Back to Index of Limits on Freedom of Expression

Section 2(b) of the Canadian Charter of Rights and Freedoms establishes the right to freedom of expression, and the Supreme Court of Canada has interpreted this right in a very broad fashion. However, section 1 of the Charter establishes that reasonable limits can be placed on the right if those limits are prescribed by law and can be demonstrably justified in a free and democratic society.

Television broadcasting in Canada is governed by the Broadcasting Act and regulations made under the Act by the Canadian Radio-television and Telecommunications Commission. Federal regulations prohibit television broadcasters from “broadcasting false or misleading news and abusive comments that are likely to expose persons to hatred based on listed grounds.” Subject to a public hearing under section 18 of the Act, the Commission has the power to suspend or revoke the license of a licensed broadcaster for contravention of or failure to comply with any condition of the license or mandatory orders, or any regulation made under the Act.

I. Constitutional Protection of Free Speech

Section 2 of the Canadian Charter of Rights and Freedoms,[1] which is part of Canada’s Constitution, stipulates that everyone is entitled to certain fundamental freedoms, including “freedom of thought, belief, opinion and expression,” which encompasses “freedom of the press and other media of communication.”[2]

The purpose of the section has been outlined on a number of occasions by the Supreme Court of Canada:

The protection of freedom of expression is premised upon fundamental principles and values that promote the search for and attainment of truth, participation in social and political decision-making and the opportunity for individual self-fulfillment through expression (Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927 at 976; Ford v. Quebec, [1988] 2 S.C.R. 712 at 765-766). The Supreme Court of Canada has maintained that the connection between freedom of expression and the political process is “perhaps the linchpin” of section 2(b) protection (R. v. Keegstra, [1990] 3 S.C.R. 697; Thomson Newspapers Co. v. Canada (A.G.), [1998] 1 S.C.R. 877; Harper v. Canada (Attorney General), [2004] 1 S.C.R. 827). Free expression is valued above all as being instrumental to democratic governance. The two other rationales for protecting freedom of expression — encouraging the search for truth through the open exchange of ideas, and fostering individual self-actualization, thus directly engaging individual human dignity — are also key values that animate section 2(b) analysis.[3]

The Supreme Court has adopted the following three-part test for analyzing freedom of expression cases under section 2(b) of the Charter:

1) Does the activity in question have expressive content, thereby bringing it within section 2(b) protection?;

2) Does the method or location of this expression remove that protection?; and

3) If the expression is protected by section 2(b), does the government action in question infringe that protection, either in purpose or effect? (Canadian Broadcasting Corp. v. Canada (Attorney General), 2011 SCC 2 (“Canadian Broadcasting Corp.”); Montréal (City) v. 2952-1366 Québec Inc., [2005] 3 S.C.R. 141; Irwin Toy Ltd., supra.)[4]

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II. Scope of Protection

The Supreme Court has interpreted freedom of expression “in a very broad fashion.”[5] According to Constitutional Law Professors Kent Roach and David Schneiderman, “[t]he Supreme Court’s purposive approach and “large and liberal” orientation to Charter guarantees ensured that all manner of expressive activities qualified for constitutional protection.”[6] Therefore Canadian courts often found “a prima facie breach easily” due to its broad interpretative approach to section 2(b).[7] According to the Department of Justice’s Charterpedia, “[e]xpression protected by section 2(b) has been defined as “any activity or communication that conveys or attempts to convey meaning.”[8]

A. Content Neutrality

According to the Charterpedia, “[t]he courts have applied the principle of content neutrality in defining the scope of section 2(b), such that the content of expression, no matter how offensive, unpopular or disturbing, cannot deprive it of section 2(b) protection.”[9] The Charter also protects the “expression of both truths and falsehoods.”[10] In R v. Zundel (1992),[11] Canada’s Supreme Court held that section 181 of Canada’s Criminal Code, which prohibits the spreading of false news, is unconstitutional as it violates section 2(b) (freedom of expression) of the Canadian Charter of Rights and Freedoms.[12]

B. Expression in the Form of Violence

Expression that takes the form of violence does not qualify for section 2(b) protection.[13] The Supreme Court has held that “whether or not physical violence is expressive, it will not be protected by section 2(b).”[14] Though the Court did protect threats of violence as protected speech in a subsequent decision it found that such threats also falls outside the scope of section 2(b) protection.[15]

C. Location

Location can also play a part in the determination of whether protection is removed from an expression as the right does not extend on all places. For example, private property “will fall outside the protected sphere of section 2(b) absent state-imposed limits on expression, since state action is necessary to implicate the Charter”:[16]

The application of section 2(b) is not automatic by the mere fact of government ownership of the place in question. There must be a further enquiry to determine if this is the type of public property which attracts section 2(b) protection In Montréal (City), the majority of the Supreme Court set out the current test for the application of section 2(b) to public property]). The onus of satisfying this test rests on the claimant(paragraph 73). The basic question with respect to expression on government-owned property is whether the place is a public place where one would expect constitutional protection for free expression on the basis that expression in that place does not conflict with the purposes which section 2(b) is intended to serve, namely (1) democratic discourse, (2) truth finding and (3) self-fulfillment. To answer this question, the following factors should be considered:

i. The historical or actual function of the place; and
ii. Whether other aspects of the place suggest that expression within it would undermine the values underlying free expression. (Montréal (City), paragraphs 73, 74).

The Supreme Court has highlighted that the ultimate question is the second factor. In Canadian Broadcasting Corp, supra, the court added that analysis of the second factor should focus on the essential expressive activity as opposed to the “excesses” that would be incidental to this activity. In that particular case, the essential expressive activity, a journalist’s ability to gather news at a courthouse to inform the public about court proceedings, was held to engage section 2(b), despite the incidental excesses of this expression (“. . . crowds, pushing and shoving, and pursuing possible subjects in order to interview, film or photograph them . . . ”).

Other relevant questions that that may guide the analysis of whether expression in a particular location is protected under 2(b) are: whether the space is one in which free expression has traditionally occurred; whether the space is in fact essentially private, despite being government-owned, or public; whether the function of the space is compatible with open public expression, or whether the activity is one that requires privacy and limited access; whether an open right to intrude and present one’s message by word or action would be consistent with what is done in the space, or whether it would hamper the activity. There is some flexibility in the analysis and allowing public expression in a particular government-property location does not commit the government to such use indefinitely.[17]

D. Limitations on Free Speech and Hate Speech Laws

Fundamental rights, including freedom of expression, are subject to section 1, which allows “reasonable” limits to be placed on those rights:[18] “[t]he Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”[19] This means that “once an infringement of a Charter right has been established, the courts must decide whether the violation by the government or other institution to which the Charter applies can be considered justified.”[20]

As part of the section 1 analysis, courts must determine whether the limit on the right is “prescribed by law,” “reasonable,” and “demonstrably justified” (applying the test the Supreme Court established in R. v. Oakes[21]), and the law must have a pressing and substantial objective.[22] Section 1 considerations have been described as follows:

The broad scope of section 2(b) means that in most cases the constitutionality of the legislation or the government action will depend on the section 1 analysis. Generally speaking, because of the importance of the right to free expression, “any attempt to restrict the right must be subjected to the most careful scrutiny”. However, the “degree of constitutional protection may vary depending on the nature of the expression at issue . . . the low value of the expression may be more easily outweighed by the government objective”. For example, limits are easier to justify where the expressive activity only tenuously furthers section 2(b) values, such as in the case of hate speech, pornography or marketing of a harmful product. Limits on political speech will generally be the most difficult to justify. Restrictions will also be more difficult to justify where they capture expression that furthers artistic, scientific, educational or other useful social purposes (Butler, supra). Whether the limit minimally impairs the right to freedom of expression is often the deciding factor in section 2(b) cases. A total prohibition on a form of expression will be more difficult to justify than a partial prohibition. A restriction on expression backed by a civil penalty rather than a criminal sanction such as imprisonment will be considered a less impairing alternative. Where the limit on freedom of expression is minimal, the court may, in certain circumstances like elections advertising, accept section 1 justifications for this limit based on logic and reason without supporting social science evidence.[23]

Canada’s Criminal Code[24] specifies three distinct hatred-related offenses: section 318 (advocating genocide), section 319(1) (publicly inciting hatred likely to lead to a breach of the peace), and section 319(2) (willfully promoting hatred).  In the landmark decision R v. Keegstra,[25] the Supreme Court decided that section 319(1) was a breach of section 2(b) but held in a section 1 analysis that the infringement was justified as “a reasonable limit prescribed by law in a free and democratic society” and furthered “an immensely important objective and directed at expression distant from the core of free expression values.”[26]

In addition, provincial human rights laws “further keep a tight grip on hate speech activity through its broad targeting of fundamentally discriminatory behaviors.”[27]

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III. Interrupting Public Speech

Heckling that involves actual threats or hate speech might violate Canada’s Criminal Code, including the Code’s hate-crime provisions. If the speech is in a public space and the heckling involves “screaming, shouting, swearing, singing or using insulting or obscene language” it might constitute a violation of section 175(1) (“Causing disturbance”) Municipal bylaws or city regulations may also come into play depending on the situation.[28]

Whether heckling would be protected under section 2(b) would depend on the factual circumstances under the section 2(b) and 1 analyses above. The Supreme Court of Canada is currently considering a case on appeal from the Court of Appeal for Ontario[29] that will partly look at the discretionary common law police power to arrest to prevent a breach of peace during a political demonstration where an individual was preventatively arrested even though the individual was not committing or even suspected of committing a crime. The Court is expected to look at whether such arrest would breach section 2(b) of the Charter.[30]

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IV. Restriction on Foreign Government Broadcasters

Television broadcasting in Canada is governed by the Broadcasting Act[31] (S.C. 1991, c. 11) and regulations made under the Act by the Canadian Radio-television and Telecommunications Commission (CRTC). Federal regulations prohibit television broadcasters from “broadcasting false or misleading news and abusive comments that are likely to expose persons to hatred based on listed grounds.”[32]

Federal broadcasting regulations that deal with false or misleading news include

• section 8(1)(d) of the Broadcasting Distribution Regulations; [and]
• section 5(1)(d) of the Television Broadcasting Regulations, 1987[.]

Subject to a public hearing under section 18 of the Act, the Commission has the power to suspend or revoke the license[33] of a broadcaster where the licensee has contravened or failed to comply with any condition of the license or mandatory orders, or any regulation made under the Act.

According to a report by Politifact,

[a]ny network that wants to broadcast in Canada must get approved by the Canadian Radio-television and Telecommunications Commission. And Canadians who take issue with the truthfulness of their programming can file complaints to the commission. If a network amasses enough complaints and is found to have knowingly and deliberately broadcasted false news, its license can be limited or revoked. But that has never happened before, commission spokesperson Eric Rancourt said “Based on the history of these kind of complaints, it would have be very, very egregious for the commission (to revoke or deny a license). That’s all speculative, since it hasn’t happened before,” Rancourt said. The commission has only taken serious action a couple of times in its history, and not against Fox News, but Al Jazeera, according to commission regulator Sheehan Carter. The commission approved the Arabic-language news channel in 2004, with the condition that distributors must edit out abusive content. The condition doesn’t apply to Al Jazeera English.[34]

According to news reports CRTC says “it is not reviewing the presence on Canadian TVs of RT,” a channel that has been “labelled a propaganda tool of the Russian government by US intelligence agencies and accused of spreading disinformation by French president Emmanuel Macron.”[35] Eric Rancourt, a spokesperson for the CRTC, reportedly said

RT “is not currently under review, nor has it ever been under review.” Asked whether its use as a propaganda tool as outlined in the US intelligence report would contravene the conditions for its distribution in Canada, he said the CRTC “cannot speculate on what might happen in the future,” noting that the agency makes decisions “based on the public record.”[36]

More recently, partly in an effort to counter foreign influence in Canada’s federal general elections, the government passed the Elections Modernization Act,[37] which amended the Canada Elections Act[38] to include a prohibition on the use of broadcasting stations outside Canada to influence elections:

Broadcasting outside Canada

Prohibition — use of broadcasting station outside Canada

330 (1) No person shall, with intent to influence persons to vote or refrain from voting, or to vote or refrain from voting for a particular candidate or registered party, at an election, use a broadcasting station outside Canada, or aid, abet, counsel or procure the use of a broadcasting station outside Canada, during an election period, for the broadcasting of any matter having reference to an election.

Exception

(1.1) Subsection (1) does not apply in respect of any matter that is broadcast if the broadcasting signals originated in Canada.

Prohibition — broadcasting outside Canada

(2) During an election period, no person shall broadcast, outside Canada, election advertising with respect to an election.[39]

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Prepared by Tariq Ahmad
Foreign Law Specialist
June 2019

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Last Updated: 12/30/2020