Freedom of expression 101
Section 2(b) of the Charter of Rights and Freedoms protects “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.” A primer on how the courts have interpreted these rights and what they mean for journalists.
Freedom of expression in Canada
Free speech and freedom of the press have long been recognized as cornerstones of Canada’s democratic system of government. In 1938 Chief Justice Lyman Duff of the Supreme Court of Canada declared the “right of free public discussion of public affairs” to be “the breath of life for parliamentary institutions.”
While a Bill of Rights introduced in 1960 guaranteed freedom of speech and freedom of the press, these fundamental rights were not enshrined in the constitution until 1982, as part of the Charter of Rights and Freedoms. Section 2(b) of the Charter protects “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.” Any law restricting any form of communication or expression must address an issue of public importance and must be consistent with our democratic system of government.
Supreme Court of Canada rulings have shaped and defined this freedom to criticize, debate and communicate. The court has echoed earlier pronouncements that free speech is vital to Canadian democracy. “Indeed,” Justice Peter Cory wrote in a 1989 judgment, “a democracy cannot exist without that freedom to express new ideas and to put forward opinions about the functioning of public institutions” (Edmonton Journal v. Alberta (Attorney General),  2 S.C.R. 1326).
The impact of the Dagenais ruling
Media organizations have used their Charter rights to improve access to the justice system. While most proceedings in Canada’s courts are open to public scrutiny, judges have the power to hold private hearings or to impose publication bans on certain evidence to protect a victim’s privacy or a suspect’s right to a fair trial. In 1994 the Supreme Court, in the case of Dagenais v. Canadian Broadcasting Corporation,  3 S.C.R. 835, ruled that publication bans (with the exception of those set out in the Criminal Code and other statutes) should not be imposed without a thorough assessment of the media’s right to report on what happens in the courtroom.
Bans should be imposed to prevent “a real and substantial risk to the fairness of the trial,” and only when the benefits of restricting media coverage outweigh the damage to free expression and the public’s right to know. If a ban is imposed, it must be limited in scope and duration – it must withhold as little information as possible for as short a time as needed to protect competing rights, such as the right to a fair trial.
The Dagenais precedent has made the justice system more open and accountable. Later Supreme Court rulings have applied this balancing-of-rights approach to bids to hold court hearings in private (Canadian Broadcasting Corp. v. New Brunswick (Attorney General),  3 S.C.R. 480) and to applications to sealing confidential information filed in a court case (Sierra Club of Canada v. Canada (Minister of Finance),  2 S.C.R. 522). In the past, judges routinely imposed publication bans, closed courtrooms and sealed documents without media input and with little thought to the impact on freedom of expression.
In 2001 the Supreme Court ruled that judges must strike a balance between freedom of the press and competing rights even when the media does not oppose a publication ban or other access restriction (R. v. Mentuck,  3 S.C.R. 442, 2001 SCC 76; R. v. O.N.E.,  3 S.C.R. 478, 2001 SCC 77).
Revisiting the free press/fair trial issue in 2005, the Supreme Court declared that the Dagenais test, as refined since 1994, “applies to all discretionary court orders that limit freedom of expression and freedom of the press in relation to legal proceedings.” In the words of Justice Morris J. Fish, “any other conclusion appears to me inconsistent with an unbroken line of authority in this Court over the past two decades. And it would tend to undermine the open court principle inextricably incorporated into the core values of s. 2(b) of the Charter” (Toronto Star Newspapers Ltd. v. Ontario,  2005 SCC 41)
The Charter and other forms of expression
The Supreme Court has passed judgment on other forms of expression. While most forms of pornography have been granted Charter protection, the court has drawn the line at depictions of violent sex, degrading or dehumanizing treatment, and the sexual exploitation of children (R. v. Butler,  1 S.C.R. 452). Possessing child pornography remains a crime, but the court has made an exception for written or visual material created for personal use (R. v. Sharpe,  1 S.C.R. 45).
The Criminal Code makes it an offence to promote hatred against an identifiable group (Criminal Code, s. 319(3) (a)), and the Supreme Court has found this is a reasonable limit on freedom of expression (R. v. Keegstra,  3 S.C.R. 697). A section of the Code that made it an offence to publish a false “statement, tale or news” likely to cause damage or mischief to a public interest (Criminal Code, s. 181), however, was struck down in 1992 as an unreasonable limit on free speech (R. v. Zundel,  2 S.C.R. 731).
The court has also used the Charter right to freedom of expression to protect commercial advertising (Irwin Toy Ltd. v. Quebec (Attorney General) [1989} 1 S.C.R. 927) and the right of strikers to set up picket lines (U.F.C.W. Local 1518 v. K-Mart Canada Ltd. et al.,  2 S.C.R. 1083; U.F.C.W. Local 1288P v. Allsco Building Products Ltd. et al.,  2 S.C.R. 1136).
– Compiled by Dean Jobb. Updated December 2006.