Dear Sir or Madam,
In our last post we introduced the Canadian Charter of Rights and Freedoms, which, along with the BNA Act, makes up the bulk of our written constitution. Though implied constitutional rights existed before the Charter, it explicitly set out for the first time Canada’s guaranteed constitutional rights and freedoms. This was a major shift from the BNA Act’s approach, which was silent on individual rights.
Each day this week we’ll look at some individual rights and freedoms. Today, we begin the freedom that Chief Justice McLachlin described as “the indispensable condition of nearly every other freedom”, section 2(b), the freedom of thought, belief, opinion, and expression, including freedom of the press and other media of communication (such as online social media).
Courts have consistently characterized freedom of expression as essential in a free and democratic society. The provision is also worded broadly to protect any activity intended to convey meaning. Anything from a political satire to parking your car in a particular spot can be an activity that conveys meaning and is protected under s. 2(b).
Where did this freedom come from you ask? In 1938 the Supreme Court of Canada established that “the right of public discussion… existed at the time of the enactment of The British North America Act.” Even before the charter guaranteed freedom of expression, the BNA Act’s declaration that it was a Constitution similar in principle to that of the United Kingdom implicitly protected freedom of expression.
Freedom of expression is not usually controversial in and of itself and individuals rarely need protection when their views are widely held in society. It is when expression becomes a nuisance in the street or radically offensive to others that citizens pressure governments to stifle unpopular perspectives. The question then becomes, what expression can the state reasonably limit under s. 1?
The Supreme Court has determined that violent expression and threats of violence are not protected under s. 2 (b). The line becomes harder to draw when free expression may put other fundamental values at risk. Certain expressions may incite violence, undermine fundamental governmental institutions, or undercut racial and social harmony. While Canada does not protect certain forms of hate speech, other countries like the United States have taken a different approach.
In R v Keegstra, the Supreme Court grappled with the limits of protecting hate speech. James Keegstra was a high school teacher in Alberta who expressed hateful anti-Semitic comments in his classroom. During classes, he describes Jews as "sadistic", "money-loving" "child killers" who had "created the Holocaust to gain sympathy." He was prosecuted under s. 319(2) of the Criminal Code of Canada, which prohibits publicly and willfully promoting hatred.
The Supreme Court of Canada determined that even though the legislation infringed Mr. Keegstra’s freedom of expression, it was a reasonable and justifiable limitation in a free and democratic society in order to protect target groups from hate propaganda.
In contrast the United States has traditionally protected hate speech beyond Canada’s reasonable limit.
In a recent US case, Snyder v. Phelps, the United States supreme court upheld hate speech protection for members of the Westboro Baptist Church. Members of the church regularly picketed military funerals to communicate its belief that God hates the United States for tolerating homosexuality, particularly in America’s military. In this case, they picketed the funeral of Marine Lance Corporal Matthew Snyder, who was killed in Iraq in the line of duty.
Ultimately the court concluded “Because this Nation has chosen to protect even hurtful speech on public issues to ensure that public debate is not stifled, Westboro must be shielded from tort liability for its picketing in this case.”
What are your thoughts on Canada’s limitation of expression compared with that of the US? Leave us a comment below!
 Kent Roach & David Schneiderman, “Freedom of Expression in Canada” (2013) 61 SCLR (2d) 429 at 431-32.
 Ibid at 431.
 R v Sharpe,  1 SCR 45, 194 DLR (4th) 1 at para 23.
 Edmonton Journal v Alberta (Attorney General),  2 SCR 1326 at 1336.
 Reference Re Alberta Statutes - The Bank Taxation Act; The Credit of Alberta Regulation Act; and the Accurate News and Information Act,  SCR 100.
 R v Khawaja, 2012 SCC 69,  3 SCR 555.
  3 SCR 697,  2 WWR 1.
 562 US 443 (2011), 131 S Ct 1207.