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1 CONSTITUTIONAL LAW 38 FREEDOM OF EXPRESSION: POLITICAL EXPRESSION Shigenori Matsui.

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1 1 CONSTITUTIONAL LAW 38 FREEDOM OF EXPRESSION: POLITICAL EXPRESSION Shigenori Matsui

2 2 INTRODUCTION To what extent could the government restrict political expression? Ban on false news Ban on advocacy of illegal action, including revolution or violent overthrow of the government Regulation of election speech Regulation of election funding

3 3 I Ban on False News R. v. Zundel s. 181 of the Criminal Code ”Every one who wilfully publishes a statement, tale or news that he knows is false and causes or is likely to cause injury or mischief to a public interest is guilty of an indictable offence and liable to imprisonment...".

4 “The purpose of the guarantee is to permit free expression to the end of promoting truth, political or social participation, and self-fulfilment. That purpose extends to the protection of minority beliefs which the majority regard as wrong or false... Tests of free expression frequently involve a contest between the majoritarian view of what is true or right and an unpopular minority view….Thus the guarantee of freedom of expression serves to protect the right of the minority to express its view, however unpopular it may be; adapted to this context, it serves to preclude the majority's perception of `truth' or `public interest' from smothering the minority's perception. … Viewed thus, a law which forbids expression of a minority or "false" view on pain of criminal prosecution and imprisonment, on its face, offends the purpose of the guarantee of free expression.” 4

5 “The respondent argues that the falsity of the publication at issue takes it outside of the purview of s. 2(b) of the Charter. Two arguments are advanced. The first is that a deliberate lie constitutes an illegitimate "form" of expression, which, like a violent act, is not protected. A similar argument was advanced and rejected with respect to hate literature in Keegstra on the ground that "form" in Irwin Toy refers to the physical form in which the message is communicated and does not extend to its content. The same point is determinative of the argument in this case. ” 5

6 “The second argument advanced is that the appellant's publication is not protected because it serves none of the values underlying s. 2(b). A deliberate lie, it is said, does not promote truth, political or social participation, or self- fulfilment. Therefore, it is not deserving of protection. Apart from the fact that acceptance of this argument would require this Court to depart from its view that the content of a statement should not determine whether it falls within s. 2(b), the submission presents two difficulties which are, in my view, insurmountable. The first stems from the difficulty of concluding categorically that all deliberate lies are entirely unrelated to the values underlying s. 2(b) of the Charter. The second lies in the difficulty of determining the meaning of a statement and whether it is false.” 6

7 Before we put a person beyond the pale of the Constitution, before we deny a person the protection which the most fundamental law of this land on its face accords to the person, we should, in my belief, be entirely certain that there can be no justification for offering protection. The criterion of falsity falls short of this certainty, given that false statements can sometimes have value and given the difficulty of conclusively determining total falsity. Applying the broad, purposive interpretation of the freedom of expression guaranteed by s. 2(b) hitherto adhered to by this Court, I cannot accede to the argument that those who deliberately publish falsehoods are for that reason alone precluded from claiming the benefit of the constitutional guarantees of free speech. I would rather hold that such speech is protected by s. 2(b), leaving arguments relating to its value in relation to its prejudicial effect to be dealt with under s. 1.” 7

8 “Can it be said in these circumstances that the Crown has discharged the burden upon it of establishing that the objective of the legislation is pressing and substantial, in short, of sufficient importance to justify overriding the constitutional guarantee of freedom of expression? I think not. It may be that s. 181 is capable of serving legitimate purposes. But no objective of pressing and substantial concern has been identified in support of its retention in our Criminal Code.” 8

9 “Even if the Court were to attribute to s. 181 the objective of promoting racial and social tolerance and to conclude that such objective was so pressing and substantial as to be capable of overriding a fundamental freedom, s. 181 would still fail to meet the proportionality test which prevailed in Keegstra. First, assuming a rational link between s. 181 and the objective of social harmony, the section is too broad and more invasive than necessary to achieve that aim.” 9

10 “It is argued that the expression here at issue is of little value and hence is less deserving of protection under s. 1 than expression which directly engages the "core" values associated with freedom of expression as identified in Irwin Toy. The short answer to this contention is that expression which a jury might find to be a deliberate lie likely to injure a public interest and which would therefore be inhibited by s. 181 may well relate to the "core" values protected by the guarantee, as the examples cited earlier in these reasons demonstrate. ” 10

11 “The same considerations lead to the conclusion that the gravity of the restriction on the right of freedom of expression is not proportionate to s. 181's putative objective. … Any purpose which can validly be attached to s. 181 falls far short of the documented and important objective of s. 319(2). On the other side of the scale, the range of expression caught by s. 181 is much broader than the more specific proscription of s. 319(2). In short, s. 181 fails the proportionality test applied in Keegstra.” 11

12 2 Advocacy of Illegal Action Is the ban on solicitation to prostitution constitutional? Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 12

13 “I agree, for the reasons given by Wilson J., that s (1)(c) of the Criminal Code, R.S.C. 1970, c. C ‑ 34, represents a prima facie infringement of s. 2(b) of the Canadian Charter of Rights and Freedoms, while s. 193 does not. In my view, the scope of freedom of expression does extend to the activity of communication for the purpose of engaging in prostitution. With respect, however, I disagree with the conclusion reached by Wilson J. that this prima facie infringement is not justified as a reasonable limit under s. 1 of the Charter. ” 13

14 “I would characterize the legislative objective of s (1)(c) in the following manner: the provision is meant to address solicitation in public places and, to that end, seeks to eradicate the various forms of social nuisance arising from the public display of the sale of sex…In my opinion, the eradication of the nuisance ‑ related problems caused by street solicitation is a pressing and substantial concern. I find, therefore, that sending the message that street solicitation for the purposes of prostitution is not to be tolerated constitutes a valid legislative aim. ” 14

15 “With respect to the question of rational connection between the impugned legislation and the prevention of the social nuisance associated with the public display of the sale of sex, I agree with Wilson J. that such a connection exists. In making a choice to enact s (1)(c) as it now reads, Parliament had to try to balance its decision to criminalize the nuisance aspects of street soliciting and its desire to take into account the policy arguments regarding the effects of criminalization of any aspect of prostitution. … I find that this legislation meets the test of minimum impairment of the right in question.” 15

16 “The final question to be answered under the Oakes test is whether the effects of the law so severely trench on a protected right that the legislative objective is outweighed by the infringement… The curtailment of street solicitation is in keeping with the interests of many in our society for whom the nuisance ‑ related aspects of solicitation constitute serious problems weighed against the resulting decrease in the social nuisance associated with street solicitation. I find that the obtrusiveness linked to the enforcement of the provision, when, can be justified in accordance with s. 1.” 16

17 What about the seditious word or seditious libel? S. 61 of the Criminal Code “Every one who (a) speaks seditious words, (b) publishes a seditious libel, or (c) is a party to a seditious conspiracy, is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.” 17

18 3 Election Speech A. Ban on publication of election poll during the final three days before election Thomson Newspapers Co. v. Canada 18

19 B. Ban on publication of election result while polling stations are still open R. v. Bryan [2007] s. 329 of the Canada Elections Act prohibits the transmission of election results in one electoral district to another electoral district before the close of all polling stations in that other district. 19

20 “The Attorney General claims that informational equality is a fundamental principle of electoral democracy…It is a centrally important element of the concept of electoral fairness, and one which this Court has held to be “a laudable objective that will necessarily involve certain restrictions on freedom of expression”, and “a pressing and substantial objective in our liberal democracy, even in the absence of evidence that past elections have been unfair”… I accept that it is pressing and substantial on the basis of logic and reason applied to the evidence brought by the Attorney General.” 20

21 “In this case, the causal connection is eminently clear: allowing some voters to access the results of voting in other districts would patently violate the objective. The suggestion that such information could be available to voters in spite of the ban, through private communications, does not detract from this conclusion… ” 21

22 “Restricting all publication of Atlantic results for a very short period is thus a reasonable way of trying to protect that public confidence, as agreed by Parliamentarians themselves. Parliament considered the alternative options proposed …and determined the s. 329 scheme to be the most effective and least intrusive; there is sufficient evidence in the particular context of this case showing that the policy choice of Parliament is a rational and justifiable solution to the problem of informational imbalance.” 22

23 “The salutary effects of s. 329 are clear. Of primary importance is the fact that s. 329 maintains the integrity of the principle of informational equality, and is the only effective legislative response available to Parliament to address that objective. Regarding the existence of the deleterious effects of s. 329, there is no evidence of harm to the electoral process or to the general right of Canadians to be informed that is of a quality or character manifestly superior to the evidence of the existence of salutary effects in promoting electoral fairness. The s. 329 ban is only operative for a matter of two to three hours, and only on election day; it is only the late voters in fact that will be affected. The magnitude of the ban, it must be noted, is extremely small. Thus the salutary effects of s. 329 outweigh the deleterious effects.” 23

24 IV Election Campaign Finance Regulation A. the ban on unaffiliated campaign spending Libman v. Quebec 24

25 “The Court favours a very broad interpretation of freedom of expression in order to extend the guarantee under the Canadian Charter to as many expressive activities as possible. Unless the expression is communicated in a manner that excludes the protection, such as violence, the Court recognizes that any activity or communication that conveys or attempts to convey meaning is covered by the guarantee of s. 2(b) of the Canadian Charter... There is no doubt that the appellant is attempting to convey meaning through the form of communication at issue; he wishes to express his opinions on the referendum question independently of the national committees by means of expenses that are included in the definition of “regulated expenses”. This is a form of political expression that is clearly protected by s. 2(b) of the Canadian Charter.” 25

26 “Thus, the objective of the Act is, first, egalitarian in that it is intended to prevent the most affluent members of society from exerting a disproportionate influence by dominating the referendum debate through access to greater resources. What is sought is in a sense an equality of participation and influence between the proponents of each option. Second, from the voters’ point of view, the system is designed to permit an informed choice to be made by ensuring that some positions are not buried by others. Finally, as a related point, the system is designed to preserve the confidence of the electorate in a democratic process that it knows will not be dominated by the power of money.” 26

27 “The appellant himself conceded that the objective of the impugned legislation is of pressing and substantial importance in a democratic society. In our view, the pursuit of an objective intended to ensure the fairness of an eminently democratic process, namely a referendum on a question of public interest, is a highly laudable one…. The evidence also shows that unless independent spending is controlled, any system for limiting the spending of the national committees would become futile. In our view, there is clearly a rational connection between limits on independent spending and the legislature’s objective. ” 27

28 “The impugned provisions impose a balance between the financial resources available to the proponents of each option in order to ensure that the vote by the people will be free and informed and that the discourse of each option can be heard. To attain this objective, the legislature had to try to strike a balance between absolute freedom of individual expression and equality among the different expressions for the benefit of all. From this point of view, the impugned provisions are therefore not purely restrictive of freedom of expression. Their primary purpose is to promote political expression by ensuring an equal dissemination of points of view and thereby truly respecting democratic traditions. ” 28

29 “ It can be seen from the evidence that the legislature went to considerable lengths, in good faith, in order to adopt means that would be as non ‑ intrusive as possible while at the same time respecting the objective it had set. Nonetheless, we are of the view that the limits imposed under s. 404 cannot meet the minimal impairment test in the case of individuals and groups who can neither join the national committees nor participate in the affiliation system. In our view, there are alternative solutions far better than the limits imposed under s. 404 Special Version that are consistent with the legislature’s highly laudable objective. ” 29

30 third-party election advertisement regulation Harper v. Canada [2004] 30

31 “The overarching objective of the third party election advertising limits is electoral fairness. Equality in the political discourse promotes electoral fairness and is achieved, in part, by restricting the participation of those who have access to significant financial resources. The more voices that have access to the political discourse, the more voters will be empowered to exercise their right in a meaningful and informed manner. Canadians understandably have greater confidence in an electoral system which ultimately encourages increased participation.” 31

32 “the Attorney General of Canada does not need to provide evidence of actual harm to demonstrate that each objective is pressing and substantial…To require the Attorney General to produce definitive social science evidence establishing the causes of every area of social concern would be to place an unreasonably high onus on the Attorney General. In this case, the Attorney General adduced sufficient informed evidence of the importance of electoral regulation in our free and democratic society.” 32

33 “There is sufficient evidence establishing a rational connection between third party advertising expense limits and promoting equality in the political discourse, protecting the integrity of the financing regime applicable to candidates and parties, and maintaining confidence in the electoral process. In this case, the contextual factors indicate that the Court should afford deference to the balance Parliament has struck between political expression and meaningful participation in the electoral process. Section 350 minimally impairs the right to free expression. ” 33

34 “Section 350 has several salutary effects. It enhances equality in the political discourse…. Section 350 also protects the integrity of the candidate and political party spending limits by ensuring that these limits are not circumvented through the creation of phony third parties. Finally, s. 350 promotes fairness and accessibility in the electoral system and consequently increases Canadians’ confidence in it. The deleterious effect of s. 350 is that the spending limits do not allow third parties to engage in unlimited political expression. That is, third parties are permitted to engage in informational but not necessarily persuasive campaigns, especially when acting alone. When weighed against the salutary effects of the legislation, the limits must be upheld.” 34

35 To what extent the government should be allowed to regulate election campaign finance? 35

36 V Contempt of Court Contempt of court and freedom of expression BCGEU v. BC [1988] 36

37 “…the picketing constituted a deliberate course of conduct which could only result in massive disruption of the court process of British Columbia, and the consequential interference with the legal and constitutional rights of Canadian citizens. Assuring unimpeded access to the courts is plainly an objective "of sufficient importance to warrant overriding a constitutionally protected right or freedom” … and relates to a concern which is "pressing and substantial in a free and democratic society”...” 37

38 “The means taken…to accomplish that objective satisfy the three ‑ step proportionality test established by this Court in Oakes. First, there is a rational connection between the injunction and the objective of ensuring unimpeded access to the courts. Second, the injunction accomplished this objective by impairing as little as possible the s. 2(b) rights of the members of the Union. ” 38

39 “Finally, there was a proportionality between the effects of the injunction on the protected right and the objective of maintaining access to the court. While the injunction limited the s. 2(b) Charter rights of the members of the Union, that limitation was wholly proportional to the objective of the order, namely, to maintain access to the courts and to ensure that the courts remained in operation in order that the legal and Charter rights of all citizens of the province would be respected.” 39

40 Dagenais v. CBC [1994] 40

41 “The common law rule governing publication bans has been traditionally understood as requiring those seeking a ban to demonstrate that there is a real and substantial risk of interference with the right to a fair trial. This rule accorded some protection to freedom of expression, in so far as it prevented publication bans from being imposed for no reason, or in response to merely speculative concerns. The question that must be addressed, however, is whether the rule provides sufficient protection for freedom of expression in the context of post-Charter Canadian society.” 41

42 “The pre-Charter common law rule governing publication bans emphasized the right to a fair trial over the free expression interests of those affected by the ban. In my view, the balance this rule strikes is inconsistent with the principles of the Charter, and in particular, the equal status given by the Charter to ss. 2(b) and 11(d). It would be inappropriate for the courts to continue to apply a common law rule that automatically favoured the rights protected by s. 11(d) over those protected by s. 2(b).” 42

43 “It is open to this Court to "develop the principles of the common law in a manner consistent with the fundamental values enshrined in the Constitution": Dolphin Delivery, supra, at p. 603 (per McIntyre J.). I am, therefore, of the view that it is necessary to reformulate the common law rule governing the issuance of publication bans in a manner that reflects the principles of the Charter. Given that publication bans, by their very definition, curtail the freedom of expression of third parties, I believe that the common law rule must be adapted so as to require a consideration both of the objectives of a publication ban, and the proportionality of the ban to its effect on protected Charter rights. ” 43

44 “The modified rule may be stated as follows: A publication ban should only be ordered when: (a) Such a ban is necessary in order to prevent a real and substantial risk to the fairness of the trial, because reasonably available alternative measures will not prevent the risk; and (b) The salutary effects of the publication ban outweigh the deleterious effects to the free expression of those affected by the ban.” 44

45 “The publication ban in the case at bar would have passed the first stage of analysis under the common law rule if: (1) the ban was as narrowly circumscribed as possible (while still serving the objectives); and (2) there were no other effective means available to achieve the objectives. However, the initial ban in the case at bar was far too broad. It prohibited broadcast throughout Canada and even banned reporting on the ban itself. In addition, there were other effective means available to achieve the objectives. ” 45

46 “The party claiming under the common law rule that a publication ban is necessary to avoid a real and serious risk to the fairness of the trial is seeking to use the power of the state to achieve this objective. A party who uses the power of the state against others must bear the burden of proving that the use of state power is justified in a free and democratic society. Therefore, the party seeking the ban bears the burden of proving that the proposed ban is necessary, in that it relates to an important objective that cannot be achieved by a reasonably available and effective alternative measure, that the proposed ban is as limited (in scope, time, content, etc.) as possible, and there is a proportionality between the salutary and deleterious effects of the ban.” 46

47 To what extent should the government be allowed to restrict freedom of expression in order to secure the fair trial? Could the courts punish the criticisms against the court as a contempt of court? 47


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