Renewing Freedom of Expression, Part Two: From the Contextual Approach to Proportionality Balancing
Bibliographic record
Abstract
This article continues the project to renew the Charter’s methodology of expressive freedom in two parts. Part One explained that the Court’s approach to s.2(b) decision making is skewed against expressive freedom and must be addressed holistically, under ss.2(b) and s.1. (see J. Cameron, “Resetting the Foundations: Renewing Freedom of Expression under Section 2(b) of the Charter”, in B. Bird and D. Ross, eds., Forgotten Foundations of the Canadian Constitution. (LexisNexis Canada, 2022). Part One provided a critique of the current methodology, addressed the meaning of freedom under s.2(b), proposed a revised standard of breach, and sketched a plan for renewal under s.1. That part of the proposal is developed in “Part Two: From the Contextual Approach to Proportionality Balancing”; after a brief recap of the proposal for the breach analysis, the discussion turns to s.1, explaining how a principled approach to limits on expression can be achieved by elevating the role of proportionality balancing. In combination, the doctrinal modifications to the concepts of breach and justification replace elements of the current methodology that are ill-conceived. Though it entails more than a tweak, the proposal to renew ss.2(b) and 1 does not require a wholesale or radical transformation of precedent. The key challenge may be to persuade courts that these modifications align with principles of Charter interpretation and are necessary to safeguard the conceptual integrity of s.2(b)’s guarantee of expressive freedom. This is a pre-publication of a paper forthcoming in the Supreme Court Law Review (2d), and may be subject to editorial revisions prior to final publication.
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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 | 0.017 | 0.015 |
| Meta-epidemiology (narrow) | 0.001 | 0.001 |
| Meta-epidemiology (broad) | 0.001 | 0.001 |
| Bibliometrics | 0.003 | 0.002 |
| Science and technology studies | 0.010 | 0.076 |
| Scholarly communication | 0.019 | 0.020 |
| Open science | 0.003 | 0.013 |
| Research integrity | 0.008 | 0.016 |
| Insufficient payload (model declined to judge) | 0.005 | 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".