A. Reconciling Freedom of Expression with Other Values

Author:Robert J. Sharpe - Kent Roach
Profession:Court of Appeal for Ontario - Faculty of Law, University of Toronto

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Does freedom of expression preclude any law limiting what individuals can say or publish? The answer is surely no. To take a familiar example,

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freedom of expression does not protect the right, falsely, to shout "Fire!" in a crowded theatre.8As with the other rights and freedoms guaranteed 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 American approach has been to accord near-absolute respect to expression 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 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 has said that the structure of the Charter, and in particular section 1, requires that freedom of expression 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 from Quebec in which it charted the course to be followed. Ford v Quebec (A.G.)9involved 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 (A.G.),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 that 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:

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Language is so intimately related to the form and content of expression that there cannot be true freedom of expression by means of language if one is prohibited from using the language of one’s choice. Language is not merely a means or medium of expression; it colours the content and meaning of...

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