Evolution of our Freedom of Expression - LawNow Magazine

Evolution of our Freedom of Expression

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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.

Authors:

Charles Davison
Charles Davison is the Senior Criminal Defence Counsel with the Somba K’e office of the Legal Services Board in Yellowknife, NWT.
 


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