LIMITATION

South Africa Constitution................................................................................................................2Final Constitution........................................................................................................................2Interim Constitution.....................................................................................................................3

Canada.............................................................................................................................................3Section 1 [Limitation of Rights]..................................................................................................3

R v Oakes [1986] 1 SCR 103: The Canadian limitations test.................................................3R. v. Chaulk [1990] 3 S.C.R. 1303: Set out the Oakes reasonable limit test: objective of of sufficient importance; Means: "rationally connected" to the objective; impair rights as "little as possible’; effects on the limitation of rights proportional to the objective.........................4Edwards Brooks & Art Ltd v The Queen [1986] 2 S.C.R. 713: Government might be subject to a less exacting standard of proof and that the same questions need not be asked in every case.................................................................................................................................4Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.) [1990] 1 S.C.R. 1123: adopted a more flexible formula to the minimal impairment test...........................................5Black v. Law Society of Alberta [1989] 1 S.C.R. 591 at 627: assessment of the proportionality of the means employed to achieve the objective pursued...............................6United States of America v. Cotroni [1989] 1 S.C.R. 1469 at 1471: The Oakes test should not be applied in an overly rigid and mechanistic fashion......................................................6Andrews v. Law Society of British Columbia [1989] 1 S.C.R. 143 at 198: justifiability, fairness or proportionality........................................................................................................7McKinney v Univ of Guelph [1990] 3 SCR 229 at 305: Impairment of rights.....................7

Law of general appliation:...........................................................................................................8Irwin Toy Ltd. v. Quebec (Attorney general) [1989] 1 S.C.R. 927: Whether the legislature has provided an intelligible standard.....................................................................8R. v. Nova Scotia Pharmaceutical Society [1992] 2 S.C.R. 606: Vagueness. Overbreadth. The threshold for finding a law vague is relatively high. The factors to be considered (a) the need for flexibility (b) the impossibility of achieving absolute certainty, a standard of intelligibility being more appropriate (c) the possibility that many varying judicial interpretations of a given disposition may exist and perhaps coexist. (See below for summary of opinions)..............................................................................................................8Committee for the Commonwealth of Canada v Canada (1991) 77 DLR (4th) 385: Rules that emanate from directives or guidelines issued by government departments or agencies but which are not officially published delegated legislation do not enjoy the same status as those ‘prescribed by law’.......................................................................................................10R. v. Therens [1985] 1 S.C.R. 613: The violation of the respondent's rights is not the result of the operation of the law but of the police action. No need to consider in this case whether, the "breathalyzer scheme" is a reasonable limit to one's rights under the Charter................11R. v. Hebert [1990] 2 S.C.R. 151.........................................................................................11Irwin Toy Ltd. v. Quebec (Attorney general) [1989] 1 S.C.R. 927: The test for government action that intentionally restricts the protected activity and government actions which effectively restrict the protected activity.....................................................................12R. v. Nova Scotia Pharmaceutical Society [1992] 2 S.C.R. 606: Vagueness -- Conspiracy to prevent or lessen competition unduly -- Whether word "unduly" in s. 32(1)(c) of Combines Investigation Act so vague as to infringe principles of fundamental justice--

Whether mens rea required by s. 32(1)(c) of Combines Investigation Act inconsistent with principles of fundamental justice...........................................................................................15R. v. Keegstra [1990] 3 S.C.R. 697: Reasonable limits --General approach to s. 1 of Canadian Charter of Rights and Freedoms -- Freedom of expression -- Hate propaganda-- Presumption of innocence -- Reverse onus provision...........................................................18

United States..................................................................................................................................23CONNALLY v. GENERAL CONST. CO., 269 U.S. 385 (1926): The dividing line between what is lawful and unlawful cannot be left to conjecture........................................24

Law of general application:.......................................................................................................25UNITED STATES v. LOVETT, 328 U.S. 303 (1946).......................................................25

European Community....................................................................................................................26Law of general application:.......................................................................................................26

Sunday Times v United Kingdom (1979) 2 EHRR 245....................................................27Klass & Others c. Allemagne v. Germany (1979) 2 EHRR 214....................................27Also see:.................................................................................................................................27

Germany........................................................................................................................................27

South Africa Constitution

Final ConstitutionLimitation of rights

36. (1) The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including

a.the nature of the right; b.the importance of the purpose of the limitation; c.the nature and extent of the limitation; d.the relation between the limitation and its purpose; and e.less restrictive means to achieve the purpose.

(2) Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights.

An infringement of a right is not unconstitutional if it justifiable under the criteria set out in s 36(1). The onus rests on the applicant to show that an infringement of a right has taken place.1 The respondent may then justify the infringement as a proper limitation of rights under s 36. Appropriate evidence must be led to justify a limitation of a right. 2 At the first stage of the inquiry the scope of the right ought not to be qualified in order to accommodate the exercise of another right.3

1 Makwanyane, para 102.2 See Rule 30, ‘Documents lodged to canvass factual material’ of the Constitutional Court Rules, G N No. R. 757, 29 May 1998.3 R v Keegstra [1991] 3 CRR (2d) 193 (SCC) at 218

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Interim Constitution33 Limitation

(1) The rights entrenched in this Chapter may be limited by law of general application, provided that such limitation-

a.shall be permissible only to the extent that it is- i.reasonable; and ii.justifiable in an open and democratic society based on freedom and equality; and b.shall not negate the essential content of the right in question, and provided further that any limitation to-

(aa) a right entrenched in section 10, 11, 12, 14 (1), 21, 25 or 30 (1) (d) or (e) or (2); or

(bb) a right entrenched in section 15, 16, 17, 18, 23 or 24, in so far as such right relates to free and fair political activity, shall, in addition to being reasonable as required in paragraph (a) (i), also be necessary.

(2) Save as provided for in subsection (1) or any other provision of this Constitution, no law, whether a rule of the common law, customary law or legislation, shall limit any right entrenched in this Chapter.

(3) The entrenchment of the rights in terms of this Chapter shall not be construed as denying the existence of any other rights or freedoms recognised or conferred by common law, customary law or legislation to the extent that they are not inconsistent with this Chapter.

(4) This Chapter shall not preclude measures designed to prohibit unfair discrimination by bodies and persons other than those bound in terms of section 7 (1).

Canada

Section 1 [Limitation of Rights]The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

[Title 2] Fundamental Freedoms

Section 2 [Freedom of Religion, Speech, Association]Everyone has the following fundamental freedoms:(a) freedom of conscience and religion;(b) freedom of thought, belief, opinion and expression, including freedom of the press and other means of communication;(c) freedom of peaceful assembly and(d) freedom of association.

R v Oakes [1986] 1 SCR 103: The Canadian limitations test

The South African limitations clause bears close resemblance to the Canadian clause. Woolman in Constitutional Law of South Africa sets out the two features shared by both

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limitations clauses.4 The generality of these two clauses distinguishes the Canadian Charter and the South African Constitution from those constitutions which have individualised limitation clauses within particular rights and freedoms clauses and those constitutions which have no limitation clause at all. Secondly both clauses limit the guarantees to such limits as can be justified in a democratic society. The Canadian limitations test was first set out in R v Oakes [1986] 1 SCR 103. This test was set out concisely in R. v. Chaulk [1990] 3 S.C.R. 1303:

R. v. Chaulk [1990] 3 S.C.R. 1303: Set out the Oakes reasonable limit test: objective of of sufficient importance; Means: "rationally connected" to the objective; impair rights as "little as possible’; effects on the limitation of rights proportional to the objective.

Is s. 16(4) a reasonable limit under s. 1 of the Charter?

There is no question that the presumption of innocence, guaranteed by s. 11(d) of the Charter, is a fundamental legal right which plays a very important role in our criminal justice system. ….However, like the other rights and freedoms guaranteed by the Charter, it is subject to limitations under s. 1 of the Charter. The procedure to be followed when the state is attempting to justify a limit on a right or freedom under s. 1 was set out by this Court in Oakes, supra:

1. The objective of the impugned provision must be of sufficient importance to warrant overriding a constitutionally protected right or freedom; it must relate to concerns which are pressing and substantial in a free and democratic society before it can be characterized as sufficiently important.

2. Assuming that a sufficiently important objective has been established, the means chosen to achieve the objective must pass a proportionality test; that is to say they must:

(a) be "rationally connected" to the objective and not be arbitrary, unfair or based on irrational considerations;

(b) impair the right or freedom in question as "little as possible"; and

(c) be such that their effects on the limitation of rights and freedoms are proportional to the objective.

Edwards Brooks & Art Ltd v The Queen [1986] 2 S.C.R. 713: Government might be subject to a less exacting standard of proof and that the same questions need not be asked in every case

The Court suggests that the government might be subject to a less exacting standard of proof and that the same questions need not be asked in every case.5 In reference to the proportionality requirement of the Oakes test the Court stated that:

4 Chaskalson et al, Constitutional Law of South Africa, Juta, 1996, footnote 3 at 12-5.5 35 DLR (4th) 1 at 41.

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the nature of the proportionality test would vary depending on the circumstances. Both in articulating the standard of proof and in describing the criteria comprising the proportionality requirement the Court has been careful to avoid rigid and inflexible standards.6

Woolman points out that in Canadian jurisprudence, a government act or legislation rarely fails the rationality test.7 However in Oakes the reverse onus provision requiring individuals in possession of drugs to show that they were not trafficking deemed rationally unrelated to the legislation’s objectives. R v Morgenthaler [1988] 1 SCR 30 held that the provisions of the Criminal Code which restricted abortion to cases in which the woman’s life was in danger were arbitrary, unfair and rationally unrelated to the legislation’s objective. Andrews v Law Society of British Columbia [1989] 1 SCR 143 held that citizenship requirements for bar membership were unrelated to the objective of ensuring that lawyers carried out their duties in an honourable and conscientious fashion.

Examples of the Canadian Court finding government conduct disproportionate to the alleged benefits include: laws protecting the confidentiality of matrimonial proceedings in R v Smith [1987] 1 SCR 1045; by-pass and notice provisions for abortions in Morgenthaler ; citizenship requirements for bar membership in Andrews; restrictions on advertising by dentists in Rocket v Royal College of Dental Surgeons [1990] 2 SCR 143. Examples of the Court finding measures proportionate to the benefits include steps taken to prevent drunk-driving in R v Hufsky [1988] 1 SCR 621, restriction on publication of sex-assault victim’s names in Canadian Newspapers Co v Canada (Attorney General) [1988] 2 SCR 122; prohibition of picketing outside courthouses in BCGEU v British Columbia (Attorney General) [1988] 2 SCR 214.

Woolman points that the second part of the Oakes proportionality test ‘invites significant judicial intervention into legislative policy-making, a task for which the courts are clearly not suited.8 The Canadian Court has since adopted a more flexible formula to the minimal impairment test.

Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.) [1990] 1 S.C.R. 1123: adopted a more flexible formula to the minimal impairment test.

Per Dickson C.J.:

The legislative scheme that was eventually implemented and has now been challenged need not be the "perfect" scheme that could be imagined by this Court or any other court. Rather, it is sufficient if it is appropriately and carefully tailored in the context of the infringed right. I find that this legislation meets the test of minimum impairment of the right in question.

In this regard, I find my words in R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713, at p. 783, to be applicable:6 At 769.7 Chaskalson, et al, 12-6, footnote 3.8 Chaskalson, et al, 12-7.

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I should emphasize that it is not the role of this Court to devise legislation that is constitutionally valid, or to pass on the validity of schemes which are not directly before it, or to consider what legislation might be the most desirable. The discussion of alternative legislative schemes that I have undertaken is directed to one end only, that is, to address the issue whether the existing scheme meets the requirements of the second limb of the test for the application of s. 1 of the Charter as set down in Oakes.9

Black v. Law Society of Alberta [1989] 1 S.C.R. 591 at 627: assessment of the proportionality of the means employed to achieve the objective pursued

The second step in the s. 1 analysis involves an assessment of the proportionality of the means employed to achieve the objective pursued. The nature of this proportionality test will, of course, necessarily vary with the circumstances. We must keep in mind the words of Dickson C.J. in R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713, at pp. 768-69:

Both in articulating the standard of proof and in describing the criteria comprising the proportionality requirement the Court has been careful to avoid rigid and inflexible standards.

The legislature must be given sufficient scope to achieve its objective. As I noted in R. v. Edwards Books and Art Ltd., at p. 795, in struggling with questions of social policy and attempting to deal with conflicting pressures, "a legislature must be given reasonable room to manoeuvre ..." The term "reasonable limit" is used in s. 1 and must be given meaning. Inherent in the word "reasonable" is the notion of flexibility. Section 1 does not advocate perfection.

United States of America v. Cotroni [1989] 1 S.C.R. 1469 at 1471: The Oakes test should not be applied in an overly rigid and mechanistic fashion

An extradition may be rationally connected to the objectives underlying extradition notwithstanding the fact that Canada has sufficient interest to prosecute for the same acts. It is often better that a crime be prosecuted where its harmful impact is felt and where the witnesses and the persons most interested in bringing the criminal to justice reside.

The Oakes test should not be applied in an overly rigid and mechanistic fashion: the language of the …. Charter invites a measure of flexibility. While the rights guaranteed by the Charter must be given priority in the equation, the underlying values must be sensitively weighed in a particular context against other values of a free and democratic society sought to be achieved by the legislature.

Andrews v. Law Society of British Columbia [1989] 1 S.C.R. 143 at 198: justifiability, fairness or proportionality

I turn then to a consideration of the justifiability, fairness or proportionality of the scheme. I agree with McIntyre J. that any such justification must be found under s. 1 of the Charter,

9 At 1138.

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essentially because, in matters involving infringements of fundamental rights, it is entirely appropriate that government sustain the constitutionality of its conduct. I am in general agreement with what he has to say about the manner in which legislation must be approached under the latter provision, in particular the need for a proportionality test involving a sensitive balancing of many factors in weighing the legislative objective. If I have any qualifications to make, it is that I prefer to think in terms of a single test for s. 1, but one that is to be applied to vastly differing situations with the flexibility and realism inherent in the word "reasonable" mandated by the Constitution.

The degree to which a free and democratic society such as Canada should tolerate differentiation based on personal characteristics cannot be ascertained by an easy calculus. There will rarely, if ever, be a perfect congruence between means and ends, save where legislation has discriminatory purposes. The matter must, as earlier cases have held, involve a test of proportionality. In cases of this kind, the test must be approached in a flexible manner. The analysis should be functional, focussing on the character of the classification in question, the constitutional and societal importance of the interests adversely affected, the relative importance to the individuals affected of the benefit of which they are deprived, and the importance of the state interest.

Woolman suggests that the South African limitation’s clause in the Interim Constitution provides a partial solution to the dilemma of deciding which situations ‘demand a weaker version of the minimal impairment test and which situations require a stronger test’.10 He refers to the ‘reasonable and necessary’ requirement. The requirement of necessity has not been included in the final constitution. The Canadian Court in

McKinney v Univ of Guelph [1990] 3 SCR 229 at 305: Impairment of rights

I turn then to the question whether mandatory retirement impairs the right to equality without discrimination on the basis of age "as little as possible". In undertaking this task, it is important again to remember that the ramifications of mandatory retirement on the organization of the workplace and its impact on society generally are not matters capable of precise measurement, and the effect of its removal by judicial fiat is even less certain. Decisions on such matters must inevitably be the product of a mix of conjecture, fragmentary knowledge, general experience and knowledge of the needs, aspirations and resources of society, and other components. They are decisions of a kind where those engaged in the political and legislative activities of Canadian democracy have evident advantages over members of the judicial branch, as Irwin Toy, supra, at pp. 993-94, has reminded us. This does not absolve the judiciary of its constitutional obligation to scrutinize legislative action to ensure reasonable compliance with constitutional standards, but it does import greater circumspection than in areas such as the criminal justice system where the courts' knowledge and understanding affords it a much higher degree of certainty.

However in Cotroni and Dagenais v Canadian Broadcasting Corp (1994) 120 DLR (4th) 12 the court employed a weak version of the Oakes test in criminal contexts.

10 Chaskalson, et al, 12-7.

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Law of general appliation:

It is not clear whether directives or guidelines issued by government agencies or statutory bodies should qualify as laws of general application. Canadian authority is divided on this matter.11 Unfettered grants of power usually fail the general application test. This is because it entails arbitrary action and the grant of power lacks ‘precision’.

Irwin Toy Ltd. v. Quebec (Attorney general) [1989] 1 S.C.R. 927: Whether the legislature has provided an intelligible standard

Absolute precision in the law exists rarely, if at all. The question is whether the legislature has provided an intelligible standard according to which the judiciary must do its work. The task of interpreting how that standard applies in particular instances might always be characterized as having a discretionary element, because the standard can never specify all the instances in which it applies. On the other hand, where there is no intelligible standard and where the legislature has given a plenary discretion to do whatever seems best in a wide set of circumstances, there is no "limit prescribed by law".

The same applies where the law is vague:

R. v. Nova Scotia Pharmaceutical Society [1992] 2 S.C.R. 606: Vagueness. Overbreadth. The threshold for finding a law vague is relatively high. The factors to be considered (a) the need for flexibility (b) the impossibility of achieving absolute certainty, a standard of intelligibility being more appropriate (c) the possibility that many varying judicial interpretations of a given disposition may exist and perhaps coexist. (See below for summary of opinions)

Vagueness can be raised under s. 7 of the Charter, since it is a principle of fundamental justice that laws may not be too vague. It can also be raised under s. 1 of the Charter in limine, on the basis that an enactment is so vague as not to satisfy the requirement that a limitation on Charter rights be "prescribed by law". Vagueness is also relevant to the "minimal impairment" stage of the Oakes test. Vagueness, when raised under s. 7 or under s. 1 in limine, involves similar considerations and should be considered a single concept. Vagueness as it relates to the "minimal impairment" branch of s. 1 merges with the related concept of "overbreadth".

What is referred to as "overbreadth", whether it stems from the vagueness of a law or from another source, remains no more than an analytical tool to establish a violation of a Charter right. It is always established by comparing the ambit of the provision touching upon a protected right with such concepts as the objectives of the State, the principles of fundamental justice, the proportionality of punishment or the reasonableness of searches and seizures, to name a few. Overbreadth has no autonomous value under the Charter and references to such a doctrine are superfluous.

11 Chaskalson, et al, 12-19.

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The "doctrine of vagueness" is founded on the rule of law, particularly on the principles of fair notice to citizens and limitation of enforcement discretion. Fair notice to the citizen comprises a formal aspect -- an acquaintance with the actual text of a statute -- and a substantive aspect -- an understanding that certain conduct is the subject of legal restrictions. The crux of the concern for limitation of enforcement discretion is that a law must not be so devoid of precision in its content that a conviction will automatically flow from the decision to prosecute. The threshold for finding a law vague is relatively high. The factors to be considered include (a) the need for flexibility and the interpretative role of the courts; (b) the impossibility of achieving absolute certainty, a standard of intelligibility being more appropriate, and (c) the possibility that many varying judicial interpretations of a given disposition may exist and perhaps coexist.

The doctrine of vagueness can be summed up in one proposition: a law will be found unconstitutionally vague if it so lacks in precision as not to give sufficient guidance for legal debate -- that is, for reaching a conclusion as to its meaning by reasoned analysis applying legal criteria. The term "legal debate" is not used to express a new standard or one departing from that previously outlined by this Court. It is rather intended to reflect and encompass the same standard and criteria of fair notice and limitation of enforcement discretion viewed in the fuller context of an analysis of the quality and limits of human knowledge and understanding in the operation of the law. The criterion of absence of legal debate relates well to the rule of law principles that form the backbone of our polity. Legal provisions by stating certain propositions outline permissible and impermissible areas, and they also provide some guidance to ascertain the boundaries of these areas. They provide a framework, a guide as to how one may behave, but certainty is only reached in instant cases, where law is actualized by a competent authority. By setting out the boundaries of permissible and non-permissible conduct, these norms give rise to legal debate. They bear substance, and they allow for a discussion as to their actualization. They therefore limit enforcement discretion by introducing boundaries, and they also sufficiently delineate an area of risk to allow for substantive notice to citizens. No higher requirement as to certainty can be imposed on law in our modern State. The modern State intervenes today in fields where some generality in the enactments is inevitable. The substance of these enactments must remain nonetheless intelligible. The standard of "absence of legal debate" applies to all enactments, irrespective of whether they are civil, criminal, administrative or other. Once the minimal general standard has been met, any further arguments as to the precision of the enactments should be considered at the "minimal impairment" stage of the s. 1 analysis.

Section 32(1)(c) of the Act and its companion interpretative provision s. 32(1.1) do not violate s. 7 of the Charter on grounds of vagueness. Section 32(1)(c) provides that "[e]very one who conspires, combines, agrees or arranges with another person . . . to prevent, or lessen, unduly, competition . . . is guilty of an indictable offence". This section embodies a general standard which represents an intelligible principle, one that carries meaning and that has conceptual force. While the word "unduly" does not have a precise technical meaning, it is a word of common usage which denotes a sense of seriousness. Considering further that s. 32(1)(c) is one of the oldest and most important parts of Canadian public policy in the economic field, and that it mandates a partial rule of reason inquiry into the seriousness of the competitive effects of the agreement, Parliament has sufficiently delineated the area of risk and the terms of debate to meet the constitutional standard. Moreover, s. 32(1)(c) is made even more precise when the content of the inquiry it mandates is considered. The rest of the Act and the case law have outlined a process of examination of market structure and behaviour of the parties to the agreement whicheliminates any vagueness that might remain.

In light of the above, the indictment did not infringe s. 11(a) of the Charter.

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Rules that emanate from statute, delegated legislation and the common law are ‘prescribed by law’. Rules that emanate from directives or guidelines issued by government departments or agencies but which are not officially published delegated legislation do not enjoy the same status.

Committee for the Commonwealth of Canada v Canada (1991) 77 DLR (4th) 385: Rules that emanate from directives or guidelines issued by government departments or agencies but which are not officially published delegated legislation do not enjoy the same status as those ‘prescribed by law’.

Respondents L and D were at an airport telling passers-by about the respondent committee and its goals and recruiting members when they were asked by an R.C.M.P. officer to cease their activities. The airport's assistant manager confirmed to them that such political propaganda activities were not permitted, as ss. 7(a) and 7(b) of the Government Airport Concession Operations Regulations prohibited the conducting of any business or undertaking, commercial or otherwise, and any advertising or soliciting at an airport, except as authorized in writing by the Minister.

In this case respondents' activities at the airport benefited from the protection of s. 2(b) of the Charter. The distribution of pamphlets and discussion with certain members of the public are in no way incompatible with the airport's primary function, that of accommodating the needs of the travelling public. An airport is a thoroughfare, which in its open areas or waiting areas can accommodate expression without the effectiveness or function of the place being in any way threatened. There was thus a limitation on the freedom of expression enjoyed by respondents when the airport manager ordered them to cease their activities. However, in the absence of a limit prescribed by law, this limitation cannot be justified under s. 1 of the Charter. The language of ss. 7(a) and 7(b) of the Regulations, analysed in the context of the section and of the Regulations as a whole, prohibits only undertakings of a commercial nature and does not cover political propaganda. Section 7 is accordingly not applicable in this case. The limitation imposed on respondents' freedom of expression arose from the action taken by the airport manager, a government official, who ordered them to cease their activities. Although this action was based on an established policy or internal directive, it cannot be concluded from this that there was a "law" which could be justified under s. 1 of the Charter. The government's internal directives or policies differ essentially from statutes and regulations in that they are generally not published and so are not known to the public. Moreover, they are binding only on government officials and may be amended or cancelled at will.

Executive action will fail the test where officials take action which infringe fundamental rights without possessing clear legal authority to do so.

R. v. Therens [1985] 1 S.C.R. 613: The violation of the respondent's rights is not the result of the operation of the law but of the police action. No need to consider in this case whether, the "breathalyzer scheme" is a reasonable limit to one's rights under the Charter

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Whether respondent's right to counsel subject, by virtue of s. 235(1) of the Code, to a limit prescribed by law.

Respondent lost control of his motor vehicle and it collided with a tree. A police officer demanded respondent provide samples of his breath for analysis pursuant to s. 235(1) of the Criminal Code. Respondent accompanied the officer to the police station, complied with the demand, and was subsequently charged with driving a motor vehicle while having an excessive blood alcohol level contrary to s. 236(1) of the Code. At trial, respondent's counsel objected to the admission of the certificate of analysis and applied, pursuant to s. 24 of the Charter, (page 614) for its exclusion on the ground that he had been denied the right, guaranteed by s. 10(b) of the Charter, to be informed, upon arrest or detention, of his right to retain and instruct counsel without delay.

Per Beetz, Estey, Chouinard and Wilson JJ.: The Court is not concerned with s. 1 of the Charter because Parliament, in s. 235(1) of the Code, has not purported to limit respondent's right under s. 10(b) of the Charter. Section 1 subjects all Charter rights, including s. 10, "only to such reasonable limits prescribed by law...." Here the limit on the respondent's right to consult counsel was imposed by the conduct of the police officers and not by Parliament.

Per Dickson C.J. and McIntyre and Le Dain JJ.: Section 235(1) of the Code does not purport to place a limitation on the right to counsel. A s. 235(1) demand must be made "forthwith or as soon as practicable" and the person to whom the demand is made must provide a breath sample "then or as soon thereafter as is practicable". The two-hour operating requirement imposed by s. 237(1)(b)(ii) does not preclude any contact at all with counsel prior to the breathalyser test. When detained because of a s. 235(1) demand, the right to be informed of the right to retain and instruct counsel without delay is not, therefore, subject to a limit prescribed by law within the meaning of s. 1 of the Charter.

Per Lamer J.: The violation of the respondent's rights is not the result of the operation of the law but of the police action. Therefore, there is no need to consider in this case whether, under s. 1 of the Charter, the (page 616) "breathalyzer scheme" set up through s. 235(1) and s. 237 of the Criminal Code is a reasonable limit to one's rights under the Charter.

R. v. Hebert [1990] 2 S.C.R. 151

Per Dickson C.J. and Lamer, La Forest, L'Heureux-Dubé, Gonthier, Cory and McLachlin JJ.: Section 7 of the Charter accords a detained person a pre-trial right to remain silent, and the scope of that right extends beyond the narrow formulation of the confessions rule.

Here, the accused exercised his choice not to speak to the police and the police violated his right to remain silent under s. 7 of the Charter by using a trick to negate his decision. Section 1 of the Charter was inapplicable because the police conduct was not a limit "prescribed by law" within the meaning of that section.

The evidence obtained in breach of the accused's right under s. 7 should be excluded pursuant to s. 24(2) of the Charter. Where an accused is conscripted to give evidence against himself after clearly electing not to do so by use of an unfair trick practised by the authorities, and where the resultant statement is the only evidence against him, the reception of the evidence would render the trial unfair. The accused would be deprived of his presumption of

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innocence and would be placed in the position of having to take the stand if he wished to counter the damaging effect of the confession (page 154).

Irwin Toy Ltd. v. Quebec (Attorney general) [1989] 1 S.C.R. 927: The test for government action that intentionally restricts the protected activity and government actions which effectively restrict the protected activity.

This case sets out the test for government action that intentionally restricts the protected activity and government actions which effectively restrict the protected activity.

Per Dickson C.J. and Lamer and Wilson JJ.: When faced with an alleged violation of the guarantee of freedom of expression, the first step is to determine whether the plaintiff's activity falls within the sphere of conduct protected by the guarantee. Activity which (1) does not convey or attempt to convey a meaning, and thus has no content of expression, or (2) which conveys a meaning but through a violent form of expression, is not within the protected sphere of conduct. If the activity falls within the protected sphere of conduct, the second step is to determine whether the purpose or effect of the government action in issue was to restrict freedom of expression. If the government has aimed to control attempts to convey a meaning either by directly restricting the content of expression or by restricting a form of expression tied to content, its purpose trenches upon the guarantee. Where, on the other hand, it aims only to control the physical consequences of particular conduct, its purpose does not trench upon the guarantee. In determining whether the government's purpose aims simply at harmful physical consequences, the question becomes: does the mischief consist in the meaning of the activity or the purported influence that meaning has on the behaviour of others, or does it consist, rather, only in the direct physical result of the activity. If the government's purpose was not to restrict free expression, the plaintiff can still claim that the effect of the government's action was to restrict her expression. To make this claim, the plaintiff must at least identify the meaning being conveyed and how it relates to the pursuit of truth, participation in the community, or individual self-fulfillment and human flourishing. Here, respondent's activity is not excluded from the sphere of conduct protected by freedom of expression. The government's purpose in enacting ss. 248 and 249 of the Consumer Protection Act and in promulgating ss. 87 to 91 of the Regulation respecting the application of the Consumer Protection Act was to prohibit particular content of expression in the name of protecting children. These provisions therefore constitute limitations to s. 2(b) of the Canadian Charter and s. 3 of the Quebec Charter.

The First Step: Was the Plaintiff's Activity Within the Sphere of Conduct Protected by Freedom of Expression?

Does advertising aimed at children fall within the scope of freedom of expression? This question must be put even before deciding whether there has been a limitation of the guarantee. Clearly, not all activity is protected by freedom of expression, and governmental action restricting this form of advertising only limits the guarantee if the activity in issue was protected in the first place. Thus, for example, in Reference Re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313; PSAC v. Canada, [1987] 1 S.C.R. 424; and RWDSU v. Saskatchewan, [1987] 1 S.C.R. 460, the majority of the Court found that freedom of association did not include the right to strike. The activity itself was not within the sphere protected by s. 2(d); therefore the government action in restricting it was not contrary to the Charter. The same procedure must be followed with respect to an analysis of freedom of expression; the first step to be taken in an inquiry of this kind is to discover whether the activity which the plaintiff wishes to pursue may

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properly be characterized as falling within "freedom of expression". If the activity is not within s. 2(b), the government action obviously cannot be challenged under that section….

The Second Step: Was the Purpose or Effect of the Government Action to Restrict Freedom of Expression?

Having found that the plaintiff's activity does fall within the scope of guaranteed free expression, it must next be determined whether the purpose or effect of the impugned governmental action was to control attempts to convey meaning through that activity. The importance of focussing at this stage on the purpose and effect of the legislation is nowhere more clearly stated than in R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, at pp. 331-32 where Dickson J. (as he then was), speaking for the majority, observed:

In my view, both purpose and effect are relevant in determining constitutionality; either an unconstitutional purpose or an unconstitutional effect can invalidate legislation. All legislation is animated by an object the legislature intends to achieve. This object is realized through the impact produced by the operation and application of the legislation. Purpose and effect respectively, in the sense of the legislation's object and its ultimate impact, are clearly linked, if not indivisible. Intended and actual effects have often been looked to for guidance in assessing the legislation's object and thus, its validity.

Moreover, consideration of the object of legislation is vital if rights are to be fully protected. The assessment by the courts of legislative purpose focuses scrutiny upon the aims and objectives of the legislature and ensures they are consonant with the guarantees enshrined in the Charter. The declaration that certain objects lie outside the legislature's power checks governmental action at the first stage of unconstitutional conduct. Further, it will provide more ready and more vigorous protection of constitutional rights by obviating the individual litigant's need to prove effects violative of Charter rights. It will also allow courts to dispose of cases where the object is clearly improper, without inquiring into the legislation's actual impact.

Dickson J. went on to specify how this inquiry into purpose and effects should be carried out (at p. 334):

In short, I agree with the respondent that the legislation's purpose is the initial test of constitutional validity and its effects are to be considered when the law under review has passed or, at least, has purportedly passed the purpose test. If the legislation fails the purpose test, there is no need to consider further its effects, since it has already been demonstrated to be invalid. Thus, if a law with a valid purpose interferes by its impact, with rights or freedoms, a litigant could still argue the effects of the legislation as a means to defeat its applicability and possibly its validity. In short, the effects test will only be necessary to defeat legislation with a valid purpose; effects can never be relied upon to save legislation with an invalid purpose.

If the government's purpose, then, was to restrict attempts to convey a meaning, there has been a limitation by law of s. 2(b) and a s. 1 analysis is required to determine whether the law is inconsistent with the provisions of the Constitution. If, however, this was not the government's purpose, the court must move on to an analysis of the effects of the government action.

a. Purpose

….the purpose of government action must be measured against the ambit of the relevant guarantee. It is important, of course, to heed Dickson J.'s warning against a "theory of shifting

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purpose" (Big M Drug Mart, supra, at p. 335): "Purpose is a function of the intent of those who drafted and enacted the legislation at the time, and not of any shifting variable." This is not to say that the degree to which a purpose remains or becomes pressing and substantial cannot change over time. In Big M Drug Mart, Dickson J.'s principal concern was to avoid characterizing purposes in a way that shifted over time. But it is equally true that the government cannot have had one purpose as concerns the division of powers, a different purpose as concerns the guaranteed right or freedom, and a different purpose again as concerns reasonable and justified limits to that guarantee. Nevertheless, the same purpose can be assessed from different standpoints when interpreting the division of powers, limitation of a guarantee, or reasonable limits to that guarantee.

If the government's purpose is to restrict the content of expression by singling out particular meanings that are not to be conveyed, it necessarily limits the guarantee of free expression. If the government's purpose is to restrict a form of expression in order to control access by others to the meaning being conveyed or to control the ability of the one conveying the meaning to do so, it also limits the guarantee. On the other hand, where the government aims to control only the physical consequences of certain human activity, regardless of the meaning being conveyed, its purpose is not to control expression…

In sum, the characterization of government purpose must proceed from the standpoint of the guarantee in issue. With regard to freedom of expression, if the government has aimed to control attempts to convey a meaning either by directly restricting the content of expression or by restricting a form of expression tied to content, its purpose trenches upon the guarantee. Where, on the other hand, it aims only to control the physical consequences of particular conduct, its purpose does not trench upon the guarantee. In determining whether the government's purpose aims simply at harmful physical consequences, the question becomes: does the mischief consist in the meaning of the activity or the purported influence that meaning has on the behaviour of others, or does it consist, rather, only in the direct physical result of the activity.

b. Effects

Even if the government's purpose was not to control or restrict attempts to convey a meaning, the Court must still decide whether the effect of the government action was to restrict the plaintiff's free expression. Here, the burden is on the plaintiff to demonstrate that such an effect occurred. In order so to demonstrate, a plaintiff must state her claim with reference to the principles and values underlying the freedom.

We have already discussed the nature of the principles and values underlying the vigilant protection of free expression in a society such as ours. They were also discussed by the Court in Ford (at pp. 765-67), and can be summarized as follows: (1) seeking and attaining the truth is an inherently good activity; (2) participation in social and political decision-making is to be fostered and encouraged; and (3) the diversity in forms of individual self-fulfillment and human flourishing ought to be cultivated in an essentially tolerant, indeed welcoming, environment not only for the sake of those who convey a meaning, but also for the sake of those to whom it is conveyed. In showing that the effect of the government's action was to restrict her free expression, a plaintiff must demonstrate that her activity promotes at least one of these principles. It is not enough that shouting, for example, has an expressive element. If the plaintiff challenges the effect of government action to control noise, presuming that action to have a purpose neutral as to expression, she must show that her aim was to convey a meaning reflective of the principles underlying freedom of expression. The precise and complete

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articulation of what kinds of activity promote these principles is, of course, a matter for judicial appreciation to be developed on a case by case basis. But the plaintiff must at least identify the meaning being conveyed and how it relates to the pursuit of truth, participation in the community, or individual self-fulfillment and human flourishing.

R. v. Nova Scotia Pharmaceutical Society [1992] 2 S.C.R. 606: Vagueness -- Conspiracy to prevent or lessen competition unduly -- Whether word "unduly" in s. 32(1)(c) of Combines Investigation Act so vague as to infringe principles of fundamental justice-- Whether mens rea required by s. 32(1)(c) of Combines Investigation Act inconsistent with principles of fundamental justice

Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory and Iacobucci JJ.ON APPEAL FROM THE NOVA SCOTIA SUPREME COURT, APPEAL DIVISIONConstitutional law -- Charter of Rights -- Fundamental justice -- Vagueness -- Conspiracy to prevent or lessen competition unduly -- Whether word "unduly" in s. 32(1)(c) of Combines Investigation Act so vague as to infringe principles of fundamental justice -- Canadian Charter of Rights and Freedoms, s. 7 -- Combines Investigation Act, R.S.C. 1970, c. C-23, s. 32(1)(c), (1.1).Constitutional law -- Charter of Rights -- Fundamental justice -- Mens rea -- Conspiracy to prevent or lessen competition unduly -- Whether mens rea required by s. 32(1)(c) of Combines Investigation Act inconsistent with principles of fundamental justice -- Canadian Charter of Rights and Freedoms, s. 7 -- Combines Investigation Act, R.S.C. 1970, c. C-23, s. 32(1)(c).Appeal -- Supreme Court of Canada -- Jurisdiction -- Arguments on appeal -- Respondent seeking variation of Court of Appeal's reasons on mens rea issue -- No leave to appeal sought on this issue -- Issue arising from respondent's notice of intention -- Whether mens rea issue properly before Court -- Rules of the Supreme Court of Canada, SOR/ 83-74, Rule 29(1), (2).Combines -- Conspiracy to prevent or lessen competition unduly -- Mens rea -- Whether Crown must prove that accused intended to restrict competition unduly -- Combines Investigation Act, R.S.C. 1970, c. C-23, s. 32(1)(c) -- Canadian Charter of Rights and Freedoms, s. 7.Combines -- Conspiracy to prevent or lessen competition unduly -- Determination of "undueness" -- Distinction between questions of fact and questions of law -- Combines Investigation Act, R.S.C. 1970, c. C-23, s. 32(1)(c).The appellants were charged with two counts of conspiracy to prevent or lessen competition unduly, contrary to s. 32(1)(c) of the Combines Investigation Act. Both counts related to the sale and offering for sale of prescription drugs and pharmacists' dispensing services prior to June 16, 1986. They moved for an order quashing the indictment, on the basis that ss. 32(1)(c), 32(1.1) and 32(1.3) of the Act violated ss. 7, 11(a) and 11(d) of the Canadian Charter of Rights and Freedoms and were therefore invalid. The arguments raised revolved essentially on the issues of vagueness and mens rea. The Nova Scotia Supreme Court, Trial Division granted the motion and quashed the indictment. The Appeal Division allowed the Crown's appeal. The main issues raised in this appeal were (1) whether s. 32(1)(c) of the Act infringed s. 7 of the Charter because of vagueness arising from the use of the word "unduly"; and (2) whether s. 32(1)(c) infringed s. 7 by reason of the mens rea required by the offence.Held: The appeal should be dismissed. Section 32(1)(c) does not violate s. 7 of the Charter.(1) Vagueness

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Vagueness can be raised under s. 7 of the Charter, since it is a principle of fundamental justice that laws may not be too vague. It can also be raised under s. 1 of the Charter in limine, on the basis that an enactment is so vague as not to satisfy the requirement that a limitation on Charter rights be "prescribed by law". Vagueness is also relevant to the "minimal impairment" stage of the Oakes test. Vagueness, when raised under s. 7 or under s. 1 in limine, involves similar considerations and should be considered a single concept. Vagueness as it relates to the "minimal impairment" branch of s. 1 merges with the related concept of "overbreadth".What is referred to as "overbreadth", whether it stems from the vagueness of a law or from another source, remains no more than an analytical tool to establish a violation of a Charter right. It is always established by comparing the ambit of the provision touching upon a protected right with such concepts as the objectives of the State, the principles of fundamental justice, the proportionality of punishment or the reasonableness of searches and seizures, to name a few. Overbreadth has no autonomous value under the Charter and references to such a doctrine are superfluous.The "doctrine of vagueness" is founded on the rule of law, particularly on the principles of fair notice to citizens and limitation of enforcement discretion. Fair notice to the citizen comprises a formal aspect -- an acquaintance with the actual text of a statute -- and a substantive aspect -- an understanding that certain conduct is the subject of legal restrictions. The crux of the concern for limitation of enforcement discretion is that a law must not be so devoid of precision in its content that a conviction will automatically flow from the decision to prosecute. The threshold for finding a law vague is relatively high. The factors to be considered include (a) the need for flexibility and the interpretative role of the courts; (b) the impossibility of achieving absolute certainty, a standard of intelligibility being more appropriate, and (c) the possibility that many varying judicial interpretations of a given disposition may exist and perhaps coexist.The doctrine of vagueness can be summed up in one proposition: a law will be found unconstitutionally vague if it so lacks in precision as not to give sufficient guidance for legal debate -- that is, for reaching a conclusion as to its meaning by reasoned analysis applying legal criteria. The term "legal debate" is not used to express a new standard or one departing from that previously outlined by this Court. It is rather intended to reflect and encompass the same standard and criteria of fair notice and limitation of enforcement discretion viewed in the fuller context of an analysis of the quality and limits of human knowledge and understanding in the operation of the law. The criterion of absence of legal debate relates well to the rule of law principles that form the backbone of our polity. Legal provisions by stating certain propositions outline permissible and impermissible areas, and they also provide some guidance to ascertain the boundaries of these areas. They provide a framework, a guide as to how one may behave, but certainty is only reached in instant cases, where law is actualized by a competent authority. By setting out the boundaries of permissible and non-permissible conduct, these norms give rise to legal debate. They bear substance, and they allow for a discussion as to their actualization. They therefore limit enforcement discretion by introducing boundaries, and they also sufficiently delineate an area of risk to allow for substantive notice to citizens. No higher requirement as to certainty can be imposed on law in our modern State. The modern State intervenes today in fields where some generality in the enactments is inevitable. The substance of these enactments must remain nonetheless intelligible. The standard of "absence of legal debate" applies to all enactments, irrespective of whether they are civil, criminal, administrative or other. Once the minimal general standard has been met, any further arguments as to the precision of the enactments should be considered at the "minimal impairment" stage of the s. 1 analysis.

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Section 32(1)(c) of the Act and its companion interpretative provision s. 32(1.1) do not violate s. 7 of the Charter on grounds of vagueness. Section 32(1)(c) provides that "[e]very one who conspires, combines, agrees or arranges with another person . . . to prevent, or lessen, unduly, competition . . . is guilty of an indictable offence". This section embodies a general standard which represents an intelligible principle, one that carries meaning and that has conceptual force. While the word "unduly" does not have a precise technical meaning, it is a word of common usage which denotes a sense of seriousness. Considering further that s. 32(1)(c) is one of the oldest and most important parts of Canadian public policy in the economic field, and that it mandates a partial rule of reason inquiry into the seriousness of the competitive effects of the agreement, Parliament has sufficiently delineated the area of risk and the terms of debate to meet the constitutional standard. Moreover, s. 32(1)(c) is made even more precise when the content of the inquiry it mandates is considered. The rest of the Act and the case law have outlined a process of examination of market structure and behaviour of the parties to the agreement which eliminates any vagueness that might remain.In light of the above, the indictment did not infringe s. 11(a) of the Charter.(2) Mens ReaThe mens rea issue is properly before this Court. Upon filing a notice of intention, the respondent Crown could request a variation of the Court of Appeal judgment on this issue, as long as it ultimately sought to uphold the disposition of the case in the Court of Appeal. Even if the Crown had not filed a notice of intention, the Court would have retained under Rule 29(1) of the Supreme Court Rules complete discretion to treat the whole case as open. A respondent may advance any argument to sustain the judgment below, and he is not limited to the appellant's points of law. This case fell plainly within Rule 29(1), and Rule 29(2), dealing with cross-appeals, had no application.The mens rea required by s. 32(1)(c) is not inconsistent with s. 7 of the Charter. While an element of fault must exist before punishment can be justified, a minimum fault requirement with respect to every criminal or regulatory offence satisfies the requirements of s. 7. That fault may be demonstrated by proof of intent, whether subjective or objective, or by proof of negligent conduct, depending on the nature of the offence. Here, the offence set out in s. 32(1)(c) requires the proof of two fault elements: one subjective, the other objective. To satisfy the subjective element of the offence, the Crown must prove that the accused had the intention to enter into the agreement and had knowledge of the terms of that agreement. To satisfy the objective element, the Crown must prove that on an objective view of the evidence adduced the accused intended to lessen competition unduly -- i.e., that the evidence, viewed by a reasonable business person, establishes that the accused was aware or ought to have been aware that the effect of the agreement entered into would be to prevent or lessen competition unduly. Section 32(1)(c) does not therefore violate s. 7 of the Charter.

R. v. Keegstra [1990] 3 S.C.R. 697: Reasonable limits --General approach to s. 1 of Canadian Charter of Rights and Freedoms -- Freedom of expression -- Hate propaganda-- Presumption of innocence -- Reverse onus provision

Present: Dickson C.J. and Wilson, La Forest, L'Heureux-Dubé, Sopinka, Gonthier and McLachlin JJ.ON APPEAL FROM THE COURT OF APPEAL FOR ALBERTA

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Constitutional law -- Charter of Rights -- Freedom of expression -- Hate propaganda -- Criminal Code prohibiting wilful promotion of hatred against identifiable groups (s. 319(2)) -- Defence of truth to be established by accused on balance of probabilities (s. 319(3)(a)) -- Whether s. 319(2) of Criminal Code infringes s. 2(b) of Canadian Charter of Rights and Freedoms -- If so, whether infringement justifiable under s. 1 of Charter.Constitutional law -- Charter of Rights -- Presumption of innocence -- Reverse onus provision -- Criminal Code prohibiting wilful promotion of hatred against identifiable groups (s. 319(2)) -- Defence of truth to be established by accused on balance of probabilities (s. 319(3)(a)) --Whether s. 319(3)(a) of Criminal Code infringes s. 11(d) of Canadian Charter of Rights and Freedoms -- If so, whether infringement justifiable under s. 1 of Charter.Constitutional law -- Charter of Rights -- Reasonable limits --General approach to s. 1 of Canadian Charter of Rights and Freedoms.The accused, an Alberta high school teacher, was charged under s. 319(2) of the Criminal Code with wilfully promoting hatred against an identifiable group by communicating anti-semitic statements to his students. Prior to his trial, the accused applied to the Court of Queen's Bench for an order quashing the charge. The court dismissed the application on the ground that s. 319(2) of the Code did not violate freedom of expression as guaranteed by s. 2(b) of the Canadian Charter of Rights and Freedoms. The court, for want of proper notice to the Crown, did not entertain the accused's argument that s. 319(3)(a) of the Code violated the presumption of innocence protected by s. 11(d) of the Charter. Section 319(3)(a) affords a defence of "truth" to the wilful promotion of hatred but only where the accused proves the truth of the communicated statements on a balance of probabilities. The accused was thereafter tried and convicted. On appeal the accused's Charter arguments were accepted, the Court of Appeal holding that ss. 319(2) and 319(3)(a) infringed ss. 2(b) and 11(d) of the Charter respectively, and that the infringements were not justifiable under s. 1 of the Charter.Held (La Forest, Sopinka and McLachlin JJ. dissenting): The appeal should be allowed. Sections 319(2) and 319(3)(a) of the Code are constitutional.(1) Freedom of ExpressionPer Dickson C.J. and Wilson, L'Heureux-Dubé and Gonthier JJ.: Communications which wilfully promote hatred against an identifiable group are protected by s. 2(b) of the Charter. When an activity conveys or attempts to convey a meaning, through a non-violent form of expression, it has expressive content and thus falls within the scope of the word "expression" as found in the guarantee. The type of meaning conveyed is irrelevant. Section 2(b) protects all content of expression. In enacting s. 319(2) of the Code, Parliament sought to prohibit communications which convey meaning. Section 319(2), therefore, represents an infringement of s. 2(b).Communications which are intended to promote hatred against identifiable groups do not fall within the ambit of a possible s. 2(b) exception concerning expression manifested in a violent form. This exception refers only to expression communicated directly through physical harm. Hate propaganda is not analogous to violence. It conveys a meaning that is repugnant, but the repugnance stems from the content of the message and not from its form. As for threats of violence, they are not excluded from the definition of expression envisioned by s. 2(b).Sections 15 and 27 of the Charter, which deal with equality and multiculturalism, and the international agreements signed by Canada on the prohibition of racist statements, should not be used to interpret the scope of s. 2(b). It is inappropriate to attenuate the s. 2(b) freedom on the grounds that a particular context so requires. The large and liberal interpretation given to

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freedom of expression indicates that the preferable course is to weigh the various contextual values and factors in s. 1 of the Charter. This section both guarantees and limits Charter rights and freedoms by reference to principles fundamental in a free and democratic society.Section 319(2) of the Code constitutes a reasonable limit upon freedom of expression. Parliament's objective of preventing the harm caused by hate propaganda is of sufficient importance to warrant overriding a constitutional freedom. Parliament has recognized the substantial harm that can flow from hate propaganda and, in trying to prevent the pain suffered by target group members and to reduce racial, ethnic and religious tension and perhaps even violence in Canada, has decided to suppress the wilful promotion of hatred against identifiable groups. Parliament's objective is supported not only by the work of numerous study groups, but also by our collective historical knowledge of the potentially catastrophic effects of the promotion of hatred. Additionally, the international commitment to eradicate hate propaganda and Canada's commitment to the values of equality and multiculturalism in ss. 15 and 27 of the Charter strongly buttress the importance of this objective.Section 319(2) of the Code is an acceptably proportional response to Parliament's valid objective. There is obviously a rational connection between the criminal prohibition of hate propaganda and the objective of protecting target group members and of fostering harmonious social relations in a community dedicated to equality and multiculturalism. Section 319(2) serves to illustrate to the public the severe reprobation with which society holds messages of hate directed towards racial and religious groups. It makes that kind of expression less attractive and hence decreases acceptance of its content. Section 319(2) is also a means by which the values beneficial to a free and democratic society in particular, the value of equality and the worth and dignity of each human person can be publicized.Section 319(2) of the Code does not unduly impair freedom of expression. This section does not suffer from overbreadth or vagueness; rather, the terms of the offence indicate that s. 319(2) possesses definitional limits which act as safeguards to ensure that it will capture only expressive activity which is openly hostile to Parliament's objective, and will thus attack only the harm at which the prohibition is targeted. The word "wilfully" imports into the offence a stringent standard of mens rea which significantly restricts the reach of s. 319(2) by necessitating the proof of either an intent to promote hatred or knowledge of the substantial certainty of such a consequence. The word "hatred" further reduces the scope of the prohibition. This word, in the context of s. 319(2), must be construed as encompassing only the most severe and deeply felt form of opprobrium. Further, the exclusion of private communications from the scope of s. 319(2), the need for the promotion of hatred to focus upon an identifiable group and the presence of the s. 319(3) defences, which clarify the scope of s. 319(2), all support the view that the impugned section creates a narrowly confined offence. Section 319(2) is not an excessive impairment of freedom of expression merely because the defence of truth in s. 319(3)(a) does not cover negligent or innocent error as to the truthfulness of a statement. Whether or not a statement is susceptible to classification as true or false, such error should not excuse an accused who has wilfully used a statement in order to promote hatred against an identifiable group. Finally, while other non-criminal modes of combatting hate propaganda exist, it is eminently reasonable to utilize more than one type of legislative tool in working to prevent the spread of racist expression and its resultant harm. To send out a strong message of condemnation, both reinforcing the values underlying s. 319(2) and deterring the few individuals who would harm target group members and the larger community by communicating hate propaganda, will occasionally require use of the criminal law.

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The effects of s. 319(2) are not of such a deleterious nature as to outweigh any advantage gleaned from the limitation of s. 2(b). The expressive activity at which s. 319(2) is aimed constitutes a special category, a category only tenuously connected with the values underlying the guarantee of freedom of expression. Hate propaganda contributes little to the aspirations of Canadians or Canada in either the quest for truth, the promotion of individual self-development or the protection and fostering of a vibrant democracy where the participation of all individuals is accepted and encouraged. Moreover, the narrowly drawn terms of s. 319(2) and its defences prevent the prohibition of expression lying outside of this narrow category. Consequently, the suppression of hate propaganda represents an impairment of the individual's freedom of expression which is not of a most serious nature.Per La Forest, Sopinka McLachlin JJ. (dissenting): Section 319(2) of the Code infringes the guarantee of freedom of expression. Where, as in this case, an activity conveys or attempts to convey a meaning or message through a non-violent form of expression, this activity falls within the sphere of the conduct protected by s. 2(b). This section protects all content of expression irrespective of the meaning or message sought to be conveyed, no matter how offensive it may be. The government's purpose in enacting s. 319(2) was to restrict freedom of expression by curtailing what people may say. Section 319(2), therefore, imposes a limit on s. 2(b).The promotion of hatred in this case does not assume a form which falls outside the protected sphere of s. 2(b). The accused's communications were offensive and propagandistic, but they do not constitute threats in the usual sense of that word. The accused's statements did not urge violence against the Jewish people. They were not made with the intention and do not have the effect of compelling Jewish people or anyone else to do one thing or another. Nor do the accused's statements constitute violence. Violence, as discussed in Dolphin Delivery and Irwin Toy, connotes actual or threatened physical interference with the activities of others. Moreover, statements promoting hatred are not akin to threats or violence. There is nothing in the form of such statements which subverts democracy or our basic freedoms in the way in which violence or threats of violence may. Finally, to suggest that speech, like hate propaganda, which undermines the credibility of speakers belonging to particular groups does not fall within s. 2(b) of the Charter, is to remove from the protection of the Charter an enormous amount of speech which has long been accepted as important and valuable.Sections 15 and 27 of the Charter and the international convenants signed by Canada on the prohibition of racism do not reduce the scope of expression protected by s. 2(b) so as to exclude the accused's statements. First, to do so would be to exclude statements from the protection of s. 2(b) on the basis of their content, an approach which this Court has rejected. Second, given that the protection under s. 2(b) is aimed at protecting individuals from having their expression infringed by the government, it would be a misapplication of Charter values to thereby limit the scope of that individual guarantee with an argument based on s. 15, which is also aimed at circumscribing the power of the state. Third, it would be extremely difficult to balance in the abstract conflicting values such as equality and multiculturalism against freedom of expression. Assuming such balancing were to be done, it would be more appropriately made under s. 1 of the Charter than under s. 2(b). Fourth, Canada's international obligations, and the accords negotiated between international governments, may well be helpful in placing Charter interpretation in a larger context but these obligations are not determinative or limitative of the scope of the Charter guarantees. The provisions of the Charter, though drawing on a political and social philosophy shared with other democratic societies, are uniquely Canadian. As a result, considerations may point, as they do in this case, to a conclusion regarding a rights violation which is not necessarily

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in accord with those international covenants. Unlike the international covenants, which exclude hate propaganda from the guarantee of speech, the Charter posits a broad and unlimited right of expression under s. 2(b), a right which can only be cut back under s. 1.Section 2(b) does not protect only justified or meritorious expression. Historical legal limitations on expression which conflict with the larger Canadian conception of free speech must be rejected. While in this case it may be easy to achieve near-unanimous consensus that the statements contribute nothing positive to our society, experience shows that in other cases it may be difficult to draw the line between speech which has value to democracy or social issues and speech which does not. Attempts to confine the guarantee of free expression only to content which is judged to possess redeeming value or to accord with the accepted values strike at the very essence of the value of the freedom, reducing the realm of protected discussion to that which is comfortable and compatible with current conceptions. If the guarantee of free expression is to be meaningful, it must protect expression which challenges even the very basic conceptions about our society. A true commitment to freedom of expression demands nothing less.Section 319(2) of the Code does not constitute a reasonable limit upon freedom of expression. While the legislative objectives of preventing the promotion of hatred, of avoiding racial violence and of promoting equality and multiculturalism are of sufficient importance to warrant overriding the guarantee of freedom of expression, s. 319(2) fails to meet the proportionality test.Section 319(2) does, to some degree, further Parliament's objective. However, the rational connection between s. 319(2) and its goals is tenuous as there is not a strong and evident connection between the criminalization of hate propaganda and its suppression. Section 319(2) may in fact detract from the objectives it is designed to promote by deterring legitimate expression. Law-abiding citizens, who do not wish to run afoul of the law, could decide not to take the chance in a doubtful case. Creativity and the beneficial exchange of ideas could be adversely affected. At the same time, it is unclear that s. 319(2) provides an effective way of curbing hate-mongers. Not only does the criminal process attract extensive media coverage and confer on the accused publicity for his dubious causes, it may even bring him sympathy.Section 319(2) of the Code does not interfere as little as possible with freedom of expression. Section 319(2) is drafted too broadly, catching more expressive conduct than can be justified by the objectives of promoting social harmony and individual dignity. The term "hatred" in s. 319(2) is capable of denoting a wide range of diverse emotions and is highly subjective, making it difficult to ensure that only cases meriting prosecution are pursued and that only those whose conduct is calculated to dissolve the social bonds of society are convicted. Despite the requirement of "wilful promotion", people who make statements primarily for non-nefarious reasons may also be convicted under s. 319(2). A belief that what one says about a group is true and important to political and social debate is quite compatible with, and indeed may inspire, an intention to promote active dislike of that group. Such a belief is equally compatible with foreseeing that promotion of such dislike may stem from one's statements. The absence of any requirement that actual harm or incitement to hatred be shown further broadens the scope of s. 319(2), and it is unclear, in practice, if the s. 319(3) defences, including the defence of truth, significantly narrow the ambit of s. 319(2). Moreover, not only is the category of speech caught by s. 319(2) defined broadly, the application of the definition of offending speech i.e., the circumstances in which the offending statements are prohibited is virtually unlimited. Only private conversations are exempt from state scrutiny. Given the vagueness of the prohibition of expression in s. 319(2), there is again a danger that the legislation may have a chilling effect on

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legitimate activities important to our society by subjecting innocent persons to constraints born out of a fear of the criminal process. Finally, the process by which the prohibition is effected -- the criminal law -- is the severest our society can impose and is arguably unnecessary given the availability of alternate and more appropriate and effective remedies.Any questionable benefit conferred by s. 319(2) of the Code is outweighed by the significant infringement on the guarantee of freedom of expression. Section 319(2) does not merely regulate the form or tone of expression, it strikes directly at its content. It is capable of catching not only statements like those at issue in this case, but works of art and the intemperate statement made in the heat of social controversy. While few may actually be prosecuted to conviction under s. 319(2) and imprisoned, many fall within the shadow of its broad prohibition. Section 319(2) touches on the vital values upon which s. 2(b) of the Charter rests: the value of fostering a vibrant and creative society through the marketplace of ideas; the value of the vigourous and open debate essential to democratic government and preservation of our rights and freedoms; and the value of a society which fosters the self-actualization and freedom of its members. An infringement of this seriousness can only be justified by a countervailing state interest of the most compelling nature. However, the claims of gains to be achieved at the cost of the infringement of free speech represented by s. 319(2) are tenuous. Indeed, it is difficult to see how s. 319(2) fosters the goals of social harmony and individual dignity.(2) Presumption of InnocencePer Dickson C.J. and Wilson, L'Heureux-Dubé and Gonthier JJ.: Section 319(3)(a) of the Code, which provides that no person shall be convicted of wilfully promoting hatred "if he establishes that the statements communicated were true", infringes the presumption of innocence guaranteed in s. 11(d) of the Charter. The real concern under s. 11(d) is not whether the accused must disprove an element of the offence or prove a defence. What is decisive is the final effect of the impugned provision on the verdict. If, as in this case, an accused is required to prove some fact on a balance of probabilities to avoid conviction, the impugned provision violates the presumption of innocence because it permits a conviction in spite of a reasonable doubt in the mind of the trier of fact as to the guilt of the accused.Section 319(3)(a) of the Code constitutes a reasonable limit on the presumption of innocence. Parliament's objective in employing a reverse onus is pressing and substantial. The objective behind s. 319(3)(a) is closely connected with the purpose of s. 319(2). Harm is created whenever statements are made with the intention of promoting hatred, whether or not they contain an element of truth. If the defence of truth is too easily used, Parliament's objective under s. 319(2) will suffer unduly. It is therefore in the furtherance of that same objective that truthfulness must be proved by the accused on a balance of probabilities.Section 319(3)(a) meets the proportionality test. First, the section has a rational connection to the purpose of preventing the harm caused by hate propaganda. The reverse onus in the truth defence operates so as to make it more difficult to avoid conviction where the wilful promotion of hatred has been proven beyond a reasonable doubt. Second, the section also represents a minimal impairment of the presumption of innocence. By requiring the accused to prove that his statements are true on a balance of probabilities, Parliament made a concession to the importance of truth in freedom of expression values without excessively compromising the effectiveness of s. 319(2). Any less onerous burden would severely skew the equilibrium. Third, the importance of preventing the harm caused by hate propaganda is not outweighed by Parliament's infringement of s. 11(d). The reverse onus found in the truth defence represents the only way in which the defence can be offered while still enabling Parliament to prohibit hate propaganda

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effectively through criminal legislation; to require that the state prove beyond a reasonable doubt the falsity of a statement would excuse much of the harmful expressive activity caught by s. 319(2) despite minimal proof as to its worth.Per Sopinka and McLachlin JJ. (dissenting): Section 319(3)(a) of the Code infringes s. 11(d) of the Charter. Under s. 319(2), where the Crown proves beyond a reasonable doubt that the accused wilfully promoted hatred against an identifiable group, the accused will escape liability if, under s. 319(3)(a), he "establishes that the statements communicated were true". By placing the burden of establishing the truth of the statements on the accused, Parliament has contravened the basic principle that the accused need not prove a defence. When an accused is required to prove some fact on a balance of probabilities to avoid conviction, the provision violates the presumption of innocence because it permits a conviction in spite of a reasonable doubt in the mind of the trier of fact as to the guilt of the accused.Section 319(3)(a) of the Code does not constitute a reasonable limit upon the right to be presumed innocent. The section lacks the required degree of proportionality. It is difficult to discern a rational connection between the aims of s. 319(3)(a) and its requirement that the accused prove the truth of his statements. Further, s. 319(3)(a) does not impair s. 11(d) as little as possible. Because of its superior resources, the state is in a better position than the accused to determine whether or not a statement is true or false. If such a determination is impossible, it should not be ruled out that the statements could be more valuable than harmful. These considerations suggest that s. 319(3)(a)'s infringement of the presumption of innocence is neither minimal nor, given the importance of the infringement in the context of prosecutions under s. 319(2), sufficient to outweigh the dubious benefit of such a provision. Parliament intended the truth to be a defence and falsehood to be an important element of the offence created by s. 319(2). That fact, coupled with the centrality of the presumption of innocence in our criminal law, indicates that only a countervailing state interest of the most compelling kind could justify the infringement. It is difficult to see, however, what benefits s. 319(2) in fact produces in terms of stemming hate propaganda and promoting social harmony and individual dignity.Per La Forest J. (dissenting): It is unnecessary to consider the issues respecting the right to be presumed innocent in s. 11(d) of the Charter.

United States

The US Supreme Court has created a formula consisting of levels of scrutiny where some rights are accorded greater protection than others. (Woolman 12-8 to 12-10).

According to the ‘chilling effects’ doctrine, a constitutionally protected activity is ‘chilled’ when actions are which are not proscribed are restricted by a law affecting other activities.

SECRETARY OF STATE OF MD. v. J. H. MUNSON CO., 467 U.S. 947 (1984) 467 U.S. 947: ‘Chilling effects’ doctrine

A Maryland statute prohibits a charitable organization, in connection with any fundraising activity, from paying expenses of more than 25% of the amount raised, but authorizes a waiver of this limitation where it would effectively prevent the organization from raising contributions. Respondent is a professional fundraiser whose Maryland customers include various chapters of

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the Fraternal Order of Police, at least one of whom was reluctant to contract with respondent because of the statute's percentage limitation. Respondent brought suit in a Maryland Circuit Court for declaratory and injunctive relief, alleging that it regularly charges an FOP chapter in excess of the 25% limitation, that petitioner Secretary of State had informed it that if it refused to comply with the statute it would be prosecuted, and that the statute violated its right to free speech under the First and Fourteenth Amendments.

This is not a "substantial overbreadth" case where the plaintiff must demonstrate that the statute "as applied" to him is unconstitutional. Here there is no core of easily identifiable and constitutionally proscribable conduct that the statute prohibits. The statute cannot distinguish organizations that have high fundraising costs not due to protected First Amendment activities from those that have high costs due to protected activity. The flaw in the statute is not simply that it includes some impermissible applications but that in all its applications it operates on a fundamentally mistaken premise that high solicitation costs are an accurate measure of fraud. Where, as here, a statute imposes a direct restriction on protected First Amendment activity and where the statute's defect is that the means chosen to accomplish the State's objectives are too imprecise, so that in all its applications the statute creates an unnecessary risk of chilling free speech, the statute is properly subject to facial attack. Pp. 964-968.

The law may define the proscribed activity so vaguely that the public will refrain from exercising their rights for fear of transgressing the law.

CONNALLY v. GENERAL CONST. CO., 269 U.S. 385 (1926): The dividing line between what is lawful and unlawful cannot be left to conjecture

This is a suit to enjoin certain state and county officers of Oklahoma from enforcing the provisions of section 7255 and section 7257, Compiled Oklahoma Statutes 1921, challenged as unconstitutional. Section 7255 creates an eight-hour day for all persons employed by or on behalf of the state, etc., and provides:

'That not less than the current rate of per diem wages in the locality where the work is performed shall be paid to laborers, workmen, mechanics, prison guards, janitors in public institutions, or other persons so employed by or on behalf of the state, ... and laborers, workmen, mechanics, or other persons employed by contractors or subcontractors in the execution of any contract or contracts with the state, ... shall be deemed to be employed by or on behalf of the state. ...'

United States v. Capital Traction Co., 34 App. D. C. 592, 19 Ann. Cas. 68, where a statute making it an offense for any street railway company to run an insufficient number of cars to accommodate passengers 'without crowding' was held to be void for uncertainty. In the course of its opinion, that court said (pages 596, 598):

'The statute makes it a criminal offense for the street railway companies in the District of Columbia to run an insufficient number of cars to accommodate persons desiring passage thereon, without crowding the same. What shall be the guide to the court or jury in ascertaining what constitutes a crowded car? What may be regarded as a crowded car by one jury may not be so considered by another. What shall constitute a sufficient number of cars in the opinion of one judge may be regarded as insufficient by another. ... There is a total absence of any definition of what shall constitute a crowded car. This important element cannot be left to

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conjecture, or be supplied by either the court or the jury. It is of the very essence of the law itself, and without it the statute is too indefinite and uncertain to support an information or indictment.

[269 U.S. 385, 393] ... The dividing line between what is lawful and unlawful cannot be left to conjecture. The citizen cannot be held to answer charges based upon penal statutes whose mandates are so uncertain that they will reasonably admit of different constructions. A criminal statute cannot rest upon an uncertain foundation. The crime, and the elements constituting it, must be so clearly expressed that the ordinary person can intelligently choose, in advance, what course it is lawful for him to pursue. Penal statutes prohibiting the doing of certain things, and providing a punishment for their violation, should not admit of such a double meaning that the citizen may act upon the one conception of its requirements and the courts upon another.'

The result is that the application of the law depends, not upon a word of fixed meaning in itself, or one made definite by statutory or judicial definition, or by the context or other legitimate aid to its construction, but upon the probably varying impressions of juries as to whether given areas are or are not to be included within particular localities. The constitutional guaranty of due process cannot be allowed to rest upon a support so equivocal.

Law of general application:

Bills of attainder are laws which are designed to pick out specific individuals for punishment without judicial trial. They automatically fall foul of the ‘law of general application’.

UNITED STATES v. LOVETT, 328 U.S. 303 (1946)

To quote Alexander Hamilton, '... a limited constitution ... ( is) one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no expost facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of the courts of justice; whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.' Federalist Paper No. 78. [328 U.S. 303, 315] II.

We hold that Section 304 falls precisely within the category of Congressional actions which the Constitution barred by providing that 'No Bill of Attainder or ex post facto Law shall be passed.' In Cummings v. State of Missouri, 4 Wall. 277, 323, this Court said, 'A bill of attainder is a legislative act which inflicts punishment without a judicial trial. If the punishment be less than death, the act is termed a bill of pains and penalties. Within the meaning of the Constitution, bills of attainder include bills of pains and penalties.' The Cummings decision involved a provision of the Missouri Reconstruction Constitution which required persons to take an Oath of Loyalty as a prerequisite to practicing a profession. Cummings, a Catholic Priest, was convicted for teaching and preaching as a minister without taking the oath. The oath required an applicant to affirm that he had never given aid or comfort to persons engaged in hostility to the United States and had never 'been a member of, or con ected with, any order, society, or organization, inimical to the government of the United States ....' In an illuminating opinion which gave the

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historical background of the Constitutional prohibition against bills of attainder, this Court invalidated the Missouri Constitutional provision both because it constituted a bill of attainder and because it had an ex post facto operation. On the same day the Cummings case was decided, the Court, in Ex parte Garland, 4 Wall. 333, also held invalid on the same grounds an Act of Congress which required attorneys practicing before this Court to take a similar oath. Neither of these cases has ever been overruled. They stand for the proposition that legislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial are bills of attainder prohibited by the Con- [328 U.S. 303, 316] stitution. Adherence to this principle requires invalidation of Section 304. We do adhere to it.

European Community

European Court of Human Rights

Law of general application:

Article 5

1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with the procedure prescribed by law:….

Article 9

2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

Article 10

1. Everyone has the right to freedom of expression….

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

Article 11

1. Everyone has the right to freedom of peaceful assembly and to freedom of association….

2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.

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These cases require elaboration:

Sunday Times v United Kingdom (1979) 2 EHRR 245

Two requirements flow from the expression ‘prescribed by law’. The law must be accessible. Citizens should be able to ascertain the legal rules applicable in a given case. Secondly citizens ought to be able to forsee the consequences of a given action.

Klass & Others c. Allemagne v. Germany (1979) 2 EHRR 214

The European Convention on Human Rights provides that valid limitations of rights must be ‘prescribed by law’. The word ‘law’ was held to include statute law, unwritten law, subordinate legislation and royal decrees.

Also see:

Eissen, The Principle of Proportionality in the Case-Law of the European Court of Human Rights’ in MacDonald, Matscher & Perold (eds) The European System for the Protection of Human Rights (1993) 125.

Germany

Article 2 [Liberty](1) Everyone has the right to free development of his personality insofar as he does not violate the rights

of others or offend against the constitutional order or against morality.(2) Everyone has the right to life and to inviolability of his person. The freedom of the individual is inviolable. These rights may only be encroached upon pursuant to a law.

Article 19 (Restriction of Basic Rights). (1) Insofar as under this Basic Law a basic right may be restricted by or pursuant to a law, the law must apply generally and not solely to an individual case. Furthermore the law must name th e basic right, indicating the Article.(2) In no case may a basic right be infringed upon in its essential content.

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