Response to : Does Canada Have Free Speech?

by Mickael Chiasson on May. 21, 2018

Civil & Human Rights Civil & Human Rights  Constitutional Law Civil & Human Rights  Civil Rights 

Summary: When reading legislative material, adopting a legal framework is essential to a full understanding of the subject matter. This video, by famed youtuber Gregory "The Armoured Skeptic" Fluhrer is a pretty vivid example of what the lack of framework can do to an interpretation of the law. Source: https://www.youtube.com/watch?v=xVVDQnkqh8M I would strongly recommend watching the video in full before reading my response as it attacks the issue point by point with the appropriate time-stamps. Once again, none of this is legal advice.

Mickael Chiasson

Mickael Chiasson Il y a 8 mois (modifié)

Ok, that's plenty of misconception thrown around there... so let's take them in order...

3:51 First things first, when addressing constitutional issues, said issues must involve the public sphere. Think of the constitution as a contract between the government and its people. It does not apply between two members of the private sphere, though there are rights granted by Human Right acts(federal and provincial) addressing this. M-103 is an act of Government, while not being law itself, and thus is subject to constitutional scrutiny.

Second, the right to access that information is not integral to the definition of freedom of speech. This would imply that the Government has the obligation to provide the means of making that speech accessible. Freedom of speech is about preventing the government from gagging; it's not about giving a megaphone. It's a rough paraphrase of Haig v. Canada, [1993] 2 S.C.R. 995, at p. 1035, per L’Heureux-Dubé J. If you meant to say something to the effect of preventing the government from destroying your means of speech by, say, shutting down a website you operate, it is accurate, but misleading.

5:00 First, Section 52 of the Constitution Act of 1982 states that the constitution of Canada is the supreme law and any and all law inconsistent with it shall have no force or effect. Therefore, no, the presence of Section 1 of the Charter does not make any Statutory provision legal until proven otherwise. It's not strictly different from the United States where the validity of Governmental action like the Travel Ban was subject to constitutional scrutiny and was enforced pending the resolution of a judge, after which, upon being found unconstitutional, had no force of law.

TL; DR The Judiciary decides whether a law is constitutional or not. The Government may pass any law, but if it doesn't hold up to the Judiciary's interpretation, it has no force of law.

Second, there's a bit of a process as detailed in decisions such as Irwin Toy Ltd v Quebec (AG), [1989] 1 S.C.R. 927(R v Oakes did it first, but it was about the presumption of innocence clashing with a presumption of living off the proceeds of prostitution, and Irwin Toy actually applies the test to free speech so...) TL:DR, Irwin Toy wants to plug toy commercials directed at children during their TV hours, the Government wants to protect children's mind from brainwashing ads. The SCC accepts that ads are protected speech, but that the minds of our children was more important to protect and that the limitations of the provisions did not prevent Irwin Toy from airing ads at other times or at other demographics.

5:45 I understand that reading Section 1 of the Charter in a vacuum sounds like the death of free speech as soon as the Government wills it, but if you don't take the angle of the Judiciary on that one, like the Supreme Court of Canada, all you are doing is projecting your own interpretation of what this may mean. If that sounds like an Ad Nauseam argument, I have to disagree: you don't need to read ALL the SCC Lexum data base to get a grip on things, but at least look at the more landmark-y ones. Oakes for section 1, Irwin Toys for section 2b, and if you want to dabble in hate speech, R v Keegstra [1990] 3 S.C.R. 697. Just a hunch, but when you say at "Consequences will naturally happen" at 4:05, I get the feeling that's the context you were speaking of. Remember, the Judiciary decides whether a law is constitutional or not, not the Government. If it's not, the law has no effect. That's what checks and balances means.

6:41 A charge is not a conviction. They are presumed innocent until proven guilty (section 11d). If they happen to be found guilty, then those would not be bogus charges since an independant judge would have reached that conclusion.

8:16 Here's the full text:

83.221 (1) Every person who, by communicating statements, knowingly advocates or promotes the commission of terrorism offences in general — other than an offence under this section — while knowing that any of those offences will be committed or being reckless as to whether any of those offences may be committed, as a result of such communication, is guilty of an indictable offence and is liable to imprisonment for a term of not more than five years.

Full disclosure, I'm a Barrister, criminal defence attorney to be precise and I can tell you the following. It's not JUST advocating or promoting, there needs to be an impending terrorist attack coming through and that such communication is, in part, the CAUSE of that attack. You basically need, in association with such a charge, evidence that a terrorist attack will happen for which the accused knew of or recklessly, by his rethoric, would cause.

Now, it will be up to a judge to decide the meaning of "in general" and whether or not it's constitutional, but my opinion leans toward the distinction between a specific intent offence(IE: Blowing A building) vs a general intent offence(IE: Blowing shit up), and as such, defines the required mens rea as one of general intent.

10:14 C-16 does nothing of the sort.

Here's the link: http://www.parl.ca/DocumentViewer/en/42-1/bill/C-16/royal-assent

All it does is add gender expression and gender identity as a form of observable discrimination and should that it should be acknowledged as part of the sentencing process after a criminal conviction. It's not even that long a bill to read. I get your position on gender expression being made up and you ignoring all the citations floating during Bill's number on it, but that notwithstanding, there's no implication of misuse of pronoun resulting in consequences by itself.

10:35 Funny you should say that because actually, most of our rights have a very targeted audience. That's because minorities need those protection in order to be protected from the majority. Take for instance the linguistic rights under section 16(2). That right has no impact on the majority since they already have access to, say, education within their own language, but it comes in handy if you want to be educated in a minority language (french or english specifically). Therefore, in Quebec, an English student will be the one using the right whereas in Ontario, the right aims to protect the French student. The law doesn't grant powers to the minority, merely protection and the ability to defend themselves against attacks.

Also, section 15(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

11:49 It steamrolled because people who agreed it realized how harmless its impact actually was whereas the opposition went on a slippery slope all the way to free speech extinction. It actually has force of law, unless the SCC has something to say about it, but remember that before its amendment, the Human's right Act gave the same kind of protection against races, sexes, sexual orientations.

13:00 The Human's right commission is the investigator and advocate of complainants before an administrative tribunal. Basically, instead of appointing judges and going to court, the Government creates a law that gives a bunch of nerds on a subject matter (labour, environment, education etc) its function and powers. They substitute the trier of facts on specific topics and are subject to judicial review by a court of appeal. On that topic, having a law give a commission some power is nothing new; as a matter of fact, if the commission executes something outside of their lawfully provided power, they act outside of functus officio, which is ground for judicial review. Side note, their investigations are instigated by a complaint. They don't go out of their ways to bug your local McDonald.

13:28 Indeed, the constitution's guardian is the judiciary, not the human's right commission. It would be illegal for the commission to take the case.

14:51 Full disclosure, I'm from New Brunswick and really not into family law, but even I know that no such obligation would be made into law if the bill were to pass. "Best interest of the child" does not enforce anything. It's a judicial concept whereas the Court needs to consider, when rendering their decision with respect to, say, a custody order. It doesn't give the minister of Social Development the power to take away a child because he or she thinks he or she maybe a she or he. What it does is enshrine that consideration into the Act for the judge to appreciate. I could just copy and paste how little a dent this is on the current status quo... and I will! Look at all them considerations!

(Tries to paste... not enough space on the comment) Just read it, it's under the section "Paramount Purpose" http://www.ontla.on.ca/web/bills/bills_detail.do?locale=en&BillID=4479

The Government is just doing what it's always been doing, protecting children from abusive parents. It doesn't punish parents. Most of the time, even when they relocate the child, the parent still have access and visitations provided by the judge because one of the consideration for the best interest of the child is "respects a child’s or young person’s need for continuity of care and for stable relationships within a family and cultural environment".

17:55 Actually, you get more rights than a defendant(civil). You don't get the same rights (under the Charter) as an accused(criminal) because you are not accused of a crime. Still, since the commission is created by an act of Government, you do get rights under the Constitution.

Welp, always a pleasure to dust off the old constitutional knowledge. Usually, it's just used for speedy trials or evidence exclusion under section 24(2) nowadays.

Toodles.

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