Foreign Relations Room Creating the St. Occupied Philippines. Foreign Policy Making, Rethinking the International History of the s Room Foreign Relations in the 20 th Century Room Global Militarization and U. Foreign Relations Research Room Solutions during the Cold War Room Donna R. Relations with Cuba Room We know this is our Charter of Rights. Soon you will inhale a pack of rights that include freedom of expression, freedom of press, right to a jury trial, the right to fundamental justice we couldn't even bring ourselves to call it due process.
But before you get too excited, we want you to know that all of the so-called guaranteed rights you are about to read are subject to reasonable limits that may be imposed by the government upon you in a free and democratic society. To make all of this more concrete, let us consider the constitutional protection of free speech in both countries.
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Canada, like the United States, has a constitutional guarantee of free expression. Our Charter of Rights and Freedoms guarantees freedom of expression, subject to such reasonable limits as are "demonstrably justifiable in a free and democratic society". In other words, we have free speech, but the state can limit it in reasonable ways. This may be contrasted with the absolute language of the First Amendment of the United States Bill of Rights, which states: "Congress shall make no law Of course, we all know that the American Supreme Court has not interpreted the First Amendment literally.
American rights, however absolutely stated in the Bill of Rights, are in fact subject to limits imposed by the Courts as they struggle to balance conflicting rights and situate them in a practical working framework. Free speech is no exception. In , Justice Hugo Black, who insisted on reading the First Amendment literally, voted to strike down a states' group libel law, stating that the First Amendment "absolutely forbids such laws without any 'ifs' or 'buts' or 'whereases'.
Illinois , U. But he was in dissent and his view has not prevailed.. It was Mark Twain who said of the United States, only partly in jest, "It is by the goodness of God that in our country we have those three unspeakably precious things: freedom of speech, freedom of conscience and the prudence never to practice either of them. This said, the explicit recognition that, in a democratic society, limits may be imposed on fundamental freedoms means that free speech is more narrowly conceived in Canada than in the United States, as is evidenced by our respective positions on pornography, hate speech and defamation.
While the American right of free speech admits of some limits in the name of reason or practical necessity, the fact remains that what would be counted as a reasonable limit on speech in Canada would often amount to an unreasonable limit in the United States. Take pornography, for instance. Much of it is made in the United States. Some of it crosses the border and is sold in Canada. But there are limits to what Canadians will tolerate as protected speech in this area. In , the Supreme Court of Canada in the Butler case upheld a section of the Canadian Criminal Code which banned the publication and distribution of obscene material.
The law had been challenged on the ground that it infringed freedom of expression in a way that was not justifiable under s. The Supreme Court disagreed. It unanimously held that freedom of expression was infringed by this section of the Criminal Code , but added that the state had a right to outlaw pornography which qualifies as an undue exploitation of sex, such as where the portrayal of sex is coupled with violence, involves children, or is degrading or dehumanizing. One of the key concerns was the risk that such pornography may be harmful to women and children and to society generally.
In accepting generalized risk as a reasonable basis for limiting free expression, Justice Sopinka of my Court quoted approvingly this conclusion from a House of Commons Committee:. The effect of this type of material is to reinforce male-female stereotypes to the detriment of both sexes. It attempts to make degradation, humiliation, victimization and violence in human relationships appear normal and acceptable.
A society which holds that egalitarianism, non-violence, consensualism, and mutuality are basic to any human interaction, whether sexual or other, is clearly justified in controlling and prohibiting any medium of depiction, description or advocacy which violates these principles R. Butler , ] 1 S. Some Canadians like the Butler decision, some don't. Greenspan calls it a "tragedy" and laments by quoting Gershon Legman's observation that "Murder is a crime.
Describing murder is not. Sex is not a crime. Describing sex is.
What may be more interesting than the debate itself is that the Supreme Court of Canada's decision in Butler has caught the attention of the American legal and political world. We in Canada are not used to attention from those quarters, so the ensuing debate on your side of the border about the Butler case came to us as some surprise. Professor Catharine MacKinnon, who happened to teach at Osgoode Law School in Toronto for a time, wrote and lectured extensively in favour of American adoption of a test like that in the Canadian Butler case.
Later and more significantly on the political front, we saw Senator Bob Dole and Attorney-General Janet Reno advocating a similar tightening of pornography laws in the United States. Accepting that anything is possible in Washington, as in Ottawa, the fact remains that traditional American First Amendment thinking is a very long way indeed from the sort of risk of harm-based equality philosophy that prevailed in Canada in Butler. Free speech plays out differently above and below the 49th parallel in other less publicized yet significant ways. Hate speech finds significantly more protection in the United States than in Canada.
Provided hate propaganda laws are tightly enough drafted, they pass muster under the Canadian Charter. In the United States, by contrast, little short of incitement to violence can be legally limited. To take another example, it is easier to sue for libel in Canada than it is in the United States. Sullivan US which permits newspapers to publish false rumours and make false statements about people with impunity so long as they do not do so intentionally or recklessly.
A few years ago, the Supreme Court of Canada in Hill v. Church of Scientology expressly declined to adopt the Sullivan approach. As a result, in Canada, newspapers print unverified material at peril of being sued for libel. The Supreme Court considered the argument that a Sullivan approach was required to prevent "chilling" the free dissemination of information essential for the working of democracy. It concluded that any chilling effect flowing from strong libel laws is outweighed by the importance of protecting people's reputations against false and slanderous statements.
Canadian law accepts that the goal of getting at the truth may be served by free exchange in the marketplace of ideas. But it also accepts that false words can do great damage to individuals and groups, damage that cannot always be repaired by debate and discussion.
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I have spoken of some of the differences in the Canadian and American approaches to the fundamental guarantee of free speech. To put it in a nutshell, we in Canada are more tolerant of state limitation on free expression than are Americans.
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Similar points can be made about other constitutional rights. Indeed, in the case of each right guaranteed by our Charter , Canada is creating its own unique jurisprudence. For instance, the Canadian approach is more nuanced than that of the United States in relation to due process and the rights of individuals in the law enforcement context.
In the United States, evidence obtained as the result of unlawful police conduct, whether direct or indirect, usually cannot be used in the criminal process under the doctrine of the fruit of the poisoned tree. In Canada, the test is more flexible; the evidence will be excluded only where it would be unfair to allow it to be used against the accused person, considering a variety of factors, including the effect on the image of the administration of justice if the evidence were disallowed.
Section 24 of the Charter expressly provides for this. This brings me to the second difference between the American Bill of Rights and the Canadian Charter. I mentioned earlier the explicit recognition in the Canadian Charter of collective or group rights. Section 1 of the Charter , as we have seen, sets the stage for a different approach to the constitutional protection of rights, an approach that seeks a different balance between individual rights and collective interests.
This balance is also at play in the operation of rights that are intended to recognize minority communities and enhance their vitality. One can already see a hint of this in the different treatment of freedom of religion in the two countries, because the Canadian guarantee of freedom of religion has a positive quality to it that the American guarantee lacks. The United States constitution enunciates a doctrine of separation of church and state which precludes the state from supporting any religion.
The Canadian guarantee protects the right of the individual to practice the religion of his or her choice, but also permits the state to support religious groups -- indeed it requires the state to support minority Roman Catholic and Protestant school systems in some provinces as a consequence of the concern of the fathers of Confederation that minority religious rights be protected. Canadian equality doctrine is expressly directed at combatting discrimination and improving the position of members of disadvantaged groups.
The categories of discrimination are not limited and we do not accord lesser levels of scrutiny to selected groups.
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