Some might argue that freedom of expression ought not to be measured by the content of the expression. Perhaps the Supreme Court of Canada will give guidance in that regard.
The Court holds:
[100] Although the meaning conveyed by any given activity cannot exclude that activity from the protection of s. 2(b), expressive activity that takes the form of violence is not sheltered under s. 2(b): R.W.D.S.U. v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573, at p. 588; Irwin Toy, at pp. 969-70; Keegstra, per Dickson C.J.C. for the majority, at pp. 731-32, and per McLachlin J. in dissent, at pp. 828-30; Greater Vancouver Transportation Authority v. Canadian Federation of Students, [2009] 2 S.C.R. 295, at para. 28.
[101] Violent activity, even though it conveys a meaning, is excluded from s. 2(b) because violence is destructive of the very values that underlie the right to freedom of expression and that make this right so central to both individual fulfillment and the functioning of a free and democratic society. Expression conveyed through violent means coerces and dissuades others from exercising their rights, including their right to freedom of expression. The use of violence to convey beliefs or opinions discourages others from testing the truth of those beliefs or opinions, discourages participation in social and political decision-making, and prevents others from achieving individual self-fulfillment through the expression of their own beliefs and opinions. To accord even prima facie protection under s. 2(b) to expression conveyed through violence is to undermine the very reason for the provision.
...
[112] A legislative provision may limit freedom of expression either through its purpose or by its effect. If the purpose is to restrict expression that is prima facie protected by s. 2(b), the limit must be justified under s. 1 of the Charter: Keegstra, at p. 733; Zundel, at p. 758. However, if the purpose is not to restrict expression, but the effect of the legislation is to restrict expression, the legislation limits the rights guaranteed under s. 2(b) only if the activity limited by the legislation promotes at least one of the values underlying the right to freedom of expression. These principles are the pursuit of truth, participation in the community and individual self-fulfillment: Irwin Toy, at pp. 976-77.
[113] Counsel do not submit that the purpose of the legislation in Part II.1 of the Criminal Code is to restrict freedom of expression or any other right guaranteed under s. 2. Counsel in the extradition appeals do, however, contend that the legislation has that effect.
[114] We agree that the purpose of the legislation is to protect the community from the physical harm that will flow from the conduct captured by the definition of "terrorist activity". Section 83.01(1.1) makes it clear that the purpose is not to limit expression. For convenience, we repeat that provision:
83.01(1.1) For greater certainty, the expression of a political, religious or ideological thought, belief or opinion does not come within paragraph (b) of the definition "terrorist activity" in subsection (1) unless it constitutes an act or omission that satisfies the criteria in that paragraph.
[115] Turning to the effect of the legislation, we can do no better than refer to the analysis of Dawson J. in Ahmad, at paras. 128-29. We adopt his analysis, which states in part:
[T]o the extent the "activity" in question falls outside the violence exception and remains within the scope of s. 2(b) protection, (for example because the mode of participation does not involve actual violence), it nonetheless involves actions taken in aid of a political, religious or ideological objective, by means intended to cause the harmful effects that clauses (A) to (E) of s. 83.01(1)(b)(ii) are aimed at, with the intention to intimidate or compel action as specified in s. 83.01(1)(b)(i)(B) of the definition. ...
In my view, the expressive activity affected by the legislation tends to undermine rather than support the values upon which freedom of expression is based.
[116] We agree with Dawson J. that none of the conduct that falls within "terrorist activity" involves expressive activity that advances any of the values underlying s. 2(b). For example, counselling someone to engage in conduct that would cause death or serious bodily harm hardly encourages the pursuit of truth, participation in the community or individual self-fulfillment. Consequently, even if the activity is not violent, it is not expressive conduct for the purpose of s. 2(b).
[117] In summary, none of the activity that falls within the definition of "terrorist activity" is protected under s. 2(b) for one of two reasons. First, some, if not all, of the conduct involves the use of violence to convey a meaning. Second, to the extent that the activity does not involve the conveying of meaning through violence, it does involve the conveying of meaning in a manner that is contrary to and destructive of the principles underlying the right to freedom of expression. As the purpose of the legislation is not to limit expression, the fact that it has that effect, but only with respect to a form of expression that is destructive of the principles underlying freedom of expression, does not constitute an infringement of s. 2(b).
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4
416 225 2777
No comments:
Post a Comment