Compelled Expression.

AuthorBowal, Peter
PositionSpecial Report: Freedom of Speech

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.

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...

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