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Report No. 267

(iv) Tests to determine limitation on freedom of expression:

4.36 The court in Keegstra90 referred to test laid down in R. v. Oakes,91 to determine the proportionality of the limitation to the objective sought to be achieved. The three steps to be followed to adjudge the proportionality of the restriction in Oakes92 were:

  • Restriction/limitation must have a rational nexus to the object sought to be achieved.
  • Even if rationally connected to the objective in this first sense, it should impair "as little as possible" the right or freedom in question.
  • There must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of "sufficient importance".

4.37 In Saskatchewan (Human Rights Commission) v. Whatcott,93 the court laid down three tests to determine whether an expression could qualify as hate speech or not. Firstly, courts must apply the hate speech prohibitions objectively by applying the test of a reasonable person. Secondly, the legislative term "hatred" or "hatred or contempt" must be interpreted to mean the extreme form of the emotions. Thirdly, the effect of the expression on the targeted group should be determined by the Court.

4.38 Canadian laws attempt to restrict false and discriminatory statements that expressions that are likely to lead to breach of peace. In R. v. Zundel94 the Court observed that publishing and spreading false news that was known to be false is likely to cause injury to public interest. This should be prevented as it is potentially harmful to the society and multiculturalism in Canada. In Ross v. New Brunswick School District No.15 95, the Court held that anti-semitic writings and statements contribute to an invidiously discriminatory or "poisoned" education environment.

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