Canada: Freedom of Expression

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Canada

See also: Censorship in Canada

The constitutional provision that guarantees Freedom of expression in Canada is section 2(b) of the Canadian Charter of Rights and Freedoms:

Section Two of the Canadian Charter of Rights and Freedoms is the section of the Constitution of Canada‘s Charter of Rights that lists what the Charter calls “fundamental freedoms” theoretically belonging to everyone in Canada, regardless of whether they are a Canadian citizen, or an individual or corporation. These freedoms can be held against actions of all levels of government and are enforceable by the courts. The fundamental freedoms are freedom of expression, freedom of religion, freedom of thought, freedom of belief, freedom of peaceful assembly, and freedom of association. They are guaranteed but can also be limited by the section 1 of the Charter, and they can be temporarily invalidated by the notwithstanding clause of the Charter.

As a part of the Charter and of the larger Constitution Act, 1982, section 2 took legal effect on April 17, 1982. Many of its rights, however, have roots in Canada in the 1960 Canadian Bill of Rights, although this bill was of limited effectiveness, and in traditions under a theorized Implied Bill of Rights. Many of the freedoms, such as freedom of expression, have also been at the centre of federalism disputes.

Freedom of expression

Freedom of expression (s. 2(b)) is perhaps one of the most significant Charter rights in influencing Canadian society. Justice Peter Cory once wrote that it “is difficult to imagine a guaranteed right more important to a democratic society.”[5] The section has been at the centre of a great amount of case law.

Background

Freedom of speech had a limited background in Canada. It has been an issue in federalism disputes, as provincial legislation infringing upon free speech has been taken as criminal legislation, which only the Parliament of Canada can validly create under section 91(27) of the Constitution Act, 1867. Switzman v. Elbling (1957) is an example of a case in which this was discussed. An Implied Bill of Rights theory further stated governments were limited in their abilities to infringe upon free speech by virtue of the preamble of the Constitution Act, 1867. This preamble states Canada’s constitution would be based upon Britain’s, and Britain had limited free speech in 1867. Furthermore, free speech is considered to be necessary for a parliamentary government to function.[6]

Free speech was later included in the Canadian Bill of Rights.

Definition

The meaning of “expression” within section 2(b) has been read broadly as including any activity that conveys, or attempts to convey, meaning[7] to the exception of acts of violence and threats of violence.[8] The Courts, however, have tried to maintain content neutrality by not considering the value of the expression. Instead, the content is only examined during the section 1 analysis.

Negative and positive rights

Freedom of expression is primarily seen as a negative right. In Native Women’s Association of Canada v. Canada (1994), the Court considered a claim that the government had to financially support an interest group in constitutional negotiations, as it had supported others. Section 28 (sexual equality under the Charter) was used to reinforce this argument, since the rights claimants were an interest group. Still, while the Supreme Court agreed discussions with the government is “unquestionably” a form of expression, the government did not seem to be guilty of suppressing any expression and thus the claim was dismissed.

Limiting the right

A law will be found to violate the freedom of expression where the law either has the purpose or effect of violating the right.

A law’s purpose can limit the right either through limiting the content or form of expression. Limits on content are where the meaning of the expression is specifically forbidden by the law, such as hate-speech law, and is the most easily identifiable form of limitation.[9] Limiting the form of the expression can often invoke section 2(b) as it will often have the effect of limiting the content as well.[10]

Where a law does not intend to limit the freedom of expression it may still infringe section 2(b) through its effects.[11] A law will be found to restrict expression if it has the effect of frustrating “the pursuit of truth, participation in the community, or individual self-fulfillment and human flourishing”.

2. Everyone has the following fundamental freedoms: … (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication

Due to section 1 of the Charter, the so-called limitation clause, Canada’s freedom of expression is not absolute and can be limited under certain situations. Section 1 of the Charter states:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

Section One of the Canadian Charter of Rights and Freedoms is the section of the Charter that confirms that the rights listed in that document are guaranteed. The section is also known as the reasonable limits clause or limitations clause, as it allows the government to legally limit an individual’s Charter rights. This limitation on rights has been used in the last twenty years to prevent a variety of objectionable conduct such as hate speech (e.g. in R. v. Keegstra) and obscenity (e.g. in R. v. Butler). It has also been used to protect from the unreasonable interference of government in the lives of people in a free and democratic society by defining these limits.

When the government has limited an individual’s right, there is an onus upon the crown to show, on the balance of probabilities, firstly, that the limitation was prescribed by law namely, that the law is attuned to the values of accessibility and intelligibility; and secondly, that it is justified in a free and democratic society, which means that it must have a justifiable purpose and must be proportional.

Text

Under the heading of “Guarantee of Rights and Freedoms”, the section states:

“ 1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

”

Prescribed by law

The inquiry into whether the limitation was “prescribed by law” concerns the situation where the limitation was the result of some conduct of a government or its agents and whether the conduct was authorized by accessible and intelligible law. The Court articulated when the authorization would fail for being too vague as “where there is no intelligible standard and where the legislature has given a plenary discretion to do whatever seems best in a wide set of circumstances”.[1]

Where there is no lawful basis for the conduct the limitation will certainly fail. In Little Sisters Book and Art Emporium v. Canada, the Supreme Court found that the conduct of the border official in singling out homosexual from heterosexual reading materials was not authorized by any law. Likewise, police conduct that was not exercised under lawful authority will fail at this stage.[2]

Oakes test

The primary test to determine if the purpose is demonstrably justifiable in a free and democratic society is known as the Oakes test, which takes its name from the essential case R. v. Oakes 1 S.C.R. 103 which was written by Chief Justice Dickson. The test is applied once the claimant has proven that one of the provisions of the Charter has been violated. The onus is on the Crown to pass the Oakes test.

In R. v. Big M Drug Mart Ltd. (1985), Dickson asserted that limitations on rights must be motivated by an objective of sufficient importance. Moreover, the limit must be as small as possible. In Oakes (1986), Dickson elaborated on the standard when one David Oakes was accused of selling narcotics. Dickson for a unanimous Court found that David Oakes’ rights had been violated because he had been presumed guilty. This violation was not justified under the second step of the two step process:

  1. There must be a pressing and substantial objective
  2. The means must be proportional
    1. The means must be rationally connected to the objective
    2. There must be minimal impairment of rights
    3. There must be proportionality between the infringement and objective

The test is heavily founded in factual analysis so strict adherence is not always practiced. A degree of overlap is to be expected as there are some factors, such as vagueness, which are to be considered in multiple sections. If the legislation fails any of the above branches, it is unconstitutional. Otherwise the impugned law passes the Oakes test and remains valid.

It has been observed that the steps of the test has resemblance to a proportionality test found in Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557 (1980) and may have been an initial source for the test.[3]

Since Oakes, the test has been modified slightly.[4]

Pressing and substantial objective

This step asks whether the Government’s objective in limiting the Charter protected right is a pressing and substantial objective according to the values of a free and democratic society. In practice, judges have recognized many objectives as sufficient, with the exception, since Big M, of objectives which are in and of themselves discriminatory or antagonistic to fundamental freedoms, or objectives inconsistent with the proper division of powers. In Vriend v. Alberta (1998), it was found that a government action may also be invalidated at this stage if there is no objective at all, but rather just an excuse. Specifically, the Supreme Court found an Alberta law unconstitutional because it extended no protection to employees terminated due to sexual orientation, contradicting section 15. The government had chosen not to protect people in this predicament because the predicament was considered rare and obsecure. The Court ruled this was an insufficient objective, because it was more of an explanation than an objective of the human rights in regard to being rational and fair.

Rational connection

This step asks whether the legislation’s limitation of the Charter right have a rational connection to Parliament’s objective. The means used must be carefully designed to achieve the objective. They must not be arbitrary, unfair, or based on irrational considerations. Professor Peter Hogg, who used to argue the rational connection test was redundant, continues to argue the criterion is of little use.[5] An example of the rational connection test being failed can be found in R. v. Morgentaler (1988), in which Dickson was of the opinion that laws against abortion should be struck down partly because of a breach of health rights under section 7 and an irrational connection between the objective (protecting the fetus and the pregnant woman‘s health), and the process by which therapeutic abortions were granted. This process was considered unfair to pregnant women requiring therapeutic abortions, because committees meant to approve abortions were not formed or took too long. (The law afterwards failed the other two proportionality criteria as well).

Minimal impairment

Does the legislative means to achieve the objective impair the Charter protected right in question as minimally as possible? Are there alternative modes of furthering Parliament’s objective that infringe the right to a lesser extent? The legislation cannot be overbroad or unduly vague.

This step is considered the most important of the steps and is the test that is failed the most.[6] Typically, outright bans will be difficult to prove as minimally impairing.[7] However, the means does not necessarily have to be the absolute least intrustive; this is indeed one of the steps of the test that has been modified. In Oakes, the step was phrased to require the limit as being “as little as possible.” In R. v. Edwards Books and Art (1986), this was changed to “as little as is reasonably possible,”[8] thus allowing for more realistic expectations for governments.

The inquiry focuses on balance of alternatives. In Ford v. Quebec (1988), it was found that Quebec laws requiring the exclusive use of French on signs limited free speech. While the law had a sufficient objective of protecting the French language, it was nevertheless unconstitutional because the legislature could have accepted a more benign alternative such as signs including smaller English words in addition to larger French words. (The Court decided in Ford that the same test would apply to article 9.1 of the Quebec Charter. Thus it is the reason why Quebec Charter jurisprudence can be of interest under section 1 of the Canadian Charter.)

Proportionality

This step asks whether the objective is proportional to the effect of the law. Are the measures that are responsible for limiting the Charter right proportional to the objective? Does the benefit to be derived from the legislation outweigh the seriousness of the infringement? The legislation may not produce effects of such severity so as to make the impairment unjustifiable. Professor Hogg has argued that merely satisfying the first three criteria of the Oakes test probably amounts to automatic satisfaction of the fourth criterion.[9]

Other section 1 analyses

While the Oakes test has been the primary form of section 1 analysis used by Supreme Court justices, it has not been the only one.

McIntyre’s section 1 test in Andrews

In the early section 15 case Andrews v. Law Society of British Columbia (1989), half of the Court declared that the Oakes test should not and cannot be the section 1 test used for all sections of the Charter. For Justice William McIntyre, the Oakes test was too high a standard for equality rights, which was a complex issue since governments must distinguish between many groups in society, to create “sound social and economic legislation.” He thus drew up the following two-step test:

1. The government action must have been made to achieve a “desirable social objective.”

2. The equality right infringed in the process of pursuing that objective is examined, with its “importance” to those whose rights were limited evaluated; this evaluation is then balanced against a judgment as to whether the limit achieves the objective.

The second half of the Supreme Court, however, continued to apply the Oakes test; the Oakes test is still used in section 15 cases.

R. v. Stone

In the case R. v. Stone (1999), the issue of crime committed by a person suffering from automatism was considered. The majority ruled that since automatism could be “easily feigned,” the burden of proof must rest with the defense; while this would be a limit on section 11 rights, the majority found section 1 would uphold this because criminal law presumes willing actions. As the dissent noted, this use of section 1 did not reflect the standard Oakes test.[10]

Section 12

It has been questioned whether the Oakes test, or any section 1 test at all, could ever be applied to section 12 of the Charter, which provides rights against cruel and unusual punishment. In R. v. Smith (1987), some Supreme Court justices felt section 1 could not apply, although the majority employed section 1. Hogg believes section 1 can never apply; he has said section 12 “may be an absolute right. Perhaps it is the only one.”[11]

Comparison with other human rights instruments

This general limitations clause definitely makes the Canadian Charter distinct from its United States counterpart, the Bill of Rights. Regarding similarities with the European Convention on Human Rights, there are various limitations in the European Convention that are similar to the limitations clause in the Charter. These limits include:

  • limits on privacy rights as are accepted as in Canada (Article 8(2) ECHR: except such as is in accordance with the law and is necessary in a democratic society);
  • limits on freedom of thought and religion similar to Canadian limitations (art. 9(2) ECHR: subject only to such limitations as are prescribed by law and are necessary in a democratic society);
  • limits on freedom of expression are accepted as in Canada (art. 10(2) ECHR: subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society);
  • limits on freedom of peaceable assembly and free association are accepted in Canada as well (art. 11(2) ECHR: No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society).

However, unlike the Canadian Charter, art. 18 of the European Convention limits all these specifically enumerated restrictions: The restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed. Perhaps the Canadian Charter’s single overriding limitation upon all of the enumerated rights is much more general limitation than the specific limitations in the European Convention.

The Bill of Rights entrenched in the Constitution of South Africa in 1996 also contains a clause comparable to the Charter’s section 1 and the ECHR’s articles 8 to 11.[12] Section 36 requires that a “limitation is reasonable and justifiable in an open and democratic society,” and that one should consider relevant factors such “the importance of the purpose of the limitation,” “the relation between the limitation and its purpose,” and “less restrictive means to achieve the purpose.”

In Canada itself, the Oakes test has been comparable to the ways in which other rights have been limited. Section Thirty-five of the Constitution Act, 1982, which affirms Aboriginal and treaty rights, is technically not part of the Charter and therefore is not subject to section 1. However, in R. v. Sparrow the Court developed a test to limit section 35 that Hogg has compared to the section 1 Oakes test.[13] After the Sparrow case, provincial legislation can only limit Aboriginal rights if it has given them appropriate priority. The Quebec Charter of Human Rights and Freedoms contains a section that has also been compared to section 1. Namely, section 9.1 states that when one invokes rights, it should be in a manner with respecting “democratic values, public order and the general well-being of the citizens of Québec” and that law may limit rights. In Ford v. Quebec, it was found an analysis of limits under section 9.1 should be similar to that under section 1 of the Canadian Charter. In Syndicat Northcrest v. Amselem, Justice Michel Bastarache contrasted this with the main difference between the two sections. Namely, the section 9.1 statements about how one should use rights does not mention legislatures, and thus the Quebec Charter has relevance to private law.[14] In Dagenais v. Canadian Broadcasting Corp. (1994), the Court also developed a test under the common law modelled after the Oakes test to consider publication bans.

History

At around the time of the centennial of Canadian Confederation in 1967, Liberal Attorney General Pierre Trudeau appointed law professor Barry Strayer to research enshrining rights into the Constitution. Canada already had a Canadian Bill of Rights passed in 1960. This Bill of Rights did not have the force of the Charter and was criticised as being weak. The Bill of Rights is similar in content to the Charter however it does include a protection for property that is not the Charter.

Strayer’s report for the Trudeau government advocated a number of ideas which were later incorporated into the Charter, including allowing for limits on rights. Such limits are now included in the Charter’s limitation and notwithstanding clauses.[15] Trudeau had become prime minister in 1968 and his government implemented the Charter in 1982.

In the initial planning stages of the Charter’s development this section was intended to be the counter-balance to the court’s ability to strike-out law with the Charter. An early version of the section guaranteed rights “subject only to such reasonable limits as are generally accepted in a free and democratic society with a parliamentary system of government.” This wording sparked debate over what government actions could be “generally accepted,” with civil libertarians arguing that the clause would render Charter rights impotent. They even referred to it as a “Mack Truck” to imply that it would run over significant rights. In response, the wording was changed to the current version, to focus less on the importance of parliamentary government and more on justifiability of limits in free societies; the latter logic was more in line with rights developments around the world after World War II.[16] The provinces, however, did not find it a sufficiently strong enough recourse and instead insisted on the inclusion of the notwithstanding clause.

Criticism

The Charter has been criticized for increasing judicial power, as the scope of judicial review has been widened. Section 1 is part of the perceived problem. In their book The Charter Revolution & the Court Party, Alberta politician Ted Morton and Professor Rainer Knopff allege judges have a greater role and more choice in shaping policy, and quote former Chief Justice Antonio Lamer as stating that a Charter case, “especially when one has to look at Section 1… is asking us to make essentially what used to be a political call.”[17]

At one point Morton and Knopff also criticize the growing power of Supreme Court clerks by alleging that Dickson’s clerk Joel Bakan was the true author of the Oakes test. Morton and Knopff write,

“ Dickson, it is said, was dissatisfied with the section 1 portion of a draft judgment. He gave the draft to Bakan and asked him to rework the reasonable limitations section. Sensing a long night, Bakan armed himself with a bottle of sherry and set about constructing the now famous three prong balancing test.

”

Bakan was supposedly influenced by US case law, which Morton and Knopff write should disappoint “Those who praise the section 1/Oakes Test as a distinctively Canadian approach to rights litigation.” However, Morton and Knopff’s source is “anonymous.”

This section is double edged. First it implies that a limitation on freedom of speech prescribed in law can be permitted if it can be justified as being a reasonable limit in a free and democratic society. Conversely, it implies that a restriction can be invalidated if it cannot be shown to be a reasonable limit in a free and democratic society. The former case has been used to uphold limits on legislation which are used to prevent hate speech and obscenity.[citation needed]

In the landmark Supreme Court of Canada case R. v. Zundel (1992), the court struck down a provision in the Criminal Code of Canada that prohibited publication of false information or news, stating that it violated section 2(b) of the Charter.

Under section 318 of the Criminal Code of Canada, it is illegal to promote genocide. Under section 319, it is illegal to publicly incite hatred against people based on their colour, race, religion, ethnic origin, and sexual orientation, except where the statements made are true or are made in good faith. The prohibition against inciting hatred based on sexual orientation was added to the section in 2004 with the passage of Bill C-250.

Other laws that protect freedom of speech in Canada, and did so, to a limited extent, before the Charter was enacted in 1982, include the Implied Bill of Rights and the Canadian Bill of Rights.