Freedom of expression

Author:Robert J. Sharpe - Kent Roach
Profession:Court of Appeal for Ontario - Faculty of Law, University of Toronto

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Even before the Charter of Rights and Freedoms, freedom of expression was recognized by the Supreme Court of Canada as inherent in our system of government.1Democracy rests on the premise that public issues be freely and openly debated. Indeed, the freedom to criticize those who exercise power in our society is the very lifeblood of our democratic tradition. Political debate is often heated and intemperate. Criticism of public institutions and officials will not always be respectful and measured: those who challenge established authority often have to resort to strong language and exaggeration in order to gain attention. "If these exchanges are stifled, democratic government itself is threatened."2Freedom of expression is also vital in other areas of human activity outside the realm of politics. Artists and writers often push the limits of conventional values. Scholars question "sacred cows" and accepted wisdom. Freedom of expression represents society’s commitment to tolerate the annoyance of being confronted by unacceptable views. As stated by the Ontario Court of Appeal in an early Charter case:3"[T]he constitutional guarantee extends not only to that which is pleasing, but also to that which to many may be aesthetically distasteful or morally offensive: it is indeed often true that ‘one man’s vulgarity is another’s

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lyric.’" More recently, the Supreme Court of Canada emphasized that freedom of expression must include the "right to express outrageous and ridiculous opinions" and that as "[p]ublic controversy can be a rough trade . . . the law needs to accommodate its requirements."4There are two rationales for extending the guarantee this widely. The first is instrumental in nature and is reflected by the metaphor of the "marketplace in ideas." The great American judge Oliver Wendell Holmes, echoing the thoughts of John Milton and John Stuart Mill, said that "the best test of truth is the power of the thought to get itself accepted in the competition of the market."5Suppression of ideas in the name of truth is notoriously dangerous. The rationale of the marketplace of ideas posits that the free flow of ideas is the best way to get at the truth.

The second important rationale values expression less for the results it produces than for its intrinsic worth to the individual. Expression is seen as a vital element of individual autonomy, personal growth, and self-realization. The ability to say what one thinks and to...

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