Daniel J. Baum - Freedom of Expression
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Freedom of expression is a fundamental right protected by the Charter of Rights and Freedoms, which is part of the Constitution of Canada and, as such, the highest law of the land. But it has limits. Peacefully picketing an abortion clinic, so long as patients can come and go, is a protected right, but shouting Fire! in a crowded theatre to cause a stampede is a criminal offence.
Tied in with issues of free speech are questions such as whether justice delayed is justice denied. If it takes years to bring a matter to court and especially to the Supreme Court of Canada how can it be said that there has been a fair consideration of the issues to be decided? As well, must all important constitutional questions, such as freedom of expression, be decided by the courts? Or, is there another way to resolve such issues?
How courts reach decisions in such cases is discussed in Freedom of Expression, an objective introduction for all readers to better understand how law and professional ethics impact those of us who would speak publicly as to issues of concern.
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Copyright Daniel J. Baum, 2014
All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise (except for brief passages for purposes of review) without the prior permission of Dundurn Press. Permission to photocopy should be requested from Access Copyright.
Editor: Michael Melgaard
Design: Laura Boyle
Cover Design: Carmen Giraudy
Epub Design: Carmen Giraudy
Library and Archives Canada Cataloguing in Publication
Baum, Daniel Jay, 1934-, author
Freedom of expression / Daniel J. Baum.
(Understanding Canadian law)
Includes bibliographical references and index.
Issued in print and electronic formats.
ISBN 978-1-4597-2317-7 (pbk.).--ISBN 978-1-4597-2318-4 (pdf).-- ISBN 978-1-4597-2319-1 (epub)
1. Freedom of expression--Canada. 2. Canada. Canadian Charter of Rights and Freedoms. 3. Canada. Supreme Court.
I. Title. II. Series: Understanding Canadian law (Toronto, Ont.)
KE4418.B38 2014 342.710853 C2014-902130-5
KF4483.C524B38 2014 C2014-902131-3
We acknowledge the support of the Canada Council for the Arts and the Ontario Arts Council for our publishing program. We also acknowledge the financial support of the Government of Canada through the Canada Book Fund and Livres Canada Books, and the Government of Ontario through the Ontario Book Publishing Tax Credit and the Ontario Media Development Corporation.
Care has been taken to trace the ownership of copyright material used in this book. The author and the publisher welcome any information enabling them to rectify any references or credits in subsequent editions.
J. Kirk Howard, President
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For Penelope
Acknowledgements
F irst , I would like to acknowledge the Supreme Court of Canada. Over the decades, the membership of this nine-person Court has altered through retirement (mandatory at age seventy-five) or death. Increasingly, the Court has tried to hand down judgments that come ever closer to being decisions that can be read, understood, and discussed by those who want to be informed about the structure of our law, of our government, and more importantly, of our societys values. So, I thank most profusely the Supreme Court of Canada.
A second link in the chain between the law and the people is the media. It is possible, of course, in our highly computerized society to read the decisions of the Supreme Court of Canada online, but that can be an arduous process. On occasion, magazines such as Macleans feature a particular subject for investigative reporting in which the Supreme Court of Canadas judgments (such as those relating to tobacco) may form a part. Newspapers such as the Toronto Star may select a story reflecting a matter of social concern, such as bullying. And, on a daily basis, radio or television may report on such stories.
The net effect of media reporting, at best, ranges from episodic to minimal. Perhaps the one constant to which we frequently refer in this series is the informed editorials in Canadas national newspaper, the Globe and Mail . Without hesitating, the Globe and Mail granted the right to reprint editorials (and there were many) on Supreme Court of Canada decisions. The approach of the Globe and Mail seems to be: Let the public be made aware. I thank them for their generosity and for maintaining consistently high standards.
Ordinarily, I would say that I take full responsibility for the contents of this book. Hopefully, however, the contents do not reflect my judgments but those of the Supreme Court of Canada. My task, as I saw it, was to discuss those judgments in a nonjudgmental and accessible way.
Introduction
T here are limits to what we can say and how we can express ourselves. It may be no more than a prank, but the law likely will come down with a heavy hand on the person who simply wants to see what will happen if she shouts Fire! in a crowded theatre. For her it may be no more than speaking freely, letting herself go. For the public frightened or injured rushing from the theatre in response to the shout the act is careless. The state might hold the shouter criminally responsible. And those injured might even seek damages against her.
Between the right to speak or express oneself and demonstrable harm that such speech or action may cause, there is a wide area in which courts, and especially the Supreme Court of Canada, set boundary markers that, on the surface, seem clear and simple. They are embedded in the highest law of the land, the Charter of Rights and Freedoms, part of the Constitution of Canada. Section 2 of the Charter states:
2. Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion;
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
(c) freedom of peaceful assembly; and
(d) freedom of association.
The difficulties are not in the principles, but in their application. The principles must be applied to individual situations, to facts that often reflect legitimate values other than those of freedom of expression. How are these values to be weighed? How are courts to decide? The facts become enormously important.
School classrooms are supposed to be places of learning. Does this allow school authorities to express points of view that may be seen as discriminatory toward a particular group? For example, if religious belief requires Sikh males to wear a kirpan (a dagger) as an expression of their faith, may school boards prohibit such action in the interest of school safety?
Freedom of expression principles can come into play in numerous settings. In this book, we show the stretch of the law in balancing the fundamental right of freedom of expression against other legitimate interests of government, especially as seen by the Supreme Court of Canada.
Who Are the Judges?
A few words must be said about the judges (or justices, as Supreme Court of Canada judges are called). Who are they? How are they chosen? How do they go about coming to decisions? The answer to these questions may help us better understand the decisions that we will be examining.
In 1989 Beverley McLachlin, then chief justice of British Columbia, received a telephone call from the prime minister of Canada. He asked if she would consider a new position: that of a justice of the Supreme Court of Canada.
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