Philosophy 2730F/G Study Guide - Antonin Scalia

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27 Nov 2012
Department
Professor
Keegstra 11/27/2012 9:57:00 AM
Lecture 9
Rv. Keegstra
The Charter, the US Bill of Rights, and the limits to the guarantee of
Freedom of Expression
A Constitution is the fundamental law of a constitutional state
o Fundamental all other laws within the state qualify as laws
only if as they are consistent with the requirements of the
constitution
o The purpose of a constitution is to articulate how the state is
constituted
Distribution of powers (e.g., legislative, executive,
judiciary)
Distribution of distinct responsibilities among the
separate jurisdictions within the state (e.g., federal and
provincial)
o Many constitutions also include limits on the ways in which
the powers of the State can be exercised against their citizens
A bill of rights Charter of Rights and Freedoms in
Canada
Imposes restrictions on the sorts of legislation
government can create
o Courts enforces the limits imposed on governments in a bill of
rights the power of judicial review
o The power of judicial review allows judges to declare laws
unconstitutional when they violate constitutional guarantees,
and strike them down
Rv Keegstra (pg. 214)
The primary question before the Court:
o Does Section 319(2) of the Criminal Code violate the Charter
guarantee of freedom of expression in section 2(b), in a
manner that is consistent with section 1?
o Dickson, CJC writes the opinion for the majority, facts:
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Keegstra teaches anti-Semitism to his students, and
grades them poorly if they fail to reply with his
teachings
Relevant Statutory provisions:
s. 319(2) of the CCC
ss. 1, 2(b), 15 and 27 of the Charter
1
2(b)
15 equal treatment under the law
27 multiculturalism
The Court‟s answer to question #1 begins with another question:
o Does 319(2) violate/infringe s. 2(b) of the Charter?
Yes because hate speech is not a form of violence, so
319(2) is restricting the content of a kind of speech
So now the Court must consider whether that
infringement is a „reasonable limit‟ that can be
demonstrably justified in a free and democratic society‟
To make that determination, the Court performs the Oakes Test
o The Oakes Test is applicable to all s. 1 Charter issues any
time a citizen claims legislation violates their Charter rights
o Part I is the objective of the Legislation “of pressing and
substantial concern in a free and democratic society”?
o Part II proportionality
1) Rationally connected
2) Minimal Impairment (restricting as little as possible)
o Prior to the Oakes test proper, Dickson feels it necessary to
provide some context:
1) A brief outline of the values that underwrite the
phrase „free and democratic society‟
2) An explanation of why the U.S. approach to free
speech is not applicable in a Canadian context
Part I: Is the objective of pressing and substantial concern? Yes, if
o 1) We consider the harms (both actual and potential) that
Hate Propaganda causes
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o 2) We consider the values expressed in Canada‟s
International agreements
o 3) We need to consider the values that underlie ss. 15 and 27
of the Charter
o Based on these three sets of considerations, the Court
concludes that the objective of limiting hate propaganda is a
pressing and substantial concern
Part II: Proportionality
o The first issue to consider before addressing the specific
elements of part II of the Oakes test is how Keegstra‟s form
of expression relates to other forms of expression protected
by 2(b) does his hate propaganda bear some less robust
connection to 2(b) than other forms of expression?
o Yes, because
i) It does not contribute to the common good or to truth
ii) It does help with propagators feelings of self-esteem,
but at the expense of the self-esteem of the groups
targeted
iii) It is a form of political expression, but one that is
opposing to the wide, participatory expression sought in
a free and democratic society
o 1) Rational Connection (between measure and objective)
Justice McLachlin gives three reasons in her dissenting
opinion that are intended to show why there is no
rational connection:
i) Because 319(2) might actually promote the
cause of and generate sympathy for hate-
mongers
ii) The public may view the suppression with
suspicion
iii) Similar laws in pre-Nazi Germany did not help
prevent the rise of the Nazi party
Dickson responds to each concern:
i response no, it wouldn‟t because the law and
judicial process shows Canadian opposition to
hate mongers.
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