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Crashing and burning
By Steven | January 21, 2010
Valerie Morse has lost her appeal to the Court of Appeal over her conviction for flag-burning at the Anzac Day Dawn Service. (For some reason, this wasn’t regarded as a “decision of public interest”, but it’s posted here).
The judges all wrote separate judgments. Justice Arnold and the President of the Court of Appeal, William Young, voted to uphold the conviction. Justice Glazebrook wrote a dissent. (I think her dissent is very convincing, but I would say that: Tony Shaw and I represented Valerie.)
Still, perhaps the final chapter has not yet been written. The Supreme Court may yet grant leave for an appeal.
I won’t go into a detailed analysis of the judgments. But I do want to make one point, despite knowing that it’s a bit naff arguing the toss with a judge after a judgment.
You’ll see that at para [48], William Young P says:
In the course of argument, I pressed Mr Price for the appellant to identify an error of law made in the Courts below. His answers were variations on the theme that the outcome was simply wrong. This rather makes me think that the fundamental challenge to the conviction turns on the factual accuracy of the findings made in the District Court and the High Court. But such a challenge, at least in simple terms, is off-limits in this Court in a second appeal…
I’m not sure where this came from. First, the Court of Appeal itself gave leave on the of whether the conviction was consistent with the Bill of Rights Act. It characterised this as a question of law.
Second, here our our written submissions on the errors of law in the courts below:
The failures of the courts below
The courts below failed to properly conduct an analysis of the impact of ss14 and 5 of the BORA in that:
– they did not adopt a rights-centred approach;
– they did not acknowledge that the right to offend, shock or disturb is an indispensable aspect of freedom of expression, and particularly political expression;
– they did not acknowledge that limitations on BORA rights should be construed narrowly, convincingly established, and strictly applied in favour of the rights at issue;
– they did not properly assess the significance of freedom of expression in the circumstances of this case;
– they did not identify any legitimate purposes for the restriction on the appellant’s right to burn the NZ flag, the starting point for any proportionality analysis;
– they did not consider whether the appellant’s conviction was “demonstrably justified” in a free and democratic society;
– they appeared to treat the symbolic nature of the act of flag-burning as an aggravating rather that mitigating factor;
– they did not properly apply the Brooker test, which significantly lifted the bar in cases of protest; nor did they create and apply an analogously high bar for offensive behaviour;
– they did not consider the relevance of the offence of flag-burning under the Flags, Emblems, and Names Protection Act 1981;
– they apparently regarded the proportionality analysis as an ad-hoc balance between the rights of the appellant and the rights of the others in attendance, rather than a structured process of justification that revolves around evaluating the legitimacy, relevance and strength of the state interests in the restriction.
Also, as Justice Arnold notes at para [14], we supplied three alternative approaches to interpreting the offense of offensive behaviour, all of which we said were consistent with the Bill of Rights, and none of which were adopted by the District and High Court judges.
Finally (and I’m taking this from the notes I wrote during the break in order to respond to William Young P’s question), we emphasised that the fundamental failure of the judges was in adopting the wrong approach to the question of justifying restrictions on free speech. The correct legal approach required them to acknowledge that the starting point was freedom of expression and that the burden of justification lay with the Crown; the second step was to examine how deeply the right to freedom of expression is involved in the particular circumstances; the third step was to assess the countervailing state interests and the extent to which they were harmed; and the final step was to assess whether that harm outweighed the damage to freedom of expression. This is the sort of analysis, we noted, that Canadian courts conduct all the time.
I guess that, to the President, that didn’t sound like an error of law. It sounded like a fancy way of dressing up a bare claim that the lower courts had just “got it wrong”. In any event, he wasn’t convinced by our arguments.
And to be fair, the essence of our argument was indeed that on any properly rigorous justification analysis, a conviction could not be found proportionate. There’s a big difference between that sort of robust approach, and one that merely plays a bit of lip service to free speech, refers to a few factors that seem relevant to a “balancing” exercise, and reaches an airy conclusion that a conviction is justified. I think Justice Glazebrook was the only judge to really grapple with all the facts and apply a rigorous justification analysis. She found the conviction unjustified.
Topics: NZ Bill of Rights Act, Protest speech | Comments Off on Crashing and burning