HUMA 1825 Note 16
Fifth Class Writing Assignment
- The theoretical readings: Mill, Devlin, and Dworkin
- R v. Keegstra
- R v. Butler
o The reason why we’re having this is two fold:
We need to pick up
Once we master the methodology, it is the identical
methodology in the Butler case.
Once you master and can manipulate these skills, it’s
good for all constitutional law cases.
o This is going to be a gentle question.
o If you read the case carefully, you will be fine.
- The first segment of this course asked about the nature of law and the
relationship of law and morality
- This segment deals with legal moralism – it involves the use of the criminal
law to legislate morality.
o To make laws about morality – in particular, to make laws about
- The criminal law in this area is used to criminalize activities that some
people consider harmless (Prostitution)
o Others would say that these activities are immoral and harmful
- Remember the two principles (the harm principle is important).
o Harm is the only in which the state can intervene in an individual’s
- Mill’s anti-paternalism principle: the state should not be acting as a father.
o This would be a “Nanny”-state
o The state shouldn’t be telling us what’s best for us in our best
- Mill pg.257-8 he tells us that the object of on liberty is
o To prevent harm to others, but in terms of self-regarding actions, as
opposed to other regarding actions, over his own body and mind an
individual is sovereign
- He has a very high threshold for state intervention with our lives
- Devlin has a non-existent threshold of how the state intervenes with our lives
o There are no theoretical limits to the state’s power to our lives
Just as the state has the absolute right to protect itself from
treason and seduction which would jeopardize the survival of
the state, so the state has the absolute right to legislate against
morality, which would also threaten the survival of the state Our moral values are like the cement that hold together
the bricks that hold together our house of society
If you weaken our social cement, then you weaken the
very foundations on which our house is built.
Therefore, immorality, threatens the survival of the
What is immorality?
- This is a circular definition from Devlin.
o Immorality is what every right-minded person is presumed to
o This brings him to the “disgust” principle
- Disgust: The right-minded (ordinary) person thinks is immoral, is in fact
immoral. We know this is immoral is he feels disgust
- In order to have a moral position, we don’t need emotions – we need reasons
- Dworkin: A concept of a moral position doesn’t involve a mere emotional
reaction, and instead it involves reason.
o When someone tells you they’re disgusted that doesn’t involve reason
- The Keegstra case takes the Harm principle and legal moralism and brings
them to life.
o It puts these principles into practical context
- Deals with freedom of expression (hate speech/propaganda)
- We will also look at cases that deal specifically with legal moralism and
- These cases on sexual morality are in search of a theory of harm – they’re
trying to move away from Devlin’s to Mill’s position.
- Butler = obscenity of pornography
- The provision of physical norm of indecency involving more activities.
o Obscenity = words, and expressions, and physical images
- LaBelle = brothels
o These are the leading SCC cases on the subject
- We’ll also look at Bedford (Ontario Appeal Court)
o It will eventually come to judgment to SCC on prostitution.
Constitutional Law Cases
- Four things we should know and are which we will be asked on questions
both on the test and on the final exam. This is an important part of being a
o 1) Understand what is meant when we read or hear that the law is
being impugned as “unconstitutional”
What does that mean?
If a law is being attacked
Impugned = challenged, attacked, seen as not valid, etc. There are a lot of words in the judgment that we should look
Impugned involves an attack of the law being unconstitutional.
o 2) We should know what the methodology of the court is as it goes
about its business of yes or no of whether a law is unconstitutional
The methodology involves a series of steps
We should be able to understand these steps, master them, and
o 3) What happened in this case?
What is the majority judgment? What is its decision?
What is the dissent?
It moves us to understand what the dissent is saying
The opinions are sharply delineated.
Of course, only the majority counts, but often they are
important because they make clearer the judgment.
o 4) We should have our own ideas about the subject matter.
Consider our thinking on the things for ourselves.
This is a huge issue, not only in Canada, but everywhere (hate
speech/propaganda against targeted groups)
What do we think?
Should the criminal law be used to deal with hate
Should hate propaganda be protected or prohibited?
This is important because it concerns not only the targeted
individuals, but also all of society.
Philosophy of Free Expression
- Consider Mill’s value of free expression.
o Both the majority and dissent pick up on these ideas.
- Why is free expression so important?
o There are essentially three main values that underpin free expression
First: the ability for us to express ourselves, as we want, helps
us to realize ourselves as individuals.
Therefore, it helps us, in self-realization, to know who
Second: Free expression allows us to arrive at “truth”. It’s a
way of finding this truth.
Thirdly: it allows us to be participatory in our democracy. It’s a
way to allow us to participate in the political, social, and
- Mill has a lot important things to say
o In the marketplace of ideas, it if important to have a flea market,
where the clash and competing of ideas occur
From their clash, truth may emerge
- Mill talks about the peculiar evil of stifling free expression o It is that we all lose.
- If the opinion that we want to suppress is right, and what we think is wrong,
then if we stifle that idea we lose the opportunity of exchanging our opinion
for truth. If it is wrong, and we stifle it we also lose because in a clash of
opinion that we disagree, we become clearer in what we think. Therefore,
our opinions are clear and crystal
o Whether the opinion is right or wrong, it will always benefit us to hear
There are exceptions however.
- Freedom of expression is not an ABSOLUTE value
o He tells us pg.268 “Even opinions lose their immunity from
prosecution, when they are expressed in circumstances to make a
positive instigation to some mischievous act.
o It’s such a valuable thing, that it must be circumscribed by the context
in which it is accursed
The example of the corn dealers where the freedom of
You are free to yell “fire” when there is a fire, but aren’t when
o Therefore, freedom of expression is a near-absolute value.
- However, where do you draw the line between prohibited and permitted
speech? How do you figure this out?
o You have to weigh factors and do a cost-benefit analysis
o In the SCC there are a number of tests and theories by which
protected speech can be identified, and by which the legitimacy of
governmental regulation of speech (laws that restrict speech through
the criminal law) can be assessed.
In some sense, we can say that Mill is the spiritual godfather of
- This is an art, not a science. There is a point of balance between conflicting
and competing values
o Think Aristotle where he tried to find the point of balance between
the excess and deficiency where the virtue is concerned
You need good judgment (practical wisdom) in order to find
- Reasonable people will find a point of balance, and therefore argumentation
is so important
o Our job is to assess these arguments.
Constitutional Law Cases
- What is the constitutional Law?
- Compare them to civil law and criminal law
o Here we had to match the facts with the law and the law with the facts
o Riggs v. Palmer needed to match the laws on paper with the facts of
Elmer killing the grandfather
Therefore, match the law on wills with the facts of the case o In Lavallée the court had to match the law of self-defense with the law
on an abused spouse who killed her partner as he was leaving
Here, the task was to match the law with the facts
- In a constitutional law case, the court is engaged in another endeavor – it is
matching whether the law on the books (criminal code of Canada, narcotic
control act, etc.) under which the accused has been charged, whether that
law can withstand a constitutional challenge
o The accused isn’t arguing their guilt, they’re challenging the
constitutionality of the law in question
o The accused says that that law under which he has been charged
infringes a higher law (the constitution)
- Consider the Rule of Recognition in Hart:
o It allows the court to identify conclusively whether a law is valid, and
for a law to be valid, it must conform to the rule of recognition – the
master or supreme law of the land.
- Our charter functions in the Rule of Recognition aspect – it allows the court
to determine whether an impugned law meets up with the constitutional law
o Therefore, it is not the accused who is on trial, it is the law that is on
- Consider Dronenburg – the law in question (naval regulation) was
unconstitutional, under which he was dismissed from the navy for
o This was unconstitutional because it violated his right to privacy
Keegstra makes the same kind of argument
- The law under which he was charged violated his constitutional right to free
expression under the charter
- Heads up: It’s the impugned law in Keegstra that is on trial, however, we may
be tempted on the facts of Keegstra’s content wrong doing.
o This is understandable because the facts are easier to handle
o The content is important, however focus on McLachlin’s dissent (349)
lest you yield to that temptation – it is not the statements of Keegstra
which are at issue with the case, but rather the constitutionality of
THIS IS THE FOCUS
The Supreme Law of The Land
- The Charter gives people a variety of fundamental freedoms, democratic
rights, equality rights, mobility, etc.
- There’s also a reference to our multicultural reference
- Note – not every right is in the charter.
o There are no property rights
- This is our supreme rights of the land
- The Charter applies to the federal and provincial governments only.
o It does not apply to citizens in their dealings with each other. - The Charter permits us as citizens and residents to challenge governmental
laws on the basis that these laws violate the fundamental freedom
guaranteed to us under the freedom of the Charter.
- It permits us to use Charter arguments to impugn laws that we feel are bad
- The point of the Charter is to force the state to defend the law that it has
passed as being constitutionally valid
o If the state can meet the onus of the challenge and show that there is
no infringement, or a justified infringement under s1, the law remains
on the books
o If the state cannot meet its onus, then that law is expunged from the
books, and struck down.
Laws in Question
- The impugned law comes from the Criminal code of Canada (federal statute
that applies everywhere), and it has a provision in it that criminalizes hate
o Section 319(2).
Everyone who by communicating statements (other than in
private conversation – you can be as hateful as you want)
willfully (intentionally) promotes hatred against any
identifiable group (defamation) is guilty of an indictable