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Section 2(b) – Freedom of expression

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I have studied this section of the Canadian Charter of Rights and Freedoms since I began writing.

Posting about my situation in the face of the Quebec Youth Protection machine, this is the only venue available to me to discuss my truth; the truth the DPJ and the Family courts so conveniently ignore: that I was abused, that my ex-wife took advantage of the DPJ to help complete her long-standing goal of cutting me off from my children altogether.

No court order will prevent me from speaking my truth on this, my private website. I am a Canadian content creator, this website is the primary venue for my content, which is a personal reportage and public diary of what I have suffered and survived.

It is the only place, the one and only place, where people can hear my side of the story. As such, no court order, no judge, no one will keep me silent, anymore

I will go to jail to protect my Freedom of Expression as guaranteed under Canadian Charter law.

And here is the text that I will use to say as much:

Section 2(b) – Freedom of expression

Provision

2. Everyone has the following fundamental freedoms:

  • freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.

Similar provisions

Similar provisions may be found in the following Canadian laws and international instruments binding on Canada: sections 1(d) and (f) of the Canadian Bill of Rights; article 19 of the International Covenant on Civil and Political Rights; article 13 of the Convention on the Rights of the Child; article 5(d)(viii) of the Convention on the Elimination of All Forms of Racial Discrimination; article 21 of the Convention on the Rights of Persons with Disabilities; article IV of the American Declaration of the Rights and Duties of Man

See also the following international, regional and comparative law instruments that are not binding on Canada but include similar provisions: article 19 of the Universal Declaration of Human Rights; article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms; article 13 of the American Convention on Human Rights; the First Amendment of the American Constitution.

Purpose

The protection of freedom of expression is premised upon fundamental principles and values that promote the search for and attainment of truth, participation in social and political decision-making and the opportunity for individual self-fulfillment through expression (Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927 at page 976; Ford v. Quebec, [1988] 2 S.C.R. 712 at pages 765-766)

The Supreme Court of Canada has maintained that the connection between freedom of expression and the political process is “perhaps the linchpin” of section 2(b) protection (R. v. Keegstra, [1990] 3 S.C.R. 697; Thomson Newspapers Co. v. Canada (A.G.), [1998] 1 S.C.R. 877; Harper v. Canada (Attorney General), [2004] 1 S.C.R. 827). Free expression is valued above all as being instrumental to democratic governance. The two other rationales for protecting freedom of expression — encouraging the search for truth through the open exchange of ideas, and fostering individual self-actualization, thus directly engaging individual human dignity — are also key values that animate section 2(b) analysis.

Analysis

Canadian courts have interpreted section 2(b) very broadly, often finding a prima facie breach easily

The Supreme Court has adopted the following three-part test for analyzing section 2(b): 1) Does the activity in question have expressive content, thereby bringing it within section 2(b) protection?; 2) Does the method or location of this expression remove that protection?; and 3) If the expression is protected by section 2(b), does the government action in question infringe that protection, either in purpose or effect? (Canadian Broadcasting Corp. v. Canada (Attorney General), 2011 SCC 2 (“Canadian Broadcasting Corp.”); Montréal (City) v. 2952-1366 Québec Inc., [2005] 3 S.C.R. 141; Irwin Toy Ltd., supra.)

1. Does the activity in question have expressive content, thereby bringing it within section 2(b) protection?

Expression protected by section 2(b) has been defined as “any activity or communication that conveys or attempts to convey meaning” (Thomson Newspapers Co., supra; Irwin Toy Ltd., supra). The courts have applied the principle of content neutrality in defining the scope of section 2(b), such that the content of expression, no matter how offensive, unpopular or disturbing, cannot deprive it of section 2(b) protection (Keegstra, supra). Being content-neutral, the Charter also protects the expression of both truths and falsehoods (Canada (Attorney General) v. JTI-Macdonald Corp., [2007] 2 S.C.R. 610 at paragraph 60; R. v. Zundel, [1992] 2 S.C.R. 731 at paragraph 36; R. v. Lucas, [1998] 1 S.C.R. 439 at paragraph 25)

Freedom of expression includes more than the right to express beliefs and opinions. It protects both speakers and listeners (Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326). “Expression” may include all phases of the communication, from maker or originator through supplier, distributor, retailer, renter or exhibitor to receiver, whether listener or viewer (Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; Irwin Toy Ltd., supra; Rocket v. Royal College of Dental Surgeons of Ontario, [1990] 2 S.C.R. 232; R. v. Videoflicks (1984), 14 D.L.R. (4th) 10).

Protected expression has been found to include:

  • “music, art, dance, postering, physical movements, marching with banners, etc.” (Weisfeld v. Canada, [1995] 1 F.C. 68 (F.C.A.), CanLII – 1994 CanLII 9276 (FCA) at paragraph 30 (F.C.A.);
  • commercial advertising (R. v. Guignard, [2002] 1 S.C.R. 472; Ford, supra; Irwin Toy Ltd., supra; Rocket, supra; Ramsden v. Peterborough (City), [1993] 2 S.C.R. 1084; RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199; JTI-Macdonald Corp., supra);
  • posters on utility poles (Ramsden, supra);
  • peace camps (Weisfeld (F.C.A.), supra);
  • signs and billboards (Guignard, supra; Vann Niagara Ltd. v. Oakville (Town), [2003] 3 S.C.R. 158);
  • picketing (R.W.D.S.U., Local 558 v. Pepsi-Cola Canada Beverages, [2002] 1 S.C.R. 156; Dolphin Delivery Ltd. v. R.W.D.S.U. Local 580, [1986] 2 S.C.R. 573; B.C.G.E.U v. British Columbia (Attorney General), [1988] 2 S.C.R. 214; Dieleman v. Attorney General of Ontario (1994), 20 O.R. (3d) 229 (Ont. Gen. Div.); Morasse v. Nadeau-Dubois; 2016 SCC 44);
  • handing out leaflets (U.F.C.W, Local 1518 v. Kmart Canada Ltd., [1999] 2 S.C.R. 1083; Allsco Building Products Ltd. v. U.F.C.W. Local 1288 P, [1999] 2 S.C.R. 1136);
  • expressing oneself in the language of choice (Ford, supra);
  • hate speech (Keegstra, supra; R. v. Zundel, supra; Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11, [2013] 1 S.C.R. 467; Ross v. New Brunswick School Board (No. 15), [1996] 1 S.C.R. 825; Taylor v. Canada (Human Rights Commission), [1990] 3 S.C.R. 892);
  • pornography (R. v. Butler, [1992] 1 S.C.R. 452; Little Sisters Book and Art Emporium v. Canada (Minister of Justice), [2000] 2 S.C.R. 1120);
  • child pornography (Sharpe, supra; R v. Barabash, 2015 SCC 29);
  • communication for the purpose of prostitution (Reference re: section 193 and paragraph 195.1(1)(c) of the Criminal Code (Manitoba),[1990] 1 S.C.R. 1123);
  • noise being emitted by a loudspeaker from inside a club onto the street (Montréal (City), supra, at paragraph 58);
  • importation of literature or pictorial material (Little Sisters, supra);
  • defamatory libel (R. v. Lucas, supra at paragraph 25-27);
  • voting (Siemens v. Manitoba (Attorney General), [2003] 1 S.C.R. 6 at paragraph 41; Haig v. Canada, [1993] 2 S.C.R. 995);
  • running as a candidate for election (Baier v. Alberta, [2007] 2 S.C.R. 673);
  • spending in election and referendum campaigns (Harper, supra; Libman v. Quebec (Attorney General), [1997] 3 S.C.R. 569; B.C. Freedom of Information and Privacy Association v. British Columbia (Attorney General), 2017 SCC 6);
  • broadcasting of election results (R. v. Bryan, [2007] 1 S.C.R. 527);
  • engaging in work for a political party or candidate (Osborne v. Canada (Treasury Board), [1991] 2 S.C.R. 69);
  • publication of polling information and opinion surveys (Thomson Newspapers Co., supra);
  • monetary contributions to a fund may constitute expression, for example, donations to a candidate or political party in the electoral context (Osborne, supra), though not where the expenditure of funds would be regarded as the expressive conduct of the union as a corporate entity (Lavigne v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 211) and
  • political advertising on public transit vehicles (Greater Vancouver Transportation Authority v. Canadian Federation of Students — British Columbia Component, [2009] 2 S.C.R. 295 “GVTA”).

Freedom of expression also protects the right not to express oneself. “[F]reedom of expression necessarily entails the right to say nothing or the right not to say certain things. Silence is in itself a form of expression which in some circumstances can express something more clearly than words could do” (Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038 at page 1080). Thus, forced or compelled expression can constitute a restriction of section 2(b) (Slaight Communications, supra; RJR-MacDonald Inc., supra; National Bank of Canada v. Retail Clerks’ International Union, [1984] 1 S.C.R. 269). The Ontario Court of Appeal held that the requirement to recite an oath to the Queen at citizenship ceremonies does not infringe freedom of expression (McAteer v. Canada (Attorney General), 2014 ONCA 578, leave to appeal to the SCC denied 26 February 2015). Caution should be exercised when citing McAteer, supra, as this case seems to be inconsistent with the Supreme Court’s broad interpretation of section 2(b) of the Charter.

A regulatory requirement to file information and reports may amount to a restriction on freedom of expression where failure to comply is backed by sanctions such as fines or imprisonment (Harper, supra, paragraphs 138-139). The act of complying with the law is not the same as being compelled to express support for the law (Rosen v. Ontario (Attorney General) 131 D.L.R. (4th) 708 (Ont. C.A.)). Similarly, the compelled payment of taxes to government for use in funding legislative initiatives (e.g., public subsidies to election candidates to cover their campaign expenses) does not necessarily imply an expression of support for those initiatives (MacKay v. Manitoba, [1989] 2 S.C.R. 357; Lavigne, supra).

It is not necessary that an expression be received and subjectively understood for it to be protected expression under section 2(b) (Weisfeld (F.C.A.), supra; R. v. A.N. Koskolos Realty Ltd., (1995), 141 N.S.R. (2d) 309 (N.S.Prov.Ct.)).

The physical sale of a non-expressive product (cigarettes) has been found not to be a form of expression (Rosen, (Ont. C.A.)). The yellow colouring of margarine has been found not to be a form of expression (UL Canada Inc. v. Quebec (Attorney General), [2005] 1 S.C.R. 143, at paragraph 1).

2. Does the method or location of this expression remove that protection?

The Supreme Court has stated that the method or location of the conveyance of a message will be excluded from 2(b) protection if this method or location conflicts with the values underlying the provision, namely: self-fulfillment, democratic discourse and truth finding (Canadian Broadcasting Corp., supra at paragraph 37; Montreal (City), supra at paragraph 72). In practice, however, this test is usually just applied to an analysis of the location of expression; the method of expression is generally considered to be within section 2(b) protection unless it takes the form of violence or threats of violence.

(i) Method of expression

Expression that takes the form of violence is not protected by the Charter (Irwin Toy Ltd., supra at pages 969-70). The Supreme Court has held that whether or not physical violence is expressive, it will not be protected by section 2(b) (Keegstra, supra; Zundel (1992), supra; Irwin Toy Ltd., supra). Threats of violence also fall outside the scope of section 2(b) protection (Greater Vancouver Transportation Authority, supra at paragraph 28; Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3 at paragraphs 107-108; R v Khawaja, 2012 SCC 69 at paragraph 70). In other respects, the form or medium used to convey a message is generally considered part and parcel of the message and included within section 2(b) protection (Weisfeld (F.C.A.), supra).

(ii) Location of expression

Section 2(b) protection does not extend to all places. Private property, for example, will fall outside the protected sphere of section 2(b) absent state-imposed limits on expression, since state action is necessary to implicate the Charter. Certain lower court cases have suggested that freedom of expression does not encompass the infringement of copyright. This finding is justified on the basis that freedom of expression does not encompass the freedom to use someone else’s private property (e.g., their copyrighted material) for the purposes of expression (see Compagnie générale des établissements Michelin v. C.A.W. Canada, [1997] 2 F.C. 306 (T.D.)). It should be noted, however, that this interpretation of 2(b) seems to be inconsistent with the Supreme Court’s broad interpretation of the provision.

The application of section 2(b) is not automatic by the mere fact of government ownership of the place in question. There must be a further enquiry to determine if this is the type of public property which attracts section 2(b) protection (Montréal (City), supra, at paragraphs 62 and 71; Committee for the Commonwealth of Canada, supra). In Montréal (City), the majority of the Supreme Court set out the current test for the application of section 2(b) to public property (see also GVTA, supra). The onus of satisfying this test rests on the claimant (paragraph 73). The basic question with respect to expression on government-owned property is whether the place is a public place where one would expect constitutional protection for free expression on the basis that expression in that place does not conflict with the purposes which section 2(b) is intended to serve, namely (1) democratic discourse, (2) truth finding and (3) self-fulfillment. To answer this question, the following factors should be considered:

  • The historical or actual function of the place; and
  • Whether other aspects of the place suggest that expression within it would undermine the values underlying free expression. (Montréal (City), paragraphs 73, 74).

The Supreme Court has highlighted that the ultimate question is the second factor (Montréal (City) at paragraph 77). In Canadian Broadcasting Corp, supra, the court added that analysis of the second factor should focus on the essential expressive activity as opposed to the “excesses” that would be incidental to this activity. In that particular case, the essential expressive activity, a journalist’s ability to gather news at a courthouse to inform the public about court proceedings, was held to engage section 2(b), despite the incidental excesses of this expression (“…crowds, pushing and shoving, and pursuing possible subjects in order to interview, film or photograph them…”) (paragraphs 43, 45).

Other relevant questions that that may guide the analysis of whether expression in a particular location is protected under 2(b) are: whether the space is one in which free expression has traditionally occurred; whether the space is in fact essentially private, despite being government-owned, or public; whether the function of the space is compatible with open public expression, or whether the activity is one that requires privacy and limited access; whether an open right to intrude and present one’s message by word or action would be consistent with what is done in the space, or whether it would hamper the activity (Montréal (City), paragraph 76). There is some flexibility in the analysis and allowing public expression in a particular government-property location does not commit the government to such use indefinitely (GVTA, paragraph 44).

3. Does the law or government action at issue, in purpose or effect, restrict freedom of expression?

(i) Purpose

Where the purpose of a government action is to restrict the content of expression, to control access to a certain message, or to limit the ability of a person who attempts to convey a message to express themselves, that purpose will infringe section 2(b) (Irwin Toy Ltd., supra; Keegstra, supra).

(ii) Effect

Even if a purpose is compatible with section 2(b), an individual may be able to demonstrate that the effect of the government action infringes their section 2(b) right. In this situation, the individual must show that their expression advances one or more of the values underlying section 2(b), e.g., participation in social and political decision making, the search for truth and individual self-fulfillment (Irwin Toy Ltd., supra; Ramsden, supra). While more recent Supreme Court decisions still refer to this principle of showing the effect of government action, the Court does not appear to apply with a great deal of vigor the requirement that an individual show an advancement of values, tending instead to easily find a restriction of section 2(b).

If a court concludes that the government action, in either purpose or effect, infringes section 2(b), it will then consider whether the limit on free expression is justifiable under section 1.

Selected issues

1. Section 2(b) – A requirement for positive government action?

Freedom of expression generally imposes on government a negative obligation not to interfere with expression, that is to say it is freedom from government legislation or action suppressing an expressive activity in which people would otherwise be free to engage (Haig v. Canada, [1993] 2 S.C.R. 995 at page 1035; Baier v. Alberta, [2007] 2 S.C.R. 673 at paragraph 20; Toronto (City) v. Ontario (Attorney General), 2021 SCC 34 at paragraph 16). “The traditional view, in colloquial terms, is that the freedom of expression contained in section 2(b) prohibits gags, but does not compel the distribution of megaphones” (Haig, supra at page 1035). In general, it is up to the government to determine which forms of expression are entitled to special support; where the government chooses to provide a platform for expression it must do so in a manner consistent with the Charter, including section 15 (Delisle v. Canada (Deputy Attorney General), [1999] 2 S.C.R. 989; Siemens, supra at paragraph 43; NWAC v. Canada, [1994] 3 S.C.R. 627).

However, section 2(b) may, in certain circumstances, impose positive obligations on government to facilitate expression by legislating or otherwise acting to provide persons with a platform for expression (Baier v. Alberta, supra; Toronto (City), supra at paragraphs 17-19). To determine whether a claim is for a “positive right”, one must question whether the claim would require the government to act in order to support or enable an expressive activity, in contrast to a negative right that would require the government to refrain from restricting the content or meaning of expression or from acting in other ways (Baier, supra at paragraph 35; Toronto (City) at paragraph 20). A positive claim does not become a claim for a negative right where the government reduces access to a platform for expression to which the claimants previously had access (Baier, supra at paragraph 36; Toronto (City), supra at paragraph 19).

A positive claim  will be determined pursuant to the “single core question” set out in Toronto (City) (supra at paragraph 25): “is the claim grounded in the fundamental Charter freedom of expression, such that, by denying access to a statutory platform or by otherwise failing to act, the government has either substantially interfered with freedom of expression, or had the purpose of interfering with freedom of expression?” In this context “a substantial interference with freedom of expression occurs where lack of access to a statutory platform has the effect of radically frustrating expression to such an extent that meaningful expression is ‘effectively preclude[d]’” (Toronto (City), supra at paragraph 27).

2. Does section 2(b) protect a broader right of access to information?

Section 2(b) guarantees freedom of expression, not access to information, and therefore does not guarantee access to all documents in government hands. Access to documents in government hands is constitutionally protected only where, without the desired access, meaningful public discussion and criticism on matters of public interest would be substantially impeded (Ontario (Public Safety and Security) v. Criminal Lawyers’ Association (2010), 319 D.L.R. (4th) 385; 2010 SCC 23). Where a claimant demonstrates that the denial of access effectively precludes meaningful commentary, there is a prima facie case for the production of the documents in question (Criminal Lawyers Association, supra, at paragraphs 33, 37).

However, even where a prima facie case is established, the section 2(b) claim may be defeated by countervailing considerations inconsistent with production (Criminal Lawyers Association at paragraphs 33, 38). These considerations include privileges, such as solicitor-client privilege and other well-established common-law privileges (Criminal Lawyers Association at paragraph 39). They also include “functional constraints” — e.g., assessment of whether a particular government function is incompatible with access to certain documents. Certain types of documents — such as Cabinet confidences — may remain exempt from disclosure because disclosure would impact the proper functioning of affected institutions (Criminal Lawyers Association at paragraph 40).

3. The open court principle

Section 2(b) protects the “open court principle”, a strong presumption in favour of open courts that allows the public and the press to attend hearings, to consult court files, and to inquire into and comment on the workings of the courts (Canadian Broadcasting Corp. v. Named Person, 2024 SCC 21 at paragraphs 27-32; Sherman Estate v. Donovan, 2021 SCC 25). The open court principle is embedded in the common law tradition and is protected by section 2(b) because it promotes the full and fair discussion of public institutions, which is vital to any democracy (Sherman Estate, supra at paragraph 30; Ruby v. Canada (Solicitor General), [2002] 4 S.C.R. 3  at paragraph 53; Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480 at paragraph 23; Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326 at pages 1339-40; B.C.G.E.U. v. British Columbia (Attorney General), [1988] 2 S.C.R. 214; R. v. MacIntyre, [1982] 1 S.C.R. 175) In particular, open courts discourage mischief and ensure confidence in the administration of justice through transparency (Sherman Estate, supra at paragraphs 39, 44).

The open court principle is also protected as appropriate under the right to a fair and public trial pursuant to section 7 and section 11(d).

The open court principle protects the freedom of the press to access and report on court proceedings, since the press serves as “the eyes and ears” of the public (Sherman Estate, supra at paragraphs 1, 30, 39; Re Vancouver Sun, [2004] 2 S.C.R. 332 at paragraph 26). In exceptional circumstances, competing interests may justify restrictions on court openness (see below).

The open court principle applies to all judicial proceedings, whatever their nature (Sherman Estate, supra at paragraph 44). This entails a presumption of access to both criminal and civil hearings, and also, for example, to pretrial proceedings (Re Vancouver Sun, supra at paragraph 27), probate proceedings (Sherman Estate, supra at paragraphs. 44-45), and court exhibits (Canadian Broadcasting Corp. v. The Queen, [2011] 1 S.C.R. 65 at paragraph 12; Canadian Broadcasting Corp. v. New Brunswick (Attorney General), supra; Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130). Court openness would be limited by, for example, sealing orders, publication bans, orders excluding the public from a hearing, or redaction orders (Sherman Estate, supra at paragraph 38).

Legislative enactments that automatically limit court openness require justification under s. 1 of the Charter following the Oakes test (Toronto Star Newspapers Ltd. v. Canada, [2010] 1 S.C.R. 721 at paragraph 18). Some legislative limits have been found to be justifiable; for example, a mandatory publication ban on the evidence and representations made at bail hearings was justified because it helped to safeguard the right to a fair trial and to ensure expeditious bail hearings thus avoiding unnecessary detention (Toronto Star Newspapers Ltd., supra). Where the legislation gives the judge discretion whether to limit court openness, the legislation itself will be consistent with section 2(b) because it allows for a case-by-case balancing of interests analogous to the Oakes test (Sherman Estate, supra at paragraph 40; Toronto Star Newspapers Ltd., supra at paragraph 18).

A person asking a court to exercise discretion in a way that limits court openness must establish that: (1) court openness poses a serious risk to an important public interest; (2) the order sought is necessary to prevent this risk because reasonably alternative measures will not prevent the risk; and (3) as a matter of proportionality, the benefits of the order outweigh its negative effects. This test applies to all discretionary limits on court openness. (Sherman Estate, supra at paragraph 38; Sierra Club of Canada v. Canada (Minister of Finance), [2002] 2 S.C.R. 522; R. v. Mentuck, [2001] 3 S.C.R. 442; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835.)

For the first condition, the recognized scope of important public interests that may justify a discretionary exception to court openness has broadened over time (Sherman Estate, supra at paragraph 41) and includes trial fairness (Dagenais, supra at page 878), the proper administration of justice (Mentuck, supra at paragraph 32), the commercial interest of preserving confidential information (Sierra Club, supra at paragraph 55), and privacy (Sherman Estate, supra at paragraphs 46-85). Some loss of privacy is inevitable in open courts and may cause discomfort, embarrassment, or distress, which are insufficient to overcome the presumption of openness; the relevant public interest that may justify a discretionary exception to court openness is more specifically the personal dignity that is damaged by a loss of control over intimate or personal details (fundamental, or core information) and of one’s ability to present these aspects of oneself to others in a selective manner (Sherman Estate, supra at paragraphs 56-78). Whether court openness poses a serious risk to any important public interest depends on the facts in context and thus must be determined on the basis of evidence (Sherman Estate, supra at paragraph 42).

The second condition in the test for discretionary limits on court openness—that the order be necessary—requires the court to consider whether there are alternatives to the order sought and to restrict the order as much as reasonably possible to prevent the serious risk to the important public interest (Sherman Estate, supra at paragraph 105; Sierra Club, supra at paragraph 57). The third condition—proportionality—requires the court to consider whether the benefits of any order that is necessary to prevent the serious risk outweighs the harmful effects of the order, including the negative impact on the open court principle (Sherman Estate, supra at paragraph 106; Sierra Club, supra at paragraph 53). For example, when balancing privacy interests against the open court principle, courts are to consider whether the information that the order seeks to protect is peripheral or central to the judicial process (Sherman Estate, supra at paragraph 106; A.B. v. Bragg Communications Inc., [2012] 2 S.C.R. 567 at paragraphs 28-29).

4. Access to legislative proceedings

Parliamentary privileges are constitutional and therefore a legislative assembly can regulate access to its proceedings pursuant to its privileges, even if doing so limits the freedom of the press to report on such proceedings (N.B. Broadcasting Co. v. Nova Scotia (Speaker of the House Assembly), [1993] 1 S.C.R. 319; Zundel v. Boudria, et al. (1999), 46 O.R. (3d) 410 (Ont. C.A.)).

5. Journalistic immunity

Section 2(b) does not protect all techniques of “news gathering”. Freedom of expression and freedom of the press do not encompass a broad immunity for journalists from either the production of physical evidence relevant to a criminal offence or against disclosure of confidential sources. Therefore, a judicial order to compel disclosure of a secret source would not in general limit section 2(b), whether in a criminal trial (R. v. National Post, supra at paragraphs 37-41) or in the context of civil litigation (Globe and Mail, supra at paragraphs 20-22). A qualified journalist-source privilege exists in the common law and a test that is informed by Charter values is used to determine the existence of privilege on a case by case basis (R. v. National Post, supra, paragraphs 50-55; Globe and Mail, supra at paragraphs 53-57). On an application for a production order against the media, the authorizing judge should apply to the facts of the case a specific analysis that balances the state’s interest in the investigation and prosecution of crimes and the media’s right to privacy in gathering and disseminating the news (R. v. Vice Media Canada Inc., 2018 SCC 53 at paragraph 82).

6. Application of section 2(b) in private litigation

While a private law case is not governed directly by the Charter, the evolution of the common law is to be informed and guided by Charter values (Grant v. Torstar Corp., [2009] 3 S.C.R. 640 at paragraph 44; Quan v. Cusson, [2009] 3 S.C.R. 712; Hill v. Church of Scientology of Toronto, supra at paragraph 97; WIC Radio Ltd. v. Simpson, [2008] 2 S.C.R. 420 at paragraph 2 re: defamation actions). Courts should, from time to time, re-evaluate the consistency of the common law with “evolving societal expectations through the lens of Charter values” (Grant v. Torstar Corp., supra at paragraph 46). The values underlying section 2(b) of the Charter have been the basis for recent changes to the common law of defamation, which created a new defence of “responsible communication on matters of public interest” (Grant v. Torstar Corp.; Quan v. Cusson).

Section 2(b) does not create a privilege in journalists’ notes in the context of private litigation (Bank of B.C. v. Canada Broadcasting Corp. (1995), 126 D.L.R. (4th) 644 (B.C.C.A.)). Private broadcasters are not required to provide a forum for particular messages (NWAC, supra; Haig, supra; New Brunswick Broadcasting Co. v. CRTC, [1984] 2 F.C. 410 (F.C.A.), Trieger v. Canada Broadcasting Corp. (1988), 66 O.R. (2d) 273 (Ont. H.C.J, 1988 CanLII 4568 (ON SC)); Natural Law Party v. Canada Broadcasting Corp., [1994] 1 F.C. 580 (T.D.)). The CBC, at least in its role as an independent newscaster, is not subject to the Charter (Trieger, supra; Natural Law Party, supra). Where judges must implement Charter values in the exercise of their discretion in particular situations, it is not necessary that a party who argues how those Charter values should be applied give constitutional notice (Bank of B.C., supra).

Although the Charter applies to the common law, and although judges should develop the common law in a manner consistent with Charter values (R.W.D.S.U. v. Pepsi-Cola, supra), section 2(b) will not protect persons engaged in private litigation where the limit on the freedom of expression is found in the common law (e.g., inducement to breach contract) and where there is no significant government action involved (Dolphin Delivery, supra; Hill, supra).

7. Expression by public servants

For public servants, freedom to express public criticism of government policies is restricted by a common law duty of loyalty to their employer (Fraser v. P.S.S.R.B., [1985] 2 S.C.R. 455 the leading case on this issue although it was technically not decided under section 2(b); see also Haydon et. al. v. Canada, [2001] 2 F.C. 82 (F.C.T.D.); Haydon v. Canada (Treasury Board), 2004 FC 749 at paragraph 43 (F.C.)). The purpose of the duty, to promote an impartial and effective public service, has been found to be a pressing and substantial objective (Haydon (2001), supra at paragraphs 69 to 75; Haydon (2004), supra at paragraph 45 (F.C.); Osborne, supra). The duty should restrict freedom of expression minimally and does not demand absolute silence from public servants (Osborne, supra; Haydon (2001), supra at paragraph 86). To ensure minimal impairment and proportionality between effect and objective, there is a need to balance the duty of loyalty and the value of freedom of expression (Fraser, supra; Haydon (2001), supra at paragraph 67; Haydon (2004), supra at paragraph 45;  Alberta Union of Provincial Employees (A.U.P.E.) v. Alberta, 2002 ABCA 202, 218 (4th) D.L.R. 16 at paragraph 29).

Generally, it has been found that where an issue embraces matters of public concern, such as where the government engages in illegal acts, where government policies jeopardize the life, health or safety of others, or if the criticism has no impact on public servants’ ability to perform their duties effectively or on the public perception of that ability, the public interest outweighs the objective of an impartial and effective public service (Haydon (2001), supra at paragraphs 82-83; Haydon (2004), supra at paragraph 45; Stenhouse v. Canada (Attorney General), 2004 FC 375 (F.C.) at paragraph 32).

8. Standard for interlocutory injunctions

For the purposes of granting an interlocutory injunction in cases of defamation or hate speech, the courts will apply a different test than in Cyanamid (American Cyanamid Co. v. Ethicare Ltd., [1975] A.C. 396 (H.L), approved in Manitoba (Attorney General) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110 at pages 128-129). The harm test in Cyanamid is inappropriate in this context (CHRC v. Canadian Liberty Net, [1998] 1 S.C.R. 626).

9. Freedom of expression as a Charter value in discretionary administrative decision making

Freedom of expression is also a “Charter value” and administrative decision makers must properly balance the relevant statutory objectives with this value when exercising their discretion under a statute. In Doré, the Supreme Court found that professional disciplinary bodies like the Barreau du Québec may have to tolerate a “degree of discordant criticism” of the judiciary because of the value of freedom of expression. However, the decision of the Barreau’s Disciplinary Council to reprimand Mr. Doré in this particular case was justified because of “the excessive degree of vituperation” in the tone of his letter to a judge. The Court held that civility requirements for lawyers must be balanced with the benefits of “open, and even forceful, criticism of our public institutions.” (Doré v. Barreau du Québec, [2012] 1 S.C.R. 395).

Section 1 considerations particular to this section

The broad scope of section 2(b) means that in most cases the constitutionality of the legislation or the government action will depend on the section 1 analysis. Generally speaking, because of the importance of the right to free expression, “any attempt to restrict the right must be subjected to the most careful scrutiny” (Sharpe, supra at paragraph 22). However, the “degree of constitutional protection may vary depending on the nature of the expression at issue…the low value of the expression may be more easily outweighed by the government objective” (Thomson Newspapers Co., supra at paragraph 91; JTI-Macdonald Corp., supra; Lucas, supra at paragraphs 116 and 121; Sharpe, supra at paragraph 181; Whatcott, supra at paragraphs 147-148; Butler, supra at page 150). For example, limits are easier to justify where the expressive activity only tenuously furthers section 2(b) values, such as in the case of hate speech, pornography or marketing of a harmful product (Keegstra, supra; Whatcott, supra; Rocket, supra; JTI-Macdonald Corp., supra). Limits on political speech will generally be the most difficult to justify (Thomson Newspapers Co., supra; Harper, supra). Restrictions will also be more difficult to justify where they capture expression that furthers artistic, scientific, educational or other useful social purposes (Butler, supra).

Whether the limit minimally impairs the right to freedom of expression is often the deciding factor in section 2(b) cases. A total prohibition on a form of expression will be more difficult to justify than a partial prohibition (RJR-MacDonald Inc., supra; JTI-Macdonald Corp., supra; Ruby, supra; Thomson Newspapers Co., supra; Toronto Star Newspapers Ltd., supra). A restriction on expression backed by a civil penalty rather than a criminal sanction such as imprisonment will be considered a less impairing alternative (Zundel (1992), supra; Taylor, supra)

Where the limit on freedom of expression is minimal, the court may, in certain circumstances like elections advertising, accept section 1 justifications for this limit based on logic and reason without supporting social science evidence (B.C. Freedom of Information, supra).

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