Underneath the Golden Boy - Robson Hall Faculty of Law

32 Underneath the Golden Boy
develop and evolve are subject to constant scrutiny, analysis, debate, and
evaluation - and indeed facilitates human development itself.
The fact that some human rights principles and values have attained
constitutionally and internationally protected status ought not to insulate or
immunize them from challenge or criticism. Even if their importance and
vulnerability entitles them to some additional measure of protection, attempting
to insulate them from challenge or criticism contravenes “the essence” of a “free
and democratic society.” It must be remembered that all principles, values,
philosophies, concepts, and ideas are subject to question, criticism, and
challenge. This is necessary not only as an attribute of a “free and democratic
society” but in order to ensure human development and progress.
Neither the Charter nor any part of our Constitution contains anything like
Article 17 of the European Convention on Human Rights or Article 5(1) of the
International Covenant on Civil and Political Rights. Article 17 of the European
Convention reads,
Nothing in this Convention may be interpreted as implying for any State, group or person
any right to engage in any activity or perform any act aimed at the destruction of any of
the rights and freedoms set forth herein or at their limitation to a greater extent than is
provided for in the Convention. 40
Article 5(1) of the International Covenant reads:
Nothing in the present Covenant may be interpreted as implying for any State, group or
person any right to engage in any activity or perform any act aimed at the destruction of
any of the rights and freedoms recognized herein or at their limitation to a greater extent
than is provided for in the present Covenant.
To the extent that such provisions prevent the relevant Convention or
Covenant from protecting violent interference with the protected rights, or the
incitement to such violence, they are to be welcomed. However, to the extent to
which they deny protection to peaceful attempts to challenge or repeal these
rights (including speech or political movements deemed to be extremist) they
seem, with respect, somewhat problematic.
It is true that the Charter and other parts of the Constitution limit the
extent to which ordinary legislation can interfere with certain rights and
40
There is European jurisprudence which ruled that Article 17 prevents Article 10 (“freedom of
expression”) from protecting hate communication. See for example Ivanov v. Russia,
Application no. 35222/04 (European Court of Human Rights, First Section, Admissibility
Decision, February 20, 2007) from
.