Freedom of Expression

• Author: Hon. Robert J. Sharpe/Kent Roach
• Profession: Court of Appeal for Ontario- Faculty of Law University of Toronto
• Pages: 139-167

CHAP TER 9

FR EEDOM OF

EXPRESSION

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

was recognized b y the Supreme Court of Canada as inherent in our sys-

tem of government.1 Democracy rests on the prem ise 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 demo-

cratic t radition. Political debate is often he ated and i ntemperate. Criti-

cism 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 atten-

tion. “If these exchanges are stifled, democratic govern ment itself is

threatened.”2

Freedom of expression is also vital in other a reas of human activ ity

outside the realm of politics. Artists and w riters often push the limits of

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

dom. Freedom of expression represents society ’s commitment to tolerate

the annoyance of being conf ronted by unacceptable views. A s stated by

the Ontario Court of Appeal in an early Charter case:3 “[T]he c onst itu -

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

1Reference Re Alb erta Legislation, [1938] S.C.R. 100, [1938] 2 D.L.R. 81.

2R. v. Ko pyto (1987), 62 O.R. (2d) 449 at 462, 47 D.L.R. (4th) 213 (C.A.) [Kopyto],

Cory J.A.

3Re Informatio n Retailers Association a nd Metropolitan Toronto (1985), 22 D.L.R.

(4th) 161 at 180 (Ont. C.A.), Robins J.A.

139

the

charter of r ights a nd freedoms

140

that which to many may be aesthetical ly distasteful or morally offensive:

it is indeed often true th at ‘one man’s vulgarity is another ’s lyric.’”

There are two rationales for extending the guarantee this widely.

The first is instr umental in nature and is reflected by the metaphor of

the “marketplace in idea s.” 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 ac-

cepted in the competition of the market.”4 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 t he best way to get at

the truth.

The second important rationale values e xpression less for the re-

sults it produces than for its intrinsic worth to t he individual. Ex pres-

sion is seen as a vital element of indiv idual autonomy, personal growth,

and self-realization. The ability to say what one think s and to follow

whatever lines of inquir y that occur to one’s imagination is an essenti al

attribute of a free society.

In a recent decision,5 the Supreme Court of Canada summ arized

the values protected by freedom of expression in these term s:

The core values which free ex pression promotes include s elf-fulfil-

ment, partic ipation in soci al and politica l decision-mak ing, and the

communal exchan ge of ideas. Free speech protect s human dignit y

and the right to th ink and reflect freely on one’s circu mstances and

condition. It allows a pers on to speak not only for the sake of expres-

sion itself, but also to advoc ate change, attempting to persuade othe rs

in the hope of improvi ng one’s life and p erhaps the wider social, pol-

itical, an d economic envi ronment.6

A. RECONCILING FREEDOM OF EXPRESSION

WITH OTHER VALUES

Does freedom of expression preclude any law l imiting what individuals

can say or publish? The answer is surely no. To take a familia r exam-

ple, freedom of expression does not protect the right, fal sely, to shout

4Abrams v. United States, 250 U.S. 616 at 630 (1919).

5Retail, Whole sale and Department St ore Union, Local 558 v. Pepsi- Cola Canada

Beverages (West) Ltd., [2002] 1 SC.R. 156, 208 D.L.R. (4th) 385.

6Ibid. at 399 (D.L.R.).