Unilateral Censorship and Section 1
Even supposing that it can be shown that 319(2) impugns our 3a and 3b rights, this in itself is not sufficient to show that 319(2) is unconstitutional because the question must be raised whether unilateral censorship can be “saved” under section 1. This familiar point about the Charter is well illustrated by previous challenges to censorship laws that focused on section 2b, that is, the right to freedom of expression. The major court challenges to 2b have granted that the censorship laws do infringe upon 2b rights.29 However, the judicial opinion has been that, although laws such as 319(2) infringe on the Charter guarantee for free expression the laws in question can be “saved” under section 1: “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.” As Sumner explains, section 1 in essence asks the Court to do a consequentialist analysis of the relative harms caused by censoring as compared with not censoring.30 Judicial opinion has been that the infringement of the Charter guarantee of freedom of expression can be “demonstrably justified in a free and democratic society”. In other words, to show a law is unconstitutional under 2b requires a two-step analysis. First, one asks whether a particular law conflicts with the Charter guarantee of freedom of expression. If the answer is no, then the law is not found to be unconstitutional. If a law does infringe upon the guarantee of the 2b right, it does not follow that the law must be struck down because a second step requires asking whether this infringement can be justified in the terms set out under section 1 of the Charter. Only if the answer is negative in both instances will the law be shown to be unconstitutional. In general, the Court has ruled that censorship laws do infringe upon the 2b right, but this infringement can be justified by the terms set out in section 1 of the Charter.
The situation may be different with the present suggested constitutional challenge. As a first approximation, the point may be put this way: if we take the exercise of the democratic rights in section 3 to be a necessary condition for democracy, and we accept the argument that unilateral censorship infringes on our democratic rights, then the Court will have its answer: they will have to strike down the legislation. The reason is that section 1, it will be recalled, says that the limitations to rights must be “demonstrably justified in a free and democratic society”, but we are supposing that such legislation has shown to be non-democratic, hence, it cannot be justified in a democratic society. The thought then is that there may be a difference in kind between an infringement of a section 2 and a section 3 right. Thus, suppose (as is often claimed) that the value of inclusivism is said to be protected or promoted by unilateral censorship, and it is determined that this law infringes upon both section 2b and section 3. The present argument does not challenge or question previous judicial decisions that suggest that protecting or promoting inclusivism is more important than the infringement upon the 2b right. However, given that our section 3 rights are necessary for a commitment to democracy, the same logic would not hold in a section 3 challenge, for this would be to assume both rejection and acceptance of a commitment to democracy. Spelling out this argument, particularly how we should understand ‘democracy’, will occupy us for most of the remainder.
The position advanced by the proposed Charter challenge, then, may be termed the ‘constitutive view’ because it says that unilateral censorship infringes upon both our commitment to the section 3 democratic right, and to our section 1 commitment to democracy, since democratic rights are constitutive of democracy. The opposing view, which I shall call the ‘flexible view’, says that our understanding of the Charter commitment to various values (including the value of democracy) must be “flexible” enough to allow some balancing of competing interests or rights, and that once we see this, unilateral censorship does not undermine our commitment to democracy. In this section I want to briefly review the case for the flexible view.
Part of the support for the flexible view comes from the fact that the Court has already determined that we should understand the concepts and values enshrined in the Charter in a flexible31 manner. For instance, consider the view that any restriction on free expression is a violation of the Charter right to free expression and incompatible with our Charter commitments. The Court has previously ruled that this view is untenable. For example, in Irwin Toy Ltd. v. Quebec (Attorney General) the courts established that violent forms of expression are not protected under the Charter right.32 In R. v. Keegstra and other cases the courts have determined that 319(2) and other censorship laws that violate our 2b rights are constitutionally valid.33 The basic line of reasoning here in both cases is the same: although free expression has a prima facie claim under the Charter, democracies involve more than a commitment to free expression, since other values and interests must be taken into account. All citizens have an interest, for example, in not being hurt by violent expression, that is, in the security of their person, and democratic governance requires that we uphold this value. The Court has determined that this value, freedom from violent attack, must take precedence over the value of unlimited freedom of expression. Similarly, as we have noted, even where it is found that a law infringes on our 2b right, the courts have determined in many cases that such infringements can be “saved” under section 1 because censorship has been seen as an effective means to promote other democratic values, in particular, the value of inclusivism. That is, the Court has determined that in certain instances, the value of inclusivism must take precedence over the value of free expression. The point here is not that we must necessarily agree with the Court’s decisions, but merely to point out that striking an appropriate balance of different democratic values is often part of the judicial process in a Charter challenge. On the flexible view, there is no particular reason to think that section 3 should be immune to this sort of balancing.34
There is much to this line of reasoning. Certainly many previous Charter challenges seem to support this view; the Court has understood that guaranteed rights may be impugned when there is a perceived social need. However, if we accept the flexible understanding then the question becomes, “How far can we move away from the ideal of everyone having an opportunity to run for Parliament, and no one being prohibited by law from equality in the electoral process?” Suppose, for example, it could somehow be determined that a single ruler would be better at realizing the non-electoral rights (that is, rights other than the right to vote and run for government) of the Charter. I take it that even if we concede that this could lead to better outcomes in terms of honouring the non-electoral rights, still this would not count as a democracy. The point here is simply that there must be some limit to the flexibility of the flexible view: living under a hereditary monarchy where no elections take place cannot count as a ‘democracy’, even if it is a case of excellent governance in terms of honouring non-electoral rights. So, the flexible view must provide some account of how far competing values can permit us to legislate against equality in the electoral process before we violate a commitment to democracy. For example, imagine in instituting the don’t-contradict-Rex law the castaways enjoyed more security, inclusivism, material equality, and so on. Would we then, contrary to what we said earlier, be inclined to say that the islanders enjoyed democratic government? The flexible view needs to answer questions of this nature. By hypothesis, whatever answer is forthcoming will not be in terms of violation of some essential condition, since ‘democracy’ is to be understood flexibly. But if the flexible view is to be plausible it will have to make intelligible the limits of the concept of democracy in some fashion. Until we have a developed version of the flexible view, it is hard to know how plausible the flexible view is on this point.35