The highest courts in Canada and the United States appear to have reached opposite conclusions in the twin decisions of R. v. J. (K.R.) and Packingham v. North Carolina.

The Supreme Court of Canada (SCC) ultimately ruled that sex offenders could be denied access to Facebook and other social media sites, notwithstanding offenders’ Charter rights, while the Supreme Court of the United States (SCOTUS) declared unconstitutional a North Carolina law that prohibited sex offenders from having Facebook accounts or accounts on other websites also used by minors. 

There are important distinctions between the two cases. As such, it would be an overstatement to say these contrasting conclusions represent a clear conflict in American and Canadian constitutional jurisprudence on issues of freedom of speech and freedom of expression. That said, the approaches taken by the Courts do reveal differences in jurisprudence and different values around free speech and the protection of children, as I will argue in this article.

Different Contexts

It bears noting that SCOTUS struck down a North Carolina law that involved a blanket prohibition applying to all registered sex offenders. Over 1,000 registered sex offenders had been criminally prosecuted for violating the law, which prohibited them from setting up profiles on Facebook, Twitter, or other sites where the offenders knew children could be members. One such offender challenged his conviction on grounds that the law violated his free speech rights as guaranteed by the First Amendment to the US Constitution.

By contrast, K.R.J. did not involve a blanket provision. It involved the validity of a statute, which authorized sentencing judges to prohibit offenders convicted of offenses against persons under the age of 16 from using the Internet, and the retroactive application of that law. The SCC considered whether applying the law infringed an offender’s s. 11(i) rights, which gives offenders the benefit of a lesser punishment if the punishment for an offense is varied after the commission of the offense. The retroactivity aspect of the SCC’s decision does not fully facilitate comparison to the decision in Packingham, however, the Court’s reasoning in justifying the retroactive application of the law tracks the discussion that probably would have been required to weigh free expression against the protection of children.[1] 

While the SCC did not expressly address s. 2 of the Charter, which guarantees the right to free expression, both SCOTUS and the SCC made comments about the importance of protecting minors and the importance to offenders of accessing the internet. The Courts weighed these competing values and reached different results.  The contexts were not exactly parallel, primarily because in Canada, the decision involved infringements on speech as decided by judges on case-by-case bases in sentencing convicted criminals, while in the US, the top court considered a prohibition that was more likely to be over-broad in its application, and affected people who were no longer subject to the supervision of the criminal justice system. In addition, the law in Canada only applied to offenders who committed crimes against minors under the age of 16, while in the US, it applied to all registered sex offenders. It is unclear on the face of the Packingham decision whether all registered sex offenders in North Carolina have committed crimes against minors.

Free Speech, Free Expression and the Importance of the Internet

In both jurisdictions, the Courts emphasized the importance of the Internet. The American decision dealt with the Internet expressly as a constitutional right. The SCC did not; probably because in the context of sentencing, judges are authorized to infringe offenders’ liberty and other freedoms without offending the Charter. Nonetheless, the SCC’s analysis considered the importance of speech, from the perspective of retroactively applying the law.

In Packinham, SCOTUS described the Internet and social media websites as among the “principal sources of knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge.” It said (p. 8) “[t]hese websites can provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard.” The right to use the Internet was treated as an important constitutional right, if not a fundamental human right.

The SCC also recognized the importance of accessing the Internet. It stated (para 54) that depriving offenders access to the Internet is “tantamount to severing that person from an increasingly indispensable component of everyday life.” The SCC referred to examples about the importance of the Internet to employment, business, entertainment and socializing, consistent with the SCOTUS decision. The SCC ultimately referred (para 55) to the curtailment of Internet access as a “substantial consequence” for offenders, which required the Court to consider the fairness of the underlying law.

The term “substantial consequence” may reveal that while Canada considers Internet access important, we do not go quite as far as our American counterparts in valuing this right. 

The Packingham decision is replete with cautionary language about how courts must take “extreme caution” in curtailing internet access and how Internet access might be “especially” beneficial to convicted criminals. By comparison, the Canadian decision uses more measured language in assessing the value of the internet and even qualified its comments on the internet’s importance with this quote:

An Internet prohibition, while invasive, is not among the most onerous punishments, such as increased incarceration.

While the two Courts consider the Internet important, and while it may be questionable to read too much into the few phrases mentioned above, it is tempting to conclude that Internet use and the right to free speech in general are more highly valued in the US than in Canada.

In further support of that conclusion, the minority concurring SCOTUS opinion[2] criticized the majority opinion for going too far in valuing free speech. Justice Alito wrote that the majority opinion contained dicta, which could be construed to mean that states are largely powerless to prevent sexual predators from visiting any sites, including teen dating sites. This criticism confirms that the majority Packingham opinion treats Internet access as sacrosanct, which does not seem to be the approach of the SCC.

Importance of Protecting Minors

The Packingham majority decision contains little language about the purpose or possible importance of the North Carolina law restricting Internet access, or of the importance of the goal of protecting minors from sex offenders. In reciting the circumstances of the case, the SCOTUS majority mentioned that states had a compelling interest in protecting minors from sexual abuse. In its analysis, SCOTUS further included one paragraph describing child sex abuse as repugnant and a “most serious crime” and stated that states may pass valid laws to protect children from abuse. That said, the remarks appeared perfunctory and were not considered in any depth in the Court’s analysis.

By comparison, the K.R.J. decision contained an entire section on the history of the impugned law, which outlined the importance of protecting children. Then starting at paragraph 101 of the decision, the SCC discussed at length the new and emerging risks to children because of the internet and other technological advancements.

Canada considered (para 106) evidence about the unique role the Internet plays in facilitating sexual crimes against minors, which the US did not. The SCC discussed child luring and child pornography and apparently considered evidence about the difficulty of monitoring a sex offender’s activity online, because of the anonymity the Internet offers to its users. The SCC majority accepted the protection of children as a compelling governmental objective, and was ultimately persuaded that the government had a compelling interest in retroactively applying the new sentencing law. (The SCC was not persuaded the government had a compelling interest in preventing sex offenders from interacting with all individuals under the age of 16, which was a power granted to sentencing judges in another sub-provision of the impugned law.) 

Standard of Review

SCOTUS decided the Packingham case on a strict scrutiny standard, which requires a law to be “narrowly tailored” to achieve a “compelling governmental interest.” Strict scrutiny is the relevant standard when a government law or policy is alleged to violate a person’s fundamental constitutional rights. Under that standard, the government has the burden to show its restrictions on speech were the least restrictive means available to achieving the government’s objective.

SCOTUS held North Carolina had failed to discharge its burden. It further stated the law would not pass even using the less rigorous, intermediate standard of scrutiny, under which the government may justify laws if the means employed are substantially related to an important governmental objective.[3]

The US Court ruled that the North Carolina law was not narrowly tailored to achieve its stated objective of protecting children. The law was over-broad because it restricted lawful speech, including political and commercial speech, as opposed to prohibiting speech between sex offenders and vulnerable people.  The Court concluded North Carolina could not suppress lawful speech as the means to suppress unlawful speech.

In contrast, the SCC described the standard of review in K.R.J. (para 58) as follows:

To establish that the limitation on the appellant's s. 11(i) right is reasonable and demonstrably justified, the government must show that the 2012 amendments have a sufficiently important objective "and that the means chosen are proportional to that object[ive]" (Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331 (S.C.C.) , at para. 94). A law is proportionate if (1) there is a rational connection between the means adopted and the objective; (2) it is minimally impairing in that there are no alternative means that may achieve the same objective with a lesser degree of rights limitation; and (3) there is proportionality between the deleterious and salutary effects of the law (R. v. Oakes, [1986] 1 S.C.R. 103 (S.C.C.) ; Carter , at para. 94). The proportionality inquiry is a normative and contextual one, which requires courts to examine the broader picture by "balanc[ing] the interests of society with those of individuals and groups" (Oakes , at p. 139).

The SCC decision considered whether the law had a “rational connection” to its purpose, whether it was minimally impairing to offenders’ s. 2 rights, and if the effects on offenders were proportional to the ends of the legislation. 

The SCC’s approach considers factors relevant under all three standards of scrutiny found in US jurisprudence. The SCC’s “rational connection” analysis appears to follow the rational basis framework applicable under the least rigorous standard in the US relating to legitimate government interests. Meanwhile the “minimally impairing” language resembles the American strict scrutiny standard. 

Canada also has some distinct formulations of the applicable considerations. We speak of “proportionality” and the SCC has consistently ruled that a restraint on free expression may be justified if it arises in pursuit of a sufficiently important objective that is consistent with the values of a free and democratic society. 

The Canadian approach appears less rigid than the approach taken south of the border. While the hallmark of strict scrutiny in the US is necessity, Canada’s top court avoided any single formulation of the test the government had to meet, and referred to no clear principles to help define what government objectives would be consistent with the values of a free and democratic society. It applied a broad and purposive analysis, which appears to be a common feature in Canadian jurisprudence, in contrast to the bright-line rules often interpreted in US case law.

The SCC explicitly took pains to avoid engaging in “mechanical jurisprudence” and in so doing, may be regarded as unprincipled by American jurists. Likewise, the American decision may appear formalistic by Canadian standards.

While the contexts of the decisions differ, it does appear to this author that there is a different culture around free speech and free expression in Canada and the US, as exemplified by these two decisions.

 

About the author

Saba Ahmad is a civil litigator working primarily on commercial and estate matters in Toronto. She advises non-profits and is an executive member of the OBA Constitutional Civil Liberties & Human Rights Law Section. Saba is licensed to practise law in Ontario and in the State of New York.