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Oakes Test,“Purging” Facebook of Threats and Hate Speech Oakes Test The Oakes test was created by the Supreme Court of Canada in the 1986 case of R v Oakes.[1] The test interprets section 1 of the Charter of Rights and Freedoms, which states that rights are guaranteed, “subject only to such reasonable limits . as can be demonstrably justified in a free and democratic society.”[2] This means that the government must establish that the benefits of a law outweigh its negative impact—that is, its violation of a Charter right. R v Oakes In R v Oakes, the police caught the accused, Oakes, with hashish oil and cash. They charged him with possession for the purpose of trafficking under theNarcotic Control Act (NCA).[3] He claimed that the drugs were his own and that he did not intend to sell them. At that time, under section 8 of the NCA, anyone found with illegal drugs was presumed guilty of trafficking. Usually, the Crown must prove guilt beyond a reasonable doubt, but under the NCA it was up to the accused to prove that he was not guilty. This is called a “reverse onus”. Oakes challenged the law, arguing that it violated the presumption of innocence guaranteed by section 11(d) of the Charter. The Supreme Court found that this right had been violated. They then had to consider whether the government could justify this violation using section 1. The Test The Court in R v Oakes created a two-step balancing test to determine whether a government can justify a law which limits a Charter right. 1. The government must establish that the law under review has a goal that is both “pressing and substantial.” The law must be both important and necessary. Governments are usually successful in this first step. 2. The court then conducts a proportionality analysis using three sub-tests. a. The government must first establish that the provision of the law which limits aCharter right is rationally connected to the law’s purpose. If it is arbitrary or serves no logical purpose, then it will not meet this standard. b. Secondly, a provision mustminimally impair the violated Charter right. A provision that limits a Charter right will be constitutional only if it impairs the Charter right as little as possible or is “within a range of reasonably supportable alternatives.”[4] c. Finally, the court examines the law’sproportionate effects. Even if the government can satisfy the above steps, the effect of the provision on Charter rights may be too high a price to pay for the advantage the provision would provide in advancing the law’s purpose. In Oakes itself, the court considered that combatting the public health and safety risk created by narcotics was a pressing and substantial goal. However, the Court ruled that a “reverse onus,” where an accused is presumed guilty of drug trafficking unless he proves otherwise, was not rationally connected to this goal.[5] The Court found that it would be irrational to presume an intention to traffic narcotics when an accused only possessed a small amount of drugs. Having failed this first step, the court did not consider step 2 (b) or (c), and the law was “struck down,” that is, declared unconstitutional. Legacy The Oakes test is employed every time the government tries to defend a restriction on the Charter rights of Canadians. Some legislation has passed the test. For example inR v Keegstra,[6] the Supreme Court held that a law against hate speech was a reasonable and justifiable limit on section 2(b) of the Charter, freedom of expression. The test provides a mechanism for the courts to balance, on the one hand, the government’s ability to achieve its goals and, on the other, the protection of individual rights. This balancing test is now considered a cornerstone of Canadian constitutional law. [1] R v Oakes, [1986] 1 SCR 103, 1986 CanLii 46 (1986) [Oakes]. [2] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, s 1. [3] Narcotic Control Act, RSC 1970, c N-1. [4] Oakes, supra note 1 at 46. [5] Oakes, supra note 1 at 142. [6] R v Keegstra, [1990] 3 SCR 697, 1990 CanLii 24 (SCC). “Purging” Facebook of Threats and Hate Speech: Is this Constitutional? Introduction Two women in Manitoba have been charged with uttering threats and public incitement of hatred for their Facebook comments, posted in response to the vandalism of one woman’s car.[1] The women blamed the vandalism on on-reserve “Indians” and agreed to perform a “purge” involving Budweiser and shotguns. But don’t we have free speech in Canada? Isn’t freedom of expression in the Charter of Rights and Freedoms? How can these criminal charges be constitutional? Section 2(b) – Freedom of Expression The Charter of Rights and Freedoms protects freedom of expression, including speech, in section 2(b): 2. Everyone has the following fundamental freedoms: b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.[2] Expression includes “any activity or communication that conveys or attempts to convey meaning.”[3]Expression may take many forms – speech, writing, gestures and painting for example. Like all Charter rights, freedom of expression is not absolute. Limits on rights, as acceptable in a “free and democratic society,” are allowed.[4] When there is an infringement of a right, the court uses a test, as developed in the case of R v Oakes (1986), to decide if the infringement is justified.[5] For example, in the 2009 case of Alberta v Hutterian Brethren of Wilson Colony, the Supreme Court decided that it was justifiable to infringe the freedom of religion of the Hutterian Brethren by requiring them to have their photographs taken for a driver’s licence, which was against their religion. According to the Court, this was because photos on driver’s licenses had important purposes, such as identification. Uttering threats The offence of uttering threats occurs when a person, “in any manner, knowingly utters, conveys or causes any person to receive a threat (a) to cause death or bodily harm to any person; (b) to burn, destroy or damage real or personal property; or (c) to kill, poison or injure an animal or bird that is the property of any person.”[6] Section 2(b) of the Charter does not protect all forms of expression – violence as a form of expression is not protected, [7] nor are threats of violence.[8] The government is not infringing on one’s right to free expression when they make it illegal to punch someone, even if that individual did it to “express” their anger. Threats of violence are treated in the same way as physical violence because both undermine the rule of law.[9] Violence and threats of violence undermine the freedom of others to act and express themselves as they choose.[10] Threats of violence are not protected expression. The fact that uttering threats is prohibited by the Criminal Code is not a violation of the Charter right to freedom of expression. Public Incitement of Hatred The offence of public incitement of hatred occurs when a person, “by communicating statements in any public place, incites hatred against any identifiable group where such incitement is likely to lead to a breach of the peace.”[11] This is different than the charge of uttering threats because the offender who publicly incites hatred is not actually making a threat; they are conveying messages that could encourage others to engage in disruptive behaviour. Section 2(b) of the Charter protects the content of all expression, even if it is distasteful or unpopular.[12]In order to determine whether the offence of public incitement of hatred is a justifiable infringement on freedom of expression, the first step is to determine what harm the offence seeks to mitigate.[13] Hate speech harms the sense of dignity and self- worth of a target group and can have a persuasive impact on gullible people. It can cause social tensions and harmful behaviour by encouraging others or inciting others to hatred and violence.[14] Criminalizing the public incitement of hatred is an infringement on the right of people to express themselves freely, but this infringement has been found to be justified because of the profoundly negative effects that public incitement of hatred has on society. The government is justified in making it a criminal offence and it is therefore, constitutional. Conclusion The Constitution protects freedom of expression in Canada, but it does not protect violence, uttering threats of violence, or public incitement of hatred. The women in Manitoba who have been charged with uttering threats and public incitement of hatred on Facebook can argue that they did not actually make a threat, that they did not make comments against an identifiable group, that their comments will not incite hatred, or that their comments were not really public. Those will be difficult arguments to make but they are free to make them. What they cannot argue is that their freedom of expression, as protected in the Charter of Rights and Freedoms, gives them the right to expression that leads to violence and hatred against an identifiable group of people. The Constitution of Canada, and specifically theCharter of Rights and Freedoms, does not protect that type of expression. [1] “2 women charged with uttering threats over ‘shoot a Indian’ posts,” CBC News (31 July 2018), online: < https://www.cbc.ca/news/canada/manitoba/flin-flon-denare-beach -rcmp-charges-1.4768782?cmp=rss>.
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