The Supreme Court of Canada on the Structure of Freedom of Expression Adjudication

1995 ◽  
Vol 45 (4) ◽  
pp. 419 ◽  
Author(s):  
Richard Moon
Keyword(s):  
Supreme Court ◽  
Freedom Of Expression ◽  
Supreme Court Of Canada ◽  
The Supreme Court

scholarly journals After Labaye: The Harm Test of Obscenity, the New Judicial Vacuum, and the Relevance of Familiar Voices

2009 ◽  
Vol 46 (3) ◽  
pp. 741 ◽  
Author(s):  
Richard Jochelson
Keyword(s):  
Supreme Court ◽  
Freedom Of Expression ◽  
Tolerance Test ◽  
Supreme Court Of Canada ◽  
Obscenity Law ◽  
The Supreme Court ◽  
Tolerance Approach ◽  
Lower Courts ◽  
The Subject ◽  
Community Standards

In R. v. Labaye, the Supreme Court of Canada finally retired the community standards of tolerance test of obscenity. The test had been the subject of much academic critique, a matter that reached its zenith in the period following Little Sisters Book and Art Emporium v. Canada (Minister of Justice), in which a gay and lesbian bookshop contested the procedures and legislative regime of customs officials in detaining its imports. The engagement in the literature on the efficacy of the community standards test that followed was often heated, always interesting, and ultimately unresolved. To date, we have not seen any clarifying applications of the newly proposed harm test by the Supreme Court, nor have we seen a profound articulation in any lower courts. Subsequently, the academic discussion has slowed to a crawl. In this article, the author reviews four accounts of the community standards test that were prominent following Little Sisters, and asks if the newly proposed Labaye standard meets their concerns. The Labaye case provides much fodder for the previous critics and supporters of a community standards of tolerance approach to analyze. After a critical analysis of the new Labaye test, the author concludes that the concerns have not been muted by the retirement of the community standards test, even if the voices have been. The engaged voices heard in the aftermath of Little Sisters should not hold back and they should not abandon the work to be done in obscenity law and freedom of expression discourse generally.

Analogies of harm: excess, expression, and obscenity in Margaret Atwood’s Bodily Harm and the Supreme Court of Canada decision R v Butler

1970 ◽  
Vol 32 (1-2) ◽  
pp. 23-42
Author(s):  
Benjamin Authers
Keyword(s):  
Supreme Court ◽  
Freedom Of Expression ◽  
Well Being ◽  
Supreme Court Of Canada ◽  
The Novel ◽  
Individual Freedom ◽  
Bodily Harm ◽  
The Supreme Court ◽  
National Good

Thinking through Margaret Atwood’s 1981 novel Bodily Harm and the 1992 Supreme Court of Canada case R v Butler, this article examines a Canadian discussion about the excessiveness of the freedom of expression to which obscenity has been key. For Atwood, expression is central to Bodily Harm’s narrative of personal, political revelation. Yet it is also at the root of a discourse of harm that Atwood elucidates throughout the novel as she incorporates pornography into an expansive analogic continuity of violence. In Butler, the Supreme Court curtails obscenity in the name of equality and collective well-being, even as it continues to view expression as a valuable individual freedom and a national good. In each text freedom of expression both is and is not safeguarded; in each, the freedom can be conceived of and celebrated, but its excessive possibilities must also be contained.

scholarly journals Children in Pornography after Sharpe

2005 ◽  
Vol 43 (2) ◽  
pp. 327-350 ◽  
Author(s):  
Janine Benedet
Keyword(s):  
Supreme Court ◽  
Freedom Of Expression ◽  
Child Pornography ◽  
Criminal Code ◽  
Supreme Court Of Canada ◽  
Canadian Charter ◽  
Constitutional Protection ◽  
The Supreme Court ◽  
Definition Of

In its recent decision in R. v. Sharpe, the majority of the Supreme Court of Canada upheld the Criminal Code provisions prohibiting the possession and making of child pornography, subject to two exceptions. Despite a narrow construction of the definition of child pornography and a broad reading of the statutory defences, the majority found that prohibiting individuals from making and possessing some kinds of child pornography was an unjustifiable limit on the freedom of expression guaranteed by s. 2(b) of the Canadian Charter of Rights and Freedoms. The dissent would have upheld the legislation in its entirety. This article argues that the majority of the Court erred in considering the value of freedom of expression in a detached and abstract manner. Operating in this abstract plane led the Court to approve two significant exceptions on the basis of hypothetical examples of overbreadth, without considering the reality of the exceptions as they relate to documented child pornography cases. As a result, the Court extended constitutional protection to some categories of material that are clearly harmful to children. This result should make us sceptical of the use in Charter cases of broad reading in remedies that create complex judicial amendments with unexamined consequences.

scholarly journals “Third Parties” and Democracy 2.0

2015 ◽  
Vol 60 (2) ◽  
pp. 253-293 ◽  
Author(s):  
Léonid Sirota
Keyword(s):  
Political Parties ◽  
Supreme Court ◽  
Business Models ◽  
Freedom Of Expression ◽  
Political Process ◽  
Third Parties ◽  
Supreme Court Of Canada ◽  
The Supreme Court ◽  
Regulatory Approach ◽  
Set Up

Although the Supreme Court of Canada has described freedom of political, and especially electoral, debate as the most important aspect of the protection of freedom of expression in Canada, no debate in Canadian society is so regulated as that which takes place during an electoral campaign. Parliament has set up—and the Supreme Court has embraced—an “egalitarian model” of elections, under which the amount of money participants in that debate can spend to make their views heard is strictly limited. “Third parties”―those participants in pre-electoral debate who are neither political parties nor candidates for office―are subject to especially strict expense limits. In addition to limiting the role of money in politics, this regulatory approach was intended to put political parties front and centre at election time. This article argues that changes since the development of the “egalitarian model” have undermined the assumptions behind it and necessitate its re-examination. On the one hand, since the 1970s, political parties have been increasingly abandoning their role as essential suppliers in the marketplace of ideas to the actors of civil society, such as NGOs, unions, and social movements. On the other hand, over the last few years, the development of new communication technologies and business models associated with “Web 2.0” has allowed those who wish to take part in pre-electoral debate to do so at minimal or no cost. This separation of spending and speech means that the current framework for regulating the pre-electoral participation of third parties is no longer sufficient to maintain political parties’ privileged position in pre-electoral debate. While the current regulatory framework may still have benefits in limiting (the appearance of) corruption that can result from the excessive influence of money on the political process, any attempts to expand it to limit the online participation of third parties must be resisted.

scholarly journals Crookes v. Newton: The Supreme Court of Canada Brings Libel Law into the Internet Age

2012 ◽  
Vol 50 (1) ◽  
pp. 205
Author(s):  
Iris Fischer ◽  
Adam Lazier
Keyword(s):  
Supreme Court ◽  
Public Interest ◽  
Freedom Of Expression ◽  
Common Law ◽  
Supreme Court Of Canada ◽  
Internet Age ◽  
The Supreme Court ◽  
The Common ◽  
The Right ◽  
Defamation Law

After paying little attention to defamation law for decades, in the last few years the Supreme Court of Canada has begun to reshape the field. In what has been described as the “constitutionalization” of defamation law, the Court has recently recognized that the common law was out of step with the right to freedom of expression guaranteed by the Canadian Charter of Rights and Freedoms. This process began in 2008 with the Court’s decision in WIC Radio v. Simpson, which clarified and expanded the scope of the fair comment defence. The Court went further the following year with Grant v. Torstar Corp, which recognized an entirely new defence of responsible communication on matters of public interest.

Ford and Irwin Toy 30 Years Later: A Conversation with Justice Montigny

2019 ◽  
Vol 28 (3) ◽  
Author(s):  
Han-Ru Zhou
Keyword(s):  
Supreme Court ◽  
Freedom Of Expression ◽  
National Level ◽  
Federal Court ◽  
First Year ◽  
Supreme Court Of Canada ◽  
First Year Students ◽  
The Supreme Court ◽  
The Government ◽  
Court Of Appeal

Thirty years ago, in a tense national political context, the Supreme Court of Canada rendered judgment in three cases that have had a profound impact on Canadian society and constitutional law: Ford v. Québec (A.G.) and its related appeal, Devine v. Québec (A.G.), and Irwin Toy Ltd. v. Québec (A.G.) decided a few months apart1. Against the backdrop of language conflicts in Québec and constitutional reform at the national level, this Supreme Court trilogy established the foundations of freedom of expression and the application of the notwithstanding clause of the Canadian Charter of Rights and Freedoms, as well as the quasi-constitutional nature of Québec’s Charter of Human Rights and Freedoms. Before the Supreme Court of Canada, the Government of Québec was represented by Yves de Montigny — now a Justice of the Federal Court of Appeal — as lead counsel. On the occasion of the trilogy’s 30th anniversary, Justice de Montigny was invited to the Université de Montréal, Faculty of Law, to share with first-year students his reflections on the three Supreme Court decisions as well as his experience as a young lawyer at the forefront of the major constitutional debates of the time.

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