“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 and the Courts
Canadian courts must at times determine whether a person’s particular expression has violated Canadian law or whether laws and government actions have violated the right to free expression guaranteed by the Canadian Charter of Rights and Freedoms.
The selected recent court decisions summarized in this document highlight the challenges that can arise when drawing limits around acceptable or appropriate expression. They address certain questions: When does a joke go too far and interfere with another person’s right to protect their dignity? When is hateful speech harmful to others rather than simply offensive? When can laws restrict creative or commercial expression involving products that raise health concerns? Should public spaces be available for the expression of all views?
While the Charter guarantees the right to free expression as one of Canada’s constitutionally protected fundamental freedoms, it also allows governments to impose limitations on it. Courts may be called upon to determine if, as required by the Charter, these limitations are proven to be reasonable and justifiable in a free and democratic society. For instance, the Supreme Court of Canada has upheld the prohibition against wilfully promoting hatred in section 319(2) of the Criminal Code, though it infringes section 2(b) (R. v. Keegstra).
Ward v. Québec (Commission des droits de la personne et des droits de la jeunesse)
In October 2021, the Supreme Court overturned a decision by the Quebec Court of Appeal, which had affirmed a decision by the Human Rights Tribunal of Québec, in Ward v. Quebec (Commission des droits de la personne et des droits de la jeunesse). Comedian Mike Ward had to defend his “mocking” of a child with a physical disability before the tribunal. The boy had become a “celebrity” after singing on television in front of the Pope. The child’s family complained that these jokes discriminated against their son and interfered with his right to the safeguard of his dignity, contrary to sections 4 and 10 of the Quebec Charter of Human Rights and Freedoms.
The Supreme Court considered the circumstances in which the jokes were made and noted that the comments were unlikely to incite others to vilify or detest the child. It also underscored that there is no right to not be offended in Canada. The Court examined, among other things, how to balance the right to the safeguard of a person’s dignity and the right to free expression. First, it must be determined whether a reasonable person, aware of the relevant context and circumstances, would view the expression targeting an individual or group as inciting others to vilify them or to detest their humanity based on a prohibited ground of discrimination. The next question is whether a reasonable person would view the expression, considered in its context, as likely to lead to discriminatory treatment of the person targeted. The analysis is focused on the likely effects of the expression on third parties, not on the emotional harm suffered by the person alleging discrimination.
The Supreme Court’s majority decision turned on the Tribunal’s finding that Ward targeted the child because he was a known public figure, not because of his disability. As this is not a prohibited ground of discrimination, the majority of the Supreme Court held that the claims could not succeed. Even if there had been differential treatment on a prohibited ground, the court added that the child’s right to the safeguard of his dignity was not impaired.
In dissent, a minority on the Court concluded that section 10 of the Quebec Charter’s protection extended to the child’s right to dignity, honour, and reputation, and that the “harmful” language Ward used about the child’s disability constituted a discriminatory interference with his rights.
Prosecutions of the Criminal Code’s anti-hate provisions are rare. A few recent decisions demonstrate how a court may determine what expression constitutes hate and what is “simply distasteful”.
In 2021, Derek Whatcott was defending himself against allegations of hate speech before the Ontario Superior Court of Justice in R. v. Whatcott. He was previously the respondent in Saskatchewan Human Rights Commission v. Whatcott, a key Supreme Court decision from 2013 on anti-hate provisions in Saskatchewan’s human rights legislation. Charges were laid against him in 2021 after he was apprehended distributing flyers at a Pride parade further to “a campaign against what he sees as the spiritual and physical dangers of the ‘homosexual lifestyle’ and homosexual sex.” The judge concluded that while “many people would find the flyer offensive” and “some statements in the flyer are inaccurate and some are misleading,” whether the content constituted hate speech was “debatable.” The Court recognized that there is a “‘grey zone’ between legitimate expression and hate,” and the decision provides a useful discussion of how to recognize the “hallmarks” of hate speech. Whatcott was found not guilty.
In the Ontario Court of Appeal’s 2021 decision in R. v. Sears, James Sears lost the appeal of his conviction on two counts of wilfully promoting hatred against Jews and women. He and a co-accused had published a print and online newspaper distributed in Toronto that celebrated Hitler, denied the Holocaust and advocated rape of women, claiming they were “less than human.” The defendants had argued not all Jews and not all women were being targeted, though the trial judge found otherwise based on the evidence. Sears’ sentence was six months of imprisonment on each of the two counts.
In 2022, the Superior Court of Quebec found the accused guilty of wilfully promoting hatred in R. c. Rochefort [in French]. He had blogged about his reaction to the commemorations of the Polytechnique massacre of 1989 by, among other things, glorifying violence against women. The Court considered the elements of the offence: Were the statements made publicly? Did they promote hatred? Was the hatred directed towards women (an “identifiable group” in the Code)? Was this done voluntarily? The court determined that all these elements were present and that Mr. Rochefort knew that he was promoting hatred towards women to his growing readership – many of whom were “incel” (involuntarily celibate) men.
Other Provincial Court Decisions
The Court of Québec looked at whether smoking during a public theatre performance fit within the scope of protected expression last year in Directeur des poursuites criminelles et pénales c. Théâtre du Trident inc [in French]. A group of theatre companies were found to have violated section 11 of Quebec’s Tobacco Control Act because tobacco cigarettes were smoked on stage. The court disagreed that this infringed their freedom of expression. It held that smoking has no expressive content – it was not intended to convey a message or meaning. Instead, they could have used fake cigarettes. It noted that the representation of gestures or actions prohibited by other laws is common in theatre, such as simulating violence or taking drugs.
In Procureur général du Québec c. Gallant, the Quebec Court of Appeal considered claims from two associations representing vaping advocates and businesses and held that restrictions on the display of vaping products in the Regulation under the Tobacco Control Act did violate freedom of expression. It also noted that commercial expression is afforded the same protection as other forms under the Canadian and Quebec charters. However, despite the plaintiffs’ claim that the products are not as harmful as cigarettes, the court upheld the restriction as a reasonable limit on freedom of expression aimed at a legitimate public health concern.
In Alberta March for Life Association v Edmonton (City), a judgment from Alberta’s Court of Queen’s Bench in October 2021, the judge supported the City of Edmonton’s decision to deny the Alberta March for Life Association’s application to light the High Level Bridge pink, blue and white in time for its annual anti-abortion march. The city said the proposal violated its policy of denying proposals to light up this public space that are polarizing or political in nature. The judge held that its decision did not infringe freedom of expression, in part because the bridge installation is not a public location attracting the protection of section 2(b) and the denial did not interfere with that right. It also found that the city did not have an obligation to light the bridge to express the Association’s message.
As the Supreme Court reiterated in Ward, free speech is important because it promotes individual self‑development as well as a vibrant democracy. That said, limits on expression may be justified where there are serious reasons to fear that certain forms of it can harm vulnerable groups.
The cases summarized here demonstrate how questions about where to draw these limits continue to be raised and debated in Canada’s courts.
Canadian Civil Liberties Association. “Protecting Freedom of Expression.”
Canadian Constitution Foundation v. Canada (Attorney General), 2021 ONSC 1224 (CanLII).
Brosseau, Laurence, and Alexandra Smith. “Challenges Regarding Freedom of Expression and Access to Information During a Pandemic: International and Domestic Perspectives.” HillNotes, Library of Parliament, 27 April 2020.
Fine, Sean. “Federal government facing lawsuits over Emergencies Act.” The Globe and Mail, 23 February 2022.
Geist, Michael. “The Freedom of Expression Wake Up Call: Why the CRTC’s Radio-Canada Ruling Eviscerates the Defence of Bill C-11.” MichaelGeist.ca, 5 July 2022.
Government of Canada. “Freedom of expression and media freedom.”
Government of Canada. “Section 2(b) – Freedom of expression.” Charterpedia.
R. c. Têtu, 2022 QCCQ 5582 (CanLII) [in French].
Toronto Metropolitan University. Freedom of Expression & Its Limits. Centre for Free Expression.
Walker, Julian. “Freedom of Expression – A Continuing Debate.” HillNotes, Library of Parliament, 15 April 2020.
Walker, Julian. Hate Speech and Freedom of Expression: Legal Boundaries in Canada. Background paper, Library of Parliament, 29 June 2018.
Working Families Coalition (Canada) Inc. v. Ontario, 2021 ONSC 7697 (CanLII).
By Julian Walker, Library of Parliament
Categories: Law, justice and rights