Canadian Supreme Court and Free-Expression Cases under the Charter of Rights and Freedoms

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Introduction(1)

The addition of the Charter of Rights and Freedoms to Canada's Constitution in 1982 triggered a debate among scholars over the role of the Supreme Court in Canadian politics. At the center of this debate was the issue of whether the Charter would transform the Canadian Court from a passive tribunal occupied mainly with settling federal-provincial jurisdictional disputes into an activist defender of civil rights and liberties (Manfredi 1993; Harvie and Foster 1990; Gold and Fuerst 1992). The question was, as Verney has aptly stated, "would the American system of judicial review become the model for Canada?" (1987, 190).

Initially, some scholars used pre-Charter practices under the 1960 statutory Bill of Rights to predict the future role of the Court under the Charter of Rights and Freedoms. MacKay (1983) argued that the Canadian Supreme Court probably would not disregard its past judicial habits when making future Charter decisions, suggesting that the Court's weak civil libertarian record under the Bill of Rights would dictate a future philosophy of judicial restraint. Slattery (1987) agreed, yet, unlike MacKay, he argued that the Court would not overrule majoritarian legislative decisions given the qualifying sections within the text of the Charter (Section 1 and Section 33) and Canada's tradition of parliamentary supremacy. Other scholars predicted that the Canadian Court would move in a decisively pro-civil rights direction after the Charter was added to the Constitution (Bender 1983; Russell 1982). Bender argued that since the general configuration of protected rights in Canada and the United States is similar in scope and range, activism on the part of the Canadian Court was inevitable. After analyzing the Constitution Act of 1982, Russell (1982) concluded that the Charter had sanctioned a major shift of power from the legislature to the judiciary and, thus, judicial activism would necessarily follow. Indeed, subsequent studies have indicated that there are already signs of a more activist Canadian Court (Morton 1987; Morton et al. 1994; Morton et al. 1991; Knopff and Morton 1992; Manfredi 1993; Epp 1996). In this debate, Verney (1987) and Monahan (1987) have argued that, instead of assuming that the Canadian Court would adopt the American style of judicial review, one must understand the changes taking place under the Charter in the Canadian cultural context. Thus, it is the belief of some scholars that, although the Canadian Court has moved in an activist direction in protecting individual rights in the post-Charter years, such a movement is bound to be limited in scope since the underlying cultural values of Canada and the United States are very different.

The Canadian Culture Context as a Limiting Force on Individual Rights

Some scholars, such as Lipset (1990) and Glendon (1991), believe Canada is a society based on a different organizing principle and value system than the United States. According to Lipset, since Canada derived its authority from the British monarchy and was initially comprised largely of Tory loyalists, it is not surprising that it formed a counterrevolutionary monarchical society which valued hierarchy in class relations and deference in politics so as to effect the collective good (2). He also argued that the spirit of such values can be found in the British North America Act, which enshrined the collective values of peace, order, and good government (8). Consequently, Canadians have historically emphasized a person's rights and obligations to the community at large rather than the rights of the individual (Lipset 1990). Subsequent authors, such as Maryanne Glendon, have argued that since Canadians are not as rights-conscious as Americans, they are more apt to balance individual rights with a person's duties and responsibilities to the community (12). As a result, they have developed a rational political discourse that encourages compromise and fosters more productive communication in confrontational situations. …