UBC Theses and Dissertations

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UBC Theses and Dissertations

The role of government and the constitutional protection of equality and freedom of expression in the United States and Canada Grayson, James Warren


Canada and the United States are similar in many respects, and both protect individual rights at a constitutional level. However, the Supreme Court of Canada and the United States Supreme Court have developed alternative conceptions of the constitutional protection of freedom of expression and equality. This thesis describes these differences and attempts to explain the reasons for their development. Under the Fourteenth Amendment, the U.S. Supreme Court merely requires that governmental actors refrain from overt discrimination on the basis of an objectionable ground. Thus, the Court has created numerous doctrines to limit equality to this definition, including color-blindness, intentional discrimination, and multiple levels of review. Each of these concepts has contributed to the application of formal equality by restricting governmental attempts, such as affirmative action, to alleviate social inequality. In addition, the Court's application of content neutrality to freedom of expression cases has restricted attempts to promote equality through legislation restricting hate speech and pornography. By contrast, the Supreme Court of Canada has interpreted the protection of equality in the Charter of Rights and Freedoms to respond to the actual social consequences of legislation. Rather than limiting the Charter to intentional discrimination, the Court will consider governmental actions which have the effect of creating or encouraging inequality. Similarly, governmental restrictions on hate speech and pornography have been upheld by the Supreme Court of Canada as necessary for the protection of equality. For the Supreme Court of Canada, equality has a social reality. These differences suggest an alternative role of government in the rights sphere in Canada and the United States. The United States Supreme Court has developed a rights interpretation which excludes much significant governmental action, whether positive or negative. The Court has incorporated the Bill of Rights into the Fourteenth Amendment and, in doing so, has expanded individual rights at the expense of state power in the promotion of equality. The lack of such a development in Canada has resulted in a more substantial role for social legislation, while still protecting against governmental overreaching through the Charter.

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