The purpose of s. 2(b) 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. As Holmes J. stated over sixty years ago, the fact that the particular content of a person’s speech might “excite popular prejudice” is no reason to deny it protection for “if there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought — not free thought for those who agree with us but freedom for the thought that we hate”.

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. This expression arguably has intrinsic value in fostering political participation and individual self-fulfilment.

The Supreme Court of Canada has adopted a two-step inquiry to determine whether an individual’s freedom of expression has been infringed. The first involves a determination of whether the individual’s activity falls within the freedom of expression. The second step is to determine whether the purpose or the effect of the impugned government action is to restrict that freedom: Ross v. New Brunswick School District No. 15, 1996 CanLII 237 (S.C.C.), 1996 CanLII 237 (S.C.C.), 1996 CanLII 237 (S.C.C.), [1996] 1 S.C.R. 825.

All activities conveying or attempting to convey meaning are expression for the purposes of s. 2(b).

The Constitution protects the right to receive expressive material as much as it does the right to create it: Little Sisters Book and Art Emporium v. Canada (Minister of Justice), 2000 SCC 69 (CanLII), 2000 SCC 69 (CanLII), 2000 SCC 69 (CanLII), [2000] 2 S.C.R. 1120, 2000 SCC 69. Government may not control attempts to convey a meaning either by directly restricting the content of expression or by restricting a form of expression tied to content (as with a rule against handing out pamphlets), but it may legitimately aim to control the mere physical consequences of particular conduct (as with a rule against littering).

While freedom of expression does not encompass the right to use any and all government property for purposes of disseminating views on public matters, it does include the right to use streets and parks dedicated to public use, subject to reasonable limitation to ensure their continued use for the purposes to which they are dedicated. This right extends to areas of airports frequented by the public: Committee for the Commonwealth of Canada v. Canada, 1991 CanLII 119 (S.C.C.), 1991 CanLII 119 (S.C.C.), 1991 CanLII 119 (S.C.C.), [1991] 1 S.C.R. 139. It also protects the placement of posters on some public property, such that a complete prohibition on postering would infringe the guarantee: Peterborough (City) v. Ramsden, 1993 CanLII 60 (S.C.C.), 1993 CanLII 60 (S.C.C.), 1993 CanLII 60 (S.C.C.), [1993] 2 S.C.R. 1084. Moreover, s. 2(b) ensures a right of public access to the courts, and to obtain information about court proceedings from the media: Canadian Broadcasting Corp. v. New Brunswick (Attorney General), 1996 CanLII 184 (S.C.C.), 1996 CanLII 184 (S.C.C.), 1996 CanLII 184 (S.C.C.), [1996] 3 S.C.R. 480.

The full and fair discussion of public institutions, which is vital to any democracy, is the raison d’être of the s. 2(b) guarantees.

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”.

In Irwin Toy Ltd. v. A. G. Que., 1989 CanLII 87 (S.C.C.), 1989 CanLII 87 (S.C.C.), 1989 CanLII 87 (S.C.C.), [1989] 1 S.C.R. 927, the Supreme Court of Canada stated that “activity is expressive if it attempts to convey a meaning”.

There is always some element of expression in picketing. Action on the part of the picketers will 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 would not extend to protect threats of violence or acts of violence. It would not protect the destruction of property, or assaults, or other clearly unlawful conduct. Here, however, the picketing would have been peaceful and would therefore have involved the exercise of the right of freedom of expression: Retail, Wholesale and Department Store Union et al. v. Dolphin Delivery Ltd., 1986 CanLII 5 (S.C.C.), 1986 CanLII 5 (S.C.C.), 1986 CanLII 5 (S.C.C.), [1986] 2 S.C.R. 573; R.W.D.S.U., Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd., 2002 SCC 8 (CanLII), 2002 SCC 8 (CanLII), 2002 SCC 8 (CanLII), [2002] 1 S.C.R. 156, 2002 SCC 8.

To attract constitutional protection, the claimant need not establish that his or her message was received and subjectively understood or appreciated by others. It is the conveying or the attempted conveying of the meaning, not its receipt, that triggers the guarantee under s. 2(b).

The Supreme Court of Canada:

Further, in this case, it does not matter whether the Peace Camp and its constituent structures built by the appellant on Parliament Hill successfully conveyed a message of peace, or of general protest, or of specific protest against the policy of the Federal Government in allowing cruise missile testing in Canada. It is enough that the appellant’s conduct attempted to convey some meaning, which it clearly did. This brings the appellant’s expression prima facie within the scope of the expression protected by the Charter: Weisfeld v. The Queen, 1994 CanLII 3503 (F.C.A.), 1994 CanLII 3503 (F.C.A.), 1994 CanLII 3503 (F.C.A.), [1995] 1 F.C. 68 (F.C.A.).

As Chief Justice Lamer in Committee for the Commonwealth of Canada v. Canada stated: “A person who is in a public place for the purpose of expressing himself must respect the functions of the place and cannot in any way invoke his or her freedom of expression so as to interfere with those functions. … The fact that one’s freedom of expression is intrinsically limited by the function of a public place is an application of the general rule that one’s rights are always circumscribed by the rights of others.”: Ontario (Attorney General) v. Dieleman reflex, (1994), 117 D.L.R. (4th) 449 (Ont. Gen. Div.).

[2] Right of Access to Information
Freedom of expression must extend to all forms of expression, and this applies to all phases of expression from maker or originator through supplier, distributor, retailer, renter or exhibitor to receiver, whether as a listener or a viewer.

The Supreme Court of Canada also agreed with the trial judge that a regulation which forbids any unlicensed person from approaching within half a nautical mile of a seal hunt, impinges on the freedom of expression. It completely restrains the plaintiffs’ freedom of expression, forbidding as it does their attendance at the hunt in all circumstances. The only saving feature is the possibility of a licence, but a licensing procedure cannot save an otherwise complete interference with a fundamental freedom under s. 2 of the Charter. If restraint by licensing is to be justified, it can only be under s. 1: International Fund for Animal Welfare Inc. v. The Queen, reflex, [1989] 1 F.C. 335 (F.C.A.).

“Counter-advertising” is not merely a reaction to commercial speech, and is not a form of expression derived from commercial speech. Rather, it is a form of the expression of opinion that has an important effect on the social and economic life of a society. It is a right not only of consumers, but of citizens. In this respect, simple means of expression such as posting signs or distributing pamphlets or leaflets or, these days, posting messages on the Internet are the optimum means of communication for discontented consumers. The media are still often beyond their reach because of the cost. In Ramsden, this Court stressed the importance of signs as an effective and inexpensive means of communication for individuals and groups that do not have sufficient economic resources. Signs, which have been used for centuries to communicate political, artistic or economic information, sometimes convey forceful messages. Signs, in various forms, are thus a public, accessible and effective form of expressive activity for anyone who cannot undertake media campaigns : R. v. Guignard, 2002 SCC 14 (CanLII), 2002 SCC 14 (CanLII), 2002 SCC 14 (CanLII), [2002] 1 S.C.R. 472, 2002 SCC 14.

The distribution and circulation of leaflets has for centuries been recognized as an effective and economical method of both providing information and assisting rational persuasion. It has long been used as a means to enlist support. The distribution of leaflets and posters is typically less expensive and more readily available than other forms of expression. As a result, they are particularly important means of providing information and seeking support by the vulnerable and less powerful members of society. [...] leafleting is an activity which conveys meaning. In light of the very broad interpretation that has been given to freedom of expression, it clearly falls within the purview of s. 2(b) of the Charter: U.F.C.W. Local 1518 v. KMart Canada Ltd., 1999 CanLII 650 (S.C.C.), 1999 CanLII 650 (S.C.C.), 1999 CanLII 650 (S.C.C.), [1999] 2 S.C.R. 1083.

The freedom guaranteed by the Charter is a freedom to express and communicate ideas without restraint, whether orally or in print or by other means of communication. It is not a freedom to use someone else’s property to do so. It gives no right to anyone to use someone else’s land or platform to make a speech, or someone else’s printing press to publish his ideas. [...] New Brunswick Broadcasting Co. Ltd. v. C.R.T.C. reflex, (1984), 13 D.L.R. (4th) 77 (F.C.A.); Trieger et al. v. C.B.C. et al. reflex, (1988), 54 D.L.R. (4th) 143 (Ont. S.C.); Natural Law Party of Canada v. C.B.C., 1993 CanLII 3005 (F.C.), 1993 CanLII 3005 (F.C.), 1993 CanLII 3005 (F.C.), [1994] 1 F.C. 580 (F.C.T.D.).

Much more on Section 2(b) can be found here:

http://www.canlii.org/en/ca/charter_digest/s-2-b.html

Kathleen Moore
HABEAS CORPUS CANADA
The Official Legal Challenge
To North American Union
http://www.habeascorpuscanada.com
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