The Charter and Freedom of Expression

Karen Selick
March 19, 2012
Taking to heart the Orwellian adage that, “All animals are equal, but some animals are more equal than others,” Facebook is torquing its algorithms for monitoring hate speech in a certain ideological direction. Karen Selick shows how the judiciary in past decades paved the way for social media’s current assault on freedom of expression.

The Charter and Freedom of Expression

Karen Selick
March 19, 2012
Taking to heart the Orwellian adage that, “All animals are equal, but some animals are more equal than others,” Facebook is torquing its algorithms for monitoring hate speech in a certain ideological direction. Karen Selick shows how the judiciary in past decades paved the way for social media’s current assault on freedom of expression.
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The Canadian Charter of Rights and Freedoms will be 30 years old this year.

A freedom-loving individual who read the Charter back in 1982 when it was brand new might have had reason for cautious optimism.  Examined in isolation, portions of the Charter appear to do what freedom-loving individuals think constitutions should do:  namely, limit the power of government and thereby protect individual rights.

For instance, section 2 guarantees what it calls “fundamental freedoms,” including freedom of expression and freedom of association.

Similarly, section 7 guarantees what it calls “legal rights,” including life, liberty and security of the person.

Unfortunately, the Charter also contains clauses that depart from the goal of protecting individual rights from government intrusion.  Subsection 15(2), which grants the state the privilege of enacting discriminatory “affirmative action” programs to favour selected groups of people, is perhaps the most obvious example.

Then there is the famous section 1 – the clause that explicitly permits the courts to elevate collectivist policy decisions over individual rights.  It says that the rights and freedoms guaranteed by the later sections of the Charter (freedom of expression, liberty, etc.) are subject to “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

One of the authors of this article (Karen Selick) expected in 1982 that the courts would become embroiled in controversy over the last phrase of section 1:  “a free and democratic society.”  After all, only two years earlier, Nobel laureate Milton Friedman had published his book and video series Free to Choose, which pointed out that Hong Kong was extremely free, but not the least bit democratic.  British appointees governed it, and its citizens had no say in determining who ruled them.  So “free” and “democratic” are clearly not always synonymous and can conceivably be incompatible.  If a majority could vote to violate the rights of a minority, a country would be democratic but not free.  Selick wondered which value would prevail if Canadian courts were ever put to the test.

This issue has never once been broached by any Canadian court (see Mincov’s article in this volume entitled “Free? Democratic? Society?: Re-examining Section One of the Charter”).  All too often, the courts never even reached the point of considering how section 1 applies to government intrusions, because they have been busy chopping individual freedom out of the Charter at earlier stages of their analysis.

The cautious optimism of 1982 has proven to be unfounded.  For virtually every clause of the Charter that had the potential to promote individual freedom, judges have delivered a dismaying state-promoting interpretation.

This article describes the most notable cases in which the courts went wrong, and it sets out the reasoning the courts could have adopted had they been inclined to uphold individual freedom.



Freedom of Expression

Section 2(b) of the Charter reads, “Everyone has the following fundamental freedoms: freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication”.

In the 1990 Canada v. Taylor decision, the Supreme Court of Canada (SCC) held that the provision of the Canadian Human Rights Act that banned hate speech was constitutional.

John Ross Taylor publicly distributed cards inviting calls to a phone number that was answered by a recorded message.  The Canadian Human Rights Commission received complaints about the anti-Semitic content in the message.  The Commission held that the messages were discriminatory under subsection 13(1) and ordered Taylor to cease the practice.  Taylor challenged the constitutionality of subsection 13(1), arguing that it violated freedom of expression.

Subsection 13(1) reads:

It is a discriminatory practice for a person or a group of persons acting in concert to communicate telephonically or to cause to be so communicated, repeatedly, in whole or in part by means of the facilities of a telecommunication undertaking within the legislative authority of Parliament, any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that that person or those persons are identifiable on the basis of a prohibited ground of discrimination.

On appeal to the SCC, four of the seven justices hearing the appeal upheld subsection 13(1) and failed to uphold the individual’s right to freedom of expression.

There are several significant problems with subsection 13(1) that make it an unjustifiable violation of freedom of expression.

First, there are problems of interpretation.  The words “hatred” and “contempt” are ambiguous, emotionally charged terms, capable of a wide range of meanings.  Lacking any definition in the statute, these terms inevitably function as a proxy for the personal and political views of the judiciary.

Second, subsection 13(1) lacks any intent or harm requirement, making it possible to punish a person under this provision for acts that were never intended to be discriminatory and that caused no harm or actual discrimination.  The provision’s inherent vagueness makes it impossible to know beforehand whether any particular speech is illegal or not.  This has proven to have a chilling effect on the free expression of ideas.

Subsection 13(1) is too great an interference with freedom of expression, because its intended benefit pales in comparison to the harm it produces.  The free expression of ideas, especially those that are unpopular, is of foundational importance in “a free and democratic society.”  Minorities are best protected by a broad and meaningful guarantee of freedom of expression, as it protects them from oppression by the majority.  Minorities suffer if the capacity to restrict the expression of unpopular ideas is ceded to governments.  Further, subsection 13(1) makes no serious attempt to strike a balance between alleviating the effects of discrimination and freedom of expression.  As it reads, the goal of eliminating discrimination trumps the right to freedom of expression.  Lastly, subsection 13(1) contains no exception for truthful statements and no exclusion for private communications.  Because of these significant flaws, subsection 13(1) is an unacceptable restriction of freedom of expression.

Freedom of expression is a fundamental human right that is necessary for “a free and democratic society” because it protects individuals from the tyrannies of the state and the majority.  In Taylor, the SCC failed to protect the individual’s right of freedom of expression, and it expanded the government’s ability to restrict speech.  This failure has resulted in a litany of human rights cases that further restrict speech that is neither harmful nor intended to be discriminatory.


Freedom of Association

Section 2(d) of the Charter states that everyone has, among other fundamental freedoms, the freedom of association.

In the 1991 Lavigne v. Ontario Public Service Employees Union decision, the SCC held that freedom of association does not prohibit the government from forcing individuals to associate.

Mervyn Lavigne was a teacher employed at a unionized community college.  He was required to pay union fees against his will, because of the Rand Formula.  The Rand Formula is named after a former Justice of the Supreme Court of Canada who had recommended that in situations where a union represents a company’s employees during a collective bargaining process, all employees should pay union dues regardless of whether they are union members.  Justice Rand reasoned that even non-union members reap the benefit of collective bargaining and should therefore bear some of the cost.

The union in Lavigne’s workplace was politically active, and even though Lavigne was not a member of the union, money that he was forced to pay to the union under the Rand Formula went to support political causes that he opposed.

Lavigne applied to the Ontario Superior Court of Justice for declaratory relief.  At trial, the judge held that compelling Lavigne to pay union fees was unconstitutional, because it forced him to associate with the union contrary to the Charter’s guarantee of freedom of association.  The judge reasoned that freedom of association meant that individuals are free to associate and free not to associate.  He said, “If a governmental agent acts so as to force an individual to financially support a union when he opposes the union, its objects, and its methods, then his freedom of association has been abridged.”

On appeal, the SCC overturned this decision and upheld the constitutionality of the Rand Formula.  The SCC found that section 2(d) of the Charter does not prohibit the government from compelling individuals to associate.

Of the seven SCC justices who heard the appeal, only three correctly held that freedom of association includes both a right to associate and a right to not associate.  The remaining justices held that compulsory associations do not violate the Charter and that freedom of association “should not be expanded to protect the right not to associate.”  This reasoning incorrectly implies that freedom from association is something more than a corollary of freedom of association.

In order to protect the constitutionality of the Rand Formula, the SCC had to rely upon specious reasoning.  The word “freedom” necessarily implies choice.  At a bare minimum, it must mean that individuals are free to choose to associate and free to choose not to associate.  Yet, the Lavigne decision protects the government’s constitutional authority to force individuals into involuntary associations.  This is to confuse freedom with compulsion.

In other areas of the law, the SCC recognized that freedom necessarily implies choice.  In the 1985 R. v. Big M Drug Mart decision, the SCC held that the right to freedom of religion could not be separated from its corollary that individuals have a right to be free from religion.  At issue in the Big M decision was whether a prohibition on Sunday shopping infringed the freedom of religion of non-Christians.  The SCC held that such prohibitions forced non-Christians to observe the Christian Sabbath and violated the Charter guarantee of freedom of religion.  The sound reasoning of Big M was abandoned by the SCC in Lavigne.

In Lavigne, the SCC had the opportunity to protect the individual’s right to freedom of association.  Instead, the court held that the government could compel individuals to associate against their will.



Section 7 of the Charter reads that, “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”

There are two distinct parts in section 7.  The first has to do with everyone’s right to life, liberty and security of the person.  If a government act impacts upon any of these rights, the affected individual has a prima facie section 7 claim.  The second has to do with the principles of fundamental justice.  If an individual has a prima facie section 7 claim, the impugned government act may be justified if the court is satisfied that the government act complies with the principles of fundamental justice.

Canadian courts have failed to protect individual rights under both the first and second part of section 7.  The courts have eviscerated the concept of liberty by failing to interpret it broadly.  And the courts have failed to recognize that the harm principle should be a principle of fundamental justice under section 7.



According to John Stuart Mill, “The only freedom which deserves the name, is that of pursuing our own good in our own way, so long as we do not attempt to deprive others of theirs, or impede their efforts to obtain  it.”

A constitutional guarantee of liberty should ensure that all individuals have the right to freely pursue their own happiness as long as their actions do not harm others.  Such a constitutional guarantee would protect individuals from unjustified state inference with their chosen way of life.

In 1985, soon after the adoption of the Charter, Justice Bertha Wilson wrote:

Indeed, all regulatory offences impose some restriction on liberty broadly construed.  But I think it would trivialize the Charter to sweep all those offences into s.7 as violations of the right to life, liberty and security of the person even if they can be sustained under s.1.

Justice Wilson deliberately chose to ignore the plain and common meaning of “liberty” in order to preserve governmental authority.  Subsequent court decisions have followed Justice Wilson’s example.  As a result, it has become very difficult to demonstrate to a court’s satisfaction that the section 7 right to liberty was violated.

By the 1988 R. v. Morgentaler decision, the SCC had so circumscribed the concept of liberty that individuals could only rely on section 7 to protect them if the government was threatening to lock them up in jail or if they were faced with “decisions of fundamental personal importance.”

In Morgentaler, Justice Wilson, for instance, wrote, “In my view, this right [to liberty], properly construed, grants the individual a degree of autonomy in making decisions of fundamental personal  importance.”  The Morgentaler decision, and those following it, indicate that section 7 protects the individual’s right to liberty only in those circumstances that involve big, important or life-altering decisions.  It does not protect individuals from day-to-day violations that occur routinely.  This reasoning, and the resulting failure to protect individual liberty, are deeply problematic.

First, there can be no objective distinction between a “decision of fundamental personal importance” and those that are less significant.  The same decision may be of fundamental personal importance to one person and of lesser significance to another.  The same decision may be of enormous significance at one point in a person’s life, only to fall below the threshold later.  There is no metric available to the court for deciding what is of sufficient personal importance and what is not.  It is impossible to account for the vast array of discrepancy in taste, preference and idiosyncrasy between two people, let alone across the population of Canada.

Second, it is absurd to ignore the obvious fact that an aggregate of trivial violations of liberty can amount to totalitarianism.  Were the government to regulate every insignificant decision we make, those regulations considered discretely would be thought too unimportant for section 7 protection.  Collectively, however, such a regimen of state control would be stifling.  And in such circumstances, the right to liberty would be hollow and meaningless.  For the right to liberty to be meaningful, liberty must encompass all aspects of an individual’s life, not just “decisions of fundamental personal importance.”

Third, it intuitively seems backwards that the government may control the insignificant aspects of our lives yet cannot control the significant ones.  If individuals are too incompetent to make wise decisions regarding matters of little importance, how is it that these same individuals are capable of making decisions regarding important matters?

Lastly, how is it that lawgivers gain the wisdom and foresight to legislate over the little decisions that other individuals routinely make when those lawgivers are individuals who previously could not be trusted to make their own decisions?

Canadian courts have destroyed the concept of liberty.  The section 7 right to liberty has become hollow and trivialized, because liberty has been so circumscribed by the courts.  The result is that the government has been permitted to violate individual liberty as it pleases so long as it grants to individuals a “degree of autonomy in making decisions of fundamental personal importance.”


Principles of Fundamental Justice

Using the terminology of section 7, any government act that “engages” (i.e., threatens) an individual’s right to life, liberty or security of the person must find its justification in some accepted principle of fundamental justice.

The principles of fundamental justice are “the basic tenets of our legal  system.”  For example, the courts have recognized that the principles of fundamental justice entail that laws that engage the right to life, liberty or security of the person cannot be arbitrary, vague or over broad.  This list is not exhaustive.  The courts have developed a test for recognizing new principles of fundamental justice, and this area of law is constantly developing as novel circumstances are litigated.

In On Liberty, J.S. Mill described what is now known as the harm principle:  “The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.”

If the prevention of harm is the sole purpose justifying the use of power over an individual, any law that makes harmless actions illegal constitutes an unjustified use of power.  Philosophical literature is replete with examples of political philosophers who believe the same.  So is legal literature.  In addition, many individuals intuitively believe that in a free society everyone should be free to do as they wish provided they harm no one else.  Yet, in the 2003 R. v. Malmo-Levine decision, the SCC rejected the harm principle as a principle of fundamental justice.  This rejection means that the courts will permit the government to infringe upon an individual’s right to life, liberty or security of the person even if that individual has harmed no one.

David Malmo-Levine was charged under the Narcotic Control Act with possession of marijuana for the purpose of trafficking.  He was convicted at trial, but the B.C. Court of Appeal (BCCA) overturned the conviction.  In their reasons, Justices Braidwood and Rowles found that Mill’s harm principle was a principle of fundamental justice within the meaning of section 7.

[The harm principle] is a legal principle and it is concise.  Moreover, there is a consensus among reasonable people that it is vital to our system of justice.  Indeed, [we] think that it is common sense that you don’t go to jail unless there is a potential that your activities will cause harm to others.

The SCC overturned the BCCA decision and rejected the claim that the harm principle is a principle of fundamental justice under section 7.  In its reasons, the court held that the fatal flaw with the harm principle is that it does not account for all forms of harm and that the government is constitutionally permitted to make illegal those behaviours that cause “social harm” – meaning an “injury or offence to fundamental societal values.”

The notion of an “injury or offence to fundamental societal values” is vacuous and potentially tyrannical.  If there is such a thing as a “societal value,” how could anyone satisfactorily determine what it is?  In a diverse and pluralistic society filled with individuals holding divergent and incompatible views, this is nothing more than rhetorical sleight of hand on the part of the court.  Also, what does it mean to “injure” such a value?  Moreover, why would an “offence” to a value justify violating the offending individual’s right to life, liberty or security of the person?  Finally, how could anyone determine which value(s) are “fundamental” and which are not?  All that the notion of “social harm” does is to function as a proxy for the personal views of the judiciary.

In Malmo-Levine, the SCC had the opportunity to interpret section 7 of the Charter to mean that no one should have his or her right to life, liberty or security of the person infringed for non-harmful behaviour.  Instead, the court failed to limit governmental authority and did not side with protecting individual rights.



The four cases described above are merely the tip of the iceberg.  Over the 30 years of the Charter’s existence, the courts have issued an unending stream of decisions that restrict individual rights and rubber-stamp governments’ commandeering of power.

As lawyers working for the Canadian Constitution Foundation, our hope is to change the direction of the jurisprudence and fan to life the embers of freedom that were visible at the Charter’s birth.  But as this article makes clear, we have our work cut out for us.

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