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.
| Identifer | oai:union.ndltd.org:LACETR/oai:collectionscanada.gc.ca:BVAU.2429/6002 |
| Date | 11 1900 |
| Creators | Grayson, James Warren |
| Source Sets | Library and Archives Canada ETDs Repository / Centre d'archives des thèses électroniques de Bibliothèque et Archives Canada |
| Language | English |
| Detected Language | English |
| Type | Electronic Thesis or Dissertation |
| Relation | UBC Retrospective Theses Digitization Project [http://www.library.ubc.ca/archives/retro_theses/] |
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