Whatcott: the redaction of the Taylor dissent

INTRODUCTION

In its 2013 Saskatchewan v. Whatcott[1] decision, the Supreme Court of Canada (SCC) unanimously upheld the constitutionality of the hate speech prohibition contained in section 14(1)(b) of The Saskatchewan Human Rights Code.[2]

The impugned provision makes it illegal to publish printed material that exposes or tends to expose any person or class of persons to hatred on the basis of a prohibited ground of discrimination. After undergoing a Charter[3] analysis, the SCC held that section 14(1)(b) of the Code infringes sections 2(b) freedom of expression and 2(a) freedom of conscience and religion but that this infringement is demonstrably justified under section 1. The SCC has again shown itself unwilling to defend a broadly construed constitutional right to freedom of expression.

But in the end, what is surprising about the Whatcott decision is not the result. It’s surprising because it is unanimous.


PROCEDURAL HISTORY

In 2001 and 2002, William Whatcott, a self-proclaimed anti-gay activist produced and distributed a variety of offensive flyers in Regina and Saskatoon. The flyers contained his opinions regarding homosexuality. Four recipients of Whatcott’s flyers filed complaints with the Saskatchewan Human Rights Tribunal (Tribunal) alleging that the flyers promoted hatred against individuals on the basis of their sexual orientation.

The Tribunal held that four of Whatcott’s flyers contravened section 14(1)(b) of the Code. Section 14(1) reads:

14(1) No person shall publish or display, or cause or permit to be published or displayed, on any lands or premises or in a newspaper, through a television or radio broadcasting station or any other broadcasting device, or in any printed matter or publication or by means of any other medium that the person owns, controls, distributes or sells, any representation, including any notice, sign, symbol, emblem, article, statement or other representation:

…

(b) that exposes or tends to expose to hatred, ridicules, belittles or otherwise affronts the dignity of any person or class of persons on the basis of a prohibited ground.

In 2007, the Saskatchewan Court of Queen’s Bench affirmed the Tribunal’s decision.[4] In 2010, the Saskatchewan Court of Appeal (SKCA) allowed the appeal concluding that none of Whatcott’s flyers satisfied the high legal standard set for “hatred” by the SCC’s jurisprudence and that Whatcott therefore had not violated section 14(1)(b).[5] At no time were the constitutional arguments advanced by Whatcott successful in any of these decisions.


THE 1990 TAYLOR DECISION

Both Saskatchewan courts recognized they were bound by the SCC’s seminal Canada v. Taylor[6] decision. It was the definition of “hatred” as set out in Taylor that the SKCA held Whatcott’s flyers failed to satisfy.

Taylor concerned the constitutionality of the hate speech prohibition in section 13(1) of the Canadian Human Rights Act.[7] In that decision, the SCC found that section 13(1) is aimed only at expression involving feelings of an “ardent and extreme nature” and “unusually strong and deep-felt emotions of detestation, calumny and vilification.”

John Ross Taylor publicly distributed cards inviting calls to a phone number that was answered by a recorded message. The Canadian Human Rights Commission (CHRC) received complaints about the anti-Semitic content in the message. The CHRC held that the messages were discriminatory under section 13(1) and ordered Taylor to cease the practice. Taylor challenged the constitutionality of section 13(1), arguing that it violated his freedom of expression.

Section 13(1) was repealed in 2013, but in 1990 it read:

It is a discriminatory practice for a person or a group of persons acting in concert to communicate telephonically or to cause to be so communicated, repeatedly, in whole or in part by means of the facilities of a telecommunication undertaking within the legislative authority of Parliament, any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that that person or those persons are identifiable on the basis of a prohibited ground of discrimination.

On appeal to the SCC, four of the seven justices upheld section 13(1). In the years following, the Taylor decision was severely criticized—fuelled in no small part by the dissenting opinion of Justice McLachlin (as she was then).

In her reasons, McLachlin, J. canvassed many of the problems with hate speech prohibitions as contained in human rights legislation. For instance, there are problems of subjectivity. The word “hatred” is an ambiguous, emotionally charged term indicating a psychological state and it is capable of a wide range of meanings amongst different people. Lacking any definition in the statute and arguably incapable of sufficiently precise definition, it must inevitably function as a proxy for the personal and political views of the judiciary.

Also, since the hate speech prohibition in section 13(1) lacks any intent or harm requirement, it is entirely possible that someone be punished under this provision for acts that were never intended to be discriminatory and that caused no one any harm or actual discrimination.

The provision’s inherent subjectivity and overbreadth make it impossible to know beforehand whether any particular expression is illegal or not. And as a result, the prohibition produces a chilling effect on the free expression of ideas.

In the years following Taylor, McLachlin, J.’s dissent seemed to be winning broad support.

In December 2007, Maclean’s magazine and author Mark Steyn were the subjects of human rights complaints by Mohamed Elmasery of the Canadian Islamic Conference before the Canadian, Ontario, and British Columbia Human Rights Tribunals for publishing 18 allegedly “Islamophoic” articles. And between 2006 and 2008, Ezra Levant was the subject of an Alberta human rights complaint made by Syed Soharwardy of the Islamic Supreme Council of Canada because Levant published the infamous Jyllands-Posten cartoons of Muhammed in his Western Standard magazine. None of these complaints were successful, but both Steyn and Levant became out-spoken critics of hate speech prohibitions as contained in human rights legislation—with Levant publishing a book on the topic.[8]

In 2008, Professor Richard Moon of the University of Windsor’s Faculty of Law released a report[9] commissioned by the CHRC on section 13 recommending that the hate speech prohibition be repealed and that,

We must develop ways other than censorship to respond to expression that stereotypes and defames the members of an identifiable group and to hold institutions such as the media accountable when they engage in these forms of discriminatory expression.[10]

In 2009, the Canadian Human Rights Tribunal refused to apply section 13 of the Canadian Human Rights Act against Mark Lemire for discriminatory comments allegedly made by a third party on a website administered by Lemire. The Tribunal held that section 13 is an unjustifiable violation of freedom of expression because it permits the government to penalize individuals with large monetary fines for merely saying something offensive or unpopular.[11]

Over this same period of time, the work of various Canadian civil liberties organizations, like the British Columbia Civil Liberty Association (BCCLA), the Canadian Civil Liberties Association (CCLA), and the Canadian Constitution Foundation (CCF), brought the censorship of Canada’s various hate speech provisions as contained in human rights legislation under public scrutiny.

In a 1998 position paper of the BCCLA titled “Freedom of Expression in Public Spaces”, the author wrote:

Freedom of expression is not simply an abstract principle. It is a fundamental part of any democratic society. It is also the best weapon we have to combat hateful expression. It is more effective than censorship. If, as a society, we choose to abandon it, we become something less than a democracy. Tolerating speech with which we disagree is thus not only the surest way to minimize the effects of hatred, it is also the surest way we have of supporting democracy itself.[12]

In 2008, Alan Borovoy, the founder of the CCLA was quoted in the Edmonton Journal as saying,

Groups that bash gays, women or religious organizations may be repugnant, but democracies must allow them to speak freely…[13]

A 2008 report published by the CCF argued:

Laws and policies which restrict freedom of expression have a dangerous “chilling effect” which leads to self-censorship among citizens. A restriction on speech affects not only those caught and prosecuted, but also those who may refrain from saying what they would like to because of the fear that they will be caught. Thus, restrictions on freedom of expression inhibit worthy minority groups and individuals from saying what they desire to say for fear that they might be prosecuted.[14]

This author was highly critical of the Taylor decision’s treatment of freedom of expression in a 2012 paper in the C2C Journal.

Subsection 13(1) is too great an interference with freedom of expression, because its intended benefit pales in comparison to the harm it produces. The free expression of ideas, especially those that are unpopular, is of foundational importance in “a free and democratic society”… Freedom of expression is a fundamental human right that is necessary for “a free and democratic society” because it protects individuals from the tyrannies of the state and the majority.[15]

Each of these aforementioned examples provided advocates for liberty and limited government the hope that the Whatcott appeal would give the SCC the an opportunity to reconsider the constitutional issues previously decided in Taylor.

WHATCOTT—a restatement of Taylor

When its decision was released on February 27, 2013, the SCC held that two of Whatcott’s impugned flyers contravened the section 14(1)(b) of the Code, but that the other two did not.

What came as a complete surprise advocates for liberty and limited government was that instead of issuing a highly divided decision—like the Taylor court—the SCC unanimously upheld the constitutionality of section 14(1)(b) of the Code finding only that portion which reads “ridicules, belittles or otherwise affronts the dignity” as unconstitutional.[16] In reaching this conclusion, the SSC held that section 14(1)(b) infringed Whatcott’s Charter rights to freedom of expression[17] and freedom of religion,[18] but that these infringements were justified under section 1.[19]

Of the four flyers at issue, the SCC found the Tribunal’s decision that the first two flyers exposed or tended to expose gays to hatred reasonable. Among other things, those two flyers contained Whatcott’s assertions that gay and lesbian teachers use “dirty language to describe lesbian sex and sodomy to their teenage audience”,[20] and that “Sodomites are 430 times more likely to acquire Aids and 3 times more likely to sexually abuse children”.[21]

The SCC found that the remaining two flyers did not to satisfy the legal definition of hatred. These flyers contained photocopies of personal ads and Whatcott’s handwriting that read,[22]

Saskatchewan’s largest gay magazine allows ads for men seeking boys!;

and,

If you cause one of these little ones to stumble it would be better that a millstone was tied around your neck and you were cast into the sea.

Writing for the unanimous SCC, Rothstein, J. said,

...in my view the Taylor definition of “hatred”, with some modifications, provides a workable approach to interpreting the word “hatred” as it is used in prohibitions of hate speech.[23]

In his subsequent discussion, Rothstein, J. made three main prescriptions to ensure that section 14(1)(b) of the Code operated within the limits placed on all legislation by the Charter.

First, “hatred” must be assessed objectively, not subjectively. The courts must pose the question whether “when considered objectively by a reasonable person aware of the relevant context and circumstances, the speech in question would be understood as exposing or tending to expose members of the target group to hatred.”[24] During the course of an assessment, the adjudicator is to place his or her personal views aside.[25] Shifting the analysis away from the speaker’s intent allegedly helps to answer the criticism that “hatred” is an unworkable as a legal test on account of its irremediable subjectivity.

Second, “hatred” must be restricted to only those extreme manifestations of emotion described by the words “detestation” and “vilification”.[26] Expression that exposes vulnerable groups to detestation and vilification must be far more than merely discrediting, humiliating, or offending. It must vilify and seek to abuse, denigrate, or delegitimize a protected group or person as lawless, dangerous, or unacceptable.[27]

In the SCC’s opinion, this standard will yet permit offensive and repugnant speech provided that it does not incite the high level of abhorrence necessary to satisfy the definition of “hatred”.[28] And building on this definition, human rights legislation should not be considered to aim at the elimination of the emotion of hatred from human experience. Instead, it aims to eliminate extreme forms of expression that have the potential to inspire the illegal discriminatory treatment of protected groups.[29]

Third, adjudicators are to focus on the effect of the expression—i.e. whether the impugned expression is likely to expose a protected group to hatred. The repugnancy of the ideas expressed and the intent of the individual(s) expressing those ideas are not sufficient on their own.[30] It is the mode of public expression and the effect that this mode of expression may have—not the ideas themselves—that must concern adjudicators.[31] And this is where the correct objective test must be applied—would a reasonable person consider the expression vilifying a protected group or individual as having the potential to lead to discrimination?[32]

Applying this to Whatcott, the SCC found in two short paragraphs that section 14(1)(b) of the Code infringed Whatcott’s rights to freedom of expression and freedom of religion. Nearly all the remaining analysis in the decision centered on how these infringements are justified under section 1 of the Charter. In the end, the SCC held that Saskatchewan government’s objective in enacting a hate speech prohibition was pressing and substantial[33] and proportional[34]—thereby satisfying the Oakes[35] test.

In dealing with the criticism that the impugned prohibition requires no intent to discriminate, Rothstein, J. offered no new analysis and merely quoted a portion of the Taylor decision before dismissing the criticism in two sentences.

The preventative measures found in human rights legislation reasonably centre on effects, rather than intent. I see no reason to depart from this approach.[36]

Regarding the criticism that the Code requires no proof of actual harm, Rothstein, J. held that establishing a causal link between an expressive statement and any resulting hatred suffered is too onerous a burden for a complainant to bear, and as such, preventative measures—like prohibiting speech deemed hateful without proof of harm—are justified.[37]

And regarding the criticism that the Saskatchewan legislature has provided no defences—including that the content of any impugned expression is true—to individuals accused of publishing hate materials, Rothstein, J. said,

[139] Critics find the absence of a defence of truth of particular concern, given that seeking truth is one of the strongest justifications for freedom of expression. They argue that the right to speak the truth should not be lightly restricted, and that any restriction should be seen as a serious infringement.

[140] I agree with the argument that the quest for truth is an essential component of the “market of ideas” which is, itself, central to a strong democracy. The search for truth is also an important part of self-fulfillment. However, I do not think it is inconsistent with these views to find that not all truthful statements must be free from restriction…

Rothstein, J. then dismissed this criticism since “even truthful statements may be expressed in language or context that exposes a vulnerable group to hatred.”[38]


WHATCOTT—the redaction of the Taylor dissent

In striking contrast with the 1990 Taylor decision, the 2013 Whatcott decision is unanimous and monolithic—there is no dissent. The SCC has closed ranks and will no longer broach alternatives. This means that Chief Justice McLachlin’s Taylor dissent has effectively been redacted. The problems canvassed in Taylor have not been satisfactorily resolved in Whatcott—all we get is the SCC’s undivided assertion that the prohibition is constitutional when applied in a manner complying with the three prescriptions discussed above. But does this imply that there never was a problem? And most importantly, what has happened in the intervening 20+ years to change Chief Justice McLachlin’s mind?

It wasn’t always this way. Freedom of expression and free speech both have long been recognized in Canadian law. The right to freedom of expression in Canada was not created by the Charter. Canadians enjoyed a right to free speech and freedom of expression prior to 1982.

Before she became Chief Justice, Justice McLachlin said in R. v. Keegstra that “freedom of speech is a fundamental Canadian value”,[39] and

Freedom of speech and the press had acquired quasi-constitutional status well before the adoption of the Charter in 1982.

She further said that,

The enactment of s.2(b) of the Charter represented both a continuity of [this] tradition, and a new flourishing of the importance of freedom of expression in Canadian society.[40]

Quoting from A. W. MacKay, "Freedom of Expression: Is It All Just Talk?",[41] Justice McLachlin went on to affirm that,

Freedom of expression was not invented by the Charter of Rights and Freedoms...

Justice McIntyre shared Justice McLachlin’s view. In the SCC RWDSU v. Dolphin Delivery Ltd.[42] decision of 1986, Justice McIntyre indicated the fundamental importance of freedom of expression for our democratic institutions.

Freedom of expression is not, however, a creature of the Charter. It is one of the fundamental concepts that has formed the basis for the historical development of the political, social and educational institutions of western society. Representative democracy, as we know it today, which is in great part the product of free expression and discussion of varying ideas, depends upon its maintenance and protection.[43]

In other words, as the various Canadian civil liberties organizations have been arguing, the continued existence and flourishing of our free society is dependent upon the right of each individual to freely express his or her ideas without fear of reprisal. And regardless of how difficult the SCC says it is to satisfy the legal definition of “hatred”, the threat posed by Canada’s various hate speech prohibitions—of which Saskatchewan’s section 14(1)(b) is an example—does have a chilling effect on freedom of expression.

And there’s a simple and ironic fact that cannot be overlooked in all of this. If Whatcott is on a hate campaign, Saskatchewan’s hate speech prohibition has provided him with a powerful means to disseminate his views. Each judicial decision has reproduced and circulated his materials and broadened his public exposure. Had no complaint been made about Whatcott’s flyers in 2001 and 2002, they would have faded into obscurity and Whatcott likely would not have received national media coverage.

At this stage it’s entirely likely that Whatcott will be elevated to the status of folk-hero by those who share his prejudices. Instead of facing a legal prosecution, lending credence to the appearance of martyrdom, Whatcott should have been ignored or debated. After all, it’s best not to silence bigots by the application of force—let them speak, freely. As the old proverb says, even a fool who keeps silent is considered wise.

There is a second irony also. It has not been that long since homosexuality was considered repugnant to the majority of Canadians which resulted in the marginalization of homosexuals within our society. This has changed in part because of the recognition by our governments and courts that freedom of expression without fear of legal reprisal is a fundamental human right. Permitting the free expression of what was once considered repugnant has resulted in greater freedom and legal rights for gay individuals. Thus, to protect a broadly construed individual right to freedom of expression is to preserve the very conditions that made the current more tolerant state of affairs possible.

The SCC has shown itself unwilling to defend a broadly construed constitutional right to freedom of expression as desired by advocates of liberty and limited government from across the political spectrum.

Section 13 of the Canadian Human Rights Act was repealed in 2013 in the months following the Whatcott decision. Saskatchewan’s prohibition remains on the books.

This Case Comment was published in the Alberta Law Review in the Spring of 2014.

ENDNOTES:

[1] Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11 [Whatcott].

[2] The Saskatchewan Human Rights Code, SS 1979, c S-24.1 [Code].

[3] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].

[4] Whatcott v. Saskatchewan (Human Rights Tribunal), 2007 SKQB 450 (CanLII).

[5] Whatcott v. Saskatchewan (Human Rights Tribunal), 2010 SKCA 26.

[6] Canada (Human Rights Commission) v. Taylor, [1990] 3 SCR 89 [Taylor].

[7] Canadian Human Rights Act, RSC 1985, c H-6 [CHRA].

[8] Ezra Levant, Shakedown (Toronto: McClelland and Stewart Ltd, 2009).

[9] Richard Moon, "Report to the Canadian Human Rights Commission Concerning Section 13 of the Canadian Human Rights Act and the Regulation of Hate Speech on the Internet" (October 2008) online: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1865282

[10] Ibid. at 1.

[11] Warman v. Lemire, 2009 CHRT 26. This decision was overturned and the constitutionality of section 13 upheld on appeal to the Federal Court in Warman v. Lemire, 2012 FC 1162.

[12] “Freedom of Expression in Public Spaces”, online: http://bccla.org/our_work/freedom-of-expression-in-public-spaces/

[13] Edmonton Journal, “Defence of Free Speech Must be Absolute” Edmonton Journal (28 October 2008) online: http://www.canada.com/edmontonjournal/news/cityplus/story.html?id=449e1994-5d1d-4808-abca-aa7b1f096f66

[14] John Carpay and Desmond Burton-Williams, “The Right to Offend: a Canadian Constitutional Principle” online: http://theccf.ca/wp-content/uploads/2013/07/The-Right-to-Offend.pdf

[15] Karen Selick and Derek From, “The Charter at 30: Charter Jurisprudence that Went off the Rails” C2C Journal (19 March 2012) online: http://c2cjournal.ca/2012/03/the-charter-at-30-charter-jurisprudence-that-went-off-the-rails/

[16] Ibid. at paras. 99-100.

[17] Ibid. at para. 63.

[18] Ibid. at para. 156.

[19] Ibid. at paras. 151 & 164.

[20] Whatcott, at para. 182.

[21] Ibid. at para. 183.

[22] Ibid. at para. 184.

[23] Ibid. at para. 55.

[24] Ibid. at para. 35. Also see para. 56.

[25] Ibid. at para. 35.

[26] The Taylor decision also included “calumny”—along with “detestation” and “vilification”—but this is now unnecessary for reasons described in para. 42 of Whatcott.

[27] Whatcott, at para. 41.

[28] Ibid. at para. 57.

[29] Ibid. at para 48.

[30] Ibid. at para. 58.

[31] Ibid. at para 51.

[32] Ibid. para. 52.

[33] Ibid. at paras. 69-77.

[34] Ibid. at paras. 78-151.

[35] R. v. Oakes, [1986] 1 SCR 103.

[36] Whatcott, at para. 127.

[37] Ibid. at para. 130.

[38] Ibid. at para. 141.

[39] [1990] 3 S.C.R. 697 at 809.

[40] Ibid. at 808.

[41] (1989), 68 Can. Bar Rev. 713.

[42] [1986] 2 S.C.R. 573.

[43] Ibid. at para. 12.

Provincial Liquor Monopolies may be Unconstitutional

Section 6 of the Charter guarantees that Canadians and permanent residents of Canada can move to and take up residence in any Canadian province. It also guarantees that the same people can pursue the gaining of a livelihood in any Canadian province. Like so many of the other freedoms we enjoy, we take our mobility rights for granted.

Canadian liquor producers do not enjoy the same luxury. Even though the producers themselves can freely cross between provinces, their products cannot.


THE BACK-STORY

It takes a short history lesson to explain why. In 1928, as Canada’s prohibition era was coming to an end, the provinces wanted to control the importation of liquor across their own borders. However, they recognized that they lacked the constitutional authority to enact such legislation, so they requested that the federal parliament delegate that power to them. The result was that, in the same year, the federal parliament enacted legislation titled the Importation of Intoxicating Liquors Act.

The act makes it illegal to import liquor into a province unless it has been purchased by or on behalf of the Queen. And you could be fined or jailed if you don’t comply. In practice, this means that all liquor imported into any province in Canada is the government’s liquor. Effectively, this 1928 law creates the monopoly over liquor enjoyed by each province. It prohibits producers from selling their products directly to consumers in other provinces. And, as is the case with any monopoly, this arrangement prevents innovative marketing, limits consumer choice, and drives up the price.

When liquor is imported into a province, the local provincial authority places a tax on it. This tax is hidden in the purchase price. In 2007/2008, the Alberta Gaming and Liquor Commission collected some $678 million in fees. In the same period, B.C. collected $857 million. But not to be outdone, in 2006/2007, Ontario collected an astounding $1.28 billion. These considerable sums of money increase the cost of liquor for consumers at the point of retail.

Today, because of the way these fees are collected, very few consumers are aware they are even being taxed.

What is difficult to understand about these provincial monopolies is that section 121 of our Constitution Act, 1867, states that all articles of “growth, produce, or manufacture” must be “admitted free” into each province. Early on, our courts decided this prohibited customs duties only, but subsequent court decisions seem to indicate that this constitutional provision means inter-provincial trade should be free of government imposed impediments, like hidden taxes, and the threat of fines and jail. Although constitutional law can be confounding at times, it is surpassingly odd that collecting $1.28 billion in hidden taxes could be considered “admitted free”.

Another interesting facet is that the provincial monopolies over liquor appear to be houses built on sand. In 1928, when the provinces requested that the federal parliament pass the Importation of Intoxicating Liquors Act, they effectively admitted that they did not have the constitutional authority to pass this legislation themselves. Parliament complied, relying on its authority to regulate trade and commerce.

SECTION 121 IGNORED

But it seems that no one at that time considered section 121 of the constitution. Or perhaps it was conveniently forgotten? While parliament has the constitutional authority to regulate trade and commerce, section 121 reads as though it must not interfere with inter-provincial free trade while doing so. Ultimately, if parliament does lack the authority to enact legislation that props up each province’s liquor monopoly, the constitutional legitimacy of those monopolies should be called into question.

A modern and fair-minded reading of section 121 of our constitution makes it seem like a guarantee of economic mobility. Just as Canadians and permanent residents can freely cross provincial borders, section 121 seems to mean that liquor producers should enjoy that same freedom for their products. Since 1928, that freedom has been denied them. And consumers are literally paying the price.

This piece first appeared in Troy Media in June 2011. 

What's the Purpose of a Constitution Anyway?

What is the purpose of our constitution? Among other things, our constitution is a special type of law. It is our supreme law. This means that it is the standard by which all our other laws are measured. It is organizational. It sets some of the rules for how our state is to function. But most importantly, our constitution limits the authority of government. It does this in at least two ways: first, by prohibiting the government from enacting laws that infringe individual freedoms without justification; and second, by preventing the government from passing laws over certain matters. In both of these instances, even though it is accomplished by different means, government authority is limited. This is one of the chief purposes of our constitution.

The Canadian Charter of Rights and Freedoms limits government authority. The Charter prevents both the provincial and federal governments from enacting “unconstitutional” laws. Section 2 of the Charter provides a good example. Section 2(b) prevents the government from enacting legislation that infringes upon the fundamental freedom of freedom of expression. If a court finds that a law infringes freedom of expression without sufficient justification, that law will be made powerless. In this way, the constitution protects individuals from both federal and provincial governments that might otherwise infringe on their freedom.

The Constitution Act, 1867, originally called the British North America Act, 1867, also limits government authority. Sections 91 and 92 of the Constitution Act, 1867, state whether the federal or provincial governments have the requisite authority to enact laws regarding health, education, banks, trade and commerce, etc. Sections 91 and 92 grant this legislative authority exclusively. This means, for example, that since the provinces have the direct authority to enact laws regarding healthcare under section 92(7), the federal government has no direct authority over healthcare. The constitution limits the federal government’s authority by prohibiting it from directly interfering with the authority of the provinces over healthcare.

It is easy to forget that one of the most important purposes of our constitution is to place limitations on government. Our constitution should protect the freedom of individuals from the intrusion of government on their lives. Our constitution is supposed to prevent overreaching governments from exercising more authority than they have been granted. All too often, Canadians seem to believe that the freedom we enjoy needs to be justified. Yet it is the opposite that is true. It is the government that needs to justify its intrusion in the lives of individuals.

Since it is government actions, not those of individuals, that need to be justified, each government act should be scrutinized in the light of our constitution. That includes both those that infringe individual freedoms and those that go beyond the authority granted to the government.

This appeared in the Canadian Constitution Foundation blog in June 2011.

So Far So Good... or maybe not.

The Canadian Charter of Rights and Freedoms is 30 years old in 2012.

In Canadian law, the “Charter” is the first 34 sections of the Constitution Act, 1982. Broadly speaking, the Charter is a bill of rights recognizing individual rights and limiting the authority of the federal and provincial governments.

For example, section 2 of the Charter guarantees that everyone has the fundamental freedoms of religion, expression, assembly, and association.

Section 7 contains another important rights guarantee. This section recognizes that everyone has a right to liberty constrained only by the demands of justice—presumably the liberty of criminals can be constrained.

There was good reason to be optimistic in 1982 when the Charter was new—various portions were drafted to protect individual freedoms by limiting government authority. But in the 30 years following, the courts in Canada have continually done the opposite. Instead of the Charter protecting individual freedoms from overreaching governments, it has been given a government-promoting interpretation that negatively impacts upon individual freedoms.

In an article prepared for the C2C Journal, Karen Selick and I outline four portions of the Charter that have been given this government-promoting interpretation. You can read the article online here.

Here is a brief outline of the article.

• In the 1990 Canada v. Taylor decision, the Supreme Court of Canada (SCC) restricted the section 2(b) individual right to freedom of expression in order to preserve the hate speech provision in the Canadian Human Rights Act.
• In the 1991 Lavigne v. Ontario Public Service Employees Union decision, the SCC held that the section 2(d) freedom of association does not prohibit the government from forcing individuals to associate.
• In the 1988 R. v. Morgentaler decision, the SCC decided that the section 7 right to liberty grants individuals only a degree of autonomy when making decisions of fundamental personal importance, and that decisions of lesser significance could expect no constitutional protection.
• In the 2003 R. v. Malmo-Levine decision, the SCC decided that the government is free punish individuals for actions that cause no one any harm, despite the section 7 guarantee of individual liberty.

For the full discussion on each of these issues, go to the C2C Journal’s website and read the entire article. I think you will be convinced that the first 30 years of the Charter’s existence have yielded mixed results.


This appeared in the Canadian Constitution Foundation's blog in February 2012.