Freedom of Expression

• Author: Robert J. Sharpe; Kent Roach
• Pages: 166-204

166

CHAPTER 9

FREEDOM OF

E XPR ESSION

Even before the Charter of Rights and Freedoms, freedom of expression

was recognized by t he Supreme Court of Canada as inherent in our sys-

tem of government.1 Democracy 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 meas-

ured: 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.”2

Freedom of expression is also v ital 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 guar antee 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

lyric.’” More recently, the Supreme Court of Canada emphasized that

1 Reference Re Albe rta Legislation, [1938] SCR 100, [1938] 2 DLR 81.

2 Rv Kopyto (1987), 62 OR (2d) 449 at 462, 47 DLR (4th) 213 (CA) [Kopyto], Cory JA.

3 Re Information Re tailers Association and Metrop olitan Toronto (1985), 22 DLR

(4th) 161 at 180 (Ont CA), Robins JA.

Freedom of Expres sion167

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.”4

There 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 Mil l, said

that “the best test of truth is the power of the thought to get itself ac-

cepted in the competition of the market.”5 Suppression of ideas in the

name of truth is notoriously dangerous. The rationale of the market-

place 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 follow what-

ever lines of inquiry that occur to one’s imagination is an essential at-

tribute of a free society.

In a 2002 decision,6 the Supreme Court of Canada summarized the

values protected by freedom of expression in these terms:

The core values which free expression promotes include self-fulf‌ilment,

participation in social and political decision-making, and the com-

munal exchange of ideas. Free speech protects human dignity and

the right to thi nk and ref‌lect freely on one’s circumstance s and condi-

tion. 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, polit-

ical, and economic environ ment.7

A. RECONCILING FREEDOM OF EXPRESSION

WITH OTHER VALUES

Does freedom of expression preclude any law li miting what individuals

can say or publish? The answer is surely no. To take a familiar e xample,

4 WIC Radio Ltd v Simpson, [2008] 2 SCR 420 at par as 4 and 15 [WIC].

5 Abrams v United States, 250 US 616 at 630 (1919).

6 Retail, Wholesale and Depa rtment Store Union, Local 558 v Pepsi-Cola Canad a

Beverages (West) Ltd, [2002] 1 SCR 156, 208 DLR (4th) 385 [Retail, Wholesale

and Depart ment Store Union].

7 Ibid at 399 (DLR).

THE

CHARTER OF R IGHTS AND FREEDOMS

168

freedom of expression does not protect the right, fal sely, to shout “Fire!”

in a crowded theatre.8 As with the other rights and freedoms guaran-

teed by the Charter, freedom of expression is not absolute. There are

situations in which the freedom of one individual must be curtailed

so that other important social values may be respected and protected.

How should these competing claims b e reconciled? The American ap-

proach has been to accord near-absolute respect to expression deemed

worthy of the constitutional guarantee; however, the American courts

def‌ine freedom of expression narrowly so as not to include forms of

speech that do not qualify for protection. The Supreme Court of Can-

ada has adopted a different method to reconcile respect for this vital

freedom with competing claims. Our Court has said that the structure

of the Charter, and in particular section 1, requires that freedom of

expression be given a broad def‌inition with virtually no limitations

and that any curtailment of expression be justif‌ied under section 1 as

a limit that is reasonable in a free and democratic society.

In 1988 the Supreme Court heard two cases from Quebec in which

it charted the course to be followed. Ford v Quebec (Attorney General)9

involved a challenge to the Quebec “signs law,” which prohibited, with

virtually no exception, the display of commercial signs not written in

French. Ford was argued at the same time as Irwin Toy Ltd v Quebec

(AG),10 which involved a challenge to a Quebec statute that limited the

right to broadcast advertising aimed at children. In both cases, the At-

torney General of Quebec argued that the law did not limit freedom

of expression. In Ford, Quebec contended that the “signs law” did not

limit in any way the message that could be conveyed. The language of

the speaker was merely t he medium for expression. It was contended in

both cases that commercial expression is not worthy of constitutional

protection and that the Court should adhere to a core def‌inition of free-

dom of expression, limiting t he right to the most vital areas of political

speech and artistic expression. The Supreme Court rejected these argu-

ments, holding that freedom of expression should be given a wide and

generous def‌inition admitting few exceptions. Yet at the same time, the

Court recognized that expression may be curtailed if the standard of

section 1 is met.

In Ford the Court stated that language was an essential component

of expression:

8Schenk v United States, 249 US 47 at 52 (1919), Holmes J.

9 [1988] 2 SCR 712, 54 DLR (4th) 577 [Ford].

10[1989] 1 SCR 927, 58 DLR (4th) 577 [Irw in To y].