Freedom of Expression Background
by Graham Darling, University of Alberta LL.B. student
Freedom of expression is one of the Fundamental Freedoms protected by the Canadian Charter of Rights and Freedoms.[i] When the Charter was added to the Constitution in 1982, freedom of expression gained the strongest possible legal protection. Before the Charter, freedom of expression was still recognized as an important liberty. "Freedom of expression has long been considered an essential element in the development of the social, educational and political foundations of Western society."[ii] Canadians have recognized that a democratic government requires citizens to be able to voice their opinions, debate ideas, and communicate their thoughts. The ability to publicly critique government is important within Canada and is a key component of Canada's political system.[iii] In addition to political expression, freedom of expression also allows us to share our ideas, learn about the ideas of others, and develop as individuals in an open society.
Section 2(b) of the Charter protects "freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication."[iv] In addition to constitutional protection, the common law (law developed by the courts as opposed to acts of Parliament) has historically protected fundamental rights including freedom of expression.[v] More recently, Canadian and provincial Bills of Rights and Human Rights Codes have also added statutory protection. Canada has also signed on to international legal instruments that protect expression such as the Universal Declaration of Human Rights[vi] and the International Covenant on Civil and Political Rights.[vii]
Charter protection of expression covers more than just political speech. Any form of communication that is capable of conveying meaning is considered to be expression.[viii] Movements and actions that communicate meaning can therefore be protected as are commercial and artistic expression. The aim of the Charter is to prevent unjustified government restrictions on expression; however, some restrictions on expression will not involve the government. The civil tort of defamation allows a person to recover damages when one person harms the reputation of another. Canadians who trespass, vandalize private property or assault someone as a form of expression could also be liable to pay damages.[ix] Although Charter values are used to help the courts analyze civil cases involving freedom of expression, the Charter is only directly applicable when the government is involved.[x]
Limitations on free speech
It is important to remember that the fundamental freedoms in the Charter are protected but they are not absolute. Section 1 of the Charter allows the government to pass laws that limit free expression so long as the limits are reasonable and can be justified.[xi] Because one person's words or actions may negatively affect another, some feel that restrictions on expression are necessary.[xii] There are a number of restrictions on expression designed to protect individuals, or society as a whole from harm. Freedom of expression may also be restricted in order to balance the fundamental freedoms of one party against those of another. Hate speech and obscenity are two examples that gain a lot of attention. There are other restrictions that do not gain as much publicity, such as consumer protection laws that restrict advertising or impose labeling requirements on certain products.
The importance of free expression
There are three key values fostered by freedom of expression that the Supreme Court of Canada has recognized: democracy, the search for truth, and individual autonomy.[xiii]
Democracy: The argument is that freedom of expression is necessary for a parliamentary democracy to function properly. The free flow of ideas allows people to make informed decisions on issues of political importance.[xiv] It is also important that the ruling majority not be able to silence dissent or repress minority views.[xv] Freedom of expression allows people to vote after being informed by open debate and exploring competing political opinions.[xvi]
Truth: John Stuart Mill proposed that people would be better able to recognize the truth if they were able to hear all available views, even views that may be false.[xvii] Censorship, well intentioned or otherwise, suppresses the exchange of ideas and interferes with knowledge enhancement.[xviii] Freedom of expression allows people to express and hear different ideas. Open discourse and the free availability of information enhance the quest for truth and the advancement of knowledge.[xix]
Self-Fulfillment: People must feel free to express themselves in order to explore and develop their personal identity.[xx]
Freedom of expression allows people to communicate their feelings and desires, to be artistic, and to explore their individuality. Freedom of expression also complements the other protected rights in section 2 of the Charter: freedom of conscience and religion; freedom of thought, belief, and opinion; freedom of peaceful assembly; and freedom of association.[xxi] These rights can be an important part of an individual's identity and freedom of expression allows people to fully enjoy these rights.[xxii]
The Scope of Section 2(b): Irwin Toy v. Quebec,  1 S.C.R. 927
The Quebec Consumer Protection Act prohibited commercial advertising directed at children under 13. The act had some exemptions relating primarily to magazine inserts and store displays. The Supreme Court held that the legislation infringed section 2(b), but the infringement was justified under section 1. The case established the scope of activities that are covered by freedom of expression, the value of free expression, and the test to determine whether freedom of expression has been infringed. The two-part test looks first at whether the activity in question falls within the scope of free expression. "If the activity conveys or attempts to convey a meaning, it has expressive content and prima facie (at first glance) falls within the scope of the guarantee."[xxiii] The court determined that the scope of section 2(b) is broad, covering a wide range of activities. However, not all activities are protected. "While the guarantee of free expression protects all content of expression, certainly violence as a form of expression receives no such protection."[xxiv]
The second part of the test looks at whether the purpose or effect of the governmental action was to control attempts to convey meaning. If either the purpose or effect of the government's action restricts attempts to convey meaning, there is a section 2(b) violation and the government must justify the infringement under section 1 of the Charter. This case emphasized that freedom of expression is an important fundamental freedom and therefore a broad range of activities are protected under section 2(b).
Hate Speech: R. v. Keegstra,  3 S.C.R. 697
Mr. Keegstra was charged under the Criminal Code with willful promotion of hatred (now section 319(2)). He was a high school teacher who lectured on the topic of a Jewish world conspiracy, suggested that the Holocaust was a hoax, and "attributed various evil qualities to Jews."[xxv] The court determined that hate speech is protected under section 2(b) of the Charter as it is an attempt to convey meaning. However, the majority of the court determined that the criminal restriction of hate speech is justified under section 1. Not all forms of expression have the same value and hate speech contributes little to the fundamental values promoted by section 2(b): the quest for truth, self-fulfillment, and democracy.[xxvi] Hate propaganda can substantially harm targeted groups and undermine other Charter principles such as equality and multiculturalism.[xxvii] In order to promote equality and protect Canadians from hate speech, the restriction on hate speech was justified.
Obscenity and Pornography: R. v. Butler,  1 S.C.R. 452
Mr. Butler operated a store that sold hard-core pornography. The police seized the entire inventory and charged Mr. Butler with numerous counts under the obscenity provision of the Criminal Code (now section 163).[xxviii] The Supreme Court had to determine whether the obscenity provision violates the guarantee to free expression under section 2(b) of the Charter. The Criminal Code "seeks to prohibit certain types of expressive activity and thereby infringes s. 2(b) of the Charter."[xxix] However, the restriction was found to be justified and was upheld under section 1 of the Charter. The obscenity provision was designed to prevent materials that pose a risk of harm to society: erotica that is violent, degrading, or dehumanizing.[xxx] The court recognized that obscene materials threaten the safety of groups such as women and children. To protect vulnerable groups, the obscenity provision was tailored to prohibit sexually explicit materials that pose a risk of harm to society. Pornographic materials that are not violent, degrading, or dehumanizing are allowed since they do not pose a substantial risk of harm.
Child Pornography: R. v. Sharpe,  1 S.C.R. 45
Canada Customs and Police officers seized computer disks, books, photographs and other material from Mr. Sharpe.[xxxi] The Crown believed these materials constituted child pornography. Mr. Sharpe challenged the constitutionality of the Criminal Code provision (s. 163.1(4)) that banned the possession of child pornography, but not the prohibition on possession for the purpose of distribution or sale.[xxxii] The Crown conceded that prohibiting possession of child pornography infringed the guarantee to freedom of expression. The issue before the Supreme Court was whether the prohibition was justifiable under section 1 of the Charter.[xxxiii] The concern was that the law may catch some expression that may "seriously implicate self-fulfillment and that does not pose a risk to children".[xxxiv] The case had to balance the competing values of free expression on one hand and protecting children from harm on the other. [xxxv]
The Supreme Court concluded that the broad prohibition of child pornography was justified because it protects children from exploitation and abuse.[xxxvi] However, the court established two exceptions to the prohibition: "(1) any written material or visual representation created by the accused alone, and held by the accused alone, exclusively for his or her own personal use; and (2) any visual recording, created by or depicting the accused, provided it does not depict unlawful sexual activity and is held by the accused exclusively for private use."[xxxvii] "Innocent photographs of a baby in a bath" are also not prohibited, and the court allowed for a liberal interpretation for defenses of artistic merit, educational, scientific or medical purposes; and public good.[xxxviii]
- Peter W. Hogg, Constitutional Law of Canada (Scarborough: Carswell, 2004)
- Bernard W. Funston & Eugene Meehan, Canada's Constitutional Law In a Nutshell, 5th ed. (Scarborough: Carswell Thomson Professional Publishing, 1998)
- Robert J. Sharpe and Katherine E. Swinton, The Charter of Rights and Freedoms (Toronto: Irwin Law, 1998)
- Freedom of Expression and Its Limitations in Canada: Background Materials and Learning Activities (Calgary: Alberta Civil Liberties Research Centre, 2004)
- Richard Moon, The Constitutional Protection of Freedom of Expression (Toronto: University of Toronto Press, 2000)
Freedom of Expression
General Charter Sites
[i] Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982 being Schedule B of the Canada Act 1982 (UK), 1982, c.11.
[ii] Bernard W. Funston & Eugene Meehan, Canada's Constitutional Law In a Nutshell, 5th ed. (Scarborough: Carswell Thomson Professional Publishing, 1998) at 171.
[iii] Robert J. Sharpe and Katherine E. Swinton, The Charter of Rights and Freedoms (Toronto: Irwin Law, 1998) at 92.
[iv] Charter of Rights and Freedoms, Supra note 1 s. 2(b).
[v] Peter W. Hogg, Constitutional Law of Canada (Scarborough: Carswell, 2004) at 933. Reference Re Alberta Legislation,  S.C.R. 100. Saumur v. City of Quebec,  2 S.C.R. 299.
[vi] Universal Declaration of Human Rights, Online: United Nations.
[vii] International Covenant on Civil and Political Rights, Online: Office of the United Nations High Commissioner for Human Rights.
[viii] Freedom of Expression and Its Limitations in Canada: Background Materials and Learning Activities (Calgary: Alberta Civil Liberties Research Centre, 2004) at 2.
[ix] Ibid at 6.
[x] Robert J. Sharpe and Katherine E. Swinton, The Charter of Rights and Freedoms (Toronto: Irwin Law, 1998) at 67.
[xi] Charter of Rights and Freedoms, supra note 1 at s. 1.
[xii] Supra note 8 at 3.
[xiii] Supra note 5 at 935. Reference Irwin Toy v. Quebec,  1 S.C.R. 927at 968-71.
[xiv] Richard Moon, The Constitutional Protection of Freedom of Expression (Toronto: University of Toronto Press, 2000) at 14.
[xv] Supra note 8 at 2.
[xvi] Supra note 14 at 14.
[xvii] Supra note 5 at 934.
[xviii] Supra note 14 at 9.
[xix] Supra note 8.
[xx] Supra note 5 at 934.
[xxi] Charter of Rights and Freedoms, supra note 1 at s. 2.
[xxii] Supra note 8 at 2.
[xxiii] Irwin Toy v. Quebec,  1 S.C.R. 927at para 42.
[xxiv] Ibid. at para. 43.
[xxv] R. v. Keegstra,  3 S.C.R. 697 at para. 3.
[xxvi] Ibid. at para. 91.
[xxvii] Ibid. at para. 85.
[xxviii] R. v. Butler,  1 S.C.R. 452 at para. 3.
[xxix] Ibid. at para. 72.
[xxx] Ibid. at para. 117.
[xxxi] R. v. Sharpe,  1 S.C.R. 45 at para. 3.
[xxxii] Ibid. at para. 4.
[xxxiii] Ibid. at para. 5 and 18-20.
[xxxiv] Ibid. at para. 24.
[xxxv] Ibid. at para. 29.
[xxxvi] Ibid. at para. 110.
[xxxvii] Ibid. at para. 129.
[xxxviii] Ibid. at para. 128. The court summarized its conclusions at para. 128.