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HUMA 1825 Note 17.docx

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York University
HUMA 1825
Neil Braganza

HUMA 1825 Note 17 Constitutional Law - We have the Keegstra case, the Butler case and the Bedford case (about prostitution) - Labaye is a criminal law case (like Lavallée) and it examines the concept that is close to obscenity (indecency) o Given what is involved in the second segment of the course, it is necessary to review: - There are two main themes with the second segment: o One: the Mill- Devlin debate on when the criminal law must be used to criminalize morality (or to legislate morality) o Two: How to do and understand a constitutional law case that deals with the Mill – Devlin debate o All the materials are interrelated in this segment. - In Butler we have a (valiant) attempt or struggle to show that Mill and not Devlin type analysis is operative where porn and obscenity are concerned. - In constitutional law cases – the law itself is on trial, not so much the individual who is accused, but the law itself. o This is in the sense that some statute (federal or provincial) [Criminal Code = federal statute) or legislative provision that the accused is alleging is unconstitutional  This is the thrust of constitutional cases – to put the law on trial.  The accused says that these provisions of the federal statute under which he has been charged with a crime that they violate a higher law (Supreme Law of the Land – The Charter) o The Charter plays the role that the rule of recognition plays in Hart’s legal system o This means that the rule of recognition is the law by which the validity of all the other laws in the legal system are determined. o In The Keegstra case (On hate Speech) it was 319(2) o In The Butler Case (on obscenity) it was 163(8)  The accused (in both cases) claim that these statutes infringe their section 2(b) of the Charter rights. The Constitutional Case Method - In every instance of constitutional law the courts follow a two-step procedure of whether a law should be struck down as unconstitutional. o Step 1: Decide whether the impugned law violates the freedom of expression guaranteed to the accused under section 2 (b) of the Charter.  The Court has a test to answer this question: the test is taken from the Irwin Toy Case:  Irwin Toy says that an expression is protected as an expression under section 2(b) of the Charter if it has meaning or attempts to convey meaning. o If the answer to that question is yes, (if it has meaning or attempts to convey meaning) it doesn’t matter what the content of that expression is. o Therefore, if it doesn’t matter if the content of the expression offends us; what matters is that it has meaning o The only expression under the Irwin Toy test that won’t be protected is the expression that is physically violent or that is an incitement to violence.  The Second Branch of the Irwin Toy test asks whether the impugned violation seeks to limit and restrict expression.  In Keegstra, the court easily determines that his statements are in fact protected, and determines that the provision in the criminal code under which Keegstra was charged with a crime violates Keegstra’s section 2(b) rights and is not constitutional o After Step 1, the court says that the impugned law indeed does violate the accused’s right o Step 2: After the court finds that there has violation to the accused’s right, it moves to an analysis under s.1 of the charter that allows the rights to be limited under certain conditions, following a certain course of action.  Here, the court is engaged in a balancing act – it’s trying to figure out what are the costs and benefits of limiting freedom of expression (hate expression) v. the costs and benefits of allowing freedom of expression (hate expression)  It’s balancing various values – on the one hand, allowing freedom of expression has different benefits such as the full self-development of individuals who say what they think freely and fully. It allows truth to emerge in the marketplace of ideas. It makes for a robust democracy – it allows us all to participate as citizens in our democracy by saying fully and freely what we think about our politics.  On the other hand there are benefits of restriction such as equality and individual value of each person’s dignity. There is also the value of social harmony that follow from restricting hate speech. o Therefore, the court has to figure out where the point of balance is with all the competing costs and benefits  In Aristotle, it has to find the Golden Mean of Expression – the point where the costs and benefits balance themselves out. o The Oakes Test – this is the balancing of costs and benefits used in all constitutional cases.  First prong of the Oakes test asks  What is the objective of the impugned legislation? Is the objective pressing and substantial? Only such an objective will satisfy the first prong of the test  In the Keegstra case, all of them agreed that the objective of the hate-propaganda laws of the Criminal code was to prevent the harm of hate speech to members of the targeted groups and social harmony.  In Butler, the court strains to establish harm (of obscenity) – analogous to the harm of hate speech o You decide whether the court succeeds or fails.  Second prong of the Oakes test asks three different questions of proportionality of whether the means chosen to prevent harm are proportionate and appropriate to indeed achieve the objective. o Primarily the court wants to know if there is a rational connection between the objective and the means of achieving the objective.  In Keegstra, the dissent thinks that the means don’t achieve the objective – they think that the hate propaganda law will achieve the opposite effect that it intends and might increase the popularity of the hate monger rather than reduce. o Secondly, the court wants to know if there is minimal impairment to the accused’s freedom in question that is restricted.  In Keegstra the dissent thinks that the impugned law is too vague and will cause a “chilling effect” on speech o Thirdly, are the over all costs of restricting freedom of expression outweighing the benefits of the cost of restricting freedom - Pornography, indecency and obscenity are used interchangeably. o You will note in Butler that materials are obscene are also referred to as indecent, and the words obscenity and porn are used interchangeably.  For Example, pg. 378 Sopinka speaks about the various relationships. Butler Case - Butler had a store in Winnipeg where he sold and rented pornographic material such as videos, magazines, etc. o The shop was an adult video shop containing a notice on the door “if this kind of material offends you, don’t come in!” o If you were under 18 years of age, you weren’t allowed to come in. - In 1987 the police Charged Butler with 250 counts under the obscenity provision under the criminal provision of Canada o In response, Butler used the same arguments as Keegstra about the unconstitutionality about section 163(8) - He argued that the law on obscenity violated his section 2 (b) rights under the Charter, and therefore should be struck down. - The focus of this case is Section 163 of the Criminal Code (Page 368) o Any publication the dominant characteristic of which is the undue exploitation of sex or any one or more of the subjects (crime or cruelty of the subject) shall be deemed obscene. o This is a two part definition  “The exploitation of sex” has to be both dominant and undue exploitation of sex  Undue is the problem because it references a degree of exploitation.  Up until a certain point, the exploitation is all right. When it becomes undue it is now a matter of degree, the exploitation of sex is excessive and too much  When it is “undue” under the legislation, then it attracts the attention of the police, and people may be charged with obscenity of 163(8)  The problem is that the parliament doesn’t fully define what “undue” means. o Where is the bright line that tells when you’ve crossed from what is permitted to what is criminal.  The other part of definition of “obscenity” is when sex is coupled with crime, horror, cruelty and violence. Therefore, obscenity will be deemed to be made out – it doesn’t actually have to be made out in any publication where the dominant characteristic is the undue exploitation of sex or where there is sex together with crime, etc. - Therefore, does the law violate his right, and if yes, then can it be saved under s.1 of the Charter? - The lower courts took him to trial o The trial judge convicted him on 8 counts, and acquitted him on 242 counts o The Crown appealed the decisions and then Butler Cross appealed - At the Manitoba Court the majority of the judges convicted him on 250 judges, the dissent of Twaddle would dismiss the appeal and allow conviction on 8 charges, and the dissent of Helper would acquit him on 250 charges. - Helper believes that it shouldn’t be the responsibility of judges to define the bigger concepts such as “obscenity” o Therefore, when the case gets to the Supreme Court of Canada - The First order of business is to define what obscenity means. o This question has to be answered
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