The Supreme Court has identified freedom of expression as an important Charter guarantee that lies at the heart of a free and democratic society. Nevertheless it has also refused to accord this important freedom anything approaching absolute protection. The Court has given expression an exceptionally wide definition, leaving to the section 1 analysis most of the difficult issues of reconciling this important freedom with other values. Only violence and threats of violence, including laws against terrorism, seem to be precluded from the breadth of the Court’s definition of freedom of expression.
In most cases, freedom of expression cases will be decided under section 1 of the Charter, and the results have been mixed. Despite the importance it has attached to freedom of expression, the Court has demonstrated considerable tolerance for laws that limit freedom of expression in the name of protecting minority interests. Laws prohibiting hate speech, pornography, and third party spending during elections have been upheld under relatively relaxed section 1 scrutiny on the ground that significant countervailing equality values are at stake. Although protection of reputation has traditionally prevailed over freedom of expression in the law of defamation, recent cases have consciously sought to liberalize the law of defamation to better accommodate freedom of expression while also valuing reputation. Defamation law is largely a judicial creation and the Court has been reluctant to recognize group defamation for racist speech in comparison to its acceptance of criminal offences enacted by Parliament as a reasonable limit on freedom of expression. The law relating to the reporting of judicial proceedings has been significantly modified under the Charter in favour of the media, but the Court has more recently upheld the prohibition of media interviews in courtrooms as well as mandatory publication bans at bail hearings. With respect to commercial speech, an area some observers predicted would not be affected by the Charter, the Court has insisted upon a relatively high level of proof that legal restraints are required to achieve state objectives.
It is thought by those who place special value on freedom of expression that this pattern of decisions is inconsistent.125While the Supreme Court has never denied the importance of freedom of expression, it has certainly been prepared to see this freedom limited in the name of protecting...