Special Topics: Freedom of Expression in Canada
Section 2(b) of the Charter states that "Everyone has
the following fundamental freedoms: ... freedom of thought, belief,
opinion and expression, including freedom of the press and other
media of communication." The section potentially could cover a
wide range of action, from commercial expression to political
expression; from journalistic privilege to hate speech to
pornography. The jurisprudence of the Supreme Court
(see links below) has largely been an attempt to carve out:
first, the purpose of s. 2(b) (what values does it seek to protect,
who should be entitled to its protection); and second, the scope
of s. 2(b) (what is 'expression'?).
Freedom of expression is a cornerstone of a functioning
democracy. Freedom of expression promotes certain societal values,
as noted by Professor Emerson in 1963: "Maintenance of a system of
free expression is necessary (1) as assuring individual
self-fulfillment, (2) as a means of attaining the truth,
(3) as a method of securing participation by the members of
the society in social, including political, decision-making, and
(4) as maintaining the balance between stability and change in
society." Our constitutional commitment to free speech is
predicated on the belief that a free society cannot function with
coercive legal censorship in the hands of persons supporting one
ideology who are motivated to use the power of the censor to
suppress opposing viewpoints.
The Canadian approach to freedom of expression allows for a
wide conception of "expression" within s. 2(b). The Supreme
Court of Canada has stated that a wide and inclusionary approach
to the interpretation of the Charter's free expression guarantee
is to be preferred (see Ford v. Quebec, and
Irwin Toy). Thus, in Irwin Toy, Chief Justice
Dickson explained that "'expression' has both a content and a
form, and the two can be inextricably connected. Activity is
expressive if it attempts to convey meaning. That meaning is
its content." Not only is there a freedom of expression, there
is also a freedom to not express. As Justice Beetz
said in National Bank of Canada v. R.C.U. [p. 377 text],
"all freedoms guaranteed by s. 2 of the Charter
necessarily imply reciprocal rights: ... freedom of
expression includes the right to not express."
There are of course limits to free speech and free press
guarantees, as the Canadian Supreme Court is quite ready
to point out (see CBC v. A.G.N.B., below). For example, even
though the press enjoys core constitutional rights of access
and publication, they do not have protection for all
operational means and methods the press may choose to adopt.
The press does not, for example, enjoy immunity if they run
a pedestrian down in pursuit of a new story under the guise
of "freedom of the press". Nor is a violent attack on
someone (however dramatic the attack may be) considered to
be expression. Understanding freedom of expression requires not
only understanding its place in the Canadian constitution, but
also, understanding it within the context of society and
society's competing values.
In addition to the material in
Constitutional Law of Canada,
8th edition, the following links may be of interest to the
constitutional law student:
Articles, Essays, and Magazines
- Legal Compendium - s. 2 of the Charter - a recent legal compendium created by MacEachern C.J.B.C. of the B.C. Court of Appeal. This is a good overview to section 2.
- First Amendment Cyber-Tribune - "The FACT Web site is intended to be a resource for anyone wanting to learn about the First Amendment. It provides information on all the liberties guaranteed by the amendment."
- Index on Censorship - "Index on Censorship, the bi-monthly magazine for free speech, widens the debates on freedom of expression with some of the world's best writers. Through interviews, reportage, banned literature and polemic, Index shows how free speech affects the political issues of the moment."
- Make the Distinction between Hate Words and Deeds - A. Alan Borovoy (CCLA position paper)
Cases from the Supreme Court of Canada
Freedom of the Press
Internet and Free Speech