Freedom of Expression
| Author | Robert J. Sharpe, Kent Roach |
| Pages | 150-182 |
150
CHAPTER 9
FR EEDOM
OF EXPRESSION
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 freedom to criticize those
who exercise power in our society is the very lifeblood of our demo-
cratic tradition. Political debate is often heated and intemperate. Criti-
cism of public institutions and officials w ill not always be respectful
and measured: those who challenge est ablished authority often have
to re sort to strong l anguage and exaggeration in order to gain atten-
tion. “If these exchanges are stifled, democratic government itself is
th r e ate n ed .” 2
Freedom of expression is also vital in other areas of human activity
outside the realm of polit ics. Art ists and writers often push the limits
of conventional values. Scholar s question “sacred cows” and accepted
wisdom. Freedom of expression represents society’s commitment to
tolerate the an noyance of being confronted by unacceptable views. As
stated by the Ontar io Court of Appeal in an e arly Charter case:3 “[T] he
constitutional guarantee extends not only to that which is pleasing, but
also to t hat which to many may be aesthetica lly dista steful or morally
1 Reference Re Albe rta Legislation, [1938] S.C.R. 100, [1938] 2 D.L.R. 81.
2 R. v. Kopyto (1987), 62 O.R. (2d) 449 at 462, 47 D.L.R. (4th) 213 (C.A.) [Kopyto],
Cory J.A.
3 Re Information R etailers Association and Me tropolitan Toronto (1985), 22 D.L.R.
(4th) 161 at 180 (Ont. C.A.), Robins J.A.
Freedom of Expres sion 151
offensive: it is indeed often true that ‘one man’s vulgarity is another’s
lyric.’” More recently, the Supreme Court of Ca nada emphasized that
freedom of expression must include the “right to express outrageous
and ridiculous opinions” and that a s “[p]ublic controversy can be a
rough trade . . . the law needs to accommodate its requirements.” 4
Ther e are t wo rat ionale s for e xtend ing th e gua rantee this widel y. The
first is instr umental in nature and is reflected by the metaphor of the
“m a rk et pl ac e i n i de a s.” Th e g re at Am er i ca n j ud ge Ol iv er We nd el l H ol me s,
echoing the thoughts of John Milton and John Stuar t Mill, said t hat “the
best test of tr uth is the power of the thought to get itself accepted in the
competition of the m arket.”5 Suppression of idea s in the name of truth is
notoriously dangerous. The rationale of the marketplace of ideas posits
that the free flow of ideas is t he best way to get at the truth.
The second important rationale values expression less for the re-
sults it produces tha n for its intrinsic worth to the i ndividual. Expres-
sion is seen as a vital element of individual autonomy, personal growth,
and sel f-realization. The ability to say what one thinks and to follow
whatever lines of inquiry that occur to one’s imaginat ion is an essential
attribute of a free society.
In a 2002 decision,6 the Supreme Court of Canad a summarized the
values protected by freedom of expression in the se terms:
The core values which free ex pression promotes include self-fulfil-
ment, part icipation in social and political decision-maki ng, and the
communal exchange of ideas. Free speech protects hum an dignity
and the right to thin k and reflect free ly on one’s c ircumsta nces and
condition. It allows a person to speak not only for the sake of expres-
sion itself, but also to advocate change, attempting to persuade others
in the hope of improving one’s life and perhaps the w ider social, pol-
itical, and economic env ironment.7
A. RECONCILING FREEDOM OF EXPRESSION
WITH OTHER VALUES
Does freedom of expression preclude any law limiting what individuals
can say or publish? The ans wer is surely no. To take a fami liar example,
6 Retail, Wholesale a nd Department Store Union, Loc al 558 v. Pepsi-Cola Canad a
Beverages (West) Ltd., [2002] 1 SC.R. 156, 208 D.L.R. (4th) 385.
7 Ibid. at 399 (D.L.R.).
THE CHARTER OF R IGHTS AND F REEDOMS152
freedom of expression does not protect the right, falsely, to shout “Fire!”
in a c rowded th eatre.8 As with the other rights and freedoms guaranteed
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 a nd protected.
How should these competing claims be reconciled? The Amer-
ican approach has been to accord near-absolute respect to expression
deemed worthy of the constitutional gua rantee; 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 h as adopted a different method to reconcile respect for this vital
freedom with competing cla ims. Our Court has said that t he structure
of the Charter, and in particular section 1, requires t hat freedom of
expression be given a broad definition with virtually no lim itations,
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 case s from Quebec in wh ich
it charted the course to b e followed. Ford v. Quebec (A.G.)9 involved a
challenge to the Quebec “signs law,” which prohibited, with virtually no
exception, the d isplay of commercial signs not w ritten in French. Ford
was argued at t he same time as Irwin Toy Ltd. v. Quebec (A.G.),10 which
involved a challenge to a Quebec statute that limited the right to broad-
cast adverti sing aimed at children. In both ca ses, the Attorney General
of Quebec argued that t he law did not limit f reedom of expression. In
Ford, Queb ec co ntend ed th at t he “si gns law” did n ot li mit i n any way t he
mess age that co uld be convey ed. The lan guage of th e speaker was mere-
ly the medium for expres sion. It was contended in both c ases th at com-
mercial expression is not worthy of constitutional protection and that
the Court should adhere to a core definition of f reedom of e xpression,
limiting the right to the most vital areas of political speech and artistic
expression. The Supreme Court rejected these arguments, holding that
freedom of expression should be given a wide and generous definition
admitting few e xceptions. Yet at the same time the Court recognized
that expression may b e curtailed if the standard of section 1 is met.
In Ford the Court stated that language was an essential component
of expression:
Language i s so intimately related to the form and content of expr es-
sion that there can not be tr ue freedom of expression by mean s of
10 [1989] 1 S.C.R. 927, 58 D.L.R. (4th) 577 [Irwin Toy].
To continue reading
Request your trial