Freedom of Expression

• Author: Robert J. Sharpe; Kent Roach
• Pages: 176-215

176

CHAPTER 9

FREEDOM OF

E XPR ESSION

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

was recognized by the 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 free dom 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 ocials will not always be respectful and meas-

ured as those who challenge established authority often have to resort

to strong language and exaggeration in order to gain attention. But “[i]f

these exchanges a re 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. Art ists and writers often push the lim its of

conventional values. Scholars question “sacred cows” and accepted wi s-

dom. Freedom of expression represents society’s commitment to toler-

ate the annoyance of being confronted by unaccept able views. As stated

by the Ontario Court of Appeal in an early Charter case, “[T]he consti-

tutional guarantee extends not only to that which is pleasing, but also

to that which to many may be aesthetically distasteful or morally oen-

sive: it is indeed often true that ‘one man’s vulgar ity is another’s lyr ic.’”3

More recently, the Supreme Court of Canada emphasized that freedom

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 sion177

of expression must include the “right to express outrageous and ridicu-

lous 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 Wen-

dell 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.”5 Suppression of ideas in the

name of truth is notoriously da ngerous. The rationale of the marketplace

of ideas posits that t he free f‌low of ideas is the best way to get at the truth.

The second important rationale values ex pression 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

attribute of a free society.

In a 2002 decision,6 the Supreme Court of Canada summ arized the

values protected by freedom of expression in these terms:

The core values which free expression promotes include self-fulf‌il-

ment, 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 sp eak not only for the sake of expres-

sion itself, but also to advoc ate change, attempting to persua de others

in the hope of improving one’s life and perhaps the wider social, pol-

itical, and economic envi ronment.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, 20 08 SCC 40, [2008] 2 SCR 420 at paras 4 and 15

[WIC Radio].

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 SCC 8, [2002] 1 SCR 156, 208 DLR (4th) 385

[Pepsi-Cola].

7 Ibid at 399 (DLR).

THE CHARTER OF R IGHTS AND FR EEDOMS178

freedom of expression does not protect the right, fa lsely, to shout “Fire!”

in a crowded theatre.8 As wit h the other rights and freedoms guara nteed

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

tions 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 be reconciled? The American

approach has been to accord near-absolute respect to expre ssion 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 qualif y for protection. The Supreme Court of Canada

has adopted a dierent method to reconcile respect for this vital free-

dom with competing claims. Our Court has said that the structure of

the Charter, in particular sect ion 1, requires that freedom of expre ssion

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 f rom 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

(Attorney General),10 which involved a challenge to a Quebec statute

that limited the right to broadcast advertising aimed at children. In

both cases, the attorney 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 the 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 freedom of expression, limiting the right to the most vital

areas of political speech and artistic expression. The Supreme Court

rejected these arguments, holding t hat 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: “Lang uage is so intimately related to the form and content

of expression that there c annot be true freedom of expression by means

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

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

10Irwin Toy Ltd v Quebec (Attor ney General), [1989] 1 SCR 927, 58 DLR (4th) 577

[Irw in To y].