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:

American Sources

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.
  • 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

General Sources

Internet and Free Speech