Freedom of Expression
| Author | Robert J. Sharpe; Kent Roach |
| Pages | 166-204 |
166
CHA PTER 9
FR EEDOM 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 t he very lifeblood of our democratic
tradition. Political debate is often heated and intemperate. Criticism of
public institutions and official s will not always be respect ful and meas-
ured: those who challenge est ablished authority often have to resort to
strong language and exag geration in order to gain attention. “If these
exchanges are stifled, democr atic 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 writer s often push the limits
of conventional values. Scholars question “sacred cows” and accepted
wisdom. Freedom of expression represent s 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 ma ny may be aesthetically di stasteful or morally
offensive: it is indeed often true th at ‘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 R v 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 sion 167
freedom of expression must include the “right to ex press 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 w idely.
The first is instrumental in nature and is reflected by t he 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 tr uth 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 t he 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. Ex pression is
seen as a vital element of indiv idual autonomy, personal growth, and
self-realization. The ability to say what one thinks and to follow what-
ever lines of inquiry t hat occur to one’s imagination is an es sential at-
tribute of a free society.
In a 2002 decision,6 the Supreme Court of Canada summ arized the
values protected by freedom of expression in the se terms:
The core values which free ex pression promotes include self-fulfi lment,
participation i n social and politica l decision-making, and t he com-
munal exchange of idea s. Free speech protects huma n dignity and
the right to thi nk and reflect freely on one’s circumstance s and condi-
tion. It allows a person to spe ak not only for the sake of expres sion
itself, but also to advoc ate change, attempting to per suade others in
the hope of improving one’s life and perh aps the wider socia l, polit-
ical, and e conomic 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,
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 FREEDOM S
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 g uaran-
teed by the Charter, freedom of expression is not absolute. There are
situations in which the freedom of one indiv idual 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 nar rowly so as not to include forms of
speech that do not qualif y 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 virtual ly no limitations
and that any curtailment of expression be justified under section 1 as
a limit that is rea sonable 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
virtual ly no exception, the display of commercial sign s not written in
French. Fo rd was argued at t he same time as Irwin Toy Ltd v Quebec
(AG),10 which involved a challenge to a Quebec statute that li mited the
right to broadcast advertisi ng aimed at children. In both ca ses, the At-
torney General of Quebec argued th at 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 arti stic expression. The Supreme Court rejected these argu-
ments, holding that freedom of expres sion should be given a wide and
generous definition admitting few exceptions. Yet at the same time, the
Court recognized that expression may be curt ailed if the standard of
section 1 is met.
In Ford the Cour t stated that language was a n essential component
of expression:
8 Schenk v United States, 249 US 47 at 52 (1919), Holmes J.
10 [1989] 1 SCR 927, 58 DLR (4th) 577 [Irw in To y].
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