Jonah Patel
Freedom of speech is a highly debated topic in Canada, with the Canadian Charter of Rights and Freedoms, adopted in 1982, guaranteeing the rights and freedoms necessary in a free and democratic society. While the Charter is part of the Constitution, the rights and freedoms it outlines are not absolute and can be limited to protect other rights and national values. Section 2(b) of the Charter establishes the right to freedom of expression, which has been broadly interpreted by the Supreme Court of Canada. This right, however, does not include access to information or violent acts. The Charter also permits the government to enforce reasonable limits on speech, with hate speech, obscenity, and defamation being common categories of restricted speech. The emergence of the internet has also presented new challenges and opportunities for state censorship.
| Characteristics | Values |
|---|---|
| Freedom of expression | Protected as a "fundamental freedom" by Section 2 of the Canadian Charter of Rights and Freedoms |
| Includes freedom of speech and the press | |
| Does not include access to all documents in government hands | |
| Does not include access to information | |
| Does not include acts that have a violent form | |
| Permits the government to enforce "reasonable" limits censoring speech | |
| Hate speech, obscenity, and defamation are common categories of restricted speech | |
| Defamatory libel is a criminal offense under the Criminal Code | |
| The right to free expression must be subjected to careful scrutiny | |
| The degree of constitutional protection may vary depending on the nature of the expression | |
| The right to free expression is a public right rather than a private one | |
| The right to free expression includes democratic discourse, truth finding, and self-fulfillment |
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What You'll Learn
Freedom of expression as a fundamental freedom
Freedom of expression is protected as a "fundamental freedom" by section 2 of the Canadian Charter of Rights and Freedoms, which is part of the Canadian Constitution. The Charter guarantees rights such as equality, democracy, and mobility, as well as freedoms of conscience, religion, and peaceful assembly.
Section 2(b) of the Charter establishes the right to freedom of expression, and the Supreme Court of Canada has interpreted this right very broadly. The Court has stated that any act intended to convey a message is protected under section 2(a), excluding acts with violent form. However, this freedom is not without limitations. Section 1 of the Charter stipulates that these rights are subject to "'reasonable limits' prescribed by law and justifiable in a free and democratic society. This means that the government can enforce restrictions on speech, including hate speech, obscenity, and defamation.
The interpretation and application of freedom of expression in Canada have evolved with the emergence of new media, particularly the internet. Cases such as R v Elliott, involving online discourse on Twitter, have tested the boundaries of free speech in the digital realm. Additionally, the law encourages the media to exercise caution to avoid libel and respect individuals' freedom of expression. Defamatory libel, defined as content that injures a person's reputation or exposes them to hatred, contempt, or ridicule, is a criminal offence.
The Canadian Charter of Rights and Freedoms has been a driving force for change and progress, aligning Canadian laws with the values of Canadian society. It reinforces the rights of official language minorities and has led to the recognition and enforcement of the rights of minority and disadvantaged groups. The Charter also ensures that the rights and freedoms it outlines are not exhaustive, and Parliament and legislatures can create additional rights beyond those explicitly mentioned.
In conclusion, freedom of expression is a fundamental freedom in Canada, enshrined in the Canadian Charter of Rights and Freedoms, which is a part of the Canadian Constitution. While Canadians enjoy broad rights to free expression, these rights are balanced with reasonable limitations to protect other important societal values, such as laws against hate propaganda and child pornography. The interpretation and application of freedom of expression continue to evolve with the changing media landscape and societal values.
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Censorship and the internet
While freedom of expression in Canada is protected as a "fundamental freedom" by section 2 of the Canadian Charter of Rights and Freedoms, the Charter also permits the government to enforce "reasonable" limits on speech. Hate speech, obscenity, and defamation are common categories of restricted speech in Canada.
Censorship on the internet in Canada has been observed in several instances. Firstly, in 2015, the province of Quebec proposed legislation to block unlicensed online gambling websites, which was criticised for the potential precedent it could set as the first internet censorship law passed by a Canadian government. This proposal resulted in the passing of Bill 74 in May 2016, which was challenged in court.
Another notable example is the censorship of news content in Canada, enforced by tech giants like Meta and Google. This has resulted in a significant decrease in engagement for news outlets, particularly local ones, and has been criticised as an attempt by the government to "control the news Canadians see."
Additionally, in 2007, the Canadian government's collaboration with the American National Security Agency (NSA) and other agencies to "master the internet" raised concerns about the securitisation of the internet and potential state censorship.
Canadians have also experienced internet censorship due to widespread outages affecting wireless service and the internet. For instance, an outage with Rogers in July 2022 left over 9 million Canadians without access.
To bypass internet censorship and restrictions in Canada, many individuals turn to Virtual Private Networks (VPNs). VPNs provide online privacy and allow users to access geo-restricted content anonymously. However, it is important to choose a VPN with strong encryption protocols and a no-logs policy to ensure data privacy and security.
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Hate speech and obscenity
Freedom of expression in Canada is protected as a "fundamental freedom" by section 2 of the Canadian Charter of Rights and Freedoms. However, the Charter also permits the government to enforce "reasonable" limits on censoring speech. Hate speech, obscenity, and defamation are common categories of restricted speech in Canada.
The Canadian Charter of Rights and Freedoms, adopted in 1982, guarantees rights and freedoms subject to reasonable limits prescribed by law. The freedoms include those of conscience, religion, and peaceful assembly. The Charter guarantees equal rights to males and females and must be interpreted in a way that preserves and enhances the multicultural heritage of Canadians.
Hate speech laws in Canada include provisions in the federal Criminal Code, as well as statutory provisions relating to hate publications in three provinces and one territory. The Criminal Code creates criminal offences concerning different aspects of hate propaganda, although it does not define the term "hatred". These offences are decided in criminal courts and carry penal sanctions such as fines, probation orders, and imprisonment. Alberta, British Columbia, Saskatchewan, and the Northwest Territories have created civil sanctions for hate speech and hate publications in their human rights legislation.
In 1990, Justice Antonio Lamer of the Supreme Court of Canada described offences that address forms of speech or expression as falling under the following categories: offences against the public order, offences related to falsehood, offences against the person and reputation, offences against the administration of law and justice, and offences related to public morals and disorderly conduct.
In 2017, James Sears and LeRoy St. Germaine, the editor and publisher of a newsletter promoting rape legalization and Holocaust denial, were charged with the willful promotion of hatred against women and Jews. This was the first case in which a court found that women were the target of hate speech.
Historically, laws that restrict speech have often been used to silence vulnerable and marginalized groups. The emergence of the internet has also opened up a new avenue for state censorship, with the Canadian government working with agencies like the NSA to "master the internet".
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Freedom of the press
Freedom of speech in Canada is protected as a "fundamental freedom" by section 2 of the Canadian Charter of Rights and Freedoms. This includes freedom of the press, which is also included in the Charter and is therefore constitutionally 'entrenched'. This means that all provincial or federal laws and government actions must respect this freedom.
The Canadian Charter of Rights and Freedoms was adopted in 1982 and guarantees rights and freedoms subject to 'reasonable limits' prescribed by law. The Charter applies to the Parliament and Canadian government, as well as provincial legislatures and governments. Section 2(b) of the Charter establishes the right to freedom of expression, and the Supreme Court of Canada has interpreted this right very broadly. The Court has stated that any act intended to convey a message is protected under section 2(a), excluding acts with a violent form.
Despite these protections, there have been instances where journalists have faced threats to their freedom of expression. In 2022, reporters covering the Freedom Convoy protesting vaccine mandates received death threats and were subjected to verbal and physical harassment. In other cases, journalists have been arrested while covering protests, particularly those concerning indigenous rights and land usage.
The media also faces challenges in maintaining its independence and ability to publish freely. More than 80% of Canadian media is owned by just five corporations, and the government has participated in the securitization of the internet, which may impact the freedom of the press.
Canada has demonstrated a legal commitment to freedom of the press, including through "shield laws" that protect journalists and their sources. The courts have played a role in upholding this freedom, with the Supreme Court recognising that one Charter right cannot override another—for example, the right to a fair trial does not supersede freedom of the press.
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Equality and minority language rights
The Canadian Charter of Rights and Freedoms, which came into effect in 1982, guarantees the rights and freedoms set out in it, subject to reasonable limits prescribed by law. The charter guarantees rights such as equality, democracy, and mobility. The freedoms include those of conscience, religion, and peaceful assembly. The charter also allows for certain laws or programs that aim to improve the conditions of disadvantaged individuals or groups. For example, programs aimed at improving employment opportunities for women, Indigenous peoples, visible minorities, or those with mental or physical disabilities are allowed under subsection 15(2).
The Charter guarantees rights equally to males and females and must be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians. It does not, however, declare any language as the official language of Canada. English and French are the official languages of Canada and have equal status and equal rights and privileges as to their use in all institutions of the Parliament and Government of Canada. Canadians can use English or French when dealing with the Government of Canada.
The Charter has reinforced the rights of official language minorities. For example, Section 23 of the Charter requires provincial and territorial governments to provide education to Canadians in the official language of their choice, even in areas where a minority of residents speaks that language. This applies to Canadian citizens living in a province where their first language (either French or English) is the minority language. They have the right to have their children educated in that language. This also applies to residents of New Brunswick, who have the right to use English or French when dealing with their provincial government.
In the context of equality and minority language rights, there are internal conflicts in Canadian law between the Charter's equality and minority rights provisions. Equality and non-discrimination, as well as the granting of special rights to minorities, can lead to antagonism or contradiction. The courts must arbitrate these conflicts and interpret the Charter's provisions.
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Frequently asked questions
Yes, freedom of speech is protected as a "fundamental freedom" by section 2 of the Canadian Charter of Rights and Freedoms, which is a part of the Canadian Constitution.
The Canadian Constitution guarantees the right to freedom of speech and the press, peaceful assembly, travel, due process, privacy, an attorney, and a speedy trial in criminal cases. It also establishes that reasonable limits can be placed on the right to freedom of speech if those limits are prescribed by law and can be demonstrably justified in a free and democratic society.
Hate speech, obscenity, defamation, and child pornography are some categories of restricted speech in Canada. The law also encourages the media to publish with caution and to respect a person's freedom of expression by avoiding libel, which is a criminal offence under the Criminal Code.
