Freedom of Expression – A Continuing Debate

(Disponible en français : La liberté d’expression : un débat qui se poursuit)

“Everyone has the … freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.” – Section (2b) of the Canadian Charter of Rights and Freedoms

Freedom of Expression

The constitutional right to expression is a “fundamental freedom” guaranteed by section 2(b) of the Canadian Charter of Rights and Freedoms. Free speech is also protected in the Canadian Bill of Rights and in various international instruments. For centuries, law makers, artists, journalists and other advocates have passionately debated what, if any, restrictions should be imposed by the state on a person’s right to speak freely.

Recent years have been no exception, and discussions on these matters continue to be as lively and expressive as ever. Free speech was raised over 175 times in the House of Commons debates of the 42nd Parliament, and over 60 times in the Senate. Some statements pertained to free speech more generally, and others to the impact of government activities on the Charter right. They covered topics such as:

  • free speech on university campuses (e.g., 22 November 2017);
  • Motion M-168 and the role that net neutrality plays in supporting free speech (e.g., 27 March 2018);
  • Canada’s recent decline in the World Press Freedom Index (e.g., 24 February 2017);
  • Bill S-228 and prohibitions on food and beverage marketing directed at children (e.g., 17 September 2018); and
  • advocates’ ability to express their views on abortion freely in public (e.g., 15 October 2018).

Limitations on Free Speech

The Supreme Court of Canada has confirmed that government laws and actions can only place limitations on free expression if they can be justified in a free and democratic society (as per section 1 of the Charter). Restriction or regulation of expression is found in various Canadians laws. At the federal level, there are many offences in the Criminal Code that criminalize expressive actions, such as uttering threats (s. 264.1); creating child pornography (s. 163.1); counselling suicide (s. 241); and, perjury (s.131).

Examples of restriction or regulation of expression from other levels of government include provincial libel laws that give individuals the right to sue their defamers (e.g., Ontario’s Libel and Slander Act) or municipal by-laws that limit the type of information that can be put on signs (e.g., Ramsden v. Peterborough (City)).

The Supreme Court has both upheld and struck down laws (or parts of them) that violate section 2(b). It has been more likely to find limitations to be constitutional when they are made to restrict free speech as minimally as possible, and where the rights of others could be adversely affected by forms of expression. Some of its well-known decisions regarding section 2(b) include: Irwin Toy Ltd v. Quebec (AG); Little Sisters Book and Art Emporium v. Canada (Minister of Justice); RJR-MacDonald Inc v. Canada (AG); Thomson Newspapers Co v. Canada (AG); R. v. Zundel; and Ford v. Quebec (AG).

Recently Passed or Amended Laws

During the 42nd Parliament, bills that added or removed legal restrictions on forms of expression included the following:

  • Bill C-76 amended the Canada Elections Act to update offences pertaining to making false statements, and to regulate spending, reporting and self-identifying requirements for political parties and third parties engaging in partisan activities and advertising, among other things.
  • Bill C-51 repealed s. 296 of the Code that made it an offence to publish blasphemous libel
  • Bill C-45 brought in cannabis legalization and regulates the way products can be promoted.
  • Bill C-58 amended the Access to Information Act and allows the federal Information Commissioner to order government institutions to release records in appropriate circumstances. The Supreme Court has held that access to information is a “derivative right” of section 2(b), “which may arise where it is a necessary precondition of meaningful expression on the functioning of government” (Ontario (Public Safety and Security) v. Criminal Lawyers’ Association).
  • Bill C-59 introduced many legislative changes regarding national security matters, including amendments to the Criminal Code to narrow the definition of terrorist propaganda and to replace the offence of promoting terrorism so that it only criminalizes counselling someone to commit terrorism.
  • Bill S-231 amended the Canada Evidence Act to protect the confidentiality of journalistic sources, something the Supreme Court has noted is necessary to preserve freedom of the press and avoid badly compromising “freedom of expression in debate on matters of public interest” ( v. National Post).

Anti-Hate Laws

The question of how to respond to hate speech has been a recurring debate for many decades. In 1970, provisions were added to the Criminal Code (ss. 318 and 319) that prohibit the promotion of genocide and the incitement of hatred towards identifiable groups (distinguished by such characteristics as race, religion, sex, sexual orientation, etc.). While such criminal prosecutions are extremely rare, two individuals were convicted in 2019 for publishing hatred (R. v. Sears).

From 1977 to 2013, section 13 of the Canadian Human Rights Act (CHRA) prohibited electronic communications that promote hatred. That section was repealed in the 41st Parliament with the objective of “protecting freedom” of expression.  Some provincial human rights laws prohibit the promotion of hatred.

In recognizing the constitutionality of Canada’s anti-hate laws, the Supreme Court examined the role that free expression plays in Canadian society by promoting the quest for truth, individual self‑development and a vibrant democracy (R. v. Keegstra; Canada (Human Rights Commission) v. Taylor).  It found that hate propaganda does not contribute to these values. It can also “distort or limit the robust and free exchange of ideas by its tendency to silence the voice of its target group” (Saskatchewan (Human Rights Commission) v. Whatcott).

Supporters of restricting hate speech tend to argue that anti-hate laws are necessary to protect vulnerable groups from harm. An alternative view is that the best response to hate speech is to let people share their views in an open marketplace of ideas, regardless of how abhorrent they are, so that people can make up their own minds.

In the 42nd Parliament, the House of Commons Standing Committee on Justice and Human Rights studied the spread of online hate and recommended in its report that some form of civil remedy be established for those whose rights have been violated, which “could take the form of reinstating the former section 13” of the CHRA or a provision “analogous” to it.

Looking ahead

As the 43rd Parliament progresses, existing issues involving free expression will continue to unfold and new ones will undoubtedly emerge. Some Canadian organizations might be expected to continue their advocacy efforts, such as:

  • the Canadian Constitution Foundation is challenging a broad prohibition against making false statements about candidates or other political figures (i.e., “fake news”) in the Canada Elections Act; and, 
  • the Centre for Free Expression at Ryerson University has called for the repeal of the defamatory libel provisions in the Criminal Code, which it argued before a Senate Committee are a threat to free expression.

With the COVID-19 crisis causing disruptions across the globe, various commentators are calling for vigilance on the part of citizens and governments to ensure that civil liberties are best protected despite circumstances that are requiring drastic measures that restrict individual freedoms. For instance,

  • three global and regional special rapporteurs for freedom of expression are calling for governments to promote access to and free flow of information during the pandemic and to protect the work of journalists;
  • some advocacy groups are criticizing legal measures adopted in such countries as Hungary and South Africa to punish the promotion of false information related to COVID-19, seeing these measures as threatening the freedom of journalists; and
  • other organizations are warning of a rise of misinformation about the spread of the virus, a need to prioritize open communication and transparency by governments, and of increased hate-speech directed at individuals of Chinese and Asian dissent.

All of these emerging stories and evolving debates will continue to be discussed in Canada in the months ahead in various forums, including at the anticipated second Global Conference for Media Freedom announced by the Canadian Government for later this year in Quebec City, which intends to bring together governments, journalists and civil society groups to discuss ways to support media freedom.

Additional Resources

Julian Walker, Hate Speech and Freedom of Expression: Legal Boundaries in Canada, Library of Parliament Publication, No. 2018-25-E, 29 June 2018.

European Parliamentary Research Service, Liberté d’expression, une perspective de droit comparé – Canada, October 2019 [in French only].

UAlberta Pro-Life v Governors of the University of Alberta, 2020 ABCA 1 (Court of Appeal of Alberta) (CanLII).

Independent High Level Panel of Legal Experts on Media Freedom, Report on the Use of Targeted Sanctions to Protect Journalists – An International Bar Association Human Rights Institute Report, 13 February 2020.

Council of Europe, Freedom of Expression – Media in times of health crisis.

Author: Julian Walker, Library of Parliament