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Blog May 26, 2022

Freedom of Expression and the Charter: 1982-2022 (Part 2 of 5)

Part 2 of a 5 Part Series:

A quantitative and qualitative inventory of s.2(b) of the Charter: 1982-2022 

Freedom of expression under the Charter

Day in and out, the news attests that freedom of expression is as precarious as ever, in Canada and around the world – imploring us at all times to remain vigilant and not take freedom for granted. 

Except when commissioned to play a part in this narrative, the Supreme Court of Canada is a bystander to most free speech controversies that bubble up in public discourse. That said, the Court plays a pivotal role in conditioning our conception of this vital freedom. Since 1982, the Supreme Court has been instrumental in determining when freedom of expression is protected under s.2(b) of the Charter, and when infringements are permitted under s.1’s reasonable limits clause. In this way, the s.2(b) jurisprudence forms the bedrock of what expressive freedom means to Canadians today.

2022 is a signpost year that marks the Charter’s 40th anniversary. As explained in Part 1 “Section 2(b) Solitudes”, this blogpost series traces s.2(b)’s evolution from 1982 to the present. The second segment provides an inventory of the  jurisprudence, placing the numbers on lead, and to flavour the discussion, concludes with two lists of notable decisions for and against s.2(b)’s guarantee of expressive freedom. 

This mix of quantitative and qualitative analysis sets the stage for the blogposts that follow. The next and third in the series introduces s.2(b)’s foundational landmarks and explores the rise and hegemony of the “contextual approach”, a methodology that serves more to justify limits than to protect expressive freedom – as demonstrated by decisions on hate propaganda, human rights legislation, the Criminal Code, and other restrictions on expressive content. The fourth considers the open court principle and status of the press and media under s.2(b) of the Charter. The final segment introduces the concept of Charter values and examines the Court’s resistance to “positive” rights under s.2(b), before concluding with some reflections.

Expressive freedom’s numbers

It is difficult to call up the mood of the early years after 1982, when the Court’s first impressions of the Charter were eagerly awaited. How the Court would respond and what path the Charter would take were unknown. In the beginning, the Court dispelled some of the suspense by acting on its mandate of judicial review and invigorating the Charter. Some guarantees, including s.2(b), counted important victories in the 1980s, and in 1986 R. v. Oakes set an exacting standard for Charter violations to meet under s.1’s concept of reasonable limits. At the time, Oakes’s all-purpose test re-inforced the view that the Charter could and would transform Canada’s legal culture. To this day the Oakes test remains the mainstay of the s.1 analysis.

As for tabulating s.2(b)’s successes and failures, Mark Twain once quipped that “[d]ata is like garbage” and warned that “[y]ou’d better know what you are going to do with it before you collect it”. Forty years on, an inventory of the jurisprudence is not just a set of numbers, but a framework for the narrative arc of s.2(b)’s evolution and a window on the stories that make data meaningful.  

The work begins by acknowledging that a quantitative inventory has qualitative properties. For instance, an unabridged count of wins and losses can inflate or deflate perceptions of expressive freedom’s relative success or failure. And, while each decision counts, some play a formative role in s.2(b)’s story and others are not especially significant. As well, the presence or absence of dissenting and concurring opinions inflects the impression that arises from raw data. 

The process of counting also affects s.2(b)’s presentation because there are companion cases, decisions with no more than tangential discussion of s.2(b), and instances when the claim fails and succeeds at the same time. Accepting that others might count up a little differently, adding or subtracting at the margins, the numbers in this blogpost are generally reliable. 

According to my inventory, the Supreme Court rendered 85 decisions under s.2(b) from 1982 to the present. Though slow to start, the momentum picked up and the pace of decision making was relatively even, as the distribution of decisions across time reveals.  

                                    #decisions                   win/loss                       success rate

1982-89                       10                                  3 W     7 L                 30%

1990-99                       26                                11 W   15 L                 42%

2000-09                       25                                11 W   13 L                 44%

2010-22                       24                                  9 W   14 L                 37%

 

Total                            85                                34 W   49 L                 40%

While the first period generated about 12% of total claims, at roughly 29% each, the output in the next three was relatively even. Overall, the claim succeeded in 34 cases and failed in 49, for a tally of about 40% wins and 56% losses. Twice, or in roughly 2% of cases, the result was mixed or indeterminate. While noted, fluctuations in the success rate can be attributed to a number of factors and are not especially significant. 

Section 2(b)’s expressive freedom  issues

The s.2(b) jurisprudence handily outstrips the output of its fellow travellers under s.2 – freedom of conscience and religion (s.2(a)), freedom of peaceful assembly (s.2(c)), and freedom of association (s.2(d)). A fundamental freedoms behemoth, s.2(b)’s guarantee of expressive freedom has generated myriad challenges to statutory provisions, engaged common law and administrative decision making, and addressed a rich assortment of issues that includes the open court principle, freedom of the press and media, all manner of expressive content, access to government property for expressive purposes, and positive rights. Regardless the issue, the jurisprudence is organized around the Charter’s textual structure of breach (s.2(b) and justification (s.1). 

Defining freedom of expression and setting a standard for its violation was a critical step at the Charter’s outset, and s.2(b) is notable for its relatively low threshold of breach. In 1989, Irwin Toy v. Quebec proposed a broad and almost unlimited scope of entitlement that required  most infringements to be justified under s.1. 

On the initial question of breach the inventory qualifies a widespread impression that establishing a violation of s.2(b) is an easy matter. In 21 instances, or almost 25% of its decisions, the Court found no infringement of the guarantee. If it was weak in some instances, the claim raised key questions in others, such as search warrants and production orders against the press and media, positive rights, freedom from compelled expression, and Irwin Toy’s exception for “violent forms of expression”.[1]

Not only that, s.2(b) has not always fared well under s.1. The invalidation of statutory provisions and rules provides one metric of the Charter’s impact on expressive freedom. In 43 decisions, the Court struck statutory provisions, bylaws, and other forms of regulation 15 times and upheld them 28 times, for a success/fail rate of about 31 to 69%. After invalidating provisions 12 times between 1986 and 2000, the Court has only done so three times since then, and only twice in decisions of significance.[2] As well, the jurisprudence employs doctrinal techniques to read provisions down or avoid striking them down through a “saving” interpretation.[3]

Notable anomalies also emerge, the most troubling of which is the Court’s reluctance to protect s.2(b)’s rights of democratic participation. Despite consistently proclaiming that expression related to democratic self government is s.2(b)’s primal value, the jurisprudence failed at critical moments to protect the entitlement. Just 3 claims have succeeded, and in 9 others the Court rejected  s.2(b)’s democratic rights in an electoral setting.[4] The Court’s resistance to these core entitlements seriously undermines s.2(b) and its role in preserving the integrity of the democratic process.

The Court has never ruled in favour of a “positive” right under s.2(b), and three of its decisions on democratic participation concerned positive rights.[5] Most recently City of Toronto v. Ontario expanded the definition of positive rights and added doctrinal barriers to narrow the scope of s.2(b) and exclude these claims from the guarantee. Meanwhile, a generous conception of political expression that includes investigative journalism and access to political processes accentuates the Court’s failure to protect s.2(b)’s core commitments.[6]

Elsewhere the Court’s reticence has been less marked. Despite asserting that limits are easier to justify, it issued four landmark decisions on commercial advertising in the early years.[7] And, after two initial losses, labour-related claims have been a favourite of the Court, which has singled this expressive content out for praise and granted it privileged protection under s.2(b).[8]

The Criminal Code is another s.2(b) bellwether. While the Court invalidated non-penal statutory and other regulatory measures 14 times – in 12 instances before 2000 – Criminal Code provisions were challenged ten times and the claim only succeeded once, in R. v. Zundel.[9]           

Nor has s.2(b)’s broad conception of entitlement done much to protect expressive content  under s.1, where the Court relaxed the standard of justification to ensure that limits would be upheld.  As numerous examples attest – i.e., the Code, human rights legislation, defamation, the legal profession, immigration, customs, and anti-terror legislation – the Court has a poor record of protecting s.2(b) where content restrictions are at issue. Though trends are difficult to predict, the tide that ran strongly in that direction may have turned back, to some extent, in Ward v. Quebec, which dismissed a human rights claim arising from a stand-up comedian’s routine that targeted a disabled youth.

Meanwhile, s.2(b)’s course under the common law has its own narrative: initially slow to act, the Court modified the common law to comply with the Charter 7 times between 2000 and 2017, in large part because of corrections to the law of defamation.[10] Elsewhere, the Court’s review of discretionary decision making has been mixed, both before and after its “Charter values” decision in Doré v. Barreau du Quebec.

At 18 decisions, the open court principle accounts for just over 20% of the Court’s s.2(b) docket in the first 40 years. This principle is concerned with publication bans and restrictions on access to proceedings, and on these issues, s.2(b) posts winning numbers, with 11 wins against 8 losses.[11] The pattern began with the pre-Charter decision in Nova Scotia v. Macintyre, gathered momentum with the Court’s landmark in Dagenais v. CBC, and reached its apex in Re: Vancouver Sun, which ordered the proceedings open when a secret investigative hearing was held under Parliament’s post 9/11 anti-terror legislation. Though the success rate tapered in recent years, the s.2(b) jurisprudence embeds exemplary protection for freedom from publication bans and limits on access to court proceedings. Outside this context, the Court’s attention to the issue of prior restraint has been negligible.

Though freedom of the press and media are “included” in the text of s.2(b), the Court has been reluctant to squarely acknowledge that freedom of the press and media is a free-standing Charter entitlement. Albeit with some exceptions, this resistance is found in decisions on newsgathering activities and confidential journalist-source relationships.[12] At different times, Justices McLachlin and Abella forcefully maintained that press and media rights should receive independent Charter protection; in 2017 Parliament took steps to address the deficits in this jurisprudence by enacting the Journalistic Sources Protection Act.[13]

Expressive freedom, s.2(b), and the judges

Dissenting and concurring opinions also serve as bellwethers, among other things, of styles of decision making, collegial relations within the Court, and the conceptual preferences of its judges. The nature and incidence of dissents and concurrences on s.2(b) issues in the first 40 years pose rich and important questions. In rough quantitative terms, there have been more than 20 dissenting and concurring opinions in significant s.2(b) decisions. The Court has also been unanimous in at least twelve decisions. In some instances, such as the Bill 101 cases, Libman v. Quebec, and Grant v. Torstar, the Court was protective of expressive freedom. In others, such as R. v. ButlerR. v. Sharpe , Doré v. Barreau du QuebecSaskatchewan (Human Rights Commission) v. Whatcott, and R. v. Khawaja, the Court rejected the s.2(b) claim.[14]

Four chief justices have presided during the Charter’s first forty years: Dickson (1984-90); Lamer (1990-2000); McLachlin (2000-17); and Wagner (2018-present). Over this period, s.2(b) has never had a steadfast champion on the Court. 

Though Justice Dickson’s pre-Charter opinion in Macintyre brilliantly framed and anticipated the open court principle, he otherwise wrote against expressive freedom in another pre-Charter case, and in 4 early decisions under s.2(b).[15] On this record, it would be difficult to consider him an advocate of expressive freedom. His successor, Chief Justice Lamer, wrote the Court’s landmark opinion in Dagenais v. CBC, but otherwise did not distinguish himself on s.2(b) issues.[16] More recently, Chief Justice Wagner has written three times since taking office in 2018, including joint majority opinions in City of Toronto v. Ontario and Ward v. Quebec.[17]  

Justices McLachlin and Abella have played leading roles and written more frequently on s.2(b) than any other members of the Court. Justice McLachlin’s 20 opinions on s.2(b) issues championed expressive freedom during her early years on the Court, though not as much when she became Chief Justice.[18] With 16 opinions on s.2(b), Justice Abella is a close second. Her jurisprudence reveals a striking duality: though no other member of the Court has done more to defend the guarantee’s democratic values – i.e., democratic participation, democratic accountability, truth-seeking, the rights of the press and media, and transparency – she withdraws her support for expressive freedom that targets or impinges on vulnerable individuals and groups. In capturing that duality, her final two s.2(b) decisions in City of Toronto v. Ontario and Ward v. Quebec define Abella J.’s conception of expressive freedom.

The late Justice Cory supported expressive freedom in two open court decisions, as well as on labour expression, but wrote majority opinions in two of the Court’s most disappointing decisions – Hill v. Church of Scientology and R. v. Lucas – on civil defamation and defamatory libel.[19]  His reliance on the contextual approach placed Canada years behind common law countries in modernizing the law of defamation, and further entrenched a methodology that was counterproductive to s.2(b)’s goal of protecting expressive freedom. Meanwhile, Justice Bastarache’s majority opinions on electoral expression are paradoxical: after invalidating the 72-hour opinion poll blackout in Thomson Newspapers v. Canada, he upheld third party spending limits, absent evidence of harm, in Harper v. Canada.

Though Justice Iacobucci’s name does not usually feature in discussions of s.2(b),  he wrote important decisions on publication bans in the open court context, and a signature dissent on prior restraint in Little Sisters.[20] Outside the open court setting, he is the only member of the Court who has taken on that issue.

This discussion leads to the list of the Court’s notable s.2(b) decisions for and against s.2(b).

Top ten decisions for and against expressive freedom

Set out below are the lists of what in my opinion is notable in the s.2(b) jurisprudence,  on the pro and con sides of the ledger. To some degree, these lists bypass important decisions and obvious choices in favour of unlikely selections. Alternative lists are readily imaginable, and I agree that debating the lists would be a worthwhile discussion. In brief explanation, the outcome – and even the impact of decisions – was less important than the central principles at stake and the Court’s conception of expressive freedom.  

There are a mix of majority and dissenting opinions, and some members of the Court appear on both sides of the ledger. While some decisions are mentioned in this blogpost, others are not; likewise, some decisions will be discussed in the blogposts that follow, and others will not. The only non-Charter decision included, because of its importance to the evolution of the open court principle, is Macintyre. The lists are chronological and are not arranged in any hierarchical or rank order. The key is majority opinion (MO); dissent (D); and concurrence (C).

While the first list identifies decisions that marked moments of commitment to expressive freedom and courage in defending s.2(b), the second demonstrates how s.2(b)’s guarantee of expressive freedom was set aside in favour of assumptions about the entitlement, including the perceived value or harm of expressive content. 

For s.2(b) and expressive freedom: 

  1. Nova Scotia v. Macintyre (Dickson MO, 1982)
  2. The Search Warrant Cases (McLachlin D, 1991) 
  3. Dagenais v. C.B.C. (Lamer MO, 1994)
  4. C.B.C. v. New Brunswick (LaForest MO, 1996)
  5. Thomson Newspapers v. Canada (Bastarache MO, 1998) 
  6. Little Sisters Book & Emporium v. Canada (Iacobucci D, 2000)
  7. Re Vancouver Sun (Iacobucci & Arbour MO, 2004)
  8. R. v. Vice Media (Abella C, 2018)
  9. City of Toronto v. Ontario (Abella D, 2021)
  10. Three dissents: Slaight Communications v. Davidson (Beetz, 1989); City of Montreal v. 2952-1366 Quebec Inc. (Binnie, 2005); and Baier v. Alberta (Fish, 2007)

Against s.2(b)’s guarantee of expressive freedom:

  1. Slaight Communications v. Davidson (Dickson MO,1989); Lavigne v. OPSEU)(Wilson and McLachlin C, 1991)  
  2. The Search Warrant cases (above) (Cory MO,1991)
  3. Hill v. Church of Scientology of Canada R. v. Lucas (Cory MO, 1995 and 1998)
  4. Harper v. Canada (Bastarache MO, 2004)
  5. Baier v. Alberta (Rothstein MO, 2007)
  6. R. v. National Post (Binnie MO, 2010)
  7. R. v. Khawaja (McLachlin MO, 2012)
  8. Doré v. Barreau du Québec (Abella MO, 2012)
  9. Law Society of  B.C. v. TWU (MO, 2018)
  10. City of Toronto v. Ontario (Wagner and Brown MO, 2021)

As acknowledged, this inventory simply provides a backdrop to and impression of s.2(b)’s evolution. As such, this data bank now invites a deeper look at key elements of the jurisprudence. The next blogpost turns its attention to Irwin Toy’s analytical framework for s.2(b) and the role of the contextual approach under s.1. These concepts set the foundation for s.2(b), and especially the jurisprudence on expressive content and its status under the Charter.

Note:

Jamie Cameron, Professor Emerita, Osgoode Hall Law School, York University, Toronto. I thank Jim Turk and Dick Moon for reading a draft of this blogpost; any errors are my own.

Part 1 in the series, Section 2(b) solitudes: City of Toronto v. Ontario and Ward v. Quebec, was published on February 10, 2022.


[1] Weak claims include Mackay v. Manitoba (1989), Moysa v. Alberta (Labour Relations Board) (1989), Walker v. Prince Edward Island (1995), Siemens v. Manitoba (2003), and UL Canada v. Quebec (2005). Other claims rejected include CBC v New Brunswick and CBC v. Lessard (1991, the “Search Warrant decisions”), R. v. National Post (2010), and R. v. Vice Media (2018)(forms of search against the press), Haig v. Canada (1993), NWAC v. CanadaI (1994), Baier v. Alberta (2007), and City of Toronto v. Ontario (2021) (positive rights in the political process), Slaight Communications v. Davidson (1989) and Lavigne v. OPSEU (1991) (compelled expression), and Suresh v. Canada (Min. of Citizenship & Immigration) (2002) and R. v. Khawaja (2012)(the “violent forms” exception to s.2(b)’s scope of protection).

[2] Greater Vancouver Transportation Authority v. Canadian Federation of Students (2009), and Alberta (Information and Privacy Commissioner v. UFCW, Local 401 (2013); the less significant decision is R. v. Guignard. (2002).

[3] See R v. Sharpe (2001), Little Sisters Book & Art Emporium v. Canada (2000), City of Montreal v. 2952-1366 Quebec Inc. (2005), and BC Freedom of Information and Privacy Ass’n v. BC (2017). In Sharpe the Court upheld the Criminal Code’s child pornography provisions but placed narrowed their application to mitigate the impact on expressive freedom.

[4] The wins are Osborne v. Canada (1991), Libman v. Quebec (1997), and Thomson Newspapers v. Canada (1998); the losses are Mackay v. Manitoba (1989), Haig v. Canada (1993), Harper v. Canada (2000), Siemens v. Canada (2003), Harper v. Canada (2004), R. v. Bryan (2007), Baier v. Alberta (2007), BC Freedom of Information and Privacy Ass’n v. BC (2017), and City of Toronto v. Ontario(2021). 

[5] Haig v. Canada (1994), Baier v. Alberta (2007), and City of Toronto (2021). Claims of access to government property for expressive purposes, which are a form of affirmative entitlement, are protected by s.2(b).

[6] See, e.g., Native Women’s Association of Canada v. Canada (1994), New Brunswick Broadcasting Corp. v. Nova Scotia (Speaker of the House) (1993), R. v. National Post (2010).

[7] Ford v. Quebec (1988), Devine v. Quebec (1988), Rocket v. Royal College of Dental Surgeons (1990), and RJR-Macdonald v. Canada (1995).

[8] RWDSU v. Dolphin Delivery Ltd. (1986) and BCGEU v. B.C. (1988) were followed by s.2(b) wins for labour in Lavigne v. OPSEU (1991), UFCW, Local 518 v. Kmart Canada Ltd. (1999), RWDSU, Local 558 v. Pepsi-Cola Canada (2002), and Alberta (Information and Privacy Commissioner) v. UFCW, Local 401 (2013).

[9] The claim failed in Canadian Newspapers Co. v. Canada (1988, publication ban), The Solicitation References, (sexual solicitation, 1990), R. v. Keegstra (1990, hate propaganda), R. v. Butler (obscenity and pornography, 1992), R. v. Lucas (defamatory libel, 1998), R. v. Sharpe (child pornography, 2001), Toronto Star Newspapers v. Canada (publication ban, bail hearings, 2010), and R. v. Khawaja (anti-terrorism “motivation” clause, 2012). Though the open court principle was successful, CBC v. New Brunswick (closed proceedings, 1996) is included in the count because the challenge to the Code provision failed.

[10] Apart from open justice see RWDSU v. Dolphin Delivery (1986); after 2000, see RWDSU Local 558 v. Pepsi Cola (2002, secondary picketing), WIC Radio Ltd. & Mair v. Simpson (2008, defamation), Grant v. Torstar Corp. and Cusson v. Quan (2009, defamation), Globe & Mail v. Canada (2010, journalist-source privilege), Malhab v. Diffusion Metromedia CMR Inc. (2011, civil law), and Crookes v. Newton (2011, defamation).

[11] A.B. v. Bragg Communications Inc. (2012) counts twice because the Court refused a publication ban but anonymized the victim’s initials.

[12] The Search Warrant cases (1991),  National Post (2010), R. v. Vice Media Canada Inc. (2018).

[13] S.C. 2017, c.22.

[14] The Court’s decisions in Sharpe and Whatcott gave expressive freedom partial protection.

[15] The decisions against expressive freedom are Fraser v. PSSRB (1985), BCGEU (1988), Keegstra (1990), Canada (Human Rights Commission) v. Taylor (1990), and Slaight Communications (1989).

[16] Lamer J. was the lead author of the Court’s anonymous decisions in Ford v. Quebec (1988) and Irwin Toy v. Quebec (1989), which protected s.2(b). In Canadian Newspapers Co. v. Canada (1988) and The Solicitation References (1990) he rejected the s.2(b) claim, and in Slaight Communications (1988) he wrote a partial dissent.

[17] See also Denis v. Coté (2018).

[18] These include Rocket v. Royal College of Dental Surgeons (1990), the Search Warrant dissents (1991), the Keegstra and Taylor dissents (1990), R. v. Zundel (1992), and RJR-MacDonald v. Canada (1995).

[19] On open justice, see Edmonton Journal v. Alberta (1989) and Vickery v. Nova Scotia (Supreme Court Prothonotary) (1991); on labour expression, see UFCW Local 518 v. Kmart Canada Ltd. (1999).

[20] On open justice, see R. v. Mentuck and R. v. O.N.E. (2001), and Re Vancouver Sun (with Arbour J.)(2004).