Regulating Free Speech
Ottawa Law Review, Vol. 23, p. 219, 1991
31 Pages Posted: 22 Aug 2008
Date Written: August, 21 2008
This article is concerned with the question, 'Can democracy be reconciled with judicial review on the basis of liberal, constitutionally entrenched values?'. Charter critics answer 'No'. David Beatty has responded by saying that judges should resort to value-based interpretation only in assessing the means to implement legislative objectives and not the objectives themselves. An analysis of the Supreme Court judgment in Ref. Re Criminal Code, ss 193 & 195.1(l)(c) shows that Beatty's approach is unworkable because one cannot determine what an objective is without resorting to value-based understandings of what the Charter requires.
The analysis also reveals that the issue in the case, the criminal regulation of soliciting by prostitutes, brings to the surface an important question for liberal political theory: Is it justifiable to use the criminal law to force certain activities into the private, because their public manifestation is offensive? It is argued that using the criminal law in this way contradicts the liberal commitment to individual autonomy. But it is argued further that this commitment does not entail that the state adopt a policy of global neutrality between different conceptions of the good life. Rather the state should not be neutral when conceptions are premised on inequality. This insight is shown to have a basis in Supreme Court jurisprudence, in the majority reasoning in R. v. Keegstra, and to offer a solution to the conflict between liberalism and democracy identified by Charter critics.
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