Richard Moon

Richard Moon spoke 18 times across 1 day of testimony.

  1. Richard Moon, Prof. (Law – University of Windsor)

    Well maybe I -- is this one? Yes, it sounds like it’s on. Just that was, you know, a terrific introduction. I’d just add one thing, because I’m struck that often individuals make claims, “I have a right to something” and make claims at large. And I think it’s worth thinking about and noting what’s in the Charter and what’s not in the Charter. And the Charter, in a sense, performs two functions. One is a symbolic function and is meant to list what we understand to be the fundamental rights of members of the political or national community, but it also has a very practical function in the sense that there is an enforcement mechanism. That is to say, if someone feels their Charter right has been breached, they can make a claim for the Courts. And that very much shapes what’s in the Charter and how particular Charter rights are in fact interpreted. The limits of what a Court can do and how a Court can approach or interpret a right. And I just think that’s worth noting, given the general language that often operates about, “I have a right” statements made very much at large.


  2. Richard Moon, Prof. (Law – University of Windsor)

    Yeah. I mean I think, and I know this comes up in the various presentations. we have to recognize that any kind of protest is invariably disruptive. It will, to some extent, interfere with the ordinary use of spaces, people’s ordinary lives. And so, again, I agree the challenge is to determine when, what is the outer limit of that? When does it become too disruptive, either as a matter of how much space is taken up, or how long it’s going on, or how confrontational it is? And there is no simple answer to that. I mean, I think that’s the real problem. One can think of the Occupy movement, for example, which involved the establishment of encampments that were there for an indefinite period of time, at least that seemed to be the plan. Everybody accepted that it was an important protest and that there was a right to be located there for a period of time. But then the question became, well, how long is too long? And again, there’s no simple answer to that question.


  3. Richard Moon, Prof. (Law – University of Windsor)

    Okay, thanks. Just a brief comment. Professor Cameron’s paper is a terrific paper and really outlines a very strong argument. I want to take just -- well, not exactly issue with it and some of what Professor Mathen has said -- Mathen has said, sorry. Almost got that wrong. And I want to kind of reassert that what I think is a significant overlap between the different rights. It’s really important to remember when talking about freedom of religion, for example, it has a collective dimension. It protects religious rituals, manifestations of religious practice, often which occur in collective form. And so it does have a physical dimension to it in that sense. And the same could be said about freedom of expression. Expression occurs in a variety of ways. I’ll say more about that in a minute. But it’s always physical, even in the most minimal sense of using one’s vocal cord, but more often involves much more than that. So I want to re-emphasize that all of these rights have a physical dimension to them. All of them have a collective dimension to them as well.


  4. Richard Moon, Prof. (Law – University of Windsor)

    So I'll say very little.


  5. Richard Moon, Prof. (Law – University of Windsor)

    Yeah, I wanted to kind of work through the notion of occupying a neighbourhood a little more closely because if what we're talking about are public spaces, public properties, the streets, for example, as opposed to private properties, then it strikes me that there is at least initially a right to protest in those spaces. Obviously, the residential character of a particular neighbourhood can certainly and should play a role in determining what's a, you know what’s a -- you know, what’s a reasonable limit on that? It’s one thing to parade down a street in a residential neighbourhood demonstrating, it’s another to remain there for an extended period of time, to honk horns and whatever. And it strikes me that that’s very much a question of what are the reasonable limits, as opposed to something more basic.


  6. Richard Moon, Prof. (Law – University of Windsor)

    All right. So I now have two minutes, is what you’re telling me?


  7. Richard Moon, Prof. (Law – University of Windsor)

    All right. Well, you know, thank you. I’m, you know, very pleased to be included in this. I almost feel like I should begin with an apology to the translators, because I haven’t often spoken to Parliamentary committees, but on the few occasions I have, I’ve invariably been told to slow down. So I will at least try, to begin. All right. So section 2(b) of the Charter protects freedom of expression. But more fully, it protects freedom of thought, belief, opinion, and expression, including freedom of the press and other media communication, but I am going to simply speak about freedom of expression. It’s generally understood that it matters, it’s important, as a fundamental right or freedom, because it’s necessary to the -- I know, it’s passion -- it’s necessary to the operation of a democratic form of government; it contributes significantly to development of truth, of the growth of individual or collective knowledge; and it’s important to self- realization. I would add, though, I think it’s important to keep in mind freedom of expression doesn’t just protect individual liberty, in the sense of individuals’ kind of personal, private space. It protects a social activity. It protects the right of an individual to speak to others and to hear what others may say. It’s a social activity that invariably involves the use of collective resources, whether that be the park, the streets, or the internet. And I think that’s important to keep in mind. All right. The scope of freedom of expression. It protects communication, something along those lines. And what our courts have said, it protects any activity that is intended to convey a meaning or a message to others, and I think it’s worth noting that the court illustrates this with the example of parking against the rules. So ordinarily, if you park contrary to whatever the rules may be, presumably you do so because you won’t -- don’t want to pay, you know, whatever might be the cost of doing so, or you can’t find a convenient spot. But, says the Court, if you park against the rules in order to protest in some way, then that counts as expression. Now, that suggests a fairly broad understanding of expression. In principle, any act can be an act of expression if performed with the intention of communicating a message. It also means that any law could, in theory, be a restriction on expression if it happens to restrict the way in which someone has chosen to express themselves. Now, the example given by the Court, refers to parking. You know, maybe it’s convenient that we’re thinking of cars, but we could, of course, think of other vehicles as well when thinking about acts of expression. As Professor MacDonnell earlier referred to, the Court, though, recognizing the potential breadth of the scope of this right, has said that it doesn’t include acts of violence; that’s what they said initially. And then subsequently said, and it doesn’t include threats of violence as well. So if an act involves -- it’s not about -- doesn’t exclude advocacy of violence, and that can be dealt with under section 1, potentially. But from the scope of section 2(b), it only excludes acts that have the form of violence, like terrorist acts, some kind of physical violence directed at another, and threats to do so. All right. So the Court has said that picketing, advertising, hate speech, obscenity are -- all fall within the scope of section 2(b), but of course, are subject to reasonable limits under section 1 of the Charter. I won’t say anything more about section 1 because it’s been very well covered already. But maybe one thing worth noting is, the Court said with regard to freedom of expression, when we move on to section 1 in considering limits, though all these different forms of expression are protected, some have more weight, or more value than others when we are considering limits. So for example, political speeches, core-value speeches closely, says the Court, connected to the values that underlie our commitment to freedom of expression, and so it has a high value, it will be harder for the state to justify its restriction. On the other hand, hate speech, obscenity, commercial advertising are less directly connected to these values and, therefore, it may be easier for the state to justify restriction. Okay. I wanted to quickly say -- talk about three issues; free speech issues that might be, you know, worth considering. One of them is hate speech, and in Canada, hate speech is restrictive under certain human rights codes, not all of them; and, at the moment, not under the Canada Human Rights Act, but that may change at some point. And it’s restricted, of course, under the Criminal Code, under section 319(2), which prohibits the wilful promotion of hatred against the members of certain identifiable groups. There are two kinds of harms that we can connect to hate. One of them is the harm directly experienced by members of a target group; threats, intimidation, harassment, for example, and most of the US cases are about that kind of harm. The other kind of harm is the spread of hateful views within the larger community. So that some in the community may be persuaded by others to take a particular view about members of the group with the result that those who hear these views may adopt more hateful attitudes or may even take action against the members of targeted groups. And most of the Canadian cases have been concerned with that kind of harm, with hate speech laws directed at that kind of harm. And our courts, in a number of ---


  8. Richard Moon, Prof. (Law – University of Windsor)

    Okay. I’ll get there. So our Courts had been willing to uphold these restrictions on hate speech, focusing primarily on the fact that the laws are very narrow in their scope. Focusing on speeches, extreme -- is understood as vilifying the members of particular groups. Okay. I’ll say no more about that, then. Another issue that seems relevant is the question of the right of individuals to access government-owned property in order to communicate. I wrote about this fairly extensively in my background paper, and so I’ll just boil it down to this; our courts have said that they’re really two kinds of state- owned properties. There are what might be called public arenas or public forums; properties that by tradition or in practice are generally open to the public for communication and individuals have a prima facie right to enter onto those properties in order to communicate. Obviously, their expression can be restricted for a variety of reasons, but those reasons are not simply that the state owns the property and can exclude someone from it. And then there are other properties to which individuals don’t ordinarily have the right to enter onto and communicate, and they are described as, paradoxically sometimes, private forums or something like that. And the state doesn’t have to justify the exclusion of expression from those properties. So we’re talking about government offices; broadcast facilities, properties of that kind. And then, I guess, finally, I just wanted to say a little bit about social media, and the changes that it has brought to our thinking about freedom of expression. I think one change is speech that previously was not considered harmful, at least to a degree that might justify its general restriction, we now may be viewing differently. For example, disinformation or deceit of course has been subject to very particular restrictions in the past; false advertising, defamation and so forth. But it is become such a large problem, I think we are having to think increasingly about whether or not there need to be larger restrictions or interventions on this form of speech. And I think the same could be said about speech that is insulting or harassing. It takes on a different character online when so many people can pile on, or it can be persistent, or the insult harassment can be widespread and endure in many ways. And then finally, I just want -- oh, go ahead -- yeah, yeah. My final remark is to say of course what social media also means is the traditional legal responses to these harms are increasingly impractical. They’re too slow. They’re too cumbersome to really address these. And that’s why there is much more thought being given to how social media can, itself, be engaged in taking this material down. And that brings a range of different challenges.


  9. Richard Moon, Prof. (Law – University of Windsor)

    We'll attempt that. I mean, I guess I have to preface any answer to that question with really what I think came out in our discussion and that is people have the right to protest. Protest invariably involves some disruption of ordinary property use, and the question always is what are the appropriate limits. And it's accepted that municipalities, for example, can put in place different kinds of restrictions, even notice requirements, if you have a large protest to inform the police or municipality in advance that you intend to do that. So I think the short answer is I think they probably could do those things. They could say no trucks parked in this area. No parks -- no trucks can enter into this area. But it has to, notionally at least, be justified as a reasonable restriction on the right to protest. And certainly, it strikes me -- this is easy to say in hindsight that it could easily be understood as reasonable given the amount of space, the pollution, the noise and so forth that a truck could generate. So, again, the real challenge, and I don't envy those who have to make decisions here around any of these questions is that, ultimately, it is a very practical determination to decide how much disruption, how long, so forth, and it would not, to my mind, be unreasonable to say trucks in a space like this is a significant disruption, and the protest can happen but it's legitimate to exclude trucks from it.


  10. Richard Moon, Prof. (Law – University of Windsor)

    Without kind of, you know, having a sense of what the array of existing rules are that could be drawn upon, I think the answer might be yes, but I don't know enough about what the ---


  11. Richard Moon, Prof. (Law – University of Windsor)

    --- by-laws would be.


  12. Richard Moon, Prof. (Law – University of Windsor)

    I am absolutely.


  13. Richard Moon, Prof. (Law – University of Windsor)

    Well, so much ---


  14. Richard Moon, Prof. (Law – University of Windsor)

    --- determines as what the legal authorisation would be to remove, and some believe there would be a variety of rules that would permit that, and then the question is whether that would be justified, and I think the consensus would be, particularly in this circumstance, it would be.


  15. Richard Moon, Prof. (Law – University of Windsor)

    No, I was just -- I really just wanted to first reiterate what Professor Mathen, and that obviously the temporary nature of it makes a difference; and secondly, I imagine a certain degree of deference is going to be given in a situation where rapid action is understood to be necessary, and obviously we’d call it emergency response, then we would understand rapid action to be necessary. So I’m -- it is, obviously, on the face, very broad, and would, just in isolation, be troubling. But I think those factors certainly would have to be taken into account.


  16. Richard Moon, Prof. (Law – University of Windsor)

    It’s -- yeah, that’s not exactly ---


  17. Richard Moon, Prof. (Law – University of Windsor)

    --- counterprotest, I guess, in the sense that it’s an attempt to exercise what are considered to be a right, the right to ---


  18. Richard Moon, Prof. (Law – University of Windsor)

    --- move and drive. Certainly the starting point is everybody has the right to protest, to counterprotest, and so forth. And then the challenge always is if it looks like there will be conflict, to what extent can the police manage that? And only exceptional situations, where it's just unmanageable, given their resources, could it be shut down. But the starting point always has to be both sides. But that’s an interesting and challenging question about my right to exercise my ordinary mobility that is directly coming in conflict with what the protestors are attempting to do.