Freedom of speech. Freedom of the press. These phrases may conjure up Hollywood-style images of noble activists and principled reporters butting heads with those in power – and winning. However, the reality is often far different: surveillance, gag orders, expensive and oppressive lawsuits, and activists and journalists being arrested, imprisoned – and in extreme cases, even dying – for their convictions.

The heavy-handedness of defamatory libel and its use in curbing freedom of expression is an ongoing problem, said Professors David Pritchard (University of Wisconsin-Milwaukee) and Lisa Taylor (Ryerson University) … For a long time, the issue of press freedom focused largely on the journalistic coverage of criminal trials. W. H. Kesterton, in his 1976 book The Law and the Press in Canada, said that in Canada and Great Britain, “the considerations of a fair trial prevail over considerations of a free press … the press is restrained in most cases where unfairness in a trial seems likely to result.” By contrast, U.S. press freedoms are covered under that country’s first amendment, giving the impression of a “freer” press.

But the advent of social media platforms and the rapid dissemination of information – both real and fake – has generated a hot debate. Issues range from the balancing act of regulated-versus-open use (especially in cases where there are questions of accuracy) to the U.S. government engaging the 1917 Espionage Act to prosecute WikiLeaks founder Julian Assange for the 2010 dissemination of secret documents (seen as subversive by some and as free speech by others). As well, the rights of American individuals were threatened with a May 2019 U.S. Supreme Court decision supporting the right of police officers to not be sued for arresting anyone on the basis of “probable cause”. This means an officer can make an arrest for anything considered to be “wrongful behaviour,” from protesting outside a consulate to using a cellphone under what could subjectively be deemed “suspicious” circumstances.

It all speaks to a tighter rein on personal and press freedoms. The Canadian Charter of Rights and Freedoms provides a guarantee of freedom of expression and press freedom, with some provisos and grey areas. While free speech may be legally restricted as a means of ending discrimination and promoting gender equality and social harmony, the definition of the punishable crime of hate speech remains vague. Though the Charter promises “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication,” much has changed in the 40-plus years since Kesterton’s book.

… journalistic freedoms are threatened and reporters can face imprisonment just for covering protests. These anti-journalism efforts are driven largely by governments. Denis Rancourt, a researcher with the Ontario Civil Liberties Association (OCLA), said via email that the press freedoms that once existed in post-World War II Canada and the U.S. have dissolved over time. This dissolution is due to the introduction of heightened government oversight, greater corporate mergers and globalization, such that “the overriding threat to press freedom for corporate journalists is near-absolute absence of professional independence.”

Human Rights Watch, an independent organization focusing on the protection of individual rights, acknowledges that access to information is on the rise, thanks to the growth of the Internet. At the same time, it notes that “efforts to control speech and information are also accelerating, by both governments and private actors in the form of censorship, restrictions on access, and violent acts directed against those whose views or queries are seen as somehow dangerous or wrong.” This profoundly affects journalists, who must often put themselves in conflict with governments in order to obtain – and disseminate – information. Such was the case in Burma for Reuters’ journalists Wa Lone and Kyam Soe Oo. The pair were detained after covering the 2017 massacre of Rohingya villagers by the Burmese military. Their May 2019 release from prison was a bright light in a place where press freedoms are often otherwise dim.

Closer to home, Reporters Without Borders monitors international press freedom through its World Press Freedom Index. Canada’s ranking has gone through some ups and downs in the past few years, from eighth in 2015 to a low of 22^nd place in 2016 before rebounding slightly to 18^th in the following two years. That improved standing is at least partially due to the 2017 enactment of the Journalistic Sources Protection Act. According to the federal government, the Act “allows journalists to not disclose information or a document that identifies or is likely to identify a journalistic source unless the information or document cannot be obtained by any other reasonable means and the public interest in the administration of justice outweighs the public interest in preserving the confidentiality of the journalistic source.”

… the press freedoms that once existed in post-World War II Canada and the U.S. have dissolved over time. J-Source, representing media organizations and journalism schools, lauds Canada’s top-20 position (by contrast, the U.S. standing is 48^th). It also warns on its website of troubling situations where journalistic freedoms are threatened and reporters can face imprisonment just for covering protests. These anti-journalism efforts are driven largely by governments.

Canadian Journalists for Free Expression (CJFE) said a worrying sign was the 2018 proposal by Privacy Commissioner Daniel Therrien for a social media “right to be forgotten” regulation. This proposal would allow individuals to delete information – and this may involve removing information that is essential to journalists in their investigations. CJFE has called on the government to conduct a review of the proposed law. As well, CJFE’s interactive Censorship Tracker currently has “over 50 reports of restrictions on free expression … with reports covering a wide range of issues, including the silencing of federal scientists, civil injunctions against protesters, and a number of defamation suits … [I]ndividuals from all walks of life are affected by attempts to curb free expression in Canada.”

The heavy-handedness of defamatory libel and its use in curbing freedom of expression is an ongoing problem, said Professors David Pritchard (University of Wisconsin-Milwaukee) and Lisa Taylor (Ryerson University), in a 2018 Globe and Mail article. A study they conducted found that police services used the threat of criminal libel as a punitive measure against those who would disagree with or disrespect them. And criminal libel allegations were considered just cause for police harassment, which could include the search and seizure of personal technology such as computers and cellphones. As such, even in the face of zero libel charges (or charges being withdrawn later on), the singular process of just being investigated for libel becomes a significant punishment.

One organization fighting for free speech, human rights, and civil liberties is the Canadian Civil Liberties Association (CCLA). Formed in 1964, its website states:

It isn’t always easy to speak up for free expression. It is often those with unpopular or radical views that are silenced or have their freedom of expression threatened … freedom of expression is so core to our democracy that we have even stood up to defend the rights of individuals whose opinions we abhor.

According to Cara Zwibel, a lawyer and director of CCLA’s Fundamental Freedoms Program, the media landscape has changed dramatically in the past five or six years. People need to have a better understanding of what freedom of expression means. She states: “Because people have a chance to be exposed to so much information, their understanding of what the law covers and what it doesn’t is not clear.” Many ambiguous areas exist, added Zwibel. For instance, the live-streaming of a terror attack in New Zealand in March 2019 was seen by millions. This was considered to be a horrifying example of extremists using social media to deliver their messages.

But putting controls on such technology could also be problematic. “What about when people use that kind of technology to show police misconduct?” Zwibel asks. As well, the borderless nature of online technology means that “even if the (Canadian) courts said something needs to come down (from social media), the courts’ reach doesn’t extend beyond Canada.”

… Reporters Without Borders monitors international press freedom through its World Press Freedom Index. Canada’s ranking has gone through some ups and downs in the past few years, from eighth in 2015 to a low of 22^nd place in 2016 before rebounding slightly to 18^th in the following two years.Balancing a journalist’s right to do his or her job against the demands of the justice system and government can be challenging. A case in point was the 2018 Supreme Court of Canada decision ordering Vice Media reporter Ben Makuch to turn over records of his interaction with an alleged ISIS member to police. Many saw the decision as profound interference in a situation that was all about “a reporter’s right to work unhindered,” said Zwibel. CCLA had a keen interest in the case because it involved “a journalist doing his job and protecting his sources.”

The OCLA’s Rancourt said the Supreme Court of Canada has failed in being “progressive in its freedom of expression decisions.” Rancourt added, with respect to the Court:

It likes to distinguish ‘useful expression in a democracy’ from ‘expression not worthy of protection.’ It condones the common law of defamation, which violates universal standards of protection of freedom of expression, and it regularly makes regressive applications of the Canadian Charter of Rights and Freedoms loopholes that are sections 1 [reasonable limits on freedom under the law] and 32 [the scope of the Charter].

Elsewhere in the world, the scrutiny under which activists and journalists operate may be even more heightened. For example, in Hong Kong, journalists must walk a fine political line. Not surprising, given China’s ranking of 177th on the World Press Freedom Index. Reporters will avoid stories that might appear “anti-Chinese government”, and they have trouble even getting people to speak on the record.

A Canadian journalist, currently working in Hong Kong for a major media outlet and requesting anonymity, said via email that, since 1997 when governance of Hong Kong was handed back to China, “many news outlets (particularly those owned by companies with business interests in China) began self-censoring themselves, or were not too critical of the Chinese government. This practice still continues.”

In 2018, the Chinese government decided not to renew the journalist visa of Financial Times’ Victor Mallet, then vice-president of the Hong Kong Foreign Correspondents’ Club. Mallet came under fire for chairing “a controversial talk, where independence activist Andy Chan of the Hong Kong National Party was given an opportunity to speak at the club,” the Canadian journalist said. “The Hong Kong government had already put pressure on Chan’s party, banning them on the grounds of national security and public safety.”

Mallet was later reassigned to the Financial Times’ Paris bureau. And while no Hong Kong journalist has been arrested, a potential extradition law may see “journalists who are critical of the Chinese government … arrested on trumped-up charges and extradited to the mainland to be tried for subversion,” said the Canadian journalist. They added that since Xi Jinping became president of China in 2012, “he has clamped down on the media in China, and this cold spell has spread down to Hong Kong. It will be harder to do good journalism in Hong Kong as it takes a lot of courage to report on politically-charged stories if the news outlet you are reporting for has a certain political leaning.”

As the Hollywood stereotype of David-vs-Goliath “wins for the underdog” fades out, freedom of speech will demand, more than ever, keener resolve, greater vigilance and absolute determination on the part of its advocates.

Within Canadian society, hate speech and the promotion of hatred is addressed at both the federal and provincial level. At the federal level, the key piece of legislation addressing this issue is the Criminal Code. Section 319(2) makes it an offence to publicly communicate statements that wilfully promote hatred against identifiable groups. The term ‘identifiable groups’ refers to any section of the public distinguished by colour, race, religion, national or ethnic origin, age, sex, sexual orientation, gender identity or expression, or mental or physical disability – as defined in section 318(4) of the Criminal Code. Section 13 of the Canadian Human Rights Act was an additional tool at the federal level which prohibited certain communications which could expose a person or persons to hatred; however, this provision was repealed in 2013.

Despite section 13 of the Canadian Human Rights Act having been repealed, laws in Alberta, British Columbia, Saskatchewan and the Northwest Territories still prohibit the promotion of hatred and contempt. Moreover, all provinces and territories, with the exception of Yukon, contain provisions in their respective human rights legislation that prohibit forms of display that discriminate or incite discrimination.

Hate speech provisions in provincial human rights legislation are to be applied objectively by using the standard of “a reasonable person”.

However, anti-hate legislation has not gone without challenge. As the cases below will highlight, section 319(2) of the Criminal Code and human rights legislation (both federal and provincial) prohibiting the promotion of hatred and contempt have been challenged under section 2(b) of the Canadian Charter of Rights and Freedoms – freedom of thought, belief, opinion, and expression. Despite these challenges, the Supreme Court of Canada has continued to hold that limits on expression are justified and in the process have continued to flesh out what is meant by terms such as “hatred”.

R. v. Keegstra, [1990] 3 SCR 697

In R. v. Keegstra, the Supreme Court of Canada grappled with the constitutionality of section 319(2) of the Criminal Code (then section 281.2(2)) as a restriction on freedom of expression. Mr. Keegstra, a high school teacher in Alberta, was charged under the provision for communicating anti-Semitic comments to his students. The Court held that, although section 319(2) of the Criminal Code infringed on the guarantee of freedom of expression, it was a justified limit on that freedom. The Court recognized that hate propaganda and hate speech are pressing concerns for Canadian society. They have the potential to not only threaten the self-dignity of those targeted but might also result in more organized forms of discrimination or violence against minority groups.

When defining the phrase “promotes hatred against any identifiable group”, the Court determined that “promotes” requires more than simple encouragement – the accused must intend or foresee “as substantially certain a direct and active simulation of hatred against an identifiable group”. The word “hatred”, in the context of section 319(2), is an intense emotion that is associated with emotions of “vilification” and “detestation”. When “hatred” is exercised against individuals of identifiable groups, it implies that those individuals are less-than and are to be treated as such.

Canada (Human Rights Commission) v. Taylor, [1990] 3 SCR 892

In Canada (Human Rights Commission) v. Taylor, Mr. Taylor was charged under section 13(1) of the Canadian Human Rights Act. This now-repealed provision made it a discriminatory practice to use telecommunication in such a manner that is likely to expose a person or persons to hatred or contempt on the basis of a prohibited ground of discrimination. Mr. Taylor distributed cards to the public which contained a phone number that, when dialed, lead to pre-recorded anti-Semitic messages.

… all provinces and territories, with the exception of Yukon, contain provisions in their respective human rights legislation that prohibit forms of display that discriminate or incite discrimination.Although section 13(1) of the Canadian Human Rights Act was found to infringe the guarantee of freedom of expression in the Canadian Charter of Rights and Freedoms, the provision was upheld as a justified limit. The Court found that, when the phrase “hatred or contempt” is being interpreted in a manner consistent with parliament’s objective to reduce forms of expression that cause harm or violence toward individuals, there is no conflict between a meaningful interpretation of section 13(1) and freedom of expression. In determining this, the Court affirmed the Human Rights Tribunal’s reading of section 13(1) in Nealy v. Johnston which stated that section 13(1) refers to “unusually strong and deep-felt emotions of detestation, calumny and vilification”.

Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11

In Saskatchewan (Human Rights Commission) v. Whatcott, the accused distributed anti-gay flyers in Regina and Saskatoon. He was charged under section 14(1) of The Saskatchewan Human Rights Code, which prohibited the publication or display of any representation that “exposes or tends to expose to hatred, ridicules, belittles or otherwise affronts the dignity of any person or class of persons on the basis of a prohibited ground”. The Supreme Court of Canada held that the wording “ridicules, belittles or otherwise affronts the dignity” was constitutionally invalid. However, the Court found the prohibition on any representation “that exposes or tends to expose to hatred” was a reasonable limit on the freedom of expression and demonstrably justified in a free and democratic society.

The word “hatred”, in the context of section 319(2), is an intense emotion that is associated with emotions of “vilification” and “detestation”. In reaching this decision, the Court unanimously modified the definition of hatred as it had previously defined it in Canada (Human Rights Commission) v. Taylor. As it stands, the test for determining what constitutes “hatred”, in the context of a prohibition of expression in human rights legislation, is determined objectively by asking “whether a reasonable person, aware of the context and circumstances, would view the expression as likely to expose a person or persons to detestation and vilification on the basis of a prohibited ground of discrimination”.

There are three important features of this revised, more stringent definition of hatred:

1. Hate speech provisions in provincial human rights legislation are to be applied objectively by using the standard of “a reasonable person”.
2. Hate speech provisions only apply to expressions that rise to the high level of “detestation” or “vilification” as previously described in R. v. Keegstra and Canada (Human Rights Commission) v. Taylor. Therefore, these provisions do not capture offensive expressions that fail to arise to “detestation” or “vilification”.
3. Similar to section 319(2) of the Criminal Code, the expression must be likely to expose a person or persons to hatred. (See para. 56 – 58.)

Conclusion

Broadly speaking, hate speech, as it stands now, under both section 319(2) of the Criminal Code and provincial human rights legislation, are expressions of “detestation” or “vilification” made publicly that expose a person or persons to hatred, or are likely or substantially certain to expose a person or persons to hatred. Through these important decisions, the Supreme Court of Canada has established that provisions prohibiting hate speech are justified limits on freedom of expression so long as terms such as “hatred” are carefully defined to avoid vagueness and subjectivity.

The right to express our opinions is a crucial element of a democracy. Freedom of expression is a basic characteristic of personal development. It gives us the right to dissent and the right to be heard. We can make our own choices about our basic beliefs by being exposed to different thoughts and opinions (see: Fundamental Freedoms: Freedom of Expression). Freedom of expression has been recognized as essential in international and national laws.

Article 19 of the Universal Declaration of Human Rights states that:

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

Article 19 of the International Covenant on Civil and Political Rights (ICCPR) has similar terms on freedom of expression.

The incorporation of section 1 in the Charter proves that freedom of expression, which is a basic right, may be limited when its exercise causes harm to the public interest or the rights of others.Freedom of expression is also protected in article 10 of the European Convention on Human Rights (ECHR), article 13 of the American Convention on Human Rights and article 9 of the African Charter on Human and Peoples’ Rights.

Under international law, Canada is compelled to protect the freedom of expression of its citizens. Section 2(b) of the Canadian Charter of Rights and Freedoms (the Charter) protects “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication”. Freedom of speech is also stated as a human right and fundamental freedom in the Canadian Bill of Rights, sections 1(d) and (f).

However, article 19(3) of the ICCPR allows certain restrictions on freedom of expression:

The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order (ordre public), or of public health or morals.

In addition, article 20(2) of the ICCPR requires states to prohibit “advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence”. Thus, many countries – including Canada – have enacted laws that limit certain types of expression, including speech that incites violence and hatred:

In Canada, freedom of expression is fundamental but not absolute, particularly when there are legitimate pressing and substantial concerns that may justify its inhibition. The meaning of a right or freedom guaranteed by the Charter must be understood in the light of the interests it was meant to protect. When words intend to inflict harm to others, especially those belonging to minority groups, it is obvious that hate speech is incompatible to the purposive spirit of the Charter. (See: Pyeng Hwa Kang, Constitutional Treatment of Hate Speech and Freedom of Expression: a Canada – U.S. perspective at para 13.)

The freedoms mentioned in the Charter guarantee that Canadians are free to hold their own opinions, discuss them and communicate them to other people. These activities are essential principles of individual liberty.The freedoms mentioned in the Charter guarantee that Canadians are free to hold their own opinions, discuss them and communicate them to other people. These activities are essential principles of individual liberty. They are also crucial to the success of a democratic society where people can freely discuss matters of public policy, can criticize governments and can express opinions on how to deal with social problems. However, governments can sometimes restrict these freedoms despite their importance. For example, freedom of expression may be limited by laws against hate propaganda or child pornography because they prevent harm to individuals and groups.

The Supreme Court of Canada has acknowledged that:

[T]he Charter’s guarantee of freedom of expression is not absolute. It has upheld restrictions on forms of expression that it has deemed to run contrary to the spirit of the Charter, such as hate speech, given that the purpose of such expression is to prevent the free exercise of another group’s rights. (See: Julian Walker, Hate Speech and Freedom of Expression: Legal Boundaries in Canada at p 3 [Julian Walker].)

In fact, section 1 of the Charter provides that the rights and freedoms guaranteed by the Charter are subject to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. Therefore, if a violation – by the government or other institution – of the Charter takes place, the courts have to decide whether this violation has a rationale. In order to do so, the courts have to look into the objectives and actions of the government or other institution against the interests of the individual who is claiming the violation. Under section 52 of the Constitution, a law may be found to be unconstitutional and declared invalid, or may be found to be constitutional, and a person’s Charter right may therefore be restricted by it (Julian Walker at p 3).

“In Canada, freedom of expression is fundamental but not absolute, particularly when there are legitimate pressing and substantial concerns that may justify its inhibition.” The incorporation of section 1 in the Charter proves that freedom of expression, which is a basic right, may be limited when its exercise causes harm to the public interest or the rights of others.

Freedom of expression has been restricted by anti-hate laws in order to prevent hate propaganda. Their purpose is to regulate the publication and public expression of messages aspired to encourage hatred towards members of particular groups. Sections 318 and 319 of the Criminal Code deal with hate in Canada and impose criminal sanctions against anyone who wilfully promotes genocide or incites hatred in public.

Section 320(8) of the Criminal Code defines hate propaganda as: “any writing, sign or visible representation that advocates or promotes genocide or the communication of which by any person would constitute an offence under section 319.” Richard Moon notes:

[Sections 318 and 319 prohibit] the advocacy or promotion of genocide, the incitement of hatred against an identifiable group, when this incitement is likely to lead to a breach of the peace, and the wilful promotion of hatred against an identifiable group. Investigations into allegations of hate speech under the Criminal Code are conducted by the police. If an individual is charged with one of these offences, his or her trial will be conducted in a court of law. To be convicted under any of these offences, the accused must be shown to have committed the relevant act and to have done so either intentionally or with knowledge or awareness of the nature of her/his actions. If found by the court to have committed the offence, he or she may be sentenced to a fine or a term of imprisonment. … [Section 320(1)] enables a court to order the seizure … of material that the court determines to be “hate propaganda.” (See: Richard Moon, Report to the Canadian Human Rights Commission Concerning Section 13 of the Canadian Human Rights Act and the Regulation of Hate Speech on the Internet at p 3.)

In addition, section 319 demands the approval of the Attorney General in order to lay charges, something that very few other sections require. That shows that freedom of expression is a crucial part of any free and democratic society.

Section 2(b) of the Canadian Charter of Rights and Freedoms (the Charter) protects “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication”.The Supreme Court of Canada has found that many anti-hate propaganda laws infringe the right to free expression, but according to the Court, they were justifiable under section 1 of the Charter. The Court has found that “the harm caused by hate propaganda is not in keeping with the aspirations to freedom of expression or the values of equality and multiculturalism contained in sections 15 and 27 of the Charter” (Julian Walker at p 2).

Currently every human rights law in Canada, with the exception of Yukon’s Human Rights Act, contains provisions that prohibit in some form the publication of messages that intend to discriminate, or that incite others to discriminate, based on certain prohibited grounds.

These laws indicate that freedom of expression cannot be absolute—even in countries such as the United States, where freedom of speech is most widely protected. Communicating opinions and thoughts is managed by law in order to have a balance between free speech and the protection of minority and vulnerable groups. Abusing freedom of expression in order to humiliate these groups is rejected in Canada and other free and democratic societies.

Museu de la Impremta i de les Arts Gràfiques, sala Gutenberg

We tend to take for granted that in Canada we are generally free to express, and to publish or broadcast, our views and opinions about almost any subject imaginable. However, it was not always this way. In early times, those who espoused views which were not in keeping with the majority, or with the powerful, stood to suffer various forms of penalty and repercussion. The growth of our freedom of speech – intertwined with our freedoms of opinion and of the press – has been a long and sometimes painful process.

As with so many other aspects of modern Canadian law, our history of freedom of speech is rooted in that of England and the United Kingdom. In common with most other unelected kings, queens, emperors and dictators, those who ruled medieval England were not usually open to criticism and complaint. Public debate of political or other ideas threatened the authority of the Crown and undermined the theory that kings (and the occasional queen) governed through direct links to God. To question the wisdom of a decision or action of the sovereign was to suggest fallibility, and this treasonous suggestion offended accepted wisdom in the realm.

The Supreme Court of Canada defined the freedom of expression broadly, so as to cover virtually any activity intended to convey “expressive meaning” and content to others.However, with the invention of the printing press, suppression of the expression of ideas became more and more difficult. New political ideas and philosophies began to circulate among the population. The government at first tried to stifle such debate, partly through licensing printing presses, and thus controlling who could use this means of spreading ideas. Nevertheless, society gradually became more open to the circulation of novel opinions and suggestions. First, the king lost the power to license printing presses to parliament, and ultimately, even parliament realized it could no longer control speech and the dissemination of ideas and opinions. Parliament allowed the final press licensing laws to expire in 1695.

Around the same time as Canada was being colonized by Europeans (and ultimately occupied by the British), there was at least a theoretical “freedom of speech”, although that freedom continued to be subject to many limitations. Most of these amounted to the continuation of old ideas: the offences of treason and sedition were still defined quite broadly, as were concepts of obscenity and blasphemy. In other words, there remained a somewhat low tolerance for critical political comment against the sovereign.

And sometimes, where the powerful could not use the law, they resorted to somewhat more direct and brutal methods to attempt to suppress free speech. In Upper Canada (present day Ontario), the families of the rich and politically influential, known as the Family Compact, were often targets for withering criticism by reformers such as William Lyon Mackenzie (the grandfather of Prime Minister Mackenzie King). In 1826, after Mackenzie had gone to the United States to avoid creditors, members of the Family Compact broke into his newspaper offices, destroyed his printing press and dumped his prints into Lake Ontario. The local judiciary and law enforcement – members or allies of the powerful clique – knew the identities of the culprits but refused to prosecute them for their crimes.

… with the invention of the printing press, suppression of the expression of ideas became more and more difficult.We often think of the enactment of the Canadian Charter of Rights and Freedoms in 1982 as being the advent of our modern rights and freedoms. In fact, many had been recognized, if imperfectly protected, even before that date. In 1938, for example, the Supreme Court of Canada struck down an Alberta law which would have required newspapers to publish the provincial government’s views and opinions. In doing so, the chief justice of the Court confirmed that Canadians enjoyed freedom of speech by virtue of our Constitution which was “similar in principle to that of the United Kingdom”. British citizens had long enjoyed the rights of free public debate and discussion of ideas, and Canadians should be entitled to the same.

In 1957, three judges of the Supreme Court of Canada cited our freedoms of speech and opinion in striking down a Quebec law permitting the provincial government to close houses used to disseminate communist information and opinions. (The majority of the court struck down the law as being an improper provincial intrusion into the federal power over the criminal law.)

With the advent of the Charter, allowing Canadians to seek a remedy where their rights or freedoms were violated meant court proceedings to enforce our freedom of speech (now referred to as the “freedom of expression”, combined with the related freedoms of belief, thought, opinion and the press) became more common. The courts reviewed challenges of the traditional restrictions upon this freedom to determine whether the prescribed limits could be justified in a democracy like Canada. The Supreme Court of Canada defined the freedom of expression broadly, so as to cover virtually any activity intended to convey “expressive meaning” and content to others. When the law placed a limit upon this freedom, it could only be upheld in carefully defined situations. The Court upheld the restriction when it furthered an important societal objective, and where it was carefully defined so as not to restrict the freedom any more than necessary.

Examples where the Court struck down legislative limits upon the freedom of expression under the Charter include:

1. The criminal prohibition on “false news”. When the law was enacted in 1275, it was intended to protect “the Great Men of the Realm” from ridicule and criticism. The Supreme Court of Canada held that the scope of this prohibition was simply too broad and its purpose was too ill-defined to amount to a justifiable limit upon our modern day freedom of speech.
2. Quebec’s language laws which required French-only signs and public advertising. The Court held that the language in which one chooses to express oneself was an essential aspect to our freedom of expression, and government efforts to deny Quebeckers’ rights to use a language other than French could not be upheld as a justifiable limit on that freedom.
3. The laws which prohibited public servants from engaging in political activity. These were struck down as unconstitutional violations of the freedoms of expression and opinion which public employees share along with all other Canadians (though limits on where they could exercise their freedoms of expression were upheld to some extent).

There has been a direct impact on the courts themselves by the enshrinement of Canadians’ freedom of expression. Traditional definitions of contempt of court, which shielded judges from harsh critical comment and review of their decisions, have been discarded as being contrary to this freedom. The test and procedure for obtaining a publication ban on court proceedings has been reformulated in order to ensure that such restrictive measures are ordered only where necessary, and only to the extent necessary, to protect some other important interest.

However, the Supreme Court of Canada has upheld most of the traditional limits on freedom of speech and expression, in whole or in part. The Court has based its decisions on the importance of the government objectives achieved by the restrictions. Accordingly, the Supreme Court has upheld:

• laws against the “communication for the purpose of prostitution” as a justifiable attempt to discourage and combat the public nuisances of sex trade transactions carried on in our communities;
• laws preventing the dissemination of “hard core pornography”, in which sexual activities are shown in conjunction with violence, cruelty and crime, as an acceptable limit on the freedom of expression because the intent of the law was to combat violence against, and degradation of, women;
• laws against advertising aimed directly at children as a legitimate effort to protect a most vulnerable group from the results of commercial manipulation; and
• laws against the dissemination of hate propaganda as being a justifiable limit intended to promote harmony and peaceful relations between the various racial, ethnic, religious and cultural groups in Canadian society.

… our history of freedom of speech is rooted in that of England and the United Kingdom.On the other hand, the Supreme Court of Canada has struck down laws intended to prevent “ridicule” and “belittling” between groups on the basis that, where only “hurt feelings” or emotional upset are at stake, our freedom of expression must prevail. (Seeking to promote and support actual hatred between groups was a very different – and far more serious – concern.) Also, the Court dismissed a challenge by Stephen Harper, before he became Prime Minister, to the laws which limit third-party political and elections advertising. It held that such limits were a justified step towards ensuring that Canadian elections were conducted as fairly as possible and without the influence of wealthy outside interest groups and others.

It is not possible in this short article to expand fully on the detailed history of the development of our freedom of speech and expression. Lengthy scholarly texts have been written about this history in the detail it deserves. Hopefully, this short summary demonstrates at least the evolution of our freedom of expression. Going forward, new issues will continue to present themselves as Canadians continue to grapple with modern technologies, such as the Internet and the many social media platforms used by individuals and groups to circulate their views and opinions as widely as possible.

The core values which free expression promotes include self-fulfilment, participation in social and political decision-making, and the communal exchange of ideas. Free speech protects human dignity and the right to think and reflect freely on one’s circumstances and condition. It allows a person to speak not only for the sake of expression itself, but also to advocate change, attempting to persuade others in the hope of improving one’s life and perhaps the wider social, political and economic environment.

– RWDSU v Pepsi-Cola Canada Beverages (West) Ltd., 2002 SCC 8 at para 32

Introduction

When Canadians think of freedom of expression, they normally think of the right to say something. What about the state imposing a duty upon us to say certain things? If we have free expression, should we not be able to refuse to express what the state commands? Or, viewed another way, does the constitutional right to expression include the right from expression?

There are numerous examples of these ‘compelled speech’ scenarios. Human rights legislation across the country now makes it a regulatory offence to discriminate against others on the basis of “gender identity” or “gender expression”. Human Rights Commissions have signaled that they will consider it unlawful discrimination for an employer, landlord or business person to use historical pronouns when referring to a transgender individual. To escape legal sanction, these private parties must adopt and voice certain prescribed pronouns.

If words convey a meaning of some kind, it follows that the refusal to express them also conveys meaning.Last year, the federal government peculiarly required applicants for a job grant program to endorse their unqualified devotion to a controversial social, religious and political perspective. The Law Society of Ontario proposed to oblige its members in the same way and dictate their words and conscience. (To be clear, this is not the same as requiring persons to follow the law in effect.)

The governing body of physicians in Ontario compels – under pain of professional discipline or de-certification – their members who have a religious or conscientious objection to birth control, abortion or medically-assisted suicide to effectively refer patients to another physician who has no similar objections. This case, which will be ultimately decided by the Supreme Court of Canada, was argued on the Charter grounds of conscience and religion, but freedom of expression concerns also arise.

Public sector employees, regardless of their views on the issue, may be instructed by their managers to utter indigenous acknowledgements in public gatherings.  Likewise, whistleblowing policies may compel reporting of wrongdoing.

The various forms of this compelled speech may not be Charter compliant.

To Express is to Convey Meaning

The courts have developed a large and liberal interpretation of this important right set out in section 2(b) of the Charter. The right to free expression promotes individual self-fulfilment and human flourishing. Indeed, the Irwin Toy decision called expression a “democratic commitment” because:

seeking and attaining truth is an inherently good activity, participation in social and political decision-making is to be fostered and encouraged and diversity in forms of individual self-fulfillment and human flourishing ought to be cultivated in a tolerant and welcoming environment for the sake of both those who convey a meaning and those to whom meaning is conveyed.

Protected in the constitutional freedom of expression is activity that conveys or attempts to convey a meaning, to have a communicative purpose. Apart from violent expression, the courts are content neutral in the sense that they do not judge the truth or value of the expression. If words convey a meaning of some kind, it follows that the refusal to express them also conveys meaning.

Tobacco Packaging and Other Compelled Expression

The right to free expression promotes individual self-fulfilment and human flourishing. In the Supreme Court of Canada decision of RJR-MacDonald v Canada from 1995, federal legislation required the packaging of cigarettes and other tobacco products to present prescribed warnings of health risks. Since the warnings were unattributed, one might think they were the manufacturers’ beliefs and statements when instead they were authored by the federal government. The tobacco manufacturer could place none of its advertising on its own packages it produced for commercial sale. The Court tossed out this law as unconstitutional on the basis that “the freedom of expression necessarily entails the right to say nothing or the right not to say certain things.”

An order by government or an arbitrator to an employer to write and deliver a letter of reference with stipulated terms was held to violate the right to free expression. However, since the stipulated terms were “only objective facts that are not in dispute”, the Court found that it was justified as a minimal intrusion under section 1 of the Charter (see Slaight Communications v Davidson).

In Lavigne v Ontario Public Service Employees Union, an employee objected to being forced to join a union or to pay union dues spent by the union to support causes the worker did not want to benefit. The Supreme Court of Canada said the forced collection of union dues was not expressive activity. Even if this was expressive activity, forced unionization and dues did not necessarily imply support for the union’s views or prevent the dissenting worker from expressing his own contrary views.

… does the constitutional right to expression include the right from expression?Some permanent residents challenged the oath of allegiance on the basis that it referred to the Queen. In 2014, the Ontario Court of Appeal in McAteer v Canada reasoned that these dissidents misunderstood the true nature of Canada’s constitutional monarchy so the extant oath of allegiance did not infringe their freedom of expression.

Conclusion

Compelled expression has not yet seen the range and volume of challenges under section 2(b) of the Charter compared to the permissive side of this right.  Nevertheless, the compelled perspective continues to be alive with increasing government constraints in realms of activity as wide-ranging as official languages, disclosure of journalists’ sources, and mandatory self-reporting of regulatory non-compliance. The legal principles that illuminate the right to free expression ought to equally govern the right from expression.