Beyond Irwin Toy: A New Approach to Freedom of Expression Under the Charter
Bibliographic record
Abstract
The Supreme Court of Canada has struggled for more than two decades to resolve the inherent tension in its expansive interpretation of freedom of expression under section 2(b) of the Canadian Charter of Rights and Freedoms with the high standard of justification that limits on that right must satisfy under section 1. The Court’s attempts have not assuaged critics who point to a continuing methodological anarchy in the Court’s jurisprudence. Despite ample criticism, however, little has been said in the way of proposed alternatives. This paper is an attempt to fill that void.The author proposes an approach to section 2(b) adjudication that begins by animating the normative judgement latent in the Court’s jurisprudence: When not all expression is equally worthy of protection, not all expression should be equally protected. The foundation of this methodology lies in a purposive analysis of section 2(b), with an inquiry as to which categories of expression lie at the core of the guarantee and which lie farther afield. Those forms of expression closest to the core should be subject to the strictest form of scrutiny under section 1, while those outside the core should be subject to attenuated standards of review. Crucially, these distinctions must be evidenced by explicit tiers of scrutiny.The proposed approach yields important benefits that address the specific criticisms levelled at the Court’s current methodology, including clarity and predictability, prudential limits on the flexibility the Court affords itself, and a more efficient use of the Oakes test, especially its third branch. Though the full impact of the proposed methodology is beyond the scope of this paper, the approach’s implications are most clear in the realm of political expression, where several of the Court’s recent precedents would likely have been decided differently.
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How this classification was reachedexpand
Full frame machine prediction
Teacher imitationNot calibrated prevalence, not ground truth. Human validation pending. The Gemma side is a direct model label for every work in the frame, read from the title-only record. The Codex side is a classifier learned from the 10,348 direct Codex labels and calibrated to design-weighted sample rates; fields without enough sample support carry no Codex call. Candidate is the union of the two sides; consensus is their intersection. These outputs are machine_predicted_unvalidated and are not human labels.
Distilled classifier scores by category (both heads)
| Category | Codex | Gemma |
|---|---|---|
| Metaresearch | 0.016 | 0.014 |
| Meta-epidemiology (narrow) | 0.001 | 0.001 |
| Meta-epidemiology (broad) | 0.001 | 0.002 |
| Bibliometrics | 0.004 | 0.003 |
| Science and technology studies | 0.016 | 0.075 |
| Scholarly communication | 0.025 | 0.017 |
| Open science | 0.004 | 0.010 |
| Research integrity | 0.011 | 0.018 |
| Insufficient payload (model declined to judge) | 0.006 | 0.001 |
Machine scores (provisional)
The two teacher heads of the student model, read on this work. A score orders the frame for review; it never asserts a category, and the validation status ships verbatim with every row.
Baseline scores from an immature model (maturity gate not passed, 7 training rounds). Scores rank; they never assert a category.
score_only:v0-immature-baseline · verbatim from the scoring run: score_only means the number may rank works, and no category label ships from itClassification
machine, unvalidatedMachine predicted; a candidate call from one source (direct Gemma or distilled Codex), not a consensus.
How this classification was reached, model by model and score by score, is at the end of the page under "How this classification was reached".