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Week 9 - R v. Keegstra

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Western University
Philosophy 2730F/G
Ryan Robb

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:  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 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
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