Freedom of Expression and the Constitution

• Author: Robert Martin
• Profession: Faculty of Law The University of Western Ontario
• Pages: 23-53

What effect has Canada’s federal structure had on freedom of expres-

sion? To answer this question it is necessary to examine the division of

powers and responsibilities between the two levels of government and

to see how this division has been interpreted by the courts in such a

way as to provide a limited degree of constitutional protection for free-

dom of expression. Similarly, the Canadian Charter of Rights and Free-

doms has created a substantive guarantee of freedom of expression.1

The basic principle of constitutional government is that the state is

subject to the law. The state and all its organs must act within the rules

set out in the constitution. Section 52(1) of the Constitution Act, 1982,2

expresses this principle clearly by stating that “[t]he Constitution of

Canada is the supreme law of Canada.” Consequently, any act of the

state which is not in accordance with the requirements of the Consti-

tution is invalid. Thus, to the extent that the Constitution protects free-

dom of expression, state acts that interfere with free expression may be

open to challenge before the courts and, if the challenge is successful,

may be declared invalid.

23

Freedom of

Expression and

the Constitution

chapter 1

1 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982

(U.K.), 1982, c. 11, s. 2(b) [hereinafter Charter].

2 Being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, s. 52(1).

A. Federalism

1) General Considerations

For 115 years after Confederation, Canada’s written Constitution con-

sisted largely of the British North America Act of 1867.3Nowhere in the

text of that Act is there reference to freedom of speech, freedom of

expression, freedom of the press, or anything similar. The central pur-

pose of the B.N.A. Act was to create Canada’s institutions of govern-

ment. More specifically, it set out the basic elements of the federal

system, dividing the authority to make laws between the Parliament of

Canada and the provincial legislatures. The B.N.A. Act did not contain

any formal protection for rights. The limits it established on law-mak-

ing authority were functional rather than substantive.

The task of interpreting the B.N.A. Act and, more particularly, the

way it apportioned law-making powers between Ottawa and the

provinces was left to the courts. It is worth spending some time

describing the federal structure set out in the Act and the way that

structure was elaborated by the courts. The B.N.A. Act, like all federal

constitutions, is organized around lists of legislative subject-matters.

Section 91 lists the areas in which Parliament, the federal legislature,

has the authority to make laws. These areas tend to be national in

scope and significance. Sections 92, 92A, and 93 list the areas in which

the provincial legislatures may make laws, areas that are more local in

scope. Section 95 sets out those areas — agriculture and immigration

— where legislatures at both levels may make laws.

The judicial approach to dispute resolution, despite substantial

oscillation over the years between preferences for either a centralized

or a decentralized approach to Canadian federalism, is quite simple.

When someone challenges the validity of a statute — for example, a

provincial statute — the court must determine whether that statute is

within the powers of the provincial legislature to enact (intra vires, and,

therefore, constitutional) or whether it is beyond the powers of the

provincial legislature to enact (ultra vires, and, therefore, unconstitu-

tional). The court will follow a two-stage approach. In the first stage, it

will examine the impugned law to determine its subject-matter and to

discover what that law is really all about. This stage is described as

“characterizing” the law. Having determined the subject-matter of the

law, the court will then go to the lists in the Constitution to see where

24 Media Law

3 (U.K.), 30 & 31 Vict., c. 3.