Freedom of Expression
Introduction
s.2(b) “freedom of thought, belief, opinion and expression, including
freedom of the press and other media of communication”
I General framework
1 Fundamental values of freedom of expression
R. v. Keegstra [1990]
“…the reach of s. 2(b) is potentially very wide, expression being deserving
of constitutional protection if "it serves individual and societal values in a free
and democratic society". In subsequent cases, the Court has not lost sight of this
broad view of the values underlying the freedom of expression, though the
majority decision in Irwin Toy perhaps goes further towards stressing as
primary the "democratic commitment" said to delineate the protected sphere of
liberty... Moreover, the Court has attempted to articulate more precisely some of
the convictions fueling the freedom of expression, these being summarized in
Irwin Toy … as follows: (1) seeking and attaining truth is an inherently good
activity; (2) participation in social and political decision-making is to be fostered
and encouraged; and (3) diversity in forms of individual self-fulfillment and
human flourishing ought to be cultivated in a tolerant and welcoming
environment for the sake of both those who convey a meaning and those to
whom meaning is conveyed.”
2 what is expression?
A. Basic principle
Irwin Toy Ltd v. Quebec [1989]
“"Expression" has both a content and a form, and the two can be
inextricably connected. Activity is expressive if it attempts to convey meaning.
That meaning is its content. Freedom of expression was entrenched in our
Constitution … so as to ensure that everyone can manifest their thoughts,
opinions, beliefs, indeed all expressions of the heart and mind, however
unpopular, distasteful or contrary to the mainstream. Such protection is, in the
words of both the Canadian…, "fundamental" because in a free, pluralistic and
democratic society we prize a diversity of ideas and opinions for their inherent
value both to the community and to the individual… We cannot, then, exclude
human activity from the scope of guaranteed free expression on the basis of the
content or meaning being conveyed. Indeed, if the activity conveys or attempts to
convey a meaning, it has expressive content and prima facie falls within the
scope of the guarantee. Of course, while most human activity combines
expressive and physical elements, some human activity is purely physical and
does not convey or attempt to convey meaning. It might be difficult to
characterize certain day-to-day tasks, like parking a car, as having expressive
content. To bring such activity within the protected sphere, the plaintiff would
have to show that it was performed to convey a meaning.
The content of expression can be conveyed through an infinite variety of
forms of expression: for example, the written or spoken word, the arts, and even
physical gestures or acts. While the guarantee of free expression protects all
content of expression, certainly violence as a form of expression receives no such
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protection. It is not necessary here to delineate precisely when and on what
basis a form of expression chosen to convey a meaning falls outside the sphere of
the guarantee. But it is clear, for example, that a murderer or rapist cannot
invoke freedom of expression in justification of the form of expression he has
chosen… Indeed, freedom of expression ensures that we can convey our thoughts
and feelings in non-violent ways without fear of censure.”
B. use of language
Ford v. Quebec [1988]
“Language is so intimately related to the form and content of expression
that there cannot be true freedom of expression by means of language if one is
prohibited from using the language of one's choice. Language is not merely a
means or medium of expression; it colours the content and meaning of
expression. It is…a means by which a people may express its cultural identity. It
is also the means by which the individual expresses his or her personal identity
and sense of individuality.… That suggests that "freedom of expression" is
intended to extend to more than the content of expression in its narrow sense.”
C. hate speech
R. v. Keegstra [1995]
“Apart from rare cases where expression is communicated in a physically
violent form, the Court thus viewed the fundamental nature of the freedom of
expression as ensuring that "if the activity conveys or attempts to convey a
meaning, it has expressive content and prima facie falls within the scope of the
guarantee" ... In other words, the term "expression" as used in s. 2(b) of the
Charter embraces all content of expression irrespective of the particular
meaning or message sought to be conveyed…
Turning specifically to the proposition that hate propaganda should be
excluded from the coverage of s. 2(b), I begin by stating that the communications
restricted by s. 319(2) cannot be considered as violence, which on a reading of
Irwin Toy I find to refer to expression communicated directly through physical
harm. Nor do I find hate propaganda to be analogous to violence, and through
this route exclude it from the protection of the guarantee of freedom of
expression. As I have explained, the starting proposition in Irwin Toy is that all
activities conveying or attempting to convey meaning are considered expression
for the purposes of s. 2(b); the content of expression is irrelevant in determining
the scope of this Charter provision. Stated at its highest, an exception has been
suggested where meaning is communicated directly via physical violence, the
extreme repugnance of this form to free expression values justifying such an
extraordinary step. Section 319(2) of the Criminal Code prohibits the
communication of meaning that is repugnant, but the repugnance stems from the
content of the message as opposed to its form. For this reason, I am of the view
that hate propaganda is to be categorized as expression so as to bring it within
the coverage of s. 2(b).”
D. child pornography
R. v. Sharpe [2001]
“In summary, prohibiting the possession of child pornography restricts
the rights protected by s. 2(b)…. While the prurient nature of most of the
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materials defined as "child pornography" may attenuate its constitutional worth,
it does not negate it, since the guarantee of free expression extends even to
offensive speech.”
E. commercial expression
Ford v. Quebec [1988]
“Given the earlier pronouncements of this Court to the effect that the
rights and freedoms guaranteed in the Canadian Charter should be given a large
and liberal interpretation, there is no sound basis on which commercial
expression can be excluded from the protection of s. 2(b) of the Charter…. Over
and above its intrinsic value as expression, commercial expression which, as has
been pointed out, protects listeners as well as speakers plays a significant role in
enabling individuals to make informed economic choices, an important aspect of
individual self‑fulfillment and personal autonomy. The Court accordingly rejects
the view that commercial expression serves no individual or societal value in a
free and democratic society and for this reason is undeserving of any
constitutional protection.”
F. picketing
Retail, Wholesale and Department Stores Union, Local 580 v. Dolphin
Delivery Ltd.[1986]
“There is… always some element of expression in picketing. The union is
making a statement to the general public that it is involved in a dispute, that it is
seeking to impose its will on the object of the picketing, and that it solicits the
assistance of the public in honouring the picket line. Action on the part of the
picketers will, of course, always accompany the expression, but not every action
on the part of the picketers will be such as to alter the nature of the whole
transaction and remove it from Charter protection for freedom of expression.
That freedom, of course, would not extend to protect …acts of violence. It would
not protect the destruction of property, or assaults, or other clearly unlawful
conduct. We need not, however, be concerned with such matters here because
the picketing would have been peaceful. I am therefore of the view that the
picketing sought to be restrained would have involved the exercise of the right of
freedom of expression.”
Retail, Wholesale and Department Store Union, Local 558
v. Pepsi-Cola Canada Beverages (West) Ltd. [2002]
“Picketing, however defined, always involves expressive action. As such, it
engages one of the highest constitutional values: freedom of expression,
enshrined in s. 2(b) of the Charter. This Court's jurisprudence establishes that
both primary and secondary picketing are forms of expression, even when
associated with tortious acts:”
G. reception of expression
Little Sisters Book and Art Emporium v. Canada [2000]
“The appellants allege, and the Crown agrees, that the Customs legislation
constitutes a prima facie limitation on their s. 2(b) freedom of expression which
must be justified under s. 1 of the Charter. The Constitution protects the right to
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receive expressive material as much as it does the right to create it… Section 2(b)
"protects listeners as well as speakers…"
H. possession of expressive material
R. v. Sharpe
“As to the contention that prohibiting possession of expressive material
does not raise free expression concerns, I cannot agree. The right conferred by s.
2(b) of the Charter embraces a continuum of intellectual and expressive freedom
-- "freedom of thought, belief, opinion and expression". The right to possess
expressive material is integrally related to the development of thought, belief,
opinion and expression. The possession of such material allows us to understand
the thought of others or consolidate our own thought. Without the right to
possess expressive material, freedom of thought, belief, opinion and expression
would be compromised. Thus the possession of expressive materials falls within
the continuum of rights protected by s. 2(b) of the Charter.”
3 what is an infringement?
Irwin Toy Ltd v. Quebec [1989]
“Having found that the plaintiff's activity does fall within the scope of
guaranteed free expression, it must next be determined whether the purpose or
effect of the impugned governmental action was to control attempts to convey
meaning through that activity… If the government's purpose, then, was to
restrict attempts to convey a meaning, there has been a limitation by law of s.
2(b) and a s. 1 analysis is required to determine whether the law is inconsistent
with the provisions of the Constitution. If, however, this was not the
government's purpose, the court must move on to an analysis of the effects of the
government action.
If the government's purpose is to restrict the content of expression by
singling out particular meanings that are not to be conveyed, it necessarily limits
the guarantee of free expression. If the government's purpose is to restrict a
form of expression in order to control access by others to the meaning being
conveyed or to control the ability of the one conveying the meaning to do so, it
also limits the guarantee. On the other hand, where the government aims to
control only the physical consequences of certain human activity, regardless of
the meaning being conveyed, its purpose is not to control expression…
Even if the government's purpose was not to control or restrict attempts
to convey a meaning, the Court must still decide whether the effect of the
government action was to restrict the plaintiff's free expression. Here, the
burden is on the plaintiff to demonstrate that such an effect occurred. In order so
to demonstrate, a plaintiff must state her claim with reference to the principles
and values underlying the freedom.”
4 justification
A. contextual analysis: need for deference
Irwin Toy Ltd v. Quebec
“Where the legislature mediates between the competing claims of
different groups in the community, it will inevitably be called upon to draw a line
marking where one set of claims legitimately begins and the other fades away
without access to complete knowledge as to its precise location. If the legislature
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has made a reasonable assessment as to where the line is most properly drawn,
especially if that assessment involves weighing conflicting scientific evidence
and allocating scarce resources on this basis, it is not for the court to second
guess.
In other cases, however, rather than mediating between different groups,
the government is best characterized as the singular antagonist of the individual
whose right has been infringed. …In such circumstances, …the courts can assess
with some certainty whether the "least drastic means" for achieving the purpose
have been chosen, especially given their accumulated experience in dealing with
such questions…”
B. contextual analysis: the nature of the right involved
R. v. Lucas
“This Court has stressed the importance of a contextual approach in
determining the appropriate balance between individual rights and state
interests under s. 1….. It follows that when freedom of expression is at issue, the
nature of the s. 2(b) violation must be considered in determining whether the
restriction can be “demonstrably justified in a free and democratic society”.
Quite simply, the level of protection to which expression may be entitled will
vary with the nature of the expression. The further that expression is from the
core values of this right the greater will be the ability to justify the state’s
restrictive action.”
C. Contextual analysis: modern formulation
Thomson Newspapers Co. v. Canada
“In light of this inconclusive evidence, the government submitted it is not
for this Court to second-guess the judgment of the legislature when it has made a
reasonable assessment that an apprehension of harm exists. It also argued that
"common sense applied to what is known establishes the reasonableness of
Parliament's assessment of the situation".
I agree with McLachlin J.'s remarks in RJR-MacDonald that it is difficult to
draw a sharp distinction between legislation in which the state is the antagonist
of the individual, and that in which it is acting as a mediator between different
groups. Indeed, nothing in these cases suggests that there is one category of
cases in which a low standard of justification under s. 1 is applied, and another
category in which a higher standard is applied. In my view, these cases further
the contextual approach to s. 1 by indicating that the vulnerability of the group
which the legislator seeks to protect…, that group's own subjective fears and
apprehension of harm…, and the inability to measure scientifically a particular
harm in question, or the efficaciousness of a remedy…, are all factors of which
the court must take account in assessing whether a limit has been demonstrably
justified according to the civil standard of proof. They do not represent
categories of standard of proof which the government must satisfy, but are
rather factors which go to the question of whether there has been a
demonstrable justification….
Another contextual factor to be considered is the nature of the activity
which is infringed. The degree of constitutional protection may vary depending
on the nature of the expression at issue... This is not because a lower standard is
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applied, but because the low value of the expression may be more easily
outweighed by the government objective.”
D. application of Oak analysis
Thomson Newspapers Co. v. Canada on the ban on publication of poll
during the final three days before election
The purpose: Is the government objective pressing and substantial?
“…the voter's misapprehension of the true significance of a poll could be
the result of either of two quite different reasons: first, the voter might
systematically overestimate the validity and accuracy of poll results; or, second,
there might be a poll which falls below the normal standard of accuracy of
polling which Canadians are generally entitled to expect.
I am thus unable to perceive, and nor has the government seriously
argued before us, that any pressing and substantial objective is served by the
existence of a "rest period" for polls prior to the election date. I would, therefore,
find that s. 322.1 is not justified under s. 1 according to this objective.
I conclude that the purpose of guarding against the possible influence of
inaccurate polls late in the election campaign by allowing for a period of criticism
and scrutiny immediately prior to election day, is a pressing and substantial
objective.”
The means: rational connection
“The three-day blackout period on the publication of polls will serve, to
some degree, the purpose of preventing the use of inaccurate polls by voters. The
blackout period gives critics the opportunity to assess the methodological
information made available by the pollster and to question the validity of the poll
on that basis. To that extent, the ban is rationally connected to the purpose of the
legislation.”
The means: Minimal impairment
“The three-day blackout period on the publication of polls will serve, to
some degree, the purpose of preventing the use of inaccurate polls by voters. The
blackout period gives critics the opportunity to assess the methodological
information made available by the pollster and to question the validity of the poll
on that basis. To that extent, the ban is rationally connected to the purpose of the
legislation.
The provision in this case is also overbroad and underbroad in relation to
the purpose of the legislation. The ban imposed in this case is overbroad because
it prohibits in the final three days of an election campaign the publication and
use by voters of all those polls which would meet the usual standards of
accuracy. Its underbreadth has already been mentioned in the rational
connection analysis: the blackout period may not adequately disabuse voters of
an erroneous impression left by a poll which did not disclose its methodology to
critics or the public.
In assessing whether this provision is narrowly tailored, the obvious
alternative which Parliament could have adopted was a mandatory disclosure of
methodological information without a publication ban….Although such a
provision would still leave the door open to inaccurate poll results published
immediately prior to the election having some impact, that possibility would be
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significantly reduced both by virtue of the reader's initial access to those
methodological data, and by the opportunity for rapid response by parties whose
interests are prejudiced by the inaccurate poll. The government has not
explained, however, how or whether this danger is any less than that of a poll
published prior to the three-day blackout period without methodological data
which is effectively immune from the reasoned criticism which the blackout
period purports to allow. The failure to address or explain the reason for not
adopting a significantly less intrusive measure which appears as effective as that
actually adopted weighs heavily against the justifiability of this provision.”
The means: final balance
“In my view, the doubtful benefits of this ban are outweighed by its
significant and tangible deleterious effects and therefore is not justified under
the third stage of the proportionality analysis. The very serious invasion of the
freedom of expression of all Canadians is not outweighed by the speculative and
marginal benefits postulated by the government.”
II Political Expression
1 ban on false news
R. v. Zundel [1992]
“The purpose of the guarantee is to permit free expression to the end of
promoting truth, political or social participation, and self-fulfilment. That
purpose extends to the protection of minority beliefs which the majority regard
as wrong or false… Tests of free expression frequently involve a contest between
the majoritarian view of what is true or right and an unpopular minority view.
…Thus the guarantee of freedom of expression serves to protect the right of the
minority to express its view, however unpopular it may be; adapted to this
context, it serves to preclude the majority's perception of `truth' or `public
interest' from smothering the minority's perception. The view of the majority
has no need of constitutional protection; it is tolerated in any event. Viewed
thus, a law which forbids expression of a minority or "false" view on pain of
criminal prosecution and imprisonment, on its face, offends the purpose of the
guarantee of free expression.
Can it be said in these circumstances that the Crown has discharged the
burden upon it of establishing that the objective of the legislation is pressing and
substantial, in short, of sufficient importance to justify overriding the
constitutional guarantee of freedom of expression? I think not. It may be that s.
181 is capable of serving legitimate purposes. But no objective of pressing and
substantial concern has been identified in support of its retention in our Criminal
Code.
In the absence of an objective of sufficient importance to justify
overriding the right of free expression, the state's interest in suppressing
expression which may potentially affect a public interest cannot outweigh the
individual's constitutional right of freedom of expression and s. 181 cannot be
upheld under s. 1 of the Charter. But even if one were to attribute to s. 181 an
objective of promoting social and racial tolerance in society and manage the
further leap of concluding that objective was so pressing and substantial as to be
capable of overriding entrenched rights, the Crown's case under s. 1 of the
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Charter would fail for want of proportionality between the potential reach of s.
181 on the one hand, and the "evil" to which it is said to be directed on the other.
The same considerations lead to the conclusion that the gravity of the
restriction on the right of freedom of expression is not proportionate to s. 181's
putative objective.”
2 Election Speech
A. ban on publication of poll during the last three days before election
Thomson Newspaper Co. v. Canada [1998]
s. 322.1 of the Canada Elections Act prohibits the broadcasting,
publication or dissemination of opinion survey results during the final three days
of a federal election campaign. The Supreme Court of Canada struck it down.
B. ban on publication of election result
R. v. Bryan [2007]
s. 329 of the Canada Elections Act prohibits the transmission of election
results in one electoral district to another electoral district before the close of all
polling stations in that other district. The Supreme Court of Canada sustained it.
“The Attorney General claims that informational equality is a fundamental
principle of electoral democracy… It is a centrally important element of the
concept of electoral fairness, and one which this Court has held to be “a laudable
objective that will necessarily involve certain restrictions on freedom of
expression”, and “a pressing and substantial objective in our liberal democracy…
I accept that it is pressing and substantial…
Parliament considered the alternative options proposed… and
determined the s. 329 scheme to be the most effective and least intrusive; there
is sufficient evidence in the particular context of this case showing that the policy
choice of Parliament is a rational and justifiable solution to the problem of
informational imbalance.
Thus the salutary effects of s. 329 outweigh the deleterious effects.”
C. Election campaign spending
Libman v. Quebec
The Referendum Act, which governs referendums in Quebec, provides
that groups wishing to participate in a referendum campaign for a given option
can either directly join the national committee supporting the same option or
affiliate themselves with it. Sections 402 and 403 establish the principle of
“regulated expenses”. Under ss. 406 para. 3 and 413, only an official agent of a
national committee, or one of his or her representatives, may incur or authorize
regulated expenses. Section 414 provides that such expenses may be paid only
out of the referendum fund, which is available only to the national committees.
Under s. 416, no person may accept or execute an order for regulated expenses
unless they are incurred or authorized by the official agent of a national
committee or by one of his or her representatives. Finally, s. 404 lists exceptions
to regulated expenses. These exceptions, or unregulated expenses, comprise
primarily forms of expression that do not require the disbursement of money or
financial consideration. The only disbursement of money permitted is the
maximum amount of $600 for organizing and holding a meeting.
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“There is no doubt that the appellant is attempting to convey meaning
through the form of communication at issue; he wishes to express his opinions
on the referendum question independently of the national committees by means
of expenses that are included in the definition of “regulated expenses”. This is a
form of political expression that is clearly protected by s. 2(b) of the Canadian
Charter.
Thus, the objective of the Act is, first, egalitarian in that it is intended to
prevent the most affluent members of society from exerting a disproportionate
influence by dominating the referendum debate through access to greater
resources. What is sought is in a sense an equality of participation and influence
between the proponents of each option. Second, from the voters’ point of view,
the system is designed to permit an informed choice to be made by ensuring that
some positions are not buried by others. Finally, as a related point, the system is
designed to preserve the confidence of the electorate in a democratic process
that it knows will not be dominated by the power of money.
The appellant himself conceded that the objective of the impugned
legislation is of pressing and substantial importance in a democratic society. In
our view, the pursuit of an objective intended to ensure the fairness of an
eminently democratic process, namely a referendum on a question of public
interest, is a highly laudable one.
Thus, as regards the exceptions set out in s. 404 Special Version, groups
and individuals who cannot join or affiliate themselves directly with the national
committees are allotted no money whatsoever to spend as they see fit in order to
make their positions known. It is therefore impossible, for example, for them to
pay to have flyers, pamphlets or posters printed that present their points of
view. This Court has already pointed out the importance of these forms of
communication, which are generally used by the least affluent members of our
society... In our view, this example suffices to illustrate the seriousness of the
restriction imposed in s. 404 Special Version on individuals and groups who can
neither join nor affiliate themselves with the national committees.”
Harper v. Canada [2004]
Section 350 limits third party election advertising expenses to $3000 in a
given electoral district and $150,000 nationally; s. 351 prohibits individuals or
groups from splitting or colluding for the purposes of circumventing these limits;
ss. 352 to 357, 359, 360 and 362 require a third party to identify itself in all of its
election advertising, to appoint financial agents and auditors, and to register
with the Chief Electoral Officer; and s. 323 provides for a third party advertising
blackout on polling day.
“Equality in the political discourse promotes full political debate and is
important in maintaining both the integrity of the electoral process and the
fairness of election outcomes... Such concerns are always pressing and
substantial “in any society that purports to operate in accordance with the tenets
of a free and democratic society”… Accordingly, protecting the integrity of
spending limits applicable to candidates and parties is a pressing and substantial
objective… Confidence in the electoral process is, therefore, a pressing and
substantial objective.
There is sufficient evidence establishing a rational connection between
third party advertising expense limits and promoting equality in the political
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discourse, protecting the integrity of the financing regime applicable to
candidates and parties, and maintaining confidence in the electoral process.
Section 350 minimally impairs the right to free expression. The definition
of “election advertising” in s. 319 only applies to advertising that is associated
with a candidate or party. Where an issue is not associated with a candidate or
political party, third parties may partake in an unlimited advertising
campaign….The $3,000 limit per electoral district and $150,000 national limit
allow for meaningful participation in the electoral process while respecting the
right to free expression.
When weighed against the salutary effects of the legislation, the limits
must be upheld.”
3 sedition and solicitation of illegal actions
s. 61 of the Criminal Code:
Every one who
(a) speaks seditious words,
(b) publishes a seditious libel, or
(c) is a party to a seditious conspiracy,
is guilty of an indictable offence and liable to imprisonment for a term not
exceeding fourteen years.
Is this criminal ban on seditious words and seditious libel constitutional?
Compare with Reference re ss. 193 and 195.1(1)(c) of the Criminal
Code (Man.), [1990] 1 S.C.R. 1123
4 Contempt of Court
BCGEU v. BC [1988]
Judicial injunction issued on its own to secure free access to the courts:
the Charter applies
“Assuring unimpeded access to the courts is plainly an objective "of
sufficient importance to warrant overriding a constitutionally protected right or
freedom" … and relates to a concern which is "pressing and substantial in a free
and democratic society"
First, there is a rational connection between the injunction and the
objective of ensuring unimpeded access to the courts.
Second, the injunction accomplished this objective by impairing as little
as possible the s. 2(b) rights of the members of the Union. The evidence indicated
that if the picketing of court‑houses continued, access would have been
impeded. The injunction left the Union and its members free to express
themselves in other places and in other ways so long as they did not interfere
with the right of access to the courts.
Finally, there was a proportionality between the effects of the injunction
on the protected right and the objective of maintaining access to the court.”
Dagenais v. CBC [1994]
Judicial injunction against airing of program in order to secure the
right to receive fair trial based on common law: consistency with the Charter
values
“The party seeking to justify the limitation of a right (in the case of a
publication ban, the party seeking to limit freedom of expression) bears the
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burden of justifying the limitation. The party claiming under the common law
rule that a publication ban is necessary to avoid a real and serious risk to the
fairness of the trial is seeking to use the power of the state to achieve this
objective. A party who uses the power of the state against others must bear the
burden of proving that the use of state power is justified in a free and democratic
society. Therefore, the party seeking the ban bears the burden of proving that the
proposed ban is necessary, in that it relates to an important objective that cannot
be achieved by a reasonably available and effective alternative measure, that the
proposed ban is as limited (in scope, time, content, etc.) as possible, and there is
a proportionality between the salutary and deleterious effects of the ban.”
5 Defamation
Hill v. Church of Scientology of Toronto [1995]: consistency with the
Charter values
“The common law must be interpreted in a manner which is consistent
with Charter principles. This obligation is simply a manifestation of the inherent
jurisdiction of the courts to modify or extend the common law in order to comply
with prevailing social conditions and values. In its application to the parties in
this action, the common law of defamation complies with the underlying values
of the Charter and there is no need to amend or alter it. The common law strikes
an appropriate balance between the twin values of reputation and freedom of
expression. The protection of reputation is of vital importance, and
consideration must be given to the particular significance reputation has for a
lawyer. Although it is not specifically mentioned in the Charter, the good
reputation of the individual represents and reflects the innate dignity of the
individual, a concept which underlies all the Charter rights. Further, reputation
is intimately related to the right to privacy, which has been accorded
constitutional protection. The "actual malice" rule should not be adopted in
Canada in an action between private litigants. The law of defamation is not
unduly restrictive or inhibiting. Freedom of speech, like any other freedom, is
subject to the law and must be balanced against the essential need of individuals
to protect their reputation.
Certainly, defamatory statements are very tenuously related to the core
values which underlie s. 2(b). They are inimical to the search for truth. False
and injurious statements cannot enhance self‑development. Nor can it ever be
said that they lead to healthy participation in the affairs of the community.
Indeed, they are detrimental to the advancement of these values and harmful to
the interests of a free and democratic society.
In conclusion, in its application to the parties in this action, the common
law of defamation complies with the underlying values of the Charter and there
is no need to amend or alter it.”
R. v. Lucas [1998]
Criminal Code
s. 300. Every one who publishes a defamatory libel that he knows is false is guilty
of an indictable offence and liable to imprisonment for a term not exceeding five
years.
s. 301. Every one who publishes a defamatory libel is guilty of an indictable
offence and liable to imprisonment for a term not exceeding two years.
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“Is the goal of the protection of reputation a pressing and substantial
objective in our society? I believe it is. The protection of an individual’s
reputation from wilful and false attack recognizes both the innate dignity of the
individual and the integral link between reputation and the fruitful participation
of an individual in Canadian society. Preventing damage to reputation as a result
of criminal libel is a legitimate goal of the criminal law.
In my view s. 300 is rationally connected to the legislative objective of
protecting the reputation of individuals.
As far as defamation is concerned, civil and criminal processes can
effectively co‑exist. The criminal offence is not overbroad or ineffectual simply
because a civil remedy exists.
Most certainly defamatory libel is far from and indeed inimical to the core
values of freedom of expression. It would trivialize and demean the magnificent
panoply of rights guaranteed by the Charter if a significant value was attached to
the deliberate recounting of defamatory lies that are likely to expose a person to
hatred, ridicule or contempt.
It is thus clear that defamatory libel is so far removed from the core
values of freedom of expression that it merits but scant protection. This low
degree of protection can also be supported by the meritorious objective of the
impugned sections….
In my view, the laudable objective of the defamatory libel provisions and
their salutary effects on the protection of reputation far outweigh any negative
impact on freedom of expression.”
Grant v. Torstar Corp. [2009]: consistency with the Charter values
“While Hill stands for a rejection of the Sullivan approach and an
affirmation of the common law of defamation’s general conformity with the
Charter, it does not close the door to further changes in specific rules and
doctrines.
Of the three rationales for the constitutional protection of free expression,
only the third, self-fulfillment, is of dubious relevance to defamatory
communications on matters of public interest. This is because the plaintiff’s
interest in reputation may be just as worthy of protection as the defendant’s
interest in self-realization through unfettered expression. We are not talking
here about a direct prohibition of expression by the state, in which the selffulfillment potential of even malicious and deceptive expression can be relevant
…, but rather a means by which individuals can hold one another civilly
accountable for what they say. Charter principles do not provide a licence to
damage another person’s reputation simply to fulfill one’s atavistic desire to
express oneself.
By contrast, the first two rationales for free expression squarely apply to
communications on matters of public interest, even those which contain false
imputations.
The statement in Hill … that “defamatory statements are very tenuously
related to the core values which underlie s. 2(b)” must be read in the context of
that case. It is simply beyond debate that the limited defences available to pressrelated defendants may have the effect of inhibiting political discourse and
12
debate on matters of public importance, and impeding the cut and thrust of
discussion necessary to discovery of the truth.
I conclude that the current law with respect to statements that are
reliable and important to public debate does not give adequate weight to the
constitutional value of free expression. While the law must protect reputation,
the level of protection currently accorded by the law — in effect a regime of
strict liability — is not justifiable. The law of defamation currently accords no
protection for statements on matters of public interest published to the world at
large if they cannot, for whatever reason, be proven to be true. But such
communications advance both free expression rationales mentioned above —
democratic discourse and truth-finding — and therefore require some
protection within the law of defamation. When proper weight is given to the
constitutional value of free expression on matters of public interest, the balance
tips in favour of broadening the defences available to those who communicate
facts it is in the public’s interest to know.
The defence of public interest responsible communication is assessed
with reference to the broad thrust of the publication in question. It will apply
where:
A. The publication is on a matter of public interest
and:
B. The publisher was diligent in trying to verify the allegation, having
regard to:
(a) the seriousness of the allegation;
(b) the public importance of the matter;
(c) the urgency of the matter;
(d) the status and reliability of the source;
(e) whether the plaintiff's side of the story was sought and accurately
reported;
(f) whether the inclusion of the defamatory statement was justifiable;
(g) whether the defamatory statement’s public interest lay in the fact
that it was made rather than its truth (“reportage”); and
(h) any other relevant circumstances.”
7 hate speech
R. v. Keegstra
Criminal Code
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; or
(b) an offence punishable on summary conviction.
Wilful promotion of hatred
(2) Every one who, by communicating statements, other than in private
conversation, wilfully promotes hatred against any identifiable group is guilty of
(a) an indictable offence and is liable to imprisonment for a term not exceeding
two years; or
(b) an offence punishable on summary conviction.
13
“Essentially, there are two sorts of injury caused by hate propaganda.
First, there is harm done to members of the target group. It is indisputable that
the emotional damage caused by words may be of grave psychological and social
consequence… A second harmful effect of hate propaganda which is of pressing
and substantial concern is its influence upon society at large… While holding that
over the long run, the human mind is repelled by blatant falsehood and seeks the
good, it is too often true, in the short run, that emotion displaces reason and
individuals perversely reject the demonstrations of truth put before them and
forsake the good they know. The successes of modern advertising, the triumphs
of impudent propaganda such as Hitler's, have qualified sharply our belief in the
rationality of man. We know that under strain and pressure in times of irritation
and frustration, the individual is swayed and even swept away by hysterical,
emotional appeals. We act irresponsibly if we ignore the way in which emotion
can drive reason from the field.
One must ask whether the expression prohibited by s. 319(2) is tenuously
connected to the values underlying s. 2(b) so as to make the restriction "easier to
justify than other infringements." In this regard, let me begin by saying that, in
my opinion, there can be no real disagreement about the subject matter of the
messages and teachings communicated by the respondent, Mr. Keegstra: it is
deeply offensive, hurtful and damaging to target group members, misleading to
his listeners, and antithetical to the furtherance of tolerance and understanding
in society. Furthermore, as will be clear when I come to discuss in detail the
interpretation of s. 319(2), there is no doubt that all expression fitting within the
terms of the offence can be similarly described.
From the outset, I wish to make clear that in my opinion the expression
prohibited by s. 319(2) is not closely linked to the rationale underlying s. 2(b).
Examining the values identified in Ford and Irwin Toy as fundamental to the
protection of free expression, arguments can be made for the proposition that
each of these values is diminished by the suppression of hate propaganda. While
none of these arguments is spurious, I am of the opinion that expression
intended to promote the hatred of identifiable groups is of limited importance
when measured against free expression values.
In light of the great importance of Parliament's objective and the
discounted value of the expression at issue I find that the terms of s. 319(2)
create a narrowly confined offence which suffers from neither overbreadth nor
vagueness. This interpretation stems largely from my view that the provision
possesses a stringent mens rea requirement, necessitating either an intent to
promote hatred or knowledge of the substantial certainty of such, and is also
strongly supported by the conclusion that the meaning of the word "hatred" is
restricted to the most severe and deeply-felt form of opprobrium. Additionally,
however, the conclusion that s. 319(2) represents a minimal impairment of the
freedom of expression gains credence through the exclusion of private
conversation from its scope, the need for the promotion of hatred to focus upon
an identifiable group and the presence of the s. 319(3) defences. As for the
argument that other modes of combatting hate propaganda eclipse the need for a
criminal provision, it is eminently reasonable to utilize more than one type of
legislative tool in working to prevent the spread of racist expression and its
resultant harm.
14
I find that the infringement of the respondent's freedom of expression as
guaranteed by s. 2(b) should be upheld as a reasonable limit prescribed by law in
a free and democratic society. Furthering an immensely important objective and
directed at expression distant from the core of free expression values, s. 319(2)
satisfies each of the components of the proportionality inquiry.”
Canada(Human Rights Commission) v. Taylor [1990]
Canadian Human Rights Act
13. (1) It is a discriminatory practice for a person or a group of persons acting in
concert to communicate telephonically or to cause to be so communicated,
repeatedly, in whole or in part by means of the facilities of a telecommunication
undertaking within the legislative authority of Parliament, any matter that is
likely to expose a person or persons to hatred or contempt by reason of the fact
that that person or those persons are identifiable on the basis of a prohibited
ground of discrimination.
The Supreme Court of Canada held that the guarantee of freedom of
expression is not unduly impaired by s. 13(1).
8 obscenity
Criminal Code
163. (1) Every one commits an offence who,
(a) makes, prints, publishes, distributes, circulates, or has in his possession for
the purpose of publication, distribution or circulation any obscene written
matter, picture, model, phonograph record or other thing whatever…
(2) Every one commits an offence who knowingly, without lawful justification or
excuse,
(a) sells, exposes to public view or has in his possession for such a purpose any
obscene written matter, picture, model, phonograph record or other thing
whatever…
(8) For the purposes of this Act, any publication a dominant characteristic of
which is the undue exploitation of sex, or of sex and any one or more of the
following subjects, namely, crime, horror, cruelty and violence, shall be deemed
to be obscene.
R. v. Butler[1992]
“Pornography can be usefully divided into three categories: (1) explicit
sex with violence, (2) explicit sex without violence but which subjects people to
treatment that is degrading or dehumanizing, and (3) explicit sex without
violence that is neither degrading nor dehumanizing. Violence in this context
includes both actual physical violence and threats of physical violence. Relating
these three categories to the terms of s. 163(8) of the Code, the first, explicit sex
coupled with violence, is expressly mentioned. Sex coupled with crime, horror
or cruelty will sometimes involve violence. Cruelty, for instance, will usually do
so. But, even in the absence of violence, sex coupled with crime, horror or
cruelty may fall within the second category. As for category (3), subject to the
exception referred to below, it is not covered.
The courts must determine as best they can what the community would
tolerate others being exposed to on the basis of the degree of harm that may flow
from such exposure. Harm in this context means that it predisposes persons to
act in an anti‑social manner as, for example, the physical or mental mistreatment
15
of women by men, or, what is perhaps debatable, the reverse. Anti‑social
conduct for this purpose is conduct which society formally recognizes as
incompatible with its proper functioning. The stronger the inference of a risk of
harm the lesser the likelihood of tolerance.
In making this determination with respect to the three categories of
pornography referred to above, the portrayal of sex coupled with violence will
almost always constitute the undue exploitation of sex. Explicit sex which is
degrading or dehumanizing may be undue if the risk of harm is substantial.
Finally, explicit sex that is not violent and neither degrading nor dehumanizing is
generally tolerated in our society and will not qualify as the undue exploitation
of sex unless it employs children in its production.
The obscenity legislation and jurisprudence prior to the enactment of s.
163 were evidently concerned with prohibiting the "immoral influences" of
obscene publications and safeguarding the morals of individuals into whose
hands such works could fall… I agree …that this particular objective is no longer
defensible in view of the Charter. To impose a certain standard of public and
sexual morality, solely because it reflects the conventions of a given community,
is inimical to the exercise and enjoyment of individual freedoms, which form the
basis of our social contract.
In my view, however, the overriding objective of s. 163 is not moral
disapprobation but the avoidance of harm to society.
…In this regard, it should be recalled that in Keegstra, supra, this Court
unanimously accepted that the prevention of the influence of hate propaganda
on society at large was a legitimate objective.
This Court has thus recognized that the harm caused by the proliferation
of materials which seriously offend the values fundamental to our society is a
substantial concern which justifies restricting the otherwise full exercise of the
freedom of expression. In my view, the harm sought to be avoided in the case of
the dissemination of obscene materials is similar… [I]f true equality between
male and female persons is to be achieved, we cannot ignore the threat to
equality resulting from exposure to audiences of certain types of violent and
degrading material. Materials portraying women as a class as objects for sexual
exploitation and abuse have a negative impact on "the individual's sense of
self‑worth and acceptance.
In my view, the kind of expression which is sought to be advanced does
not stand on an equal footing with other kinds of expression which directly
engage the "core" of the freedom of expression values.
I am of the view that there is a sufficiently rational link between the
criminal sanction, which demonstrates our community's disapproval of the
dissemination of materials which potentially victimize women and which
restricts the negative influence which such materials have on changes in
attitudes and behaviour, and the objective.
There are several factors which contribute to the finding that the
provision minimally impairs the freedom which is infringed.
First, the impugned provision does not proscribe sexually explicit
erotica without violence that is not degrading or dehumanizing. It is designed to
catch material that creates a risk of harm to society…
Second, materials which have scientific, artistic or literary merit are not
captured by the provision. ...
16
Third, in considering whether the provision minimally impairs the
freedom in question, it is legitimate for the court to take into account
Parliament's past abortive attempts to replace the definition with one that is
more explicit….
Fourth, while the discussion in this appeal has been limited to the
definition portion of s. 163, I would note that the impugned section, with the
possible exception of subs. 1, which is not in issue here, has been held by this
Court not to extend its reach to the private use or viewing of obscene materials….
The final question to be answered in the proportionality test is whether
the effects of the law so severely trench on a protected right that the legislative
objective is outweighed by the infringement. The infringement on freedom of
expression is confined to a measure designed to prohibit the distribution of
sexually explicit materials accompanied by violence, and those without violence
that are degrading or dehumanizing. As I have already concluded, this kind of
expression lies far from the core of the guarantee of freedom of expression. It
appeals only to the most base aspect of individual fulfilment, and it is primarily
economically motivated.
The objective of the legislation, on the other hand, is of fundamental
importance in a free and democratic society…
I therefore conclude that the restriction on freedom of expression does
not outweigh the importance of the legislative objective.”
9 child-pornography
Criminal Code
s. 163.1
(2) Every person who makes, prints, publishes or possesses for the purpose of
publication any child pornography is guilty…
Distribution, etc. of child pornography
(3) Every person who transmits, makes available, distributes, sells, advertises,
imports, exports or possesses for the purpose of transmission, making available,
distribution, sale, advertising or exportation any child pornography is guilty…
Possession of child pornography
(4) Every person who possesses any child pornography is guilty…
Accessing child pornography
(4.1) Every person who accesses any child pornography is guilty….
R. v. Sharpe [2001]
“I earlier concluded that Parliament's objective in passing s. 163.1(4) was
to criminalize possession of child pornography that poses a reasoned risk of
harm to children. This objective is pressing and substantial. Over and above the
specific objectives of the law in reducing the direct exploitation of children, the
law in a larger attitudinal sense asserts the value of children as a defence against
the erosion of societal attitudes toward them. While the government in this case
did not present attitudinal harm to society at large as a justification for the law's
intrusion on the right of free expression, this may be seen as a good incidental to
the law's main purpose -- the prevention of harm to children.
The Crown argues that prohibiting possession of child pornography is
linked to reducing the sexual abuse of children in five ways: (1) child
pornography promotes cognitive distortions; (2) it fuels fantasies that incite
17
offenders; (3) prohibiting its possession assists law enforcement efforts to
reduce the production, distribution and use that result in direct harm to
children; (4) it is used for grooming and seducing victims; and (5) some child
pornography is produced using real children.
I conclude that the social science evidence adduced in this case,
buttressed by experience and common sense, amply meets the Oakes
requirement of a rational connection between the purpose of the law and the
means adopted to effect this purpose. Possession of child pornography increases
the risk of child abuse. It introduces risk, moreover, that cannot be entirely
targeted by laws prohibiting the manufacture, publication and distribution of
child pornography. Laws against publication and distribution of child
pornography cannot catch the private viewing of child pornography, yet private
viewing may induce attitudes and arousals that increase the risk of offence. Nor
do such laws catch the use of pornography to groom and seduce children. Only
by extending the law to private possession can these harms be squarely
attacked..
Mr. Sharpe argues that s. 163.1(4) fails the minimal impairment test
because the legal definition of child pornography includes material posing no
reasoned risk of harm to children. However, as discussed earlier, properly
interpreted, the law catches much less material unrelated to harm to children
than Mr. Sharpe suggests…
The fact remains, however, that the law may also capture the possession
of material that one would not normally think of as "child pornography" and that
raises little or no risk of harm to children: (1) written materials or visual
representations created and held by the accused alone, exclusively for personal
use; and (2) visual recordings, created by or depicting the accused, that do not
depict unlawful sexual activity and are held by the accused exclusively for
private use.
In the vast majority of the law's applications, the costs it imposes on
freedom of expression are outweighed by the risk of harm to children. The
Crown has met the burden of demonstrating that the possession of child
pornography poses a reasoned apprehension of harm to children and that the
goal of preventing such harm is pressing and substantial. Explicit sexual
photographs and videotapes of children may promote cognitive distortions, fuel
fantasies that incite offenders, enable grooming of victims, and may be produced
using real children. Written material that advocates or counsels sexual offences
with children can pose many of the same risks. …. The Crown has also met the
burden of showing that the law will benefit society by reducing the possibility of
cognitive distortions, the use of pornography in grooming victims, and the abuse
of children in the manufacture and continuing existence of this material. Explicit
sexual photographs of children, videotapes of pre-pubescent children, and
written works advocating sexual offences with children -- all these and more
pose a reasoned risk of harm to children. Thus we may conclude that in its main
impact, s. 163.1(4) is proportionate and constitutional.
However, the prohibition also captures in its sweep materials that
arguably pose little or no risk to children, and that deeply implicate the freedoms
guaranteed under s. 2(b)….Consequently, the law's application to these
materials, while peripheral to its objective, poses the most significant problems
at this final stage of the proportionality analysis.
18
I conclude that in broad impact and general application, the limits s.
163.1(4) imposes on free expression are justified by the protection the law
affords children from exploitation and abuse. I cannot, however, arrive at the
same conclusion in regard to the two problematic categories of materials
described above….The inclusion of these peripheral materials in the law's
prohibition trenches heavily on freedom of expression while adding little to the
protection the law provides children. To this extent, the law cannot be
considered proportionate in its effects, and the infringement of s. 2(b)
contemplated by the legislation is not demonstrably justifiable under s. 1.”
10 commercial expression
A. ban on advertisement aimed at children
Irwin Toy v. Quebec [1989]
“In our view, the Attorney General of Quebec has demonstrated that the
concern which prompted the enactment of the impugned legislation is pressing
and substantial and that the purpose of the legislation is one of great importance.
The concern is for the protection of a group which is particularly vulnerable to
the techniques of seduction and manipulation abundant in advertising.
In sum, the objective of regulating commercial advertising directed at
children accords with a general goal of consumer protection legislation, viz. to
protect a group that is most vulnerable to commercial manipulation…. Children
are not as equipped as adults to evaluate the persuasive force of advertising and
advertisements directed at children would take advantage of this. The legislature
reasonably concluded that advertisers should be precluded from taking
advantage of children both by inciting them to make purchases and by inciting
them to have their parents make purchases. Either way, the advertiser would not
be able to capitalize upon children's credulity. The s. 1 and s. 9.1 materials
demonstrate, on the balance of probabilities, that children up to the age of
thirteen are manipulated by commercial advertising and that the objective of
protecting all children in this age group is predicated on a pressing and
substantial concern. We thus conclude that the Attorney General has discharged
the onus under the first part of the Oakes test.
There can be no doubt that a ban on advertising directed to children is
rationally connected to the objective of protecting children from advertising.
Thus, in matching means to ends and asking whether rights or freedoms
are impaired as little as possible, a legislature mediating between the claims of
competing groups will be forced to strike a balance without the benefit of
absolute certainty concerning how that balance is best struck. Vulnerable groups
will claim the need for protection by the government whereas other groups and
individuals will assert that the government should not intrude…When striking a
balance between the claims of competing groups, the choice of means, like the
choice of ends, frequently will require an assessment of conflicting scientific
evidence and differing justified demands on scarce resources. Democratic
institutions are meant to let us all share in the responsibility for these difficult
choices. Thus, as courts review the results of the legislature's deliberations,
particularly with respect to the protection of vulnerable groups, they must be
mindful of the legislature's representative function.
In sum, the evidence sustains the reasonableness of the legislature's
conclusion that a ban on commercial advertising directed to children was the
19
minimal impairment of free expression consistent with the pressing and
substantial goal of protecting children against manipulation through such
advertising. While evidence exists that other less intrusive options reflecting
more modest objectives were available to the government, there is evidence
establishing the necessity of a ban to meet the objectives the government had
reasonably set. This Court will not, in the name of minimal impairment, take a
restrictive approach to social science evidence and require legislatures to choose
the least ambitious means to protect vulnerable groups…
There is no suggestion here that the effects of the ban are so severe as to
outweigh the government's pressing and substantial objective…
Based on the s. 1 and s. 9.1 materials, we conclude that ss. 248 and 249
constitute a reasonable limit upon freedom of expression and would accordingly
uphold the legislation under s. 1 of the Canadian Charter...”
B. ban on promotion of tobacco and health warning mandate
RJR-MacDonald v. Canada [1995]
“In summary, while I agree …that context, deference and a flexible and
realistic standard of proof are essential aspects of the s. 1 analysis, these
concepts should be used as they have been used by this Court in previous cases.
They must not be attenuated to the point that they relieve the state of the burden
the Charter imposes of demonstrating that the limits imposed on our
constitutional rights and freedoms are reasonable and justifiable in a free and
democratic society.
While the limited objective of reducing tobacco-associated health risks by
reducing advertising-related consumption and providing warnings of dangers is
less significant than the broad objective of protecting Canadians generally from
the risks associated with tobacco use, it nevertheless constitutes an objective of
sufficient importance to justify overriding the right of free expression
guaranteed by the Charter. Even a small reduction in tobacco use may work a
significant benefit to the health of Canadians and justify a properly proportioned
limitation of right of free expression.
The causal relationship between the infringement of rights and the
benefit sought may sometimes be proved by scientific evidence showing that as a
matter of repeated observation, one affects the other. Where, however,
legislation is directed at changing human behaviour, as in the case of the Tobacco
Products Control Act, the causal relationship may not be scientifically
measurable. In such cases, this Court has been prepared to find a causal
connection between the infringement and benefit sought on the basis of reason
or logic, without insisting on direct proof of a relationship between the infringing
measure and the legislative objective:
I turn first to the prohibition on advertising contained in s. 4 of the Act. It
is, as has been observed, complete. It bans all forms of advertising of Canadian
tobacco products while explicitly exempting all foreign advertising of nonCanadian products which are sold in Canada. It extends to advertising which
arguably produces benefits to the consumer while having little or no conceivable
impact on consumption. Purely informational advertising, simple reminders of
package appearance, advertising for new brands and advertising showing
relative tar content of different brands -- all these are included in the ban.
Smoking is a legal activity yet consumers are deprived of an important means of
20
learning about product availability to suit their preferences and to compare
brand content with an aim to reducing the risk to their health.
As this Court has observed before, it will be more difficult to justify a
complete ban on a form of expression than a partial ban…A full prohibition will
only be constitutionally acceptable under the minimal impairment stage of the
analysis where the government can show that only a full prohibition will enable
it to achieve its objective. Where, as here, no evidence is adduced to show that a
partial ban would be less effective than a total ban, the justification required by s.
1 to save the violation of free speech is not established.
As noted in my analysis of rational connection, while one may conclude as
a matter of reason and logic that lifestyle advertising is designed to increase
consumption, there is no indication that purely informational or brand
preference advertising would have this effect.
These considerations suggest that the advertising ban imposed by s. 4 of
the Act may be more intrusive of freedom of expression than is necessary to
accomplish its goals.
It remains to consider whether the requirement that the warning be
unattributed pursuant to s. 9 of the Act fails to meet the minimum impairment
requirement of proportionality.
As with the advertising ban, it was for the government to show that the
unattributed warning, as opposed to an attributed warning, was required to
achieve its objective of reducing tobacco consumption among those who might
read the warning. Similarly, it was for the government to show why permitting
tobacco companies to place additional information on tobacco packaging, such as
a statement announcing lower tar levels, would defeat the government's
objective. This it has failed to do.
Having found the requirement of minimum impairment is not satisfied for
ss. 4 and 9 of the Act, it is unnecessary to proceed to the final stage of the
proportionality analysis under s. 1 -- balancing the negative effects of the
infringement of rights against the positive benefits associated with the legislative
goal. A finding that the law impairs the right more than required contradicts the
assertion that the infringement is proportionate.”
Canada v. JTI-MacDonald Corp[2007]
“Section 20 bans “false, misleading or deceptive” promotion, as well as
promotion “likely to create an erroneous impression about the characteristics,
health effects or health hazards of the tobacco product or its emissions”…
Parliament’s objective of combating the promotion of tobacco products by halftruths and by invitation to false inference constitutes a pressing and substantial
objective, capable of justifying limits on the right of free expression. Prohibiting
such forms of promotion is rationally connected to Parliament’s public health
and consumer protection purposes…The impugned phrase does not impair the
right of free expression more than is necessary to achieve the
objective…”..Finally, the impugned phrase meets the requirement of
proportionality of effects.
The manufacturers challenge the second of these measures, the ban on
advertising that “could be construed on reasonable grounds to be appealing to
young persons”: s. 22(3)… It is not disputed that Parliament’s objective of
preventing young people from being tempted to take up tobacco use and
21
consequently becoming addicted is pressing and substantial. Nor is there doubt
that a ban on advertising appealing to young persons is rationally connected to
this goal. Given the sophistication and subtlety of tobacco advertising practices
in the past, as demonstrated by the record in this case, Parliament cannot be said
to have gone farther than necessary in blocking advertising that might influence
young persons to start smoking….Finally, s. 22(3) meets the requirement of
proportionality of effects. The prohibited speech is of low value. Information
about tobacco products and the characteristics of brands may have some value
to the consumer who is already addicted to tobacco. But it is not great. On the
other hand, the beneficial effects of the ban for young persons and for society at
large may be significant.
Section 22(3) carves out from permitted information and brandpreference advertising under s. 22(2) two types of advertising: advertising that
could appeal to young persons, just considered, and lifestyle advertising… Read
in this way, the prohibition on lifestyle advertising is reasonable and
demonstrably justified under s. 1 of the Charter. As with the other challenged
provisions, the pressing and substantial nature of Parliament’s objective is
beyond challenge. The record is replete with examples of lifestyle
advertisements promoting tobacco products….There is a rational connection
between this provision and Parliament’s objective. Minimal impairment is also
established….Finally, the proportionality of the effects is clear. The suppressed
expression — the inducement of increased tobacco consumption — is of low
value, compared with the significant benefits in lower rates of consumption and
addiction that the ban may yield….Properly interpreted, the law it has adopted
meets the requirements of justification under s. 1 of the Charter.
The regulations pursuant to the Act (the TPIR) increased the minimum
size of the mandatory health warnings on tobacco packaging from 33 percent
under the old Act to 50 percent of the principal display surfaces…. Parliament’s
objective in requiring that a large part of packaging be devoted to a warning is
pressing and substantial. It is to inform and remind potential purchasers of the
product of the health hazards it entails. ….The evidence as to the importance and
effectiveness of such warnings establishes a rational connection between
Parliament’s requirement for warnings and its objectives of reducing the
incidence of smoking and of the disease and death it causes….Regarding minimal
impairment, the question is whether the requirement for warning labels,
including their size, falls within a range of reasonable alternatives. The
manufacturers argue that the increase from 33 percent to 50 percent of the
package cannot be justified. However, the evidence established that bigger
warnings may have a greater effect. Parliament is not required to implement
less effective alternatives… Finally, proportionality of effects is established. The
benefits flowing from the larger warnings are clear. The detriments to the
manufacturers’ expressive interest in creative packaging are small….I conclude
that the requirement that 50 percent of the principal display surfaces be devoted
to a warning of the health hazards of the product is a reasonable measure
demonstrably justified in our society and is constitutional under s. 1 of the
Charter.”
22