4.2

The following topics will be covered in this lecture:
- How is freedom of expression protected by the Charter?
- What does freedom of expression protect?
- Overview of hate speech and the Charter right to freedom of expression

Chief Justice Duff in Reference re Alberta Statutes (1938):
- "The practice of this right of free public discussion of public affairs, notwithstanding its incidental mischiefs, is the breath of life for parliamentary institutions."
Justice Rand in Switzman v Elbling (1957):
- "Political expression [is] the primary condition of social life, thought and its communication by language. Liberty in this is little less vital to man’s mind and spirit than breathing is to his physical existence."

Section 2: Everyone has fundamental freedoms, including:
- Freedom of thought
- Freedom of belief
- Freedom of opinion and expression
- Freedom of the press and other media of communication

Irwin Toy v Quebec (1989):
- “Expression has both a content and form, and the two can be inextricably connected. Activity is expressive if it attempts to convey meaning.”
- Freedom of expression entrenched in the Constitution ensures everyone can manifest thoughts, opinions, beliefs, and all expressions of the heart and mind, regardless of popularity or mainstream acceptance.
- Such protection is termed ‘fundamental’ in a free, pluralistic and democratic society, which values a diversity of ideas and opinions for their inherent value to both the community and the individual.

Key Point from Irwin Toy v Quebec:
- “If the activity conveys or attempts to convey a meaning, it has expressive content and prima facie falls within the scope of [s. 2(b)].”
- Expression is conveyed through various forms:
- Written word
- Spoken word
- Arts
- Physical gestures or acts
- However, violence as a form of expression does not receive protection under freedom of expression.

Public Incitement of Hatred (Criminal Code of Canada, Section 319):
- (1) Every one who, by communicating statements in any public place, incites hatred against any identifiable group where such incitement is likely to lead to a breach of the peace is guilty of:
- (a) an indictable offence and is liable to imprisonment for a term not exceeding two years;
- (b) an offence punishable on summary conviction.

R v Keegstra (1990):
- Supreme Court Justice Dickson stated: “Communications which willfully promote hatred against an identifiable group without doubt convey a meaning and are intended to do so by those who make them.”

Total Sections in the Charter: 34
- Fundamental Freedoms (s 2)
- Rights Limitation (s 1)
- Democratic Rights (ss 3-5)
- Legal Rights (ss 7-15)
- Equality Rights (s 15)
- Notwithstanding Clause (s 33)

Constitutionality Considerations:
- Majority Opinion by Dickson CJ:
1. Hate speech causes harm.
2. Hate speech is not valued as political speech.
3. Hatred will capture only “most intentionally extreme forms of expression.”
- Dissenting Opinion by McLachlin J:
1. Criminalizing hate speech chills other non-criminal speech.
2. The standard of hatred is too broad and subjective.
3. Prohibition may inadvertently promote hate speech by drawing attention to it.

The discussion around freedom of expression, particularly its relation to hate speech, raises important questions about the balance between protecting fundamental freedoms and maintaining public order and respect for all individuals in society.

Intro music credit: Excerpt from “Pictures of the Floating World” by Pale Tussuck, licensed under CC BY-SA 4.0
Background image credit: Cropped photo by Steve Johnson
Video edited by: Anna Priemaza