Chanakya Sethi, Student-at-Law (Osgoode Hall Law School – York University) has posted “Beyond Irwin Toy: A New Approach to Freedom of Expression Under the Charter”, Appeal, Vol. 17, pp. 21-45, 2012. The abstract reads:
The Supreme Court of Canada has struggled for more than two decades to resolve the inherent tension in its expansive interpretation of freedom of expression under section 2(b) of the Canadian Charter of Rights and Freedoms with the high standard of justification that limits on that right must satisfy under section 1. The Court’s attempts have not assuaged critics who point to a continuing methodological anarchy in the Court’s jurisprudence. Despite ample criticism, however, little has been said in the way of proposed alternatives. This paper is an attempt to fill that void.
The author proposes an approach to section 2(b) adjudication that begins by animating the normative judgement latent in the Court’s jurisprudence: When not all expression is equally worthy of protection, not all expression should be equally protected. The foundation of this methodology lies in a purposive analysis of section 2(b), with an inquiry as to which categories of expression lie at the core of the guarantee and which lie farther afield. Those forms of expression closest to the core should be subject to the strictest form of scrutiny under section 1, while those outside the core should be subject to attenuated standards of review. Crucially, these distinctions must be evidenced by explicit tiers of scrutiny.
The proposed approach yields important benefits that address the specific criticisms levelled at the Court’s current methodology, including clarity and predictability, prudential limits on the flexibility the Court affords itself, and a more efficient use of the Oakes test, especially its third branch. Though the full impact of the proposed methodology is beyond the scope of this paper, the approach’s implications are most clear in the realm of political expression, where several of the Court’s recent precedents would likely have been decided differently.
Download a pdf copy of the article via SSRN here.