOE Cases: o MISSING! Commercial expression (advertising): Individuals have the right to advertise without having a limitation of the state. Protected by 2b, but there are instances where the courts have placed restrictions on these.  MISSING! RJR McDonald v. Canada  MISSING! Dolphin Delivery o MISSING! Criminal Expression: Violence not protected but other criminal activity can be.  MISSING! Re: Prostitution reference. Court found how much desired activity was protected under 2b even if it was criminal. o Hate propaganda: expression that constitutes crime. No content based restrictions on expression, entitled to protection. However, distasteful and contrary to the mainstream.  R. v. Zundel • Distributing literature and pamphlets claiming the holocaust was a fraud. Charged with spreading false news. • Causing harm to public interest. Conviction upheld, he was acquitted by the supreme court of Canada on the basis that spreading false news violated his charter rights. They found that the limits were not justifiable under section one, and had to do with the nature of the offence. • The offence did not have specific statements or other info for the public to raise it. Too broad to identify an objective to justify limiting freedom of expression. The found that this offense of spreading false news was provided in the criminal code all the way back to pre-confederation, traced back through history this offence through UK legislatures that was aimed at protecting the mobility. Ultimately they said that was 800 yrs. of a state applying the mobility, and is no longer seen as a pressing matter. • The government decided to keep the provisions we have now Categories of FOE Cases ­ obscenity/ pornography: used as a means to protect human morality and the dehumanization of women and loss of quality. You have to actually look at the content of the expression to determine if it is porn (although the court tried to avoid that). o To determine if something is obscene you have to look at the content: o R.V. Butler  Owned a video boutique in Winnipeg. It is not a movie rental shop, it is a sex shop. The police charged him with the procession and distribution and selling of obscene materials. They charged him with 215 accounts (for every piece of material that he had). 242 were acquitted, 8 convicted. The crown and the accused appealed. Crown appealed the acquitted cases and Butler the 8 convicted cases.  Definition of obscenity violated rights.  Section 1 states that it was to uphold the protection of women, and societies. The crown found that these could be limited under section 1 while publications of porn that infringe on these standards could not be limited. Divided sex in 3 types • Explicit sex with violence •
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