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Canadian Charter Rights and Freedoms

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The idea of putting freedom of expression behind other issues as it not being the most important essentially robs it of being part of the fundamental values.  Saying that “freedom of expression is undoubtedly a fundamental value” actually changes things  to where freedom of expression is thought to be less important as the idea of being fundamental or needed is one thing but putting the issue behind other issues often times makes it less important.  Simply by placing the issue of freedom of expression on a  back burner makes the idea of freedom of expression seem less important as essentially by saying that it is fundamental it is in a way saying that it has to be ensured in order to promote any other freedoms.  Therefore by stating that other issues can be dealt with without dealing with freedom of expression it places less importance on the issue of freedom of expression and makes it not as important as the other issues and therefore not a fundamental issue in a sense.

There are many individual rights for the citizens of Canada expressed through the Canadian Charter of Rights and Freedoms.  These include the right to choose a religion or no religion at all; a freedom to thoughts, beliefs, opinions and expressions; freedom of peaceful assembly and freedom of association.  These things can further prove that Canada is progressive in their views of expression and freedom of expression.  The idea behind the freedom of expression being fundamental and not needed all at once again downplays the real meaning of the freedom of expression in general.[1]

Having freedoms of expression are one thing and having freedom of speech is a part of this.  There are many things that freedom of speech can guarantee.  Freedom of speech is the freedom to be able to speak about those issues and beliefs that are important to one.  Being able to express one’s thoughts and to be able to speak can guarantee greater things for them.   By not having the issue of lack of freedom of speech one is guaranteeing that he is able to develop and grow in his personality and within who he is.  This is meaning that there are definitely some things that need to be allowed through freedom of speech and expression in order for others to better know what is going on.  This can be further argued by looking into the various approaches, views, and rulings in the Canadian courts.[2]

This approach to views and issues says many things about the Canadian government and the Canadian view of rights and freedoms in addition to other things.  It tells one that Canadian government is willing to look into each right and freedom on an individual basis.  This means that the government does not look at the rights and freedoms as if they are all stemming from the right of freedom of expression and that they are simply willing to look at each right and freedom based on the needs and the issues that are being dealt with.  This shows a lot of sophistication within the Canadian government as it is showing that the government is willing to truly look at each issue as needed rather than relying upon the issues to find solutions from previous answers.  This sophistication carries over into the approach as there are other things that are dealt with.  Some of the things included are other rights and freedoms.

There are many approaches to freedom of expression.  The best approach for the Canadian government to use is the approach that allows the citizen to have full freedom of expression.  There are many things that are included in freedom of expression.  These include that the individual or citizen has the right to talk about what he or she wants and has true freedom of expression.  This also means that one can create art or music without the fear of being in trouble for the type of art or music which they create.  The Canadian charter does put limits on freedom of expression in that it must be non-violent.  This includes that the freedom of expression meant to express hatred or negative meaning is not allowed.

These hate messages when not violent are still allowed in general as they are not problems with the actual hate although it is not appreciated but however with the acts of violence themselves which are acted out and so the defense argued.  The court did rule against Keegstra as he had been teaching his students that the Holocaust was propaganda and the court did uphold the decision to ban him from having his teaching certificate as well as fining him.  The court case also depicted many other ideas and freedoms of expression that were unlikely.  This court case looked at the freedom of expression to be able to manage many different ideas and beliefs.  During this trial prostitution was even mentioned as it was apparent that in some sense this on a broad based spectrum could be considered a pure freedom of expression.  There were many other events and details that were looked at in this case however the case did set landmarks for being able to manage the ideas behind the true freedoms of expression and with what would be considered inappropriate expressions of hate.[3]

There have been many issues with freedoms of expression and freedoms of beliefs in the Canadian court systems.  One subject that was dealt with was that of the freedom of expression and the beliefs of a teacher.  In the case of Ross vs. the New Brunswick school district the challenge was that the schools were trying to remove Ross from his teaching position based on his extra curricular writing about his beliefs of the Jewish religion.  This carried over into a decision where he was unable to continue to do both his love of writing on something that interested him and his being able to teach at the school as it was approached from the angel that he as a teacher would have to hold himself to higher moral standards than he would simply as a citizen as that was a part of the job of being a teacher.  The court was basically saying that as a teacher there had to be more morale and more things dealt with that were not being dealt with by him.  These included that he would have to be accountable to a better moral standard.  This decision basically gave less rights of freedom of expression to those who were in influential roles with children and therefore a teacher would not have the same rights of freedom of expression, thought or belief as someone who was not a teacher would have.[4][5]

The court should adopt the freedom of expression that is best represented through the ideas of being able to express opinions and beliefs no matter whether or not the courts agree with the opinions or beliefs.  This is meaning that even if someone says something that would not be agreed with by the courts that they would have their freedom of expression and therefore still be able to express how they feel on a regular basis.  This would be important in some sense as it is something that often times gets overlooked when working in the court systems as many times rights and freedoms are taken away rather than promoted through some of the regulations or rules, adopting this theory and belief would ultimately help the courts to be able to better manage those who are in the court systems.

An understanding of the approach of La Forest to freedom of expression would ultimately would help to determine the ways that the issues are dealt with in the Canadian court systems as they have many similarities in their beliefs and the ideas behind the court decision have been based in many circumstances upon the ideas of theorists like La Forest and in the case of Canadian court systems many of the cases are in deed based upon the beliefs of La Forest.

La Forest’s theory and beliefs when applied to the case of R vs. Keegstra could explain that since it was a general case that it should have allowed for Keegstra to be able to express himself freely even if his choice in expression was not moral or right in the minds of those in the court however it was still available to them on the basis that they were citizens and even though what he was expressing was not agreed with it was simply considered a freedom of expression.  However it was not the case that this was allowed and instead the teacher was in some sense wrongly persecuted.  There was a good point that the school district in itself should have been able to choose whether or not to permit certain things from being taught in their classrooms however as to not allow him to teach at all based on these beliefs it seems as though a part of his freedom of expression was not allowed and that one of his rights as a citizen was infringed.  [6]

As for Ross vs. the New Brunswick School Board, well things were considered different in this case as the defendant was a teacher and it was considered inappropriate for someone who was a teacher to be writing about the Jewish people since he was influential to the student’s whom he talked.  La Forest’s beliefs were not as prevalent in this case as Ross was not given the same rights and freedoms of other citizens as he was a teacher and was held to a higher standard simply for choosing the profession which he had chosen.  The idea that this had not happened in the classroom and that he had still gotten in as much trouble as if it had seemed odd and questionable as to the judgment and the ideas that he was not able to express himself freely even on his own free time.[7]

The understanding of La Forest’s theory and his beliefs on freedom in a sense will help one to see the basis on the rulings in these above mentioned cases.  That is that even though La Forest is saying that he thinks that one should have a freedom of expression he does not believe that this is the greatest freedom or the greatest right of a citizen.  It is in that thought process where one is able to see that La Forest is not working to include all of the other rights and freedoms for which he is speaking.  La Forest’s personal beliefs seem to range in what he feels should be allowed to be stated based on the time and place and the appropriateness of free speech based on the issue that he is speaking about.  These issues are apparent in his statement “Although freedom of expression is undoubtedly a fundamental value, there are other fundamental values that are also deserving of protection and consideration by the courts.”  This is stating that in these cases what was probably being considered by the courts was the idea that the student’s rights to learn and not be prejudiced or persuaded in any one way were more important than the teacher’s right to be able to share their freedom of expression.  There are many other thoughts behind La Forest’s theory and the ideas behind what La Forest was thinking about when he was generalizing that sometimes freedom of expression should not be looked at in the first place.[8]

[1] “Guarantee of Rights and Freedoms”  Canadian Charter of Rights and Freedoms

This part of the charter states in section in Part 1 number 2 “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 media communications; c) freedom of peaceful assembly; and d) freedom of association.”  This is the charter that goes over the rights and freedoms of the country and gives the outlines for the citizens and what they can expect.

[2] Barendt, Eric.  “Why Protect Free Speech?  Freedom of Speech.  (New York:  Oxford University Press, 20005)  1-15

In this chapter of his book, Barendt expresses his reasoning behind why he believes that protecting the freedom of speech is one of the most important rights.  He argues that without the freedom to express oneself with speech one would not be able to manage other expressions and all rights could eventually be lost if there were not the right to free speech.

[3] R vs. Keegstra (1990) 1-117

In this landmark court case in Canada Keegstra’s right to freedom of speech was considered to be hate speech as he had been a teacher and it was ruled that that he was to lose his teaching certificate and that he would receive a fine after teaching his student’s that the Holocaust was all propaganda.

[4] Medjuck, Sheva “Rethinking Canadian Justice: Hate Must Not Define Democracy.”  (1992) 1-10

In this article the author argues that hate speech is still a freedom of expression and that as long as the hate speech is not acted upon then it is the citizen’s rights to be able to do and say what they believe.  The author was looking at cases where teachers were convicted and even lost their jobs over their personal views on certain issues that simplistically related to hate speech.

[5] Ross vs. New Brunswick School District (1996).  1-71

This landmark case was different for the teacher who was on trial as this man had not shared his personal beliefs or ideas with his students but rather that he had been writing during his personal time and had written articles on his beliefs of Judaism.  These beliefs were considered to be a part of hate speech and since he was a teacher he was expected to uphold a more moral belief system than others who had been writing about similar events and beliefs.

[6] R vs. Keegstra (1990)  1-117

Again in this case the teacher was in trouble for speaking out about his religious opinions of Jewish people and the Holocaust to his students.

[7] Ross vs. New Brunswick School District (1996) 1-71

This teacher was persecuted for his writing which was not conducted in the school setting but it was still based upon him being a teacher.

[8] La Forest in RJR MacDonalad vs. The Attorney General of Canada

This case was one where La Forest made it clear that the first rights and considerations to be considered by the courts were not the rights of freedom of expression but rather other rights which were just as important.

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