Freedom of Expression

• Author: Hon. Robert J. Sharpe, Kent Roach
• Pages: 155-192

155

CHA PTER 9

FR EEDOM

OF EXPR 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 s ys-

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 ver y lifeblood of our demo-

cratic tradition. Political debate is often heated and intemperate. 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 government itself is

threatened.”2

Freedom of expression is also v ital in other area s of human activity

outside the realm of politics. Art ists and writers 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 that ‘one man’s vulgarity is another’s

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.

THE

CHARTER OF R IGHTS AND FREEDOM S

156

lyric.’” More recently, the Supreme Court of Canada emphasi zed 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.”4

There are two rationales for extending the g uarantee this w idely.

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 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 the free f‌low of ideas is the best way to get at

the truth.

The second important rationale values expression less for the re-

sults it produces than for its intr insic worth to the individua l. Expres-

sion 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

whatever lines of inquiry t hat 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 the se terms:

The core values which free ex pression promotes include self-fulf‌i l-

ment, participat ion in social and politica l decision-making, and t he

communal excha nge of ideas. Free speech protects hum an dignity

and the right to th ink and ref‌lect freely on one’s circum stances 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 persuade ot hers

in the hope of improving one’s life and p erhaps the wider soci al, pol-

itical, a nd 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 ex ample,

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

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.

7 Ibid at 399 (DLR).

Freedom of Expres sion 157

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

in a crowded theatre.8 As wit h 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 individual must be curtailed

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

How should these competing claims be reconciled? The Amer-

ican approach has been to accord near-absolute respect to expre ssion

deemed worthy of the constitutional gua rantee; however, the Amer-

ican courts def‌ine freedom of expression narrowly so as not to include

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

of Canada has adopted a different method to reconcile respect for this

vital freedom with competing claims. Our Court h as said that the

structure of the Charter, and in particular section 1, requires that free-

dom of expression be given a broad def‌inition with v irtually no limita-

tions and that any curtailment of expression be justif‌ied under section

1 as a limit that is re asonable 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 (A.G.)9 involved a

challenge to the Quebec “signs law,” which prohibited, with virtual ly

no exception, the display of commercial signs not written in French.

Ford was argued at the same time as Irwin Toy Ltd v Quebec (A.G.),10

which involved a challenge to a Quebec statute that lim ited the right

to broadcast advertising aimed at children. In both case s, the Attorney

General of Quebec argued that the law did not limit freedom of ex-

pression. In Ford, Quebec contended that the “signs law” did not limit

in any way the message th at 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 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.

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

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