Section 2(b) – Freedom of expression
2. Everyone has the following fundamental freedoms:
- freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.
Similar provisions may be found in the following Canadian laws and international instruments binding on Canada: sections 1(d) and (f) of the Canadian Bill of Rights; article 10 of the International Covenant on Civil and Political Rights; article 13 of the Convention on the Rights of the Child; article 5(d)(viii) of the Convention on the Elimination of All Forms of Racial Discrimination; article 21 of the Convention on the Rights of Persons with Disabilities; article IV of the American Declaration of the Rights and Duties of Man.
See also the following international, regional and comparative law instruments that are not binding on Canada but include similar provisions: article 19 of the Universal Declaration of Human Rights; article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms; article 13 of the American Convention on Human Rights; the First Amendment of the American Constitution.
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),  1 S.C.R. 927 at 976; Ford v. Quebec,  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,  3 S.C.R. 697; Thomson Newspapers Co. v. Canada (A.G.),  1 S.C.R. 877; Harper v. Canada (Attorney General),  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.
Canadian courts have interpreted section 2(b) very broadly, often finding a prima facie breach easily.
The Supreme Court has adopted the following three-part test for analyzing section 2(b): 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.,  3 S.C.R. 141; Irwin Toy Ltd., supra.)
1. Does the activity in question have expressive content, thereby bringing it within section 2(b) protection?
Expression protected by section 2(b) has been defined as “any activity or communication that conveys or attempts to convey meaning” (Thomson Newspapers Co., supra; Irwin Toy Ltd., supra). The 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 (Keegstra, supra). Being content-neutral, the Charter also protects the expression of both truths and falsehoods (Canada (Attorney General) v. JTI-Macdonald Corp.,  2 S.C.R. 610 at paragraph 60; R. v. Zundel,  2 S.C.R. 731 at paragraph 36; R. v. Lucas,  1 S.C.R. 439 at paragraph 25).
Freedom of expression includes more than the right to express beliefs and opinions. It protects both speakers and listeners (Edmonton Journal v. Alberta (Attorney General),  2 S.C.R. 1326). “Expression” may include all phases of the communication, from maker or originator through supplier, distributor, retailer, renter or exhibitor to receiver, whether listener or viewer (Dagenais v. Canadian Broadcasting Corp.,  3 S.C.R. 835; Irwin Toy Ltd., supra; Rocket v. Royal College of Dental Surgeons of Ontario,  2 S.C.R. 232; R. v. Videoflicks (1984), 14 D.L.R. (4th) 10).
Protected expression has been found to include:
- “music, art, dance, postering, physical movements, marching with banners, etc.” (Weisfeld v. Canada,  1 F.C. 68 (F.C.A.), CanLII - 1994 CanLII 9276 (FCA) at paragraph 30 (F.C.A.);
- commercial advertising (R. v. Guignard,  1 S.C.R. 472; Ford, supra; Irwin Toy Ltd., supra; Rocket, supra; Ramsden v. Peterborough (City),  2 S.C.R. 1084; RJR-MacDonald Inc. v. Canada (Attorney General),  3 S.C.R. 199; JTI-Macdonald Corp., supra);
- posters on utility poles (Ramsden, supra);
- peace camps (Weisfeld (F.C.A.), supra);
- signs and billboards (Guignard, supra; Vann Niagara Ltd. v. Oakville (Town),  3 S.C.R. 158);
- picketing (R.W.D.S.U., Local 558 v. Pepsi-Cola Canada Beverages,  1 S.C.R. 156; Dolphin Delivery Ltd. v. R.W.D.S.U. Local 580,  2 S.C.R. 573; B.C.G.E.U v. British Columbia (Attorney General),  2 S.C.R. 214; Dieleman v. Attorney General of Ontario (1994), 20 O.R. (3d) 229 (Ont. Gen. Div.); Morasse v. Nadeau-Dubois; 2016 SCC 44);
- handing out leaflets (U.F.C.W, Local 1518 v. Kmart Canada Ltd.,  2 S.C.R. 1083; Allsco Building Products Ltd. v. U.F.C.W. Local 1288 P,  2 S.C.R. 1136);
- expressing oneself in the language of choice (Ford, supra);
- hate speech (Keegstra, supra; R. v. Zundel, supra; Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11,  1 S.C.R. 467; Ross v. New Brunswick School Board (No. 15),  1 S.C.R. 825; Taylor v. Canada (Human Rights Commission),  3 S.C.R. 892);
- pornography (R. v. Butler,  1 S.C.R. 452; Little Sisters Book and Art Emporium v. Canada (Minister of Justice),  2 S.C.R. 1120);
- child pornography (Sharpe, supra; R v. Barabash, 2015 SCC 29);
- communication for the purpose of prostitution (Reference re: section 193 and paragraph 195.1(1)(c) of the Criminal Code (Manitoba), 1 S.C.R. 1123);
- noise being emitted by a loudspeaker from inside a club onto the street (Montréal (City), supra, at paragraph 58);
- importation of literature or pictorial material (Little Sisters, supra);
- defamatory libel (R. v. Lucas, supra at paragraph 25-27);
- voting (Siemens v. Manitoba (Attorney General),  1 S.C.R. 6 at paragraph 41; Haig v. Canada,  2 S.C.R. 995);
- running as a candidate for election (Baier v. Alberta,  2 S.C.R. 673);
- spending in election and referendum campaigns (Harper, supra; Libman v. Quebec (Attorney General),  3 S.C.R. 569; B.C. Freedom of Information and Privacy Association v. British Columbia (Attorney General), 2017 SCC 6);
- broadcasting of election results (R. v. Bryan,  1 S.C.R. 527);
- engaging in work for a political party or candidate (Osborne v. Canada (Treasury Board),  2 S.C.R. 69);
- publication of polling information and opinion surveys (Thomson Newspapers Co., supra);
- monetary contributions to a fund may constitute expression, for example, donations to a candidate or political party in the electoral context (Osborne, supra), though not where the expenditure of funds would be regarded as the expressive conduct of the union as a corporate entity (Lavigne v. Ontario Public Service Employees Union,  2 S.C.R. 211) and
- political advertising on public transit vehicles (Greater Vancouver Transportation Authority v. Canadian Federation of Students — British Columbia Component,  2 S.C.R. 295 “GVTA”).
Freedom of expression also protects the right not to express oneself.
“[F]reedom of expression necessarily entails the right to say nothing or the right not to say certain things. Silence is in itself a form of expression which in some circumstances can express something more clearly than words could do” (Slaight Communications Inc. v. Davidson,  1 S.C.R. 1038 at 1080). Thus, forced or compelled expression can constitute a restriction of section 2(b) (Slaight Communications, supra; RJR-MacDonald Inc., supra; National Bank of Canada v. Retail Clerks’ International Union,  1 S.C.R. 269). The Ontario Court of Appeal held that the requirement to recite an oath to the Queen at citizenship ceremonies does not infringe freedom of expression (McAteer v. Canada (Attorney General), 2014 ONCA 578, leave to appeal to the SCC denied 26 February 2015). Caution should be exercised when citing McAteer, supra, as this case seems to be inconsistent with the Supreme Court’s broad interpretation of section 2(b) of the Charter.
A regulatory requirement to file information and reports may amount to a restriction on freedom of expression where failure to comply is backed by sanctions such as fines or imprisonment (Harper, supra, paragraphs 138-139). The act of complying with the law is not the same as being compelled to express support for the law (Rosen v. Ontario (Attorney General) 131 D.L.R. (4th) 708 (Ont. C.A.)). Similarly, the compelled payment of taxes to government for use in funding legislative initiatives (e.g., public subsidies to election candidates to cover their campaign expenses) does not necessarily imply an expression of support for those initiatives (MacKay v. Manitoba,  2 S.C.R. 357; Lavigne, supra).
It is not necessary that an expression be received and subjectively understood for it to be protected expression under section 2(b) (Weisfeld (F.C.A.), supra; R. v. A.N. Koskolos Realty Ltd., (1995), 141 N.S.R. (2d) 309 (N.S.Prov.Ct.)).
The physical sale of a non-expressive product (cigarettes) has been found not to be a form of expression (Rosen, (Ont. C.A.)). The yellow colouring of margarine has been found not to be a form of expression (UL Canada Inc. v. Quebec (Attorney General),  1 S.C.R. 143, at paragraph 1).
2. Does the method or location of this expression remove that protection?
The Supreme Court has stated that the method or location of the conveyance of a message will be excluded from 2(b) protection if this method or location conflicts with the values underlying the provision, namely: self-fulfillment, democratic discourse and truth finding (Canadian Broadcasting Corp., supra at paragraph 37; Montreal (City), supra at paragraph 72). In practice, however, this test is usually just applied to an analysis of the location of expression; the method of expression is generally considered to be within section 2(b) protection unless it takes the form of violence or threats of violence.
(i) Method of expression
Expression that takes the form of violence is not protected by the Charter (Irwin Toy Ltd., supra at pages 969-70). The Supreme Court has held that whether or not physical violence is expressive, it will not be protected by section 2(b) (Keegstra, supra; Zundel (1992), supra; Irwin Toy Ltd., supra). Threats of violence also fall outside the scope of section 2(b) protection (Greater Vancouver Transportation Authority, supra at paragraph 28; Suresh v. Canada (Minister of Citizenship and Immigration),  1 S.C.R. 3 at paragraphs 107-108; R v Khawaja, 2012 SCC 69 at paragraph 70). In other respects, the form or medium used to convey a message is generally considered part and parcel of the message and included within section 2(b) protection (Weisfeld (F.C.A.), supra).
(ii) Location of expression
Section 2(b) protection does not extend to all places. Private property, for example, 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. Certain lower court cases have suggested that freedom of expression does not encompass the infringement of copyright. This finding is justified on the basis that freedom of expression does not encompass the freedom to use someone else’s private property (e.g., his or her copyrighted material) for the purposes of expression (see Compagnie générale des établissements Michelin v. C.A.W. Canada,  2 F.C. 306 (T.D.)). It should be noted, however, that this interpretation of 2(b) seems to be inconsistent with the Supreme Court’s broad interpretation of the provision.
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 (Montréal (City), supra, at paragraphs 62 and 71; Committee for the Commonwealth of Canada, supra). In Montréal (City), the majority of the Supreme Court set out the current test for the application of section 2(b) to public property (see also GVTA, supra). 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:
- The historical or actual function of the place; and
- 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 (Montréal (City) at paragraph 77). 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…”) (paragraphs 43, 45).
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 (Montréal (City), paragraph 76). 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 (GVTA, paragraph 44).
3. Does the law or government action at issue, in purpose or effect, restrict freedom of expression?
Where the purpose of a government action is to restrict the content of expression, to control access to a certain message, or to limit the ability of a person who attempts to convey a message to express him or herself, that purpose will infringe section 2(b) (Irwin Toy Ltd., supra; Keegstra, supra).
Even if a purpose is compatible with section 2(b), an individual may be able to demonstrate that the effect of the government action infringes his or her section 2(b) right. In this situation, the individual must show that his or her expression advances one or more of the values underlying section 2(b), e.g., participation in social and political decision making, the search for truth and individual self-fulfillment (Irwin Toy Ltd., supra; Ramsden, supra). While more recent Supreme Court decisions still refer to this principle of showing the effect of government action, the Court does not appear to apply with a great deal of vigor the requirement that an individual show an advancement of values, tending instead to easily find a restriction of section 2(b).
If a court concludes that the government action, in either purpose or effect, infringes section 2(b), it will then consider whether the limit on free expression is justifiable under section 1.
1. Section 2(b) – A requirement for positive government action?
Freedom of expression usually only requires that the government refrain from interfering with the exercise of the right.
“The traditional view, in colloquial terms, is that the freedom of expression contained in section 2(b) prohibits gags, but does not compel the distribution of megaphones” (Haig, supra at page 1035). In general, it is up to the government to determine which forms of expression are entitled to special support and where the government chooses to provide a platform for expression, it must do so in a manner consistent with the Charter, including section 15 (Delisle v. Canada (Deputy Attorney General),  2 S.C.R. 989; Siemens, supra at paragraph 43; NWAC v. Canada,  3 S.C.R. 627).
However, in certain limited circumstances, section 2(b) will require the government to extend an underinclusive means or platform for expression to a particular group or individuals (Baier v. Alberta,  2 S.C.R. 673). These circumstances will be determined pursuant to the factors set out in Dunmore v. Ontario,  3 S.C.R. 1016 and adapted to a 2(b) context in Baier (supra at paragraph 30):
- that the claim is grounded in a fundamental freedom of expression rather than in access to a particular statutory regime;
- that the claimant has demonstrated that exclusion from a statutory regime has the effect of a substantial interference with section 2(b) freedom of expression, or has the purpose of infringing freedom of expression protected by section 2(b); and
- that the government is responsible for the inability to exercise freedom of expression
The Dunmore factors should only be looked at after a court has satisfied itself that the activity in question is a form of expression and that the claim is actually a claim for positive action (Baier, supra at paragraph 30). To determine whether a claim is for a “positive right”, one must question whether the claim requires the government to act to support or enable an expressive activity (Baier, supra at paragraph 35). A positive claim does not become a claim for a negative right where the government reduces access to a platform for expression to which the claimants previously had access (Baier, supra at paragraph 36).
Presently, it is unclear whether the three-part Dunmore test remains good law. The Supreme Court has not applied this test since Baier, supra. The Court explicitly declined to apply it in Ontario v. Criminal Lawyers’ Association,  1 S.C.R. 815 at paragraph 31. In Ontario v. Fraser, 2011 SCC 20, a freedom of association case, the Supreme Court did not mention the Dunmore test despite its obvious applicability to the question of whether 2(d) imposes positive obligations on the government in the context of collective bargaining.
It should also be noted that the “positive rights” claims framework set out in Baier, supra, only applies where a class of claimants is excluded from a specific government-created platform of expression. In GVTA, supra, for example, the Supreme Court held that the positive rights analysis did not apply to content restrictions for advertisements on buses. Political advertisements from student groups were prohibited based purely on the political nature of their content and not because of the class of people claiming the right (paragraphs 29-36).
2. Does section 2(b) protect a broader right of access to information?
Section 2(b) guarantees freedom of expression, not access to information, and therefore does not guarantee access to all documents in government hands. Access to documents in government hands is constitutionally protected only where, without the desired access, meaningful public discussion and criticism on matters of public interest would be substantially impeded (Ontario (Public Safety and Security) v. Criminal Lawyers’ Association (2010), 319 D.L.R. (4th) 385; 2010 SCC 23). Where a claimant demonstrates that the denial of access effectively precludes meaningful commentary, there is a prima facie case for the production of the documents in question (Criminal Lawyers Association, supra, at paragraphs 33, 37).
However, even where a prima facie case is established, the section 2(b) claim may be defeated by countervailing considerations inconsistent with production (Criminal Lawyers Association at paragraphs 33, 38). These considerations include privileges, such as solicitor-client privilege and other well-established common-law privileges (Criminal Lawyers Association at paragraph 39). They also include “functional constraints” — e.g., assessment of whether a particular government function is incompatible with access to certain documents. Certain types of documents — such as Cabinet confidences — may remain exempt from disclosure because disclosure would impact the proper functioning of affected institutions (Criminal Lawyers Association at paragraph 40).
3. The open court principle
With respect to courts, particularly criminal proceedings, there is a general presumption favouring openness (R. v. MacIntyre,  1 S.C.R. 175; CBC v. New Brunswick (Attorney General),  3 S.C.R. 480; B.C.G.E.U. v. British Columbia (Attorney General), supra). The open court principle is deeply embedded in our common law tradition and is protected under section 2(b) (Ruby v. Canada (Solicitor General),  4 S.C.R. 3 at paragraph 53). It is also protected under the right to a fair and public trial pursuant to section 7 and section 11(d). Members of the public have a right to receive information pertaining to all judicial proceedings, including the pretrial stage, subject to overriding public interests (Edmonton Journal (1989), supra; Re Vancouver Sun,  2 S.C.R. 332 at paragraph 27; Toronto Star Newspapers Ltd. v. Canada,  1 SCR 721). Limitations to the open court principle in the interim release (bail) context have been found to be justifiable under section 1 of the Charter where these limits would help preserve trial fairness and ensure expediency of the bail process, avoiding unnecessary detention for the accused (Toronto Star Newspapers Ltd. v. Canada, supra).
The open court principle is connected to freedom of the press, as the media are an important means by which the public receives information about what transpires in court (Re Vancouver Sun, supra, at paragraph 26). The Supreme Court has affirmed that access to court exhibits is a corollary to the open court principle (Canadian Broadcasting Corp. v. The Queen, 2011 SCC 3 (“Dufour”), CBC v N.B. (1996), supra; Hill v. Church of Scientology of Toronto,  2 S.C.R. 1130). Where there is no express statutory provision regulating this access, it is up to the trial judge to determine whether or not access should be granted using the Dagenais/Mentuck framework (see below) (Dufour, supra). However, section 2(b) does not constitutionally entrench specific newsgathering techniques and not all journalistic techniques or methods, like reliance on confidential informants, are protected (R. v. National Post,  1 S.C.R. 477 at paragraph 38).
The open court principle under section 2(b) is not limited to criminal proceedings as the Supreme Court has also relied upon the principle in the civil context (Sierra Club of Canada v. Canada (Minister of Finance),  2 S.C.R. 522 at paragraph 36; Edmonton Journal (1989), supra at paragraphs 5-11 and 55-63). There is significant lower-court jurisprudence suggesting that the "open court principle" also applies to administrative tribunals performing a judicial or quasi-judicial function (CBC v. Summerside (City),  P.E.I.J. No.3 (QL) at paragraph 25 provides a good summary of the case law on this point, while Robertson v. Edmonton (City) Police Services, 2004 ABQB 519 at paragraphs 192-215 nuances this to some extent).
The discretion of a judge to restrict public access to court proceedings (e.g., through a publication ban), whether conferred by the common law or by statute, must be exercised within the boundaries set by the Charter (Dagenais, supra; R. v. Mentuck,  3 S.C.R. 442; Dufour, supra). For example, the right to a fair trial, which a publication ban may seek to guarantee, and freedom of expression have the same importance under the Charter and one does not automatically trump the other. In exercising discretion as to whether to limit public access to a judicial proceeding, the courts balance freedom of expression and the public interest in being informed about the judicial process and in judicial accountability, against other important rights and interests, thereby incorporating the essence of the Oakes test under section 1 (Dagenais, supra; Mentuck, supra at paragraph 27; Re Vancouver Sun, supra; Sierra Club of Canada, supra; Globe and Mail v. Canada (A.G.), 2010 SCC 41). The burden of displacing the open court principle is on the party applying for the restriction (CBC v. N.B. (1996), supra at paragraph 71; Re Vancouver Sun, supra at paragraph 31).
A discretionary publication ban on court proceedings should only be ordered when:
- such an order is necessary to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk, and
- the salutary effects of the restriction on access outweigh the deleterious effects on the rights of the parties and the public, including the effects on the right to free expression, the right of the accused to a fair and public trial, and the efficacy of the administration of justice (Mentuck, supra at paragraph 32; see also A.B. v Bragg Communications Inc., 2012 SCC 46 at paragraph 11).
In assessing necessity under the first branch of the test, the Supreme Court has emphasized, first, that the risk in question must be a serious risk well-grounded in the evidence. Second, the phrase "proper administration of justice" must be carefully interpreted so as not to allow the concealment of an excessive amount of information. The Court added that the “proper administration of justice” may include important interests other than Charter rights. Third, the judge ordering the ban must consider not only whether reasonable alternatives are available, but also to limit the ban as much as possible without sacrificing the prevention of the risk (Mentuck, supra at paragraphs 31, 34-36).
The Supreme Court has held that the Dagenais/Mentuck framework is flexible enough to apply, with the necessary adaptations, to all discretionary judicial decisions that restrict public access to court proceedings (Mentuck, supra at paragraph 33). This includes decisions about whether to hold in camera proceedings (Re Vancouver Sun, supra at paragraphs 29-30), whether to issue a confidentiality order protecting documents adduced in court from public disclosure (Sierra Club of Canada, supra at paragraph 48), whether to issue a publication ban on settlement negotiations in the context of civil proceedings (Globe and Mail, supra at paragraph 87), and in the pre-charge or “investigative stage” of criminal proceedings (Toronto Star Newspapers Ltd. v. Ontario,  2 S.C.R. 188).
Relevant questions that guide the exercise of this discretion when restricting public access to court proceedings include a consideration of the relevant rights and interests at stake (such as interests of the administration of justice, to protect the innocent, to ensure a fair trial, to protect privacy interests, to protect an ongoing investigation, or to protect an important commercial interest (Edmonton Journal (1989), supra; Southam Inc. and The Queen (1986), 26 D.L.R. (4th) 479 (Ont. C.A.); Canadian Newspapers Co. v. Canada (Attorney General),  2 S.C.R. 122; CBC v. N.B. (1996), supra; Re Vancouver Sun, supra; Sierra Club of Canada, supra; French Estate v. Ontario (Attorney General) (1998), 38 O.R. (3d) 347 (Ont. C.A.), A.B. v. Bragg Communications Inc., supra); the nature of the inquiry at issue (e.g., judicial, quasi-judicial, investigative), its statutory scheme and the practice under it (Pacific Press Ltd. v. Canada (Minister of Employment and Immigration,  2 F.C. 327 (F.C.A.); Edmonton Journal v. Alberta (Attorney General) (1983), 5 D.L.R. (4th) 240 (ABQB), aff’d (1984) 13 D.L.R. (4th) 479 (ABCA), leave to SCC refused (1984) 34 Alta. L.R. (2d); Southam Inc. v. Coulter (1990), 75 O.R. (2d) 1 (Ont. C.A.); Travers v. Canada (Board of Inquiry on Activities of the Canadian Airborne Regiment Battle Group in Somalia,  F.C.J. No. 932(F.C.A.); Re Vancouver Sun, supra); the duration of the restriction (temporary or permanent); the effectiveness of the restriction in light of new technologies (French Estate (Ont. C.A.), supra); whether the information sought to be protected is already in the public domain (Re Vancouver Sun, supra; Globe and Mail, supra ); and the likelihood of a person involved in the proceeding, such as a juror, being biased in the absence of such a restriction (Dagenais, supra).
In the case of a statutory mandatory publication ban, the balancing of rights to determine the validity of the scheme should take place under section 1, applying the Oakes test (Toronto Star Newspapers Ltd. v. Canada, supra).
4. Access to legislative proceedings
Parliamentary privileges are constitutional and therefore a legislative assembly can regulate access to its proceedings pursuant to its privileges, even if doing so limits the freedom of the press to report on such proceedings (N.B. Broadcasting Co. v. Nova Scotia (Speaker of the House Assembly),  1 S.C.R. 319; Zundel v. Boudria, et al. (1999), 46 O.R. (3d) 410 (Ont. C.A.)).
5. Journalistic immunity
Section 2(b) does not protect all techniques of “news gathering”. Freedom of expression and freedom of the press do not encompass a broad immunity for journalists from either the production of physical evidence relevant to a criminal offence or against disclosure of confidential sources. Therefore, a judicial order to compel disclosure of a secret source would not in general limit section 2(b), whether in a criminal trial (R. v. National Post, supra at paragraphs 37-41) or in the context of civil litigation (Globe and Mail, supra at paragraphs 20-22). A qualified journalist-source privilege exists in the common law and a test that is informed by Charter values is used to determine the existence of privilege on a case by case basis (R. v. National Post, supra, paragraphs 50-55; Globe and Mail, supra at paragraphs 53-57).
6. Application of section 2(b) in private litigation
While a private law case is not governed directly by the Charter, the evolution of the common law is to be informed and guided by Charter values (Grant v. Torstar Corp.,  3 S.C.R. 640 at paragraph 44; Quan v. Cusson,  3 S.C.R. 712; Hill v. Church of Scientology of Toronto, supra at paragraph 97; WIC Radio Ltd. v. Simpson,  2 S.C.R. 420 at paragraph 2 re: defamation actions). Courts should, from time to time, re-evaluate the consistency of the common law with “evolving societal expectations through the lens of Charter values” (Grant v. Torstar Corp., supra at paragraph 46). The values underlying section 2(b) of the Charter have been the basis for recent changes to the common law of defamation, which created a new defence of “responsible communication on matters of public interest” (Grant v. Torstar Corp.; Quan v. Cusson).
Section 2(b) does not create a privilege in journalists' notes in the context of private litigation (Bank of B.C. v. Canada Broadcasting Corp. (1995), 126 D.L.R. (4th) 644 (B.C.C.A.)). Private broadcasters are not required to provide a forum for particular messages (NWAC, supra; Haig, supra; New Brunswick Broadcasting Co. v. CRTC,  2 F.C. 410 (F.C.A.), Trieger v. Canada Broadcasting Corp. (1988), 66 O.R. (2d) 273 (Ont. H.C.J, 1988 CanLII 4568 (ON SC)); Natural Law Party v. Canada Broadcasting Corp.,  1 F.C. 580 (T.D.)). The CBC, at least in its role as an independent newscaster, is not subject to the Charter (Trieger, supra; Natural Law Party, supra). Where judges must implement Charter values in the exercise of their discretion in particular situations, it is not necessary that a party who argues how those Charter values should be applied give constitutional notice (Bank of B.C., supra).
Although the Charter applies to the common law, and although judges should develop the common law in a manner consistent with Charter values (R.W.D.S.U. v. Pepsi-Cola, supra), section 2(b) will not protect persons engaged in private litigation where the limit on the freedom of expression is found in the common law (e.g., inducement to breach contract) and where there is no significant government action involved (Dolphin Delivery, supra; Hill, supra).
7. Expression by public servants
For public servants, freedom to express public criticism of government policies is restricted by a common law duty of loyalty to their employer (Fraser v. P.S.S.R.B.,  2 S.C.R. 455 the leading case on this issue although it was technically not decided under section 2(b); see also Haydon et. al. v. Canada,  2 F.C. 82 (F.C.T.D.); Haydon v. Canada (Treasury Board), 2004 FC 749 at paragraph 43 (F.C.)). The purpose of the duty, to promote an impartial and effective public service, has been found to be a pressing and substantial objective (Haydon (2001), supra at paragraphs 69 to 75; Haydon (2004), supra at paragraph 45 (F.C.); Osborne, supra). The duty should restrict freedom of expression minimally and does not demand absolute silence from public servants (Osborne, supra; Haydon (2001), supra at paragraph 86). To ensure minimal impairment and proportionality between effect and objective, there is a need to balance the duty of loyalty and the value of freedom of expression (Fraser, supra; Haydon (2001), supra at paragraph 67; Haydon (2004), supra at paragraph 45; Alberta Union of Provincial Employees (A.U.P.E.) v. Alberta, 2002 ABCA 202, 218 (4th) D.L.R. 16 at paragraph 29).
Generally, it has been found that where an issue embraces matters of public concern, such as where the government engages in illegal acts, where government policies jeopardize the life, health or safety of others, or if the criticism has no impact on the public servant’s ability to perform his duties effectively or on the public perception of that ability, the public interest outweighs the objective of an impartial and effective public service (Haydon (2001), supra at paragraphs 82-83; Haydon (2004), supra at paragraph 45; Stenhouse v. Canada (Attorney General), 2004 FC 375 (F.C.) at paragraph 32).
8. Standard for interlocutory injunctions
For the purposes of granting an interlocutory injunction in cases of defamation or hate speech, the courts will apply a different test than in Cyanamid (American Cyanamid Co. v. Ethicare Ltd.,  A.C. 396 (H.L), approved in Manitoba (Attorney General) v. Metropolitan Stores Ltd.,  1 S.C.R. 110 at 128-129). The harm test in Cyanamid is inappropriate in this context (CHRC v. Canadian Liberty Net,  1 S.C.R. 626).
9. Freedom of expression as a Charter value in discretionary administrative decision making
Freedom of expression is also a “Charter value” and administrative decision makers must properly balance the relevant statutory objectives with this value when exercising their discretion under a statute. In Doré, the Supreme Court found that professional disciplinary bodies like the Barreau du Québec may have to tolerate a “degree of discordant criticism” of the judiciary because of the value of freedom of expression. However, the decision of the Barreau’s Disciplinary Council to reprimand Mr. Doré in this particular case was justified because of “the excessive degree of vituperation” in the tone of his letter to a judge. The Court held that civility requirements for lawyers must be balanced with the benefits of “open, and even forceful, criticism of our public institutions.” (Doré v. Barreau du Québec,  1 S.C.R. 395).
Section 1 considerations particular to this section
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” (Sharpe, supra at paragraph 22). 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” (Thomson Newspapers Co., supra at paragraph 91; JTI-Macdonald Corp., supra; Lucas, supra at paragraphs 116 and 121; Sharpe, supra at paragraph 181; Whatcott, supra at paragraphs 147-148; Butler, supra at page 150). 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 (Keegstra, supra; Whatcott, supra; Rocket, supra; JTI-Macdonald Corp., supra). Limits on political speech will generally be the most difficult to justify (Thomson Newspapers Co., supra; Harper, supra). 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 (RJR-MacDonald Inc., supra; JTI-Macdonald Corp., supra; Ruby, supra; Thomson Newspapers Co., supra; Toronto Star Newspapers Ltd., supra). A restriction on expression backed by a civil penalty rather than a criminal sanction such as imprisonment will be considered a less impairing alternative (Zundel (1992), supra; Taylor, supra).
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 (B.C. Freedom of Information, supra).
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