Gavin Howe
Canada's freedom of speech is enshrined in Section 2(b) of the Canadian Charter of Rights and Freedoms, which came into force on April 17, 1982. The Supreme Court of Canada has interpreted this right broadly, protecting all manner of expressive activities. However, this freedom is not absolute and is subject to reasonable limits prescribed by law and justified in a free and democratic society. This has led to debates and controversies over the years, including cases involving hate speech, censorship, and the protection of minority rights. Canada's commitment to free speech is also influenced by its heritage of common law and international human rights declarations.
| Characteristics | Values |
|---|---|
| Freedom of expression | Protected by Section 2(b) of the Canadian Charter of Rights and Freedoms |
| Freedom of expression limitations | Section 1 of the Charter allows the government to pass laws that limit free expression so long as the limits are "reasonable and can be justified in a free and democratic society" |
| Hate speech | Hate speech is illegal in Canada and is defined as "advocacy and incitement of genocide or violence against a particular defined racial, ethnic, gender, sexual, religious or other identifiable group" |
| Obscenity | A broad term referring to literature that is unreasonable, dangerous or intensely inappropriate to society at large, such as child sexual abuse material or fraudulent medication intended to promote sexual virility |
| Defamatory libel | Section 300 prohibits the publication of defamatory libels that the publisher "knows is false" |
| Official languages | English and French are the official languages of Canada and New Brunswick |
| Equality rights | The Charter has led to the recognition and enforcement of the rights of a number of minority and disadvantaged groups |
| Freedom of religion | Canadians are free to follow the religion of their choice |
| Freedom of movement | Every Canadian citizen has the right to enter, remain in, and leave Canada |
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What You'll Learn
- Freedom of expression in Canada is protected by Section 2(b) of the Canadian Charter of Rights and Freedoms
- The Charter came into force on April 17, 1982, and is part of the Canadian Constitution
- Section 1 of the Charter establishes that reasonable limits can be placed on free expression if prescribed by law
- Canada's Criminal Code outlines three distinct hatred-related offences that are not protected under freedom of expression
- The Supreme Court of Canada has interpreted freedom of expression broadly, including protection for offensive, unpopular, or disturbing content
Freedom of expression in Canada is protected by Section 2(b) of the Canadian Charter of Rights and Freedoms
Section 2(b) establishes the right to freedom of expression, and the Supreme Court of Canada has interpreted this right in a very broad fashion. This means that any activity or communication that attempts to convey meaning is protected under Section 2(b), regardless of its content. This includes the freedom of the press and other media of communication, as outlined in Section 2(b). However, this does not include violent acts or grant journalists immunity from disclosing evidence relevant to a criminal offense.
While the Charter protects freedom of expression, it is not absolute. Section 1 of the Charter states that reasonable limits can be placed on rights and freedoms if they are prescribed by law and justified in a free and democratic society. For example, freedom of expression may be limited by laws against hate propaganda, child pornography, and criminal offenses such as advocating genocide or publicly inciting hatred.
The Charter has been a source of change and progress in Canada, bringing laws into line with the values of Canadian society. It has reinforced the rights of official language minorities and minority and disadvantaged groups and clarified the state's powers regarding the rights of the accused. The Charter also protects the open court principle, promoting full and fair discussion of public institutions, which is vital for any democracy.
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The Charter came into force on April 17, 1982, and is part of the Canadian Constitution
The Canadian Charter of Rights and Freedoms, also known as the Charter, came into force on April 17, 1982, and is a significant part of the Canadian Constitution. The Constitution is a set of laws that outlines the fundamental rules governing Canada's functioning, including the powers of federal, provincial, and territorial governments. As the supreme law of the country, all other laws must align with the Constitution, or they may be deemed invalid.
The Charter has been instrumental in driving societal change and progress, ensuring that Canadian laws reflect the values and principles of Canadian society. It guarantees fundamental rights and freedoms, such as freedom of expression, freedom of thought, belief, religion, and peaceful assembly. Notably, these rights are not absolute and can be limited to protect other rights or important national values. For instance, freedom of expression may be restricted by laws against hate propaganda, child pornography, treason, sedition, defamation, and obscenity.
The Charter also reinforces the rights of official language minorities, recognising English and French as the official languages of Canada, with equal rights and privileges in Parliament, government, and the legislature. It has played a crucial role in promoting equality rights, recognising and enforcing the rights of minority and disadvantaged groups.
The Charter guarantees the right to enter, remain in, and leave Canada for its citizens. It also ensures the right to move to, reside in, and pursue a livelihood in any province, subject to applicable laws and residency requirements. Additionally, it protects the right to life, liberty, and security, with any deprivation of these rights requiring adherence to the principles of fundamental justice.
The Charter's interpretation must be consistent with preserving and enhancing Canada's multicultural heritage. It does not abrogate or derogate from the rights and freedoms pertaining to the Aboriginal people of Canada or the rights guaranteed under the Canadian Constitution regarding denominational, separate, or dissentient schools.
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Section 1 of the Charter establishes that reasonable limits can be placed on free expression if prescribed by law
Freedom of expression in Canada is not absolute. While the Canadian Charter of Rights and Freedoms, which came into force on April 17, 1982, guarantees the right to freedom of expression, Section 1 of the Charter establishes that reasonable limits can be placed on free expression if prescribed by law. This means that the government can pass laws that restrict freedom of speech, as long as these restrictions are reasonable and can be justified in a free and democratic society.
The courts play a crucial role in interpreting and applying Section 1. When considering restrictions on free expression, courts must determine whether the limit is "prescribed by law," "reasonable," and "demonstrably justified." This analysis involves scrutinising the legislation or government action carefully to ensure it aligns with the values of a free and democratic society. The Supreme Court of Canada has interpreted the right to freedom of expression broadly, but it also recognises that this right is not unlimited.
Hate speech, obscenity, treason, sedition, defamation, and public disturbances are some areas where limits on free expression have been imposed. Hate speech laws target advocacy and incitement of violence or discrimination against identifiable groups, while obscenity laws address literature deemed dangerous or inappropriate for society. Defamation laws protect against false statements that harm an individual's reputation, and public disturbance laws prohibit disruptive behaviour in public spaces.
While these restrictions aim to protect societal values and rights, they must also be balanced with the fundamental importance of free expression. The degree of protection for free expression can vary depending on the nature of the expression, and courts must carefully weigh the government's objectives against the potential infringement on free speech rights.
Canada's commitment to freedom of expression is also reflected in its protection of language rights. The Charter reinforces the rights of official language minorities, ensuring that English and French have equal status in Parliament, government, and legislative proceedings. Additionally, the Charter guarantees the freedom of the press and other media to express themselves without censorship, contributing to a vibrant and diverse landscape of ideas and opinions.
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Canada's Criminal Code outlines three distinct hatred-related offences that are not protected under freedom of expression
Advocating Genocide (Section 318)
This section of the Criminal Code makes it an offence to advocate or promote genocide against an "identifiable group". The Code defines an "identifiable group" as any section of the public distinguished by colour, race, religion, national or ethnic origin, age, sex, sexual orientation, gender identity or expression, or mental or physical disability.
Public Incitement of Hatred (Section 319(1))
It is an offence for anyone to publicly incite hatred against any "identifiable group" where such incitement is likely to lead to a breach of the peace. This offence is punishable by up to two years' imprisonment or a summary conviction.
Wilful Promotion of Hatred (Section 319(2))
This section of the Criminal Code makes it an offence to wilfully promote hatred against any "identifiable group". A person charged under this section has four special defences available to them.
While freedom of expression is protected as a fundamental freedom in Canada, it is not absolute. Section 1 of the Canadian Charter of Rights and Freedoms allows the government to pass laws that limit free expression as long as the restrictions are reasonable and justifiable in a free and democratic society. The Supreme Court of Canada has upheld the hate propaganda offences in the Criminal Code as reasonable limitations on freedom of expression.
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The Supreme Court of Canada has interpreted freedom of expression broadly, including protection for offensive, unpopular, or disturbing content
The right to freedom of expression in Canada is established by Section 2(b) of the Canadian Charter of Rights and Freedoms. The Supreme Court of Canada has interpreted this right in a very broad fashion, including protection for offensive, unpopular, or disturbing content. This means that any activity or communication that attempts to convey meaning is protected under Section 2(b), regardless of its content.
The Supreme Court's broad interpretation of freedom of expression has been influenced by the Court's purposive approach and "large and liberal" orientation to Charter guarantees. This has resulted in Canadian courts finding a prima facie breach of Section 2(b) in many cases. The Court has stated that the right to freedom of expression does not include acts that have a violent form. However, the content of expression, no matter how offensive, unpopular, or disturbing, cannot deprive it of Section 2(b) protection.
The Charterpedia, a publication of the Department of Justice, provides guidance on the scope of Section 2(b). It states that the courts have applied the principle of content neutrality in defining the scope of this section. This means that all forms of expression, regardless of their content, are protected under Section 2(b). The Charterpedia also highlights that expression protected by Section 2(b) includes any activity or communication that conveys or attempts to convey meaning.
While freedom of expression is a fundamental right in Canada, it is not absolute. Section 1 of the Charter states that reasonable limits can be placed on this right if those limits are prescribed by law and can be demonstrably justified in a free and democratic society. This means that laws can be passed to restrict freedom of expression to protect other rights or important national values, such as laws against hate propaganda or child pornography. The Supreme Court has upheld this principle in cases such as R v. Keegstra, where the Court found that the infringement on freedom of expression was justified as it furthered an important objective directed at expression distant from the core of free expression values.
The interpretation of freedom of expression by the Supreme Court of Canada has had a significant impact on Canadian society. It has led to the protection of offensive, unpopular, or disturbing content, as long as it does not promote violence. The broad interpretation of this right ensures that Canadians have the freedom to express themselves without fear of censorship or legal repercussions, as long as their expression falls within the limits prescribed by law.
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Frequently asked questions
Section 2(b) establishes the right to freedom of expression, and the Supreme Court of Canada has interpreted this right in a very broad fashion.
Section 1 establishes that "reasonable" limits can be placed on the right to freedom of expression if those limits are prescribed by law and can be "demonstrably justified in a free and democratic society".
Limitations to freedom of expression in Canada include laws against hate propaganda, child pornography, and defamation. Canada's Criminal Code also specifies three distinct hatred-related offenses: advocating genocide, publicly inciting hatred likely to lead to a breach of the peace, and willfully promoting hatred.
The Canadian Telecommunications Act prohibits carriers from controlling the content they carry for the public, promoting net neutrality.
One notable case is the 1962 ruling on D.H. Lawrence's book Lady Chatterley's Lover, in which the Supreme Court of Canada found that the book was not obscene and could continue to be published despite challenges under federal obscenity laws. Another example is the case of R v. Keegstra, where the Supreme Court decided that publicly inciting hatred was a breach of Section 2(b) but justified as a reasonable limit in a free and democratic society.
