Which fundamental freedom prevails

A strong correlation between freedom of expression and the right to gain access to information in order to form and express opinions has been recognised in the Inter-American System. The Declaration seeks to guarantee the freedom of expression and addresses, inter alia, limitations to the right, the obligation of states to promote diversity of information and private broadcasting, freedom of information, independence of regulatory bodies for broadcast and telecommunications, defamation laws, complaints about media content and attacks on media practitioners.

The Resolution calls on member states to take all necessary measures in order to uphold their obligations under the African Charter. The Danish Cartoon Controversy. What has become known as the Danish cartoon controversy exemplifies the precarious balance between freedom of expression and the repression of expression. In a Danish newspaper published a series of cartoons depicting the prophet Mohammed as a possible terrorist, in one instance with a bomb in his turban.

Many Muslims were outraged because depictions of Mohammed are prohibited in the majority of Muslim communities and likening Muslims to terrorists could incite discrimination and prejudice. Other factions upheld the right of the paper to publish the cartoons as a freedom of expression issue.

The Danish cartoon incident sparked mass demonstrations throughout the world resulting in death and extensive damage of property in addition to sparking a fiery debate on international law, freedom of expression and permissible limitations of this right. The OSCE also addresses freedom of expression.

In the Helsinki Final Act , principles guiding relations between participating states include provisions on conditions for journalists and dissemination of information. Both the Madrid document and the Vienna document include provisions encouraging exchanges in the media field.

Likewise, states committed themselves to facilitating the work of journalists and respecting their copyrights. This right will include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. The task of the Representative is to observe relevant media developments in OSCE participating states with a view to providing early warning on violations of freedom of expression.

In several international fora, particular attention has been paid to the protection of professionals, particularly journalists, whose physical integrity is at stake when freedom of expression is insufficiently guaranteed.

Some UN specialised agencies are also committed to the promotion of freedom of expression. For example, UNESCO has promoted freedom of expression, press freedom, independence and pluralism of the media as part of its activities.

The freedom of expression is reduced by possible limitations under several international standards mentioned above.

Moreover, freedom of expression and its internationally accepted limitations can be distorted by government initiatives through propaganda, control of the media and various other measures aimed at restricting the press, e. The right to freedom of expression has engendered a substantial body of case-law, in which both the right itself as well its limitations have been further defined. The Human Rights Committee has dealt with many cases dealing with the right to freedom of expression.

It has, for instance, found that imprisoning a trade leader for supporting a strike and condemning a government threat to send in troops violated his right to freedom of expression Sohn v. Republic of Korea , but convicting a person under a law that criminalised contesting the existence of the Holocaust served a legitimate aim Faurisson v. In another case, the Committee found inadmissible a complaint alleging a violation where the dissemination of anti-Semitic messages via recorded telephone messages was prohibited.

The complaint was found inadmissible as hate speech was clearly incompatible with the rights protected in the Covenant J. Party v. The Committee has stated that commercial expression, such as outdoor advertising, is protected by freedom of expression see, e. Canada and that the right to receive information was violated when a journalist was denied full access for no disclosed reason to parliamentary press facilities in his country Gauthier v.

Under the auspices of the European system, the European Court has stated that freedom of expression:. The United Kingdom. Many cases have been brought before the former European Commission and the Court regarding the freedom of expression; several deal with the rights of journalists to freedom of expression. In Jersild v. Denmark , the Danish government prosecuted and convicted a journalist for disseminating the racist views of others on television. In a case of Austrian journalists found guilty in domestic courts for defamation, the Court found that politicians may be subject to stronger public criticisms than private citizens see, e.

In Kudeshkina v. The Court has found that state monopoly on broadcasting constitutes an interference with the right to freedom of expression Informationsverein Lentia et al.

It has found restrictions on the rights to freedom of expression of public employees justified see, e. Regarding the right to receive information, it has found that this right does not necessarily impose a positive duty on the state to collect and disseminate information Guerra v. Austria no. In Otto-Preminger-Institut v. Austria , concerning a film which challenged Christian beliefs, the Court found the seizure of the film justified.

Cases brought before the Inter-American Commission have among other issues dealt with violence against or murder of journalists, intimidation, threats, and harassment see, e.

Guatemala Case A majority of the Supreme Court ultimately upheld the law under section 1 of the Charter as being a reasonable limitation of the right to free expression. All five Supreme Court judges confirmed that commercial free expression is protected by section 2 b , and agreed that Irwin Toy's right to free expression was violated by the law.

But the court divided on whether the law was a reasonable limit on the right which could be demonstrably justified in a free and democratic society under section 1 of the Charter. According to the majority opinion, the Quebec government had adduced sufficient evidence to justify the reasonableness of its conclusion that a ban on commercial advertising directed at children was the minimal impairment of free expression consistent with the pressing and substantial goal of protecting children against manipulation through advertising.

Further, the effects of the advertising ban were not so severe as to outweigh the government's pressing and substantial objective, since advertisers were still free to direct their message at parents and other adults, and to engage in educational advertising. The majority judges went on to lay down a two-step process for analyzing whether there has been a breach of section 2 b of the Charter. The first step is to determine whether the plaintiff's activity falls within the sphere protected by freedom of expression.

The second step is to ask whether the purpose or effect of the government action in issue is to restrict freedom of expression. If the government wishes 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 would trench upon the guarantee of free expression.

On the other hand, where the government aims only to control the physical consequences of particular conduct, its purpose would not trench on the guarantee. Two cases late in also dealt with the limits on freedom of commercial expression. In Canadian Newspapers Co.

Victoria City , the city refused to allow newspaper vending boxes on municipal property. The court ruled that, although commercial expression is also a protected freedom, the city had not infringed on the newspaper's freedom of expression, since it could distribute papers in other ways. The city's purpose was to preserve the aesthetic appearance of its property, for the well-being of its citizens. In the same year, in a brief judgment, the Ontario Court of Appeal confirmed that restrictions on the colouring of margarine did not interfere with the freedom of expression of margarine producers who wished to communicate that margarine is equal or preferable to butter.

In , the Saskatchewan Court of Appeal held that municipal by-laws prohibiting advertising by the use of exterior signage was a justifiable limit on freedom of expression, especially where the owner of the business is aware of the restriction when he locates his business Pinehouse Plaza Pharmacy.

However, some limits on commercial advertising have been rejected by the courts. In , the Supreme Court of Canada found invalid those regulations made under the Health Disciplines Act of Ontario that classified as professional misconduct all advertising by dentists not expressly permitted by the regulations. Although the objectives of professional regulation and protection of the public were sufficiently important to override a Charter right, it was not necessary to prohibit useful information of use to the public in their choice of dentist Rocket.

In , the Alberta Court of Appeal found that sections of the provincial Public Contributions Act that restricted the ability of organizations to conduct campaigns to obtain funds for charitable purposes were unjustified restraints on freedom of expression.

Banning all unlicensed requests for financial assistance was not proportional to the mischief that the legislation sought to remedy Epilepsy Canada. In , the Supreme Court of Canada considered the provisions of the Charter of the French Language , which prohibited a firm's name from being shown in any language other than French Ford.

The Court concluded that freedom of expression includes the freedom to express oneself in the language of one's choice, and that this freedom extends to commercial expression. While the aim of the legislation was legitimate, and had a rational connection with ensuring that the visage linquistique of Quebec reflected the predominance of the French language, the ban on other languages was not necessary or proportionate.

Requiring that the French language be predominant in the display, which might include any other languages, would be acceptable; however, exclusivity did not survive the proportionality test.

By a narrow majority of five to four, the court found a number of the provisions of the Act to be inconsistent with the right to freedom of expression, and not to constitute reasonable limits under the section 1 test.

For slightly differing reasons, the majority could not accept the sections of the Act dealing with advertising, trade mark use, unattributed health warnings, retail display and sponsorship. Protecting the public from the dangers of tobacco smoking is a valid objective, but the majority felt that the government had offered insufficient evidence to demonstrate that the good these provisions might achieve was proportionate to the seriousness of the infringement.

The specific objectives of the challenged provisions were more precise than the general aim of protecting the public from the danger of tobacco. For example, the requirement that a warning be placed on tobacco packaging was clearly justified. However, there was no evidence that significant additional benefits were gained by requiring the warning to be unattributed, or by preventing the manufacturers from placing on the packages any information not allowed by regulation.

The majority judgment accepted that a causal relationship may be difficult to establish where legislation is directed at changing human behaviour. For this reason, the Court has been prepared to find a causal connection between the infringement and benefit sought on the basis of reason or logic, without insisting on direct proof of a relationship between the infringing measure and the legislative objective. However, a complete ban on a form of expression is more difficult to justify than a partial ban.

The government must show that only a full prohibition will enable it to achieve its objective. Where, as in this case, no evidence is adduced to show that a partial ban would be less effective than a total ban, the justification required by section 1 to save the violation of free speech is not established.

Public Access and Media Issues. In Southam No. It was determined that the rule of openness of courts fosters the necessary public confidence in the integrity of the court system and an understanding by the public of the administration of justice. The absolute ban of the public from the trial of a juvenile could not be demonstrably justified in a free and democratic society.

The court did allow that there might be some basis for the exclusion of the public from certain hearings under the Juvenile Delinquents Act , but the absolute ban served too wide a purpose.

In Her Majesty the Queen v. Canadian Newspapers , the Supreme Court of Canada upheld section 3 of the Criminal Code , which makes it mandatory that the Court issue an order directing that the identity of the complainant in a sexual assault case shall not be published or disclosed, upon application by the complainant.

The Ontario Court of Appeal had held that section 3 infringed section 2 b of the Charter, and that the government had failed to demonstrate the need for a mandatory prohibition. Justice Lamer, for the Supreme Court, held that the limits imposed on freedom of the press by section 3 are minimal.

The legislative objective is to encourage victims to report sexual assaults by protecting them from the trauma of widespread publication and thereby to suppress crime and improve the administration of justice; this is not outweighed by any limiting of freedom of the press.

The publication ban provision was held to be justified on the basis of section 1 of the Charter. The importance of media access to certain types of proceedings was emphasized by the British Columbia Court of Appeal in Blackman. The Court held that section 2 b guaranteed the prima facie right of journalists to be present during a review board hearing pursuant to Part XX.

Section 1 of the Criminal Code allows a judge to exclude any or all members of the public from a court when, in his or her opinion, it is "in the interest of public morals, the maintenance of order or the proper administration of justice. New Brunswick Attorney-General. Although the section was held to limit freedom of expression, it was saved by virtue of section 1 of the Charter. Failure to have made the exclusion order would have permitted further victimization of the victims in the case, which involved charges of sexual assault and sexual interference.

Although the result was overturned by the Supreme Court of Canada in , on the grounds that the circumstances of the case did not justify the exclusion of the public from the courtroom, the Charter reasoning upholding section 1 was not reversed.

In contrast to the decisions discussed above, the Supreme Court has decided that an Alberta statute that limits the publication of information arising from court proceedings in matrimonial disputes is an unconstitutional limitation on freedom of expression. The court in the Edmonton Journal case noted the fundamental importance of the right to freedom of expression, and the historic importance of open courts in a democratic society.

It decided that the provincial objectives of ensuring privacy and access to a fair trial for persons wishing to litigate matrimonial matters were sufficiently important to bring section 1 into play, but that the restrictions in the legislation were excessive. In , a publication ban was also set aside by the Supreme Court of Canada in the Dagenais v. The publication ban was quashed, as the Court found it limited the broadcaster's Charter rights unjustifiably.

The ban was too broad, and the judge who granted the initial ban had failed to consider reasonable alternative measures available for achieving the objective without limiting the expressive rights of third parties.

In Moysa , the Supreme Court was asked to rule that a qualified privilege exists for journalists testifying in Canada.

The appellant had been ordered to testify before the Alberta Labour Relations Board about her communications with company officials while writing a story on a union organizing campaign.

Several employees were subsequently dismissed and an unfair labour practices hearing began. The journalist claimed a qualified privilege on the grounds that her being compelled to testify at this hearing would harm her ability to gather information.

The Supreme Court decided that the constitutional issue of such a qualified privilege for journalists simply did not arise on the facts of the case. The journalist had neither been asked for nor had given a promise of confidentiality. Moreover, the evidence now sought from her was crucial, relevant, and not available from other sources. Additionally, there was nothing to suggest that her subsequent gathering of information was actually threatened.

In Nova Scotia, the Supreme Court granted an injunction against a broadcaster, thus preventing the publication of documentation protected by solicitor-client privilege. A journalist's right to protect the identity of sources may have been limited by the Rocca Enterprises v.

University Press of New Brunswick case, where it was held that, in the absence of evidence of a relationship between the protection of identity of sources and the ability to gather news, there is no infringement of section 2 b of the Charter in compelling a journalist to reveal the source of information. Additionally, in late , the Supreme Court of Canada confirmed a decision of the New Brunswick Court of Appeal holding that Charter protection for freedom of the press does not alter the requirements for the issuance of a search warrant, but rather provides a backdrop against which the reasonableness of the search warrant request may be evaluated.

Thus, RCMP officers were entitled to a search warrant to seize CBC videotapes of illegal activity during a labour demonstration, even though the information given to the justice of peace who issued the warrant did not specify that police identification officers had also been present at the scene or why their testimony was not sufficient for prosecution. Finally, the issue has arisen of the extent to which a provincial legislature or, by extension, Parliament itself, can deny access to the media.

In , the Nova Scotia Court of Appeal decided that the Legislative Assembly of the province could not entirely ban television coverage of its proceedings. The case raised the important question of whether the Charter applies to parliamentary privilege and the conventional right of Parliament to govern its own proceedings.

In a judgment rendered 21 January , from which Mr. Justice Cory dissented, the Supreme Court of Canada allowed the Assembly's appeal, holding that members of legislative bodies may continue to limit media access as part of their right to control legislative proceedings New Brunswick Broadcasting.

The Court was divided as to the extent to which the Charter might in other circumstances apply to members of the House of Assembly or another legislative body. The Ontario Court of Appeal, in a reference regarding the Ontario Board of Censors, held that where the standards the board uses to censor films are not prescribed by statute, but left to the discretion of the board, the legislation imposes a limitation to freedom of expression which cannot be saved by section 1 of the Charter.

While some prior censorship of film is demonstrably justified in a free and democratic society, having regard to the prevalence of censorship legislation and the criminal prohibition against obscenity, a limitation left to administrative discretion is not one prescribed by law. In Vancouver, a zoning by-law prohibiting the retail sale of "sex-oriented products," as defined in the by-law, in any zone of the municipality was held to limit freedom of expression in a manner permitted by section 1.

The by-law itself, in its definition of "sex-oriented" products, contains clear standards and criteria for its application.

The limitation was held to be a reasonable one, and also demonstrably justified, even though the municipality adduced no evidence of the effect of such products on society. The Court took judicial notice of their undesirable effects. A Toronto by-law requiring that in licensed adult entertainment parlours the entertainers' pubic area remain covered was upheld.

Even assuming that to uncover the area would be "artistic expression" and thus included in the "expression" that is protected by the Charter, the right to artistic expression was not being asserted here but rather the right to expose entertainers' pubic areas in order to stimulate liquor sales. Zikman , a decision of the Ontario Provincial Court, and the Criminal Code provision prohibiting nudity in a public place without lawful excuse was held to be a reasonable limit within the meaning of section 1 of the Charter.

A Toronto-by-law prohibiting physical contact between an exotic dancer and another person during the dancer's performance was upheld in the Divisional Court decision in Ontario Adult Entertainment Bar Assoc.

Metropolitan Toronto. In , the Quebec Court of Appeal struck down municipal by-laws prohibiting businesses dealing in eroticism from using images of the human body in outdoor advertising. Although the city of Montreal considered the images to be degrading and dehumanizing, particularly to women, the effects of the measure were out of proportion to the objective when the images were neither pornographic or obscene Cabaret Sex Appeal Inc.

The freedom to import a sexually explicit documentary film for use in a faculty of medicine course on sexuality was protected by a County Court decision in Manitoba. The decision of the Deputy Minister, Revenue Canada, Customs and Excise, banning the film's entry into Canada was held to have violated the academic community's freedom of expression Re University of Manitoba.

Section [now section ] of the Criminal Code , which restricts the publication, processing and distribution of obscene material, has the valid purpose of limiting the viewing of obscene material in order to protect society generally.

Therefore, the provision, including the criminal law sanction, is demonstrably justified R. Section was also upheld in a subsequent B.

Court of Appeal case, R. Red Hot Video Ltd. Leave to appeal to the Supreme Court of Canada in this case was refused in In Re Luscher and Deputy Minister, Revenue Canada, Customs and Excise , the prohibition against the importation of books and other materials of an immoral or indecent character contained in the schedule to the Customs Tariff Canada was held to contravene the Charter, and was therefore found to be of no force or effect.

Because the prohibition's first object was books, it prima facie infringes freedom of expression. It does not constitute a reasonable limit, saved by section 1, because of its vagueness and subjectivity.

The words "immoral" and "indecent" are not defined in the legislation. They are also highly subjective and not limited to matters predominantly sexual. Section of the Criminal Code , which deals with selling or distributing obscene material, was considered by the Supreme Court of Canada in early in R. In particular, the Court closely scrutinized section 8 , which provides that "any publication a dominant characteristic of which is the undue exploitation of sex, or of sex and any one of more of the following subjects, namely, crime, horror, cruelty and violence, shall be deemed to be obscene.

The Supreme Court held that section 8 was an exhaustive test of obscenity where the exploitation of sex is a dominant characteristic. The most important test as to whether such exploitation is "undue" remains the "community standard of tolerance" test.

That test is concerned not with what Canadians would tolerate being exposed to themselves, but with what they would not tolerate other Canadians being exposed to. The Supreme Court endorsed "a growing recognition in recent cases that material which may be said to exploit sex in a degrading or dehumanizing manner will necessarily fail the community standards test.

However, even material that offends the community standards test will not be considered "undue" if its use is required for the serious treatment of a theme.

This is the "internal necessities" test, more commonly known as the "artistic defence. Generally speaking, sex with violence will always constitute undue exploitation; sex that is degrading or dehumanizing may be undue if the risk of harm is substantial; and explicit sex that is neither violent nor degrading will generally be tolerated, unless it depicts children.

When the artistic defence is invoked, the question becomes whether the undue exploitation of sex is the main object of the work, or whether the portrayal of sex is essential to a wider artistic, literary, or other similar purpose. Since the purpose of section is specifically to restrict the communication of certain types of materials according to their content, the Supreme Court was in no doubt that it infringed section 2 b of the Charter.

The objective of avoiding harm to society through the dissemination of certain obscene materials was, however, seen as sufficiently pressing and substantial to warrant a restriction on the freedom of expression. The Supreme Court also confirmed that the objective of maintaining conventional standards of propriety, independently of any harm to society, would no longer be justified, in light of the values of individual liberty that underlie the Charter.

Finally, the Court found that section meets the proportionality test; that is, there is a rational connection between the impugned measures and the objective of minimal impairment of the right or freedom, and a proper balance between the effects of the limiting measures and the legislative objective. There is a rational connection because Parliament is entitled to have a "reasoned apprehension of harm" resulting from the desensitization of individuals exposed to materials depicting violence, cruelty, and dehumanization in sexual relations.

As for minimal impairment of rights, the legislation need not be "perfect" but only appropriately tailored in the context of the infringed right. The infringement on freedom of expression is confined to a measure designed to prohibit the distribution of sexually explicit materials which are accompanied by violence, or which, though they are without violence, are degrading or dehumanizing; thus the restriction is proportional to the objective. The provision of the Criminal Code that prohibits communicating for the purposes of solicitation was upheld by the Supreme Court of Canada.

Section until section Only in the Skinner case had the provision been found unconstitutional, on the basis that it contravened the right of freedom of expression as guaranteed in section 2 b of the Charter. The Chief Justice held that the impugned section infringes the freedom of expression guaranteed by section 2 b , but not the freedom of association guaranteed by section 2 d , nor the liberty guarantee in section 7. He found that the infringement of section 2 b is justified on the basis of section 1 of the Charter as being a reasonable limit on a protected right, and thus demonstrably justified in a free and democratic society.

In Langer , an Ontario court dealt with the new provisions in the Criminal Code respecting child pornography. A number of paintings and drawings involving explicit depictions of children engaged in a variety of sexual activities, in some cases with adults, had been seized from an art gallery. The Crown had brought an application for an order that these depictions be forfeited to the Crown as child pornography. The owner of the paintings relied upon the statutory defence of artistic merit section The court found the provisions to be a justified infringement of freedom of expression after amending the wording of section 1 , the provision dealing with the seizure of impugned materials.

Evidence established that the legislation was carefully designed to meet Parliament's legitimate objective of protecting children from harm, was rationally connected to the objective, and impaired the right to freedom of expression as little as possible.

The court found that an artist acting with sincerity and integrity in the creation of a work would be very unlikely to run afoul of the provision.

Moreover, the Court found that the paintings and drawings in question did have artistic merit; it therefore dismissed the Crown's application for forfeiture. Hate Propaganda. The Supreme Court of Canada in R. Zundel struck down the Criminal Code provision prohibiting the spreading of false news. Section made it an offence to wilfully publish a statement, tale or news that the person knows to be false and that has caused or is likely to cause injury or mischief to a public interest.

The accused had been twice convicted of the offence by Ontario juries. Writing for the majority, Madam Justice McLachlin held that section of the Code infringes the accused's section 2 b Charter right to freedom of expression.

Section contains over-broad, vague wording, making it difficult for the courts to apply. The section is not saved by section 1 of the Charter because it permits or threatens the imprisonment of people on the ground that they have made a statement that a jury deems to be false or mischievous to some public interest, thereby stifling "a whole range of speech, some of which has long been regarded as legitimate and even beneficial to our society.

In a strong dissent, Justices Cory and Iacobucci with Mr. Justice Gonthier concurring wrote that section , while it infringes section 2 b in a limited way, is not too vague because it provides clear guidelines of conduct. Because the publication of the lies which are the target of the provision operates to "foment discord and hatred," they make the concept of "multiculturalism in a true democracy impossible to attain.

The dissenting justices believed that the importance of the state objective, balanced against an infringement of the "extreme periphery" of the right to freedom of expression, made section justifiable in free and democratic Canadian society. In three other decisions, the Supreme Court of Canada has upheld two provisions prohibiting different forms of hate-mongering. The appeals were heard in December , and decisions handed down on 13 December Keegstra and R.

Andrews , the impugned provision was section 2 of the Criminal Code , which prohibits the wilful promotion of hatred toward any section of the public distinguished by colour, race, religion or ethnic origin.

The case of R. Taylor dealt with the constitutionality of section 13 1 of the Canadian Human Rights Act. The majority of the Supreme Court of Canada, after a thorough historical review of anti-hate legislation, upheld both provisions, but in each case by a narrow majority. Justice Sopinka and in part by Mr. Justice La Forest, are well-reasoned and persuasive, suggesting that the validity of this type of measure may be challenged again in the future.

In Keegstra and Andrews , provincial Courts of Appeal had handed down contradictory results, the Ontario Court of Appeal upholding section 2 and the Alberta Court of Appeal finding it unconstitutional as an unjustifiable limit on the fundamental freedom of expression guaranteed by section 2 b of the Charter.

Chief Justice Dickson as he then was found that section 2 infringed the guarantee of freedom of expression found in section 2 b of the Charter. In determining that section 2 was, however, saved by section 1 of the Charter, his reasoning included a consideration of the harmful effect on society of this form of communication, Canada's commitments in international law to prohibit hate-mongering expression, and the principles underlying sections 15 and 27 of the Charter, which respectively guarantee equality and emphasize the importance of the multicultural heritage of Canadians.

Both section 2 , and the reverse onus provision in section 3 a , which allows an accused to defend on the basis that his or her statements are true, were upheld under section 1 of the Charter as reasonable limits prescribed by law in a free and democratic society.

In her dissent, Madam Justice McLachlin held that the guarantee of free expression afforded by section 2 b of the Charter should not be limited because of sections 15 or 27, or any international instruments.

While finding that the legislative objective was sufficiently weighty to justify a limit on the fundamental freedom of expression, she held that it was not made clear that section 2 is an effective measure to prevent hate-mongering. Madam Justice McLachlin seemed to have been influenced by arguments that prosecuting individuals under a criminal prohibition may give them free publicity and martyr status. She wrote that a criminal sanction may make hate-mongerers appealing if it "dignifies them by completely suppressing their utterances.

She concluded that any questionable benefit of the legislation is outweighed by the significant infringement on the constitutional guarantee of free expression. The Taylor case dealt with section 13 1 of the Canadian Human Rights Act , which makes it a discriminatory practice to communicate by telephone any matter that is likely to expose a person or group to hatred or contempt because they are identifiable on the basis of a prohibited ground of discrimination.

The accused persons had been responsible for a telephone answering machine that delivered recorded messages denigrating the Jewish race and religion. In dissent, Justices La Forest, Sopinka and McLachlin held that section 13 1 failed to meet the proportionality test because it was too broad. The majority upheld the provision, however, saying that though the provision may impose a slightly broader limit upon freedom of expression than does section 2 of the Criminal Code , the conciliatory bent of a human rights statute renders such a limit more acceptable than would be the case with a criminal provision.

A subsequent decision by the Saskatchewan Court of Appeal applied the rationale in Taylor to uphold legislation prohibiting the publication or display of any sign or representation that exposes to hatred or "ridicules, belittles, or otherwise affronts the dignity of" any person in a protected group.

In a case related to hate literature provisions, the New Brunswick Court of Appeal rejected part of the order of a board of inquiry under the New Brunswick Human Rights Act dealing with the conduct of Malcolm Ross, a teacher who had published material arguing that western Christian civilization is being undermined by an international Jewish conspiracy.

The board had ordered that Mr. Ross be removed from the classroom, and that his employment be terminated unless a non-teaching position could be found for him. Additionally, his employment was to be terminated if he published or distributed anti-Jewish writings. The trial court that first reviewed the order had quashed the "gag" provision, and the Court of Appeal concurred.

Additionally, the Court of Appeal removed those provisions of the order relating to Mr. Ross's employment, on the grounds that he had never used the classroom or school property to further his views.

Because of this, the need for his removal from the classroom was not sufficiently "pressing and substantial" to override Mr. Ross's right to freedom of expression. The court decided that "to hold otherwise would The right to engage in secondary picketing was dealt with in Dolphin Delivery. In the B.

Court of Appeal, it was held that picketing that does not have as its purpose or object the conveying of information or opinion or persuading anyone to a point of view, is a form of action rather than expression; restrictions on such picketing thus cannot contravene this provision of the Charter.

A strong dissenting opinion was registered in this case by Mr. Justice Hutcheon, who expressed the view that all peaceful picketing is an exercise of freedom of expression.

Although human rights standards in Argentina largely exceed those required by the international system, the country has deemed it appropriate to protect the human rights of its citizens in as many jurisdictions as possible.

Diversity and multiculturalism are salient characteristics of our society, as well as a source of pride for all Argentines. One of their manifestations is religious freedom. Freedom of speech and of religion are fundamental human rights, which cannot be separated from each other and which, in Argentina's view, are inherent in the human condition as such. Furthermore, human dignity and solidarity are values sought to be protected by applying international humanitarian law. Argentina is strongly committed to observing and disseminating this set of international rules aimed at limiting the effects of armed conflicts.