The Canadian Bar Association
ADR, Civil Litigation

When free speech goes too far: Huberman

Freedom of speech is not absolute and the courts are likely to back the government’s decision to stop delivering a controversial Toronto publication, says Toronto litigator and commercial arbitrator Marvin Huberman.

“While it’s probably correct that the government has limited this fellow’s freedom of expression, the court can determine that the infringement is reasonably justified,” he tells AdvocateDaily.com.

The case revolves around a free, Toronto-based newspaper that was being delivered to homeowners through the mail.

Earlier this month, the federal government ordered the Crown corporation to stop distributing the publication, according to a CBC story.

The newspaper has been labelled anti-Semitic and pro-Nazi by several groups who have campaigned for years to get Canada Post to cease distribution, reports the CBC.

They got their wish when the minister responsible for Canada Post, Judy Foote, issued what's known as a prohibitory order against the future delivery of the paper. 

The Canadian Civil Liberties Association has since weighed in and written to the Minister of Public Safety expressing concerns about the order and claiming that the action infringes upon the editor-in-chief’s freedom of expression.

“If this goes to court,” explains Huberman, “it will be based on a claim that this is a violation of freedom of expression under s. 2(b) of the Canadian Charter of Rights and Freedoms.

“The editor is saying that it’s a political viewpoint — it might be an unpopular viewpoint, but it’s still a political viewpoint — and that the Charter guarantees freedom of expression.”

Huberman believes “a court would have little difficulty in finding that there has been a violation of s. 2(b).”

But thanks to R. v. Oakes, the Supreme Court of Canada has put limitations on freedom of expression. The court said the limitations clause (s. 1) of the Charter allows reasonable limitations on rights and freedoms if it can be “demonstrably justified in a free and democratic society.”

Huberman says the court “could determine the restrictions on freedom of expression are reasonably justified. That’s called the Oakes test.”

In a 2013 case, Huberman says the Supreme Court dealt with many of the same issues and made a distinction between promoting hate and ridicule.

“If this material contains hate — and many people would say that it does— then the government would pass the Oakes test on all fronts,” says Huberman.

“I believe the courts would decide that there is an infringement on freedom of speech, but that it is reasonably justified,” he says. “The ultimate resolution would be that the federal government’s decision to ban the mailing would be upheld by the court.”

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