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“Free Speech in Canada”
Presented by Catherine Francis

There are a lot of misconceptions about free speech rights in Canada.   Some argue that, unlike our counterparts south of the border, we don’t have constitutionally protected rights to free speech.  Others accept that they exist but complain that these rights are being violated or eroded.  There are scare stories about the possibility of going to jail for exercising free speech.  What are the myths and what is the truth?

First, yes we do have constitutionally protected rights of free speech. Here is the relevant section of the Charter of Rights and Freedoms:
Fundamental freedoms – section 2
2. Everyone has the following fundamental freedoms:
  1.  a) freedom of conscience and religion;
  2.  b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
  3.  c) freedom of peaceful assembly; and
  4.  d) freedom of association.

And here are some of the limits:
Guarantee of rights and freedoms – section 1
1. 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. …

Section 33 - Exception by express declaration
33. (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.

Five year limitation
  *   (3) A declaration made under subsection (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration.

What does this mean?
The same as all rights protected by the Charter, they are subject to reasonable limits.  While a clause like section 1 may not be explicitly included in the US constitution, on a practical level first amendment free speech rights are likewise interpreted as being subject to reasonable limits. This must be so.  There are far too many obvious exceptions for free speech rights to be absolute.

Over 100 years ago, Justice Oliver Wendell Holmes gave the example of falsely yelling fire in a crowded theatre as justifying reasonable limits to free speech. While the particular case (which did not involve yelling fire in a crowded theatre) really did infringe speech rights and would not have been decided the same way today, the analogy has stuck. There are many other laws today that should be uncontroversial, such as laws governing:
- defamation (libel and slander)
- plagiarism/protecting intellectual property
- privacy rights
- inciting violence, counselling criminal activity
- fraudulent misrepresentations, false advertising

Unique to Canada, the fundamental s. 2 rights are also subject to federal or provincial override, although until recently the s. 33 “notwithstanding clause” has rarely been invoked outside Quebec.

In comparing the scope of constitutionally protected rights, it is important to recognize that the rights relate to laws and government actions, not to rules and regulations of private individuals or enterprises.  Twitter and YouTube are not government agents.  Employers can impose codes of conduct. In many cases, those who complain that their “free speech” rights have been violated are in fact complaining about restrictions that are not constitutionally protected.


Enough of my own write up. Back to ChatGPT for a few discussion questions.
- What are the benefits and limitations of protecting freedom of expression in Canada?
- How has the Supreme Court of Canada interpreted and applied the right to freedom of expression in specific cases?
- What is the relationship between freedom of expression and other fundamental rights, such as freedom of religion and the right to be free from discrimination?
- How do Canadian laws and regulations related to free speech compare to those in other countries?
- What are some of the most important legal and social issues related to freedom of expression in Canada today?
- How have technological advancements, such as social media, impacted the way Canadians exercise their right to freedom of expression
- Should hate speech be criminalized in Canada? Why or why not?
- What are some potential consequences of limiting free speech in Canada, and how can these be balanced against the need to protect other important values, such as public safety and the rights of vulnerable groups?
- How can Canadians promote respectful and productive dialogue on controversial issues, while also protecting the right to freedom of expression?
- What is the role of the media in protecting and promoting freedom of expression in Canada, and what challenges do they face in doing so?