CHARTER OF RIGHTS AND FREEDOMS:
Kristen Douglas, Mollie Dunsmuir
Law and Government Division
Revised 29 September 1998
TABLE OF CONTENTS
BACKGROUND AND ANALYSIS
A. The Effect of Section 1 of
the Charter on Fundamental Freedoms
B. Fundamental Freedoms
1. Freedom of Conscience and Religion
a. Sunday Observance
b. Educational Issues
Family Issues, including Medical Treatment and Child Welfare
Other Issues (Payment of Tax, R.C.M.P. Uniforms, Communication with Pastor)
2. Freedom of Thought, Belief, Opinion,
and Expression, including Freedom of
Press and Other Media of Communication (Section 2(b))
a. Political Expression
Freedom of Commercial Expression
Public Access and Media Issues
Other Issues (Defamatory Libel, Statements Against Belief)
3. Freedom of Peaceful Assembly (Section
4. Freedom of Association (Section
CHARTER OF RIGHTS
The Canadian Charter
of Rights and Freedoms came into force on 17 April 1982. This
analysis concentrates on section 2 of the Charter, which deals with
Canadians' "fundamental freedoms." The section affirms
that everyone has the following freedoms: conscience and religion, thought,
belief, opinion, and expression, which is stated to include freedom of
the press and other media of communication. Also grouped under this heading
are the freedoms of peaceful assembly and association. There can be little
dispute that the denial of one or more of these freedoms would have a
profound effect on everyone in Canada.
This paper provides
a brief analysis of some of the most important cases to have emerged under
section 2 since its passage, and divides the decisions covered into groups
based on their subject matter. Because of the volume of material involved,
in most instances detailed Charter analysis is not included. The final
section provides a list of the cases to which this paper refers.
BACKGROUND AND ANALYSIS
A. The Effect of Section 1 of
the Charter on Fundamental Freedoms
Section 1 of the
Charter states: "The Canadian Charter of Rights and Freedoms
guarantees the rights and freedoms set out in it subject only to such
reasonable limits prescribed by law as can be demonstrably justified in
a free and democratic society." In many of the cases involving fundamental
freedoms, the legislation in question has been found to infringe a Charter
right but has been saved by section 1, on the grounds that it is a reasonable
limit that is demonstrably justified.
In R. v.
Oakes, decided in 1986, the Supreme Court of Canada laid down a
test for deciding when an infringement of a Charter right was a reasonable
limit that could be demonstrably justified, and the Oakes test
has remained formally intact to this date. The first criterion is that
the infringing law must have a sufficiently serious objective to justify
limitation of a Charter right. In other words, the purpose of the law
must be of sufficient importance to warrant overriding a constitutionally
protected right or freedom.
Second, even when
a sufficiently important objective has been established, there must be
a "proportionality test" to establish that the means chosen
are reasonable and demonstrably justified. This involves a three-part
analysis: the law must be rationally connected to the objective; the law
must impair the right no more than is necessary to accomplish the objective,
and the law must not have a disproportionately severe effect on the rights
the case involving a partial broadcasting ban on the CBC production of
The Boys of St. Vincent, Chief Justice Lamer, speaking for the
majority, clarified the question of a "disproportionately severe
effect": "While the third step of the Oakes proportionality
test has often been expressed in terms of the proportionality of the objective
to the deleterious effects, this court has recognized that in appropriate
cases it is necessary to measure the actual salutary effects of impugned
legislation against its deleterious effects, rather than merely considering
the proportionality of the objective itself."
B. Fundamental Freedoms
wording of section 2 states that the listed fundamental freedoms are applicable
to "everyone." The Charter seems to use the words "everyone,"
"any person," "any member of the public" and "anyone"
almost interchangeably. Professor Peter Hogg has pointed out that, in
the absence of any contextual indication to the contrary, one would expect
terms of such generality to include artificial as well as natural persons.
It has been successfully argued that the freedoms contained in section
2 apply equally to corporations and natural persons. On the other hand,
the rights in the sections of the Charter that use the word "citizen"
probably do not apply to a corporation.
1. Freedom of Conscience and Religion
Before the Charter
came into force, there was no express protection for freedom of religion
under the Constitution Act, 1867. Some limited protection was,
however, given to denominational schools in section 93 of that Act. Specific
legislative jurisdiction with respect to religion is not dealt with in
the Constitution Act, 1867 and the courts have had to characterize
laws touching religion as coming either within section 92 or section 91
of that Act. The pre-Charter cases in this area mainly dealt with challenges
by merchants to various Sunday closing laws.
The fact that "conscience"
has been separated out from "religion" led to comments that
the Charter might constitutionalize the right of civil disobedience when
the route of opposition to law is sufficiently the product of an individual's
deeply held system of moral beliefs, whether or not these are grounded
in considerations normally regarded as religious. In R. v. Big
M Drug Mart, the Supreme Court of Canada indicated that the freedom
of conscience safeguarded by this provision relates to freedom of conscience
in matters of religion. The paragraph protects against all state-imposed
burdens on the exercise of religious beliefs, whether direct or indirect,
intentional or unintentional, foreseeable or unforeseeable, provided they
cannot be regarded as merely trivial or insubstantial.
Section 2(a) issues
are discussed under the following general headings: Sunday Observance,
Educational Issues, Family Issues and Other Issues.
a. Sunday Observance
A number of cases
involve legislation that requires businesses to close on Sundays. In the
leading case, the majority of the Alberta Court of Appeal decided that
the Lord's Day Act was unconstitutional. It reasoned that this
Act has a religious purpose in that it forces Sunday, which represents
the holy day of the majority of the Christian religion, on minorities.
The Court went on to say that at the very least the terms of freedom of
religion and freedom of conscience in the Charter mean that henceforth
in Canada governments shall not choose sides in a sectarian controversy.
The minority opinion took a much wider view of this section of the Charter;
they held that it supported a concept of freedom of religion aimed at
the elimination of oppression and repression by civil authority on account
of religious belief, and eradicated compulsion to accept any particular
doctrine. The purpose of the Lord's Day Act was not compulsion
or interference with the religion of others.
The Supreme Court
of Canada upheld the majority view of the Alberta Court of Appeal in holding
the Lord's Day Act to be unconstitutional. In disposing of this
case, Chief Justice Dickson first rejected the Alberta government's argument
that Big M., a commercial operation, was not an individual and therefore
did not enjoy religious rights. He stated that if the law is unconstitutional,
it matters not whether the accused is a Christian, Jew, Moslem, Hindu,
Buddhist, atheist, agnostic, or whether an individual or a corporation.
his decisions in other Charter cases, the Chief Justice determined that
the courts must look at the true purpose of the statute to determine whether
it violates the Charter. The court held that it was clear that the Act
was passed by Parliament to give legal force to a Christian religious
observance of Sunday as a day of rest. It was not simply a law to make
Sunday a uniform commercial closing day, nor could it be considered to
be labour legislation intended to limit the number of days people are
required to work.
The court concluded
that since the enactment of the Charter it has become the right of every
Canadian to work out his or her own religious obligations, if any, and
it is not for the state to dictate otherwise.
observance statutes have been the subject of constitutional challenges
since the federal legislation was struck down. Ontario's Retail Business
Holidays Act was first challenged in 1984. In the litigation, businesses
wishing to remain open on Sundays invoked both the constitutional division
of powers and the guarantees in the Charter of Rights. The Act
made it an offence for a retail business to sell or offer goods for sale
on a Sunday or "other holiday." In order to keep this legislation
within provincial legislative competence, the Act was said to have the
secular purpose of enforcing uniform days of rest for workers, rather
than the religious purpose of enforcing conformity with the requirements
of one faith.
The Supreme Court
of Canada, in R. v. Edwards Books, found that the purpose
of the statute was indeed to provide uniform holidays for retail workers:
a valid, secular purpose. The Court cited the desirability of allowing
parents to have regular days off that were the same as their children's
days off from school and the days off enjoyed by most other family and
community members. The Supreme Court also found that an exception for
small retailers, holding that this was a reasonable exception to the general
The Ontario legislature
passed substantial amendments to the Retail Business Holidays Act
in 1989. An exemption was created whereby any retailer, regardless of
size or the day it wishes to observe as a sabbath, may carry on retail
business on a Sunday if the business is closed to the public on one other
day in the week by reason of the religion of the owner. This provision
was designed to accommodate retailers whose religious beliefs require
them to observe a sabbath other than Sunday or Saturday. Another amendment
created a municipal option permitting municipalities to override the prohibition
against Sunday opening.
The amended Retail
Business Holidays Act was challenged very soon after the amendments
were enacted (Peel). The respondent supermarket chains opened on
a Sunday, in contravention of the Act, and were charged. Ontario's High
Court of Justice held the legislation invalid, finding that it infringed
the freedom of religion guaranteed by section 2 of the Charter, and that
it could not be saved under section 1.
The Ontario Court
of Appeal found the amended Act to be constitutionally valid. Chief Justice
of Ontario Dubin, for the majority, held that Southey J. had erred in
holding that the Act limited freedom of religion and that the provision
could not be saved under section 1. He found that the evidence fell short
of proving that the impact of the Act on freedom of religion is more than
trivial or insubstantial. The Court went on to hold that even if the Act
did offend freedom of religion, then the limit is justified according
to section 1 of the Charter.
In reaching his
decision, Chief Justice Dubin referred to evidence filed on behalf of
the Attorney General of Ontario that set out the nature and purpose of
the new municipal option. In enacting the legislation, the Ontario legislature
had relied on sociological and economic information demonstrating the
continued need for a common pause day for retail workers. The provision
for a municipal alteration of the provincial framework was designed to
accommodate different cultural, geographic and tourism concerns in various
areas of the province.
b. Educational Issues
The absence of
public funding for private religious schools in Ontario was challenged
in Adler v. Ontario, in which a group of parents whose children
attended such schools claimed that their rights under section 2(a) of
the Charter were contravened by this absence. The Ontario Court of Appeal
held that the non-funding of such schools did not violate the appellants'
freedom of religion guaranteed by section 2(a) since the section does
not provide an entitlement to state support for the exercise of one's
religion. The decision was upheld in 1996 by the Supreme Court of Canada.
In early 1990,
the Ontario Court of Appeal decided that regulations under the Education
Act requiring two periods of religious education a week in public
schools contravened freedom of conscience and religion as guaranteed by
section 2(a) of the Charter. In Canadian Civil Liberties Association
v. Ontario, the Court reviewed evidence on the curriculum content
and decided that there was "sufficient indoctrinating material to
preclude us from regarding it as trivial or inconsequential." Although
children could be exempted from classes at the request of the parent,
the Court found that the children might well feel pressured to remain
in the classroom, where, however, they could experience stress and discomfort.
Even if the regulations might seem to have a valid objective, such as
the inculcation of proper moral standards, section 1 could not justify
them because the indoctrination of children in the Christian faith would
not be validly related to such an objective.
prayer came under the scrutiny of the Ontario of Appeal, which, in Zylbergerg
v. Sudbury Board of Education determined that a law compelling
public schools to hold prayer sessions violates the Charter's freedom
of conscience and religion section, even if the law exempts a student
from attending. A regulation passed under Ontario's Education Act
infringed upon the Charter as it required the "reading of the scriptures
or other suitable prayers." The Court concluded that peer pressure
from other students would effectively nullify the exemption contained
in the provision. In a 1989 decision dealing with similar school prayer
legislation, the British Columbia Supreme Court also adopted the Ontario
In 1986, the Supreme
Court of Canada dismissed the appeal of Thomas Larry Jones of Calgary,
who had argued that provisions of the Alberta School Act that prevented
parents from educating their children at home for religious reasons violated
the guarantee of freedom of religion. Mr. Justice Gerard La Forest said
that the province and the nation's compelling interest in the efficient
instruction of children outweighs this freedom. In order for Mr. Jones
to continue teaching the children at home, he must first obtain the approval
of provincial school authorities.
c. Family Issues, including
Medical Treatment and Child Welfare
In 1995, the Supreme
Court of Canada dealt with an Ontario case involving parents who had refused
a blood transfusion for their newborn child B.(R.). The child had
been made a temporary ward of the Children's Aid Society, and a blood
transfusion had been given, ancillary to other medical treatments. The
parents appealed the wardship order, arguing that it violated their right
to freedom of religion, but lost at the District Court and Court of Appeal
The Supreme Court
unanimously dismissed their appeal. Four judges held that section 2(a)
of the Charter had not been violated because freedom of religion does
not include freedom to impose upon a child religious practices that threaten
his or her safety, health or life. Freedom of religion should not encompass
activity that so categorically negates the freedom of conscience of another,
including a child. The other five judges held that the right of parents
to rear their children according to their religious beliefs is a fundamental
aspect of freedom of religion under section 2(a) of the Charter. Even
though the purpose of the Child Welfare Act is to protect children,
its effect was to infringe the parents' freedom of religion. Any such
infringement was, however, amply justified by the state's interest in
protecting children at risk, which is a valid section 1 objective.
Courts in at least
three provinces have considered whether a parent's religious beliefs and
practices might validly affect the terms of a custody order, and this
area of law is still unclear in spite of being addressed by the Supreme
Court of Canada in two 1993 decisions. In 1989, the Ontario High Court
of Justice heard an appeal by a father who was a Jehovah's Witness against
an order restricting his access and precluding him from taking his sons
to church on Sunday. The trial judge had found that exposing the children
to conflicting religious practices could be against their interests. The
Ontario Divisional Court decided on appeal, however, that unless there
is compelling evidence that the sharing of religious beliefs by a parent
with access is contrary to the child's best interests, the Divorce
Act should be interpreted in a manner consistent with that parent's
right to freedom of religion (Hockey v. Hockey).
In October 1993,
the Supreme Court of Canada handed down decisions in two cases involving
challenges to the constitutionality of the custody and access provisions
of the federal Divorce Act, 1985. In both P.(D.) v. S.(C.),
on appeal from the Court of Appeal for Quebec, and Young v. Young,
on appeal from the Court of Appeal for British Columbia, the custody and
access provisions, which emphasize the best interests of children, were
held not to infringe the access parent's right to freedom of religion.
Both appeals had been brought by Jehovah's Witnesses, who were seeking
the right to give religious instruction to their children, contrary to
the wishes of the custodial parents.
d. Other Issues (Payment of Tax,
R.C.M.P. Uniforms, Communication with Pastor)
In 1991, the Trial
Division of the Federal Court held that taxpayers could not withhold a
portion of their taxes to protest against government funding of abortions.
Because taxpayers are under a legal compulsion to pay income tax, the
use of tax funds for purposes offensive to their religious beliefs does
not infringe upon freedom of religion. Since taxpayers do not pay the
tax voluntarily, conscience is not involved. Moreover, the recognition
of the "supremacy of God" in the preamble to the Constitution
does not prevent Canada from being a secular state; it only prevents it
from becoming officially atheistic.
freedom of conscience and religion of a taxpayer who objects to military
or war expenditures is not infringed when the federal government devotes
a portion of its revenue to military matters (Prior).
In 1985, a Manitoba
Queen's Bench judge ruled that a baptized Sikh could not wear a kirpan
(a religious symbol in the form of a dagger with a four-inch blade) in
the court-room during his trial (Hothi). In 1994, amended regulations
permitting exceptions from the standard R.C.M.P. uniform, such as a turban
instead of the usual felt hat, to be worn by members on religious grounds,
were held not to infringe section 2(a) (Grant v. Canada).
In 1991, the Supreme
Court of Canada considered the issue of whether communications between
a pastor and an accused party in a criminal case were protected by the
guarantee of freedom of religion. The court found that there was no automatic
privilege for such communications, and that the extent (if any) to which
disclosure of communications will infringe an individual's freedom of
religion depends on the particular circumstances involved. The nature
of the communication, the purpose for which it was made, the manner in
which it was made and the parties to the communication will all be relevant
2. Freedom of Thought, Belief,
Opinion, and Expression, including Freedom of the Press
Other Media of Communication (Section 2(b))
The Charter does
not use the phrase "freedom of speech." Professor Hogg
points out that the references in section 2(b) to "thought, belief,
and opinion," while comforting, are without import because even totalitarian
regimes cannot suppress unexpressed ideas. The Supreme Court of Canada
has consistently emphasized the fundamental nature of this freedom, stating
in Edmonton Journal v. Alberta (Attorney-General) that,
given the importance of freedom of expression in a free and democratic
society, and the absolute manner in which this freedom is guaranteed by
section 2(b), the freedom should be restricted only in the clearest of
The word "expression"
has been construed by the courts to include non-verbal means of communication
such as picketing and the establishment of a "peace camp" on
Parliament Hill (Weisfield). In the 1993 case Ramsden v.
Peterborough (City), "postering" on public property,
including utility poles, was held to constitute expression because it
attempted to convey a meaning. By fostering political and social decision-making,
postering was found to further at least one of the values underlying section
2(b), which was infringed by the municipality's prohibition of the practice.
The legislative goal of the prohibition, although meritorious, was held
not to justify a complete ban on postering.
For purposes of
this review, the discussion of section 2(b) is divided into the categories
of: political expression, commercial expression, public access and media
issues, censorship/obscenity, hate propaganda, picketing/demonstrations,
and other issues.
a. Political Expression
In 1991, the Supreme
Court of Canada dealt with section 33 of the federal Public Service
Employment Act, which prohibited public servants from "engaging
in work" for or against a candidate or political party (Osborne).
The Court decided that although the section implemented the constitutional
convention of public service neutrality, this did not protect it from
Charter scrutiny. Protecting the neutrality of the civil service was found
to be a clearly important objective; however, section 33 as it stood did
not constitute a "reasonable limit" on freedom of expression
because it went beyond what was necessary to achieve that objective. The
court was not prepared to "read down," or limit, the legislation
so as to make it valid, because Parliament itself, and not the courts,
must decide how the legislation is to be redrafted.
The question seems
to be one of degree. In late 1989, the Ontario High Court dealt with an
application by a nurse employed by the Sudbury and District Health Unit;
she wished to run for the position of mayor or councillor of her town,
which was included in the Regional Municipality of Sudbury and represented
on the Regional Council. Under the Ontario Municipal Act, employees
of a municipality may not hold office as a member of a council, although
there is provision for leave without pay during an election campaign.
The Court found
that the restriction had a valid purpose: to protect the democratic process
by preserving the impartiality of the public service, and thus ensure
that municipal government can be carried on without concerns about conflict
of interest (Rheaume). The Court considered whether the limitation
was unnecessarily restrictive, especially since some Canadian provinces
allow employees elected to public office to take a leave of absence rather
than resign. However, the Court decided that legislation should not be
declared unreasonable simply because a better solution exists.
issues other than the right to vote or stand for office are being treated
as "freedom of expression" concerns. For example, the provisions
of the Canada Elections Act dealing with election expenses have
generated a number of cases. In 1984, the National Citizens' Coalition
mounted a court challenge against a 1983 prohibition of third-party expenditures.
The government argued that the limitation was necessary as part of a legislative
framework regulating the expenditures of candidates and parties and to
prevent an unfair benefit to candidates with wealthy supporters. The court
found that such fears alone were not a sufficient reason for limiting
Charter rights, and that the government had not adequately established
that such provisions were necessary. The decision, which was handed down
just months before the 1984 election, was not appealed.
Bill C-114, which
amended the Canada Elections Act in the spring of 1993, re-introduced
a limit of $1,000 with respect to direct advertising by third parties.
On 25 June 1993, a judge of the Alberta Court of Queen's Bench, the
same court that had heard the 1984 challenge, again struck down third
party spending limitations (Somerville v. Canada (Attorney General)).
The court found that the new section violated the right to an informed
vote (section 3) and the right to free expression (section 2(b)). A subsequent
section also violated the right to freedom of association (section 2(d)),
because it prevented the pooling of funds to purchase more than $1,000
of advertising. Turning to the section 1 test of whether the limitations
were demonstrably justified, the court did not consider the objective
of preserving "the integrity and effectiveness of party and candidate
spending limits" sufficiently pressing and substantial" to invoke
section 1. It seems that there was insufficient evidence before the court
to establish that a lack of spending limits might affect the outcome of
elections. An appeal to the Alberta Court of Appeal was dismissed.
The Supreme Court
of Canada has upheld both the use of compulsory union dues for political
purposes (Lavigne, 1991), and the use of public funds to support
serious electoral candidates (McKay, 1989).
In 1995, the Alberta
Court of Appeal dealt with a Reform Party of Canada challenge to the allocation
of broadcasting time during an election under the Canada Elections
Act. The Act requires broadcasters to make available a total of six
and one-half hours to registered political parties for the purposes of
paid political advertising. Because at certain times of the year prime
time advertising may be sold out in advance, broadcasters have in the
past pre-empted previously sold advertising time in order to comply with
the requirements of the Canada Elections Act. It could, therefore,
prove impossible for political parties to purchase prime time advertising
other than that allocated to them under the Act. The Reform Party had
argued that the actual allocation formula discriminated against new or
emerging political parties.
The Alberta Court
of Appeal found that the broad discretion granted to the Broadcast Arbitrator
under the Act relieved any unfairness that might arise from a strict application
of the broadcast allocation formula. The challenged sections do not have
the effect of restricting the freedom of expression of any political party;
they merely reserve time that might not otherwise be available and provide
for the allocation of such time. However, the court found that certain
other sections had the effect of preventing a registered party from purchasing
additional broadcast time, and held these to be invalid. Since total election
expenses were already effectively controlled by other provisions of the
Act, there is no need to further impinge upon the freedom of the parties
to decide how they can best use their limited allowable expenditures.
In 1998, the
Supreme Court of Canada found unconstitutional the provision of the Canada
Elections Act prohibiting the publication of opinion polls during
the final three days of a federal election campaign. A majority of the
Court concluded that the provision restricts freedom of expression, and
is not justified under section 1 of the Charter. The Court suggested that
a more legitimate and less intrusive means of achieving the objective
of protecting the public from inaccurate polls late in a campaign would
be to require that methodological information must be published along
with such poll results (Thomson Newspapers Co. v. Canada (Attorney
The courts have,
however, placed some limits on freedom of political speech. The British
Columbia Court of Appeal held in 1994 that the arrest of a group of environmentalists
who blocked a logging road in violation of a court injunction did not
violate their freedom of speech. The injunction did not interfere with
lawful expression, and the accused were otherwise free to stand and express
themselves verbally or symbolically anywhere along the side road (MacMillan
In 1994, the Supreme
Court of Canada held that section 2(b) did not impose on the government
a positive duty to consult specific groups or to provide funding for the
purpose of assisting them to participate in formal discussions. The government
had provided funding for four aboriginal groups to represent the aboriginal
peoples in responding to the government's 1991 constitutional proposals;
subsequently, an association representing native women had sought an order
in the Federal Court requiring the government to provide it with equivalent
funding and consultation. The Supreme Court found that this association
had had adequate opportunities to express its views through the designated
aboriginal groups, as well as direct to the government (Native Womens
Association of Canada v. Canada).
b. Freedom of Commercial Expression
In A.G. of Quebec
v. Irwin Toy Ltd., the Supreme Court of Canada clearly confirmed
that commercial speech is protected by the Charter. The Quebec Consumer
Protection Act prohibits various forms of commercial advertising directed
at persons under the age of 13, including television advertising. A majority
of the Supreme Court ultimately upheld the law under section 1 of the
Charter as being a reasonable limitation of the right to free expression.
All five Supreme
Court judges confirmed that commercial free expression is protected by
section 2(b), and agreed that Irwin Toy's right to free expression was
violated by the law. But the court divided on whether the law was a reasonable
limit on the right which could be demonstrably justified in a free and
democratic society under section 1 of the Charter.
According to the
majority opinion, the Quebec government had adduced sufficient evidence
to justify the reasonableness of its conclusion that a ban on commercial
advertising directed at children was the minimal impairment of free expression
consistent with the pressing and substantial goal of protecting children
against manipulation through advertising.
Further, the effects
of the advertising ban were not so severe as to outweigh the government's
pressing and substantial objective, since advertisers were still free
to direct their message at parents and other adults, and to engage in
The majority judges
went on to lay down a two-step process for analyzing whether there has
been a breach of section 2(b) of the Charter. The first step is to determine
whether the plaintiff's activity falls within the sphere protected by
freedom of expression. The second step is to ask whether the purpose or
effect of the government action in issue is to restrict freedom of expression.
If the government
wishes to control attempts to convey a meaning, either by directly restricting
the content of expression or by restricting a form of expression tied
to content, its purpose would trench upon the guarantee of free expression.
On the other hand, where the government aims only to control the physical
consequences of particular conduct, its purpose would not trench on the
Two cases late
in 1989 also dealt with the limits on freedom of commercial expression.
In Canadian Newspapers Co. v. Victoria (City), the city
refused to allow newspaper vending boxes on municipal property. The court
ruled that, although commercial expression is also a protected freedom,
the city had not infringed on the newspaper's freedom of expression, since
it could distribute papers in other ways. The city's purpose was to preserve
the aesthetic appearance of its property, for the well-being of its citizens.
In the same year, in a brief judgment, the Ontario Court of Appeal confirmed
that restrictions on the colouring of margarine did not interfere with
the freedom of expression of margarine producers who wished to communicate
that margarine is equal or preferable to butter.
In 1991, the Saskatchewan
Court of Appeal held that municipal by-laws prohibiting advertising by
the use of exterior signage was a justifiable limit on freedom of expression,
especially where the owner of the business is aware of the restriction
when he locates his business (Pinehouse Plaza Pharmacy).
However, some limits
on commercial advertising have been rejected by the courts. In 1990, the
Supreme Court of Canada found invalid those regulations made under the
Health Disciplines Act of Ontario that classified as professional
misconduct all advertising by dentists not expressly permitted by the
regulations. Although the objectives of professional regulation and protection
of the public were sufficiently important to override a Charter right,
it was not necessary to prohibit useful information of use to the public
in their choice of dentist (Rocket).
In 1994, the Alberta
Court of Appeal found that sections of the provincial Public Contributions
Act that restricted the ability of organizations to conduct campaigns
to obtain funds for charitable purposes were unjustified restraints on
freedom of expression. Banning all unlicensed requests for financial assistance
was not proportional to the mischief that the legislation sought to remedy
In 1988, the Supreme
Court of Canada considered the provisions of the Charter of the French
Language, which prohibited a firm's name from being shown in any language
other than French (Ford). The Court concluded that freedom of expression
includes the freedom to express oneself in the language of one's choice,
and that this freedom extends to commercial expression. While the aim
of the legislation was legitimate, and had a rational connection with
ensuring that the visage linquistique of Quebec reflected the predominance
of the French language, the ban on other languages was not necessary or
proportionate. Requiring that the French language be predominant in the
display, which might include any other languages, would be acceptable;
however, exclusivity did not survive the proportionality test.
In 1995, the Supreme
Court of Canada handed down its decision in RJR-MacDonald Inc v. Canada
(Attorney General), a case dealing with the Tobacco Products Control
Act. By a narrow majority of five to four, the court found a number
of the provisions of the Act to be inconsistent with the right to freedom
of expression, and not to constitute reasonable limits under the section
1 test. For slightly differing reasons, the majority could not accept
the sections of the Act dealing with advertising, trade mark use, unattributed
health warnings, retail display and sponsorship. Protecting the public
from the dangers of tobacco smoking is a valid objective, but the majority
felt that the government had offered insufficient evidence to demonstrate
that the good these provisions might achieve was proportionate to the
seriousness of the infringement. The specific objectives of the challenged
provisions were more precise than the general aim of protecting the public
from the danger of tobacco.
For example, the
requirement that a warning be placed on tobacco packaging was clearly
justified. However, there was no evidence that significant additional
benefits were gained by requiring the warning to be unattributed, or by
preventing the manufacturers from placing on the packages any information
not allowed by regulation.
The majority judgment
accepted that a causal relationship may be difficult to establish where
legislation is directed at changing human behaviour. For this reason,
the 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. However, a complete ban on a form of expression
is more difficult to justify than a partial ban. The government must show
that only a full prohibition will enable it to achieve its objective.
Where, as in this case, no evidence is adduced to show that a partial
ban would be less effective than a total ban, the justification required
by section 1 to save the violation of free speech is not established.
c. Public Access and Media Issues
In Southam (No. 1)
(1983), the Ontario Court of Appeal held that section 12(1) of the federal
Juvenile Delinquents Act, which required the trials of juveniles
to be held in camera, was unconstitutional as it conflicted with
section 2(b) of the Charter. It was determined that the rule of openness
of courts fosters the necessary public confidence in the integrity of
the court system and an understanding by the public of the administration
of justice. The absolute ban of the public from the trial of a juvenile
could not be demonstrably justified in a free and democratic society.
The court did allow that there might be some basis for the exclusion of
the public from certain hearings under the Juvenile Delinquents Act,
but the absolute ban served too wide a purpose. This holding was repeated
under the Young Offenders Act by the Ontario Court of Appeal in
Re Southam (1986).
In Her Majesty
the Queen v. Canadian Newspapers, the Supreme Court of Canada
upheld section 442(3) of the Criminal Code, which makes it
mandatory that the Court issue an order directing that the identity of
the complainant in a sexual assault case shall not be published or disclosed,
upon application by the complainant. The Ontario Court of Appeal had held
that section 442(3) infringed section 2(b) of the Charter, and
that the government had failed to demonstrate the need for a mandatory
prohibition. Mr. Justice Lamer, for the Supreme Court, held that
the limits imposed on freedom of the press by section 442(3) are
minimal. The legislative objective is to encourage victims to report sexual
assaults by protecting them from the trauma of widespread publication
and thereby to suppress crime and improve the administration of justice;
this is not outweighed by any limiting of freedom of the press. The publication
ban provision was held to be justified on the basis of section 1
of the Charter.
of media access to certain types of proceedings was emphasized by the
British Columbia Court of Appeal in Blackman. The Court held that
section 2(b) guaranteed the prima facie right of journalists to
be present during a review board hearing pursuant to Part XX.1 of the
Criminal Code and related to the disposition in a case where an
accused person was found not guilty by reason of a mental disorder.
of the Criminal Code allows a judge to exclude any or all members
of the public from a court when, in his or her opinion, it is "in
the interest of public morals, the maintenance of order or the proper
administration of justice." The section was upheld by the New Brunswick
Court of Appeal in the 1994 case Canadian Broadcasting Corp. v.
New Brunswick (Attorney-General). Although the section was held
to limit freedom of expression, it was saved by virtue of section 1 of
the Charter. Failure to have made the exclusion order would have permitted
further victimization of the victims in the case, which involved charges
of sexual assault and sexual interference. Although the result was overturned
by the Supreme Court of Canada in 1996, on the grounds that the circumstances
of the case did not justify the exclusion of the public from the courtroom,
the Charter reasoning upholding section 486(1) was not reversed.
In contrast to
the decisions discussed above, the Supreme Court has decided that an Alberta
statute that limits the publication of information arising from court
proceedings in matrimonial disputes is an unconstitutional limitation
on freedom of expression. The court in the Edmonton Journal case
noted the fundamental importance of the right to freedom of expression,
and the historic importance of open courts in a democratic society. It
decided that the provincial objectives of ensuring privacy and access
to a fair trial for persons wishing to litigate matrimonial matters were
sufficiently important to bring section 1 into play, but that the restrictions
in the legislation were excessive.
In 1994, a publication
ban was also set aside by the Supreme Court of Canada in the Dagenais
v. C.B.C. case involving the television mini-series "The Boys
of St. Vincent." The court weighed the competing interests of the
right to free expression and the rights of the accused in the case to
a fair trial. The publication ban was quashed, as the Court found it limited
the broadcaster's Charter rights unjustifiably. The ban was too broad,
and the judge who granted the initial ban had failed to consider reasonable
alternative measures available for achieving the objective without limiting
the expressive rights of third parties.
the Supreme Court was asked to rule that a qualified privilege exists
for journalists testifying in Canada. The appellant had been ordered to
testify before the Alberta Labour Relations Board about her communications
with company officials while writing a story on a union organizing campaign.
Several employees were subsequently dismissed and an unfair labour practices
hearing began. The journalist claimed a qualified privilege on the grounds
that her being compelled to testify at this hearing would harm her ability
to gather information.
The Supreme Court
decided that the constitutional issue of such a qualified privilege for
journalists simply did not arise on the facts of the case. The journalist
had neither been asked for nor had given a promise of confidentiality.
Moreover, the evidence now sought from her was crucial, relevant, and
not available from other sources. Additionally, there was nothing to suggest
that her subsequent gathering of information was actually threatened.
In Nova Scotia,
the Supreme Court granted an injunction against a broadcaster, thus preventing
the publication of documentation protected by solicitor-client privilege.
right to protect the identity of sources may have been limited by the
Rocca Enterprises v. University Press of New Brunswick case,
where it was held that, in the absence of evidence of a relationship between
the protection of identity of sources and the ability to gather news,
there is no infringement of section 2(b) of the Charter in compelling
a journalist to reveal the source of information.
late 1991, the Supreme Court of Canada confirmed a decision of the New
Brunswick Court of Appeal holding that Charter protection for freedom
of the press does not alter the requirements for the issuance of a search
warrant, but rather provides a backdrop against which the reasonableness
of the search warrant request may be evaluated. Thus, RCMP officers were
entitled to a search warrant to seize CBC videotapes of illegal activity
during a labour demonstration, even though the information given to the
justice of peace who issued the warrant did not specify that police identification
officers had also been present at the scene or why their testimony was
not sufficient for prosecution.
Finally, the issue
has arisen of the extent to which a provincial legislature or, by extension,
Parliament itself, can deny access to the media. In 1991, the Nova Scotia
Court of Appeal decided that the Legislative Assembly of the province
could not entirely ban television coverage of its proceedings. The case
raised the important question of whether the Charter applies to parliamentary
privilege and the conventional right of Parliament to govern its own proceedings.
In a judgment rendered 21 January 1993, from which Mr. Justice Cory dissented,
the Supreme Court of Canada allowed the Assembly's appeal, holding that
members of legislative bodies may continue to limit media access as part
of their right to control legislative proceedings (New Brunswick Broadcasting).
The Court was divided (3-4) as to the extent to which the Charter might
in other circumstances apply to members of the House of Assembly or another
The Ontario Court
of Appeal, in a reference regarding the Ontario Board of Censors, held
that where the standards the board uses to censor films are not prescribed
by statute, but left to the discretion of the board, the legislation imposes
a limitation to freedom of expression which cannot be saved by section 1
of the Charter. While some prior censorship of film is demonstrably justified
in a free and democratic society, having regard to the prevalence of censorship
legislation and the criminal prohibition against obscenity, a limitation
left to administrative discretion is not one prescribed by law.
In Vancouver, a
zoning by-law prohibiting the retail sale of "sex-oriented products,"
as defined in the by-law, in any zone of the municipality was held to
limit freedom of expression in a manner permitted by section 1. The
by-law itself, in its definition of "sex-oriented" products,
contains clear standards and criteria for its application. The limitation
was held to be a reasonable one, and also demonstrably justified, even
though the municipality adduced no evidence of the effect of such products
on society. The Court took judicial notice of their undesirable effects.
A Toronto by-law
requiring that in licensed adult entertainment parlours the entertainers'
pubic area remain covered was upheld. Even assuming that to uncover the
area would be "artistic expression" and thus included in the
"expression" that is protected by the Charter, the right to
artistic expression was not being asserted here but rather the right to
expose entertainers' pubic areas in order to stimulate liquor sales. "Burlesque
dancing" was held to be a form of expression in R. v. Zikman,
a decision of the Ontario Provincial Court, and the Criminal Code
provision prohibiting nudity in a public place without lawful excuse was
held to be a reasonable limit within the meaning of section 1 of
the Charter. A Toronto-by-law prohibiting physical contact between an
exotic dancer and another person during the dancer's performance was upheld
in the 1995 Divisional Court decision in Ontario Adult Entertainment
Bar Assoc. v. Metropolitan Toronto.
In 1994, the Quebec
Court of Appeal struck down municipal by-laws prohibiting businesses dealing
in eroticism from using images of the human body in outdoor advertising.
Although the city of Montreal considered the images to be degrading and
dehumanizing, particularly to women, the effects of the measure were out
of proportion to the objective when the images were neither pornographic
or obscene (Cabaret Sex Appeal Inc. v. Montreal).
The freedom to
import a sexually explicit documentary film for use in a faculty of medicine
course on sexuality was protected by a County Court decision in Manitoba.
The decision of the Deputy Minister, Revenue Canada, Customs and Excise,
banning the film's entry into Canada was held to have violated the academic
community's freedom of expression (Re University of Manitoba).
Section 159 [now section 163] of the Criminal Code, which
restricts the publication, processing and distribution of obscene material,
has the valid purpose of limiting the viewing of obscene material in order
to protect society generally. Therefore, the provision, including the
criminal law sanction, is demonstrably justified (R. v. Ramsingh).
Section 159 was also upheld in a subsequent B.C. Court of Appeal
case, R. v. Red Hot Video Ltd. (1985). Leave to appeal to
the Supreme Court of Canada in this case was refused in 1988.
In Re Luscher
and Deputy Minister, Revenue Canada, Customs and Excise, the prohibition
against the importation of books and other materials of an immoral or
indecent character contained in the schedule to the Customs Tariff (Canada)
was held to contravene the Charter, and was therefore found to be of no
force or effect. Because the prohibition's first object was books, it
prima facie infringes freedom of expression. It does not constitute
a reasonable limit, saved by section 1, because of its vagueness
and subjectivity. The words "immoral" and "indecent"
are not defined in the legislation. They are also highly subjective and
not limited to matters predominantly sexual.
Section 163 of
the Criminal Code, which deals with selling or distributing obscene
material, was considered by the Supreme Court of Canada in early 1992
in R. v. Butler. In particular, the Court closely scrutinized
section 163(8), which provides that "any publication a dominant characteristic
of which is the undue exploitation of sex, or of sex and any one of more
of the following subjects, namely, crime, horror, cruelty and violence,
shall be deemed to be obscene."
The Supreme Court
held that section 163(8) was an exhaustive test of obscenity where the
exploitation of sex is a dominant characteristic. The most important test
as to whether such exploitation is "undue" remains the "community
standard of tolerance" test. That test is concerned not with what
Canadians would tolerate being exposed to themselves, but with what they
would not tolerate other Canadians being exposed to. The Supreme
Court endorsed "a growing recognition in recent cases that material
which may be said to exploit sex in a degrading or dehumanizing manner
will necessarily fail the community standards test." Such material
is perceived to be harmful to society, and particularly to women. However,
even material that offends the community standards test will not be considered
"undue" if its use is required for the serious treatment of
a theme. This is the "internal necessities" test, more commonly
known as the "artistic defence."
sex with violence will always constitute undue exploitation; sex that
is degrading or dehumanizing may be undue if the risk of harm is substantial;
and explicit sex that is neither violent nor degrading will generally
be tolerated, unless it depicts children. When the artistic defence is
invoked, the question becomes whether the undue exploitation of sex is
the main object of the work, or whether the portrayal of sex is essential
to a wider artistic, literary, or other similar purpose.
Since the purpose
of section 163 is specifically to restrict the communication of certain
types of materials according to their content, the Supreme Court was in
no doubt that it infringed section 2(b) of the Charter. The objective
of avoiding harm to society through the dissemination of certain obscene
materials was, however, seen as sufficiently pressing and substantial
to warrant a restriction on the freedom of expression. The Supreme Court
also confirmed that the objective of maintaining conventional standards
of propriety, independently of any harm to society, would no longer be
justified, in light of the values of individual liberty that underlie
Finally, the Court
found that section 163 meets the proportionality test; that is, there
is a rational connection between the impugned measures and the objective
of minimal impairment of the right or freedom, and a proper balance between
the effects of the limiting measures and the legislative objective. There
is a rational connection because Parliament is entitled to have a "reasoned
apprehension of harm" resulting from the desensitization of individuals
exposed to materials depicting violence, cruelty, and dehumanization in
sexual relations. As for minimal impairment of rights, the legislation
need not be "perfect" but only appropriately tailored in the
context of the infringed right. The infringement on freedom of expression
is confined to a measure designed to prohibit the distribution of sexually
explicit materials which are accompanied by violence, or which, though
they are without violence, are degrading or dehumanizing; thus the restriction
is proportional to the objective.
The provision of
the Criminal Code that prohibits communicating for the purposes
of solicitation was upheld by the Supreme Court of Canada. Section 213
(until 1988 section 195.1) makes it an offence to "in any manner
communicate or attempt to communicate with any person" for the purposes
of prostitution. On 31 May 1990, the Supreme Court of Canada rendered
its decision in three appeals regarding this section: Skinner from
Nova Scotia, Reference Re Sections 193 and 195.1 of the Criminal
Code from Manitoba, and the Stagnitta case from Alberta. Only
in the Skinner case had the provision been found unconstitutional,
on the basis that it contravened the right of freedom of expression as
guaranteed in section 2(b) of the Charter. The majority reasons of
the Supreme Court of Canada were delivered by Chief Justice Dickson, with
Madam Justice Wilson and Madam Justice L'Heureux-Dubé dissenting. The
Chief Justice held that the impugned section infringes the freedom of
expression guaranteed by section 2(b), but not the freedom of association
guaranteed by section 2(d), nor the liberty guarantee in section 7.
He found that the infringement of section 2(b) is justified on the
basis of section 1 of the Charter as being a reasonable limit on
a protected right, and thus demonstrably justified in a free and democratic
an Ontario court dealt with the new provisions in the Criminal Code
respecting child pornography. A number of paintings and drawings involving
explicit depictions of children engaged in a variety of sexual activities,
in some cases with adults, had been seized from an art gallery. The Crown
had brought an application for an order that these depictions be forfeited
to the Crown as child pornography. The owner of the paintings relied upon
the statutory defence of artistic merit (section 163.1(6)), but also challenged
the constitutionality of the child pornography provisions (sections 163.1
and 164 of the Criminal Code).
The court found
the provisions to be a justified infringement of freedom of expression
after amending the wording of section 164(1), the provision dealing with
the seizure of impugned materials. Evidence established that the legislation
was carefully designed to meet Parliament's legitimate objective of protecting
children from harm, was rationally connected to the objective, and impaired
the right to freedom of expression as little as possible. The court found
that an artist acting with sincerity and integrity in the creation of
a work would be very unlikely to run afoul of the provision. Moreover,
the Court found that the paintings and drawings in question did have artistic
merit; it therefore dismissed the Crown's application for forfeiture.
e. Hate Propaganda
The Supreme Court
of Canada in R. v. Zundel struck down the Criminal Code
provision prohibiting the spreading of false news. Section 181 made it
an offence to wilfully publish a statement, tale or news that the person
knows to be false and that has caused or is likely to cause injury or
mischief to a public interest. The accused had been twice convicted of
the offence by Ontario juries.
Writing for the
majority, Madam Justice McLachlin held that section 181 of the Code infringes
the accused's section 2(b) Charter right to freedom of expression. Section
181 contains over-broad, vague wording, making it difficult for the courts
to apply. The section is not saved by section 1 of the Charter because
it permits or threatens the imprisonment of people on the ground that
they have made a statement that a jury deems to be false or mischievous
to some public interest, thereby stifling "a whole range of speech,
some of which has long been regarded as legitimate and even beneficial
to our society." Also, the fact that the historical aim of the section
is now out-dated, making it necessary for a new purpose to be attributed
to the legislature, prevented the provision from being saved under section
In a strong dissent,
Justices Cory and Iacobucci (with Mr. Justice Gonthier concurring) wrote
that section 181, while it infringes section 2(b) in a limited way, is
not too vague because it provides clear guidelines of conduct. Because
the publication of the lies which are the target of the provision operates
to "foment discord and hatred," they make the concept of "multiculturalism
in a true democracy impossible to attain." The dissent also discussed
the historical shift in emphasis in section 181, from 1275, when it was
designed to protect the nobles and "great persons of the realm,"
to today, when its purpose is the protection of minorities and the preservation
of Canada's mosaic of cultures; it concluded that this shift was permissible.
The dissenting justices believed that the importance of the state objective,
balanced against an infringement of the "extreme periphery"
of the right to freedom of expression, made section 181 justifiable in
free and democratic Canadian society.
In three other
decisions, the Supreme Court of Canada has upheld two provisions prohibiting
different forms of hate-mongering. The appeals were heard in December
1989, and decisions handed down on 13 December 1990. In R.
v. Keegstra and R. v. Andrews, the impugned provision
was section 319(2) of the Criminal Code, which prohibits the wilful
promotion of hatred toward any section of the public distinguished by
colour, race, religion or ethnic origin. The case of R. v. Taylor
dealt with the constitutionality of section 13(1) of the Canadian Human
The majority of
the Supreme Court of Canada, after a thorough historical review of anti-hate
legislation, upheld both provisions, but in each case by a narrow majority.
The dissents in each case, written by Madam Justice McLachlin and concurred
with by Mr. Justice Sopinka and in part by Mr. Justice La Forest, are
well-reasoned and persuasive, suggesting that the validity of this type
of measure may be challenged again in the future.
and Andrews, provincial Courts of Appeal had handed down contradictory
results, the Ontario Court of Appeal upholding section 319(2) and the
Alberta Court of Appeal finding it unconstitutional as an unjustifiable
limit on the fundamental freedom of expression guaranteed by section 2(b)
of the Charter. Chief Justice Dickson (as he then was) found that section
319(2) infringed the guarantee of freedom of expression found in section
2(b) of the Charter. In determining that section 319(2) was, however,
saved by section 1 of the Charter, his reasoning included a consideration
of the harmful effect on society of this form of communication, Canada's
commitments in international law to prohibit hate-mongering expression,
and the principles underlying sections 15 and 27 of the Charter, which
respectively guarantee equality and emphasize the importance of the multicultural
heritage of Canadians. Both section 319(2), and the reverse onus provision
in section 319(3)(a), which allows an accused to defend on the basis that
his or her statements are true, were upheld under section 1 of the Charter
as reasonable limits prescribed by law in a free and democratic society.
In her dissent,
Madam Justice McLachlin held that the guarantee of free expression afforded
by section 2(b) of the Charter should not be limited because of sections
15 or 27, or any international instruments. While finding that the legislative
objective was sufficiently weighty to justify a limit on the fundamental
freedom of expression, she held that it was not made clear that section
319(2) is an effective measure to prevent hate-mongering. Madam Justice
McLachlin seemed to have been influenced by arguments that prosecuting
individuals under a criminal prohibition may give them free publicity
and martyr status. She wrote that a criminal sanction may make hate-mongerers
appealing if it "dignifies them by completely suppressing their utterances."
The provision failed the proportionality test; it did not impair free
speech only to the minimum extent permitted by its objectives. She concluded
that any questionable benefit of the legislation is outweighed by the
significant infringement on the constitutional guarantee of free expression.
case dealt with section 13(1) of the Canadian Human Rights Act,
which makes it a discriminatory practice to communicate by telephone any
matter that is likely to expose a person or group to hatred or contempt
because they are identifiable on the basis of a prohibited ground of discrimination.
The accused persons had been responsible for a telephone answering machine
that delivered recorded messages denigrating the Jewish race and religion.
In dissent, Justices La Forest, Sopinka and McLachlin held that section
13(1) failed to meet the proportionality test because it was too broad.
The majority upheld the provision, however, saying that though the provision
may impose a slightly broader limit upon freedom of expression than does
section 319(2) of the Criminal Code, the conciliatory bent of a
human rights statute renders such a limit more acceptable than would be
the case with a criminal provision.
A subsequent decision
by the Saskatchewan Court of Appeal applied the rationale in Taylor
to uphold legislation prohibiting the publication or display of any sign
or representation that exposes to hatred or "ridicules, belittles,
or otherwise affronts the dignity of" any person in a protected group.
In a case related
to hate literature provisions, the New Brunswick Court of Appeal rejected
part of the order of a board of inquiry under the New Brunswick Human
Rights Act dealing with the conduct of Malcolm Ross, a teacher who
had published material arguing that western Christian civilization is
being undermined by an international Jewish conspiracy. The board had
ordered that Mr. Ross be removed from the classroom, and that his employment
be terminated unless a non-teaching position could be found for him. Additionally,
his employment was to be terminated if he published or distributed anti-Jewish
writings. The trial court that first reviewed the order had quashed the
"gag" provision, and the Court of Appeal concurred. Additionally,
the Court of Appeal removed those provisions of the order relating to
Mr. Ross's employment, on the grounds that he had never used the classroom
or school property to further his views. Because of this, the need for
his removal from the classroom was not sufficiently "pressing and
substantial" to override Mr. Ross's right to freedom of expression.
The court decided that "to hold otherwise would... have the effect
of condoning the suppression of views that are not politically popular
at any given time."
The right to engage
in secondary picketing was dealt with in Dolphin Delivery. In the
B.C. Court of Appeal, it was held that picketing that does not have as
its purpose or object the conveying of information or opinion or persuading
anyone to a point of view, is a form of action rather than expression;
restrictions on such picketing thus cannot contravene this provision of
the Charter. A strong dissenting opinion was registered in this case by
Mr. Justice Hutcheon, who expressed the view that all peaceful picketing
is an exercise of freedom of expression. The Supreme Court of Canada in
its decision on the appeal of this case decided that all peaceful picketing
is indeed expression and is therefore guaranteed as a freedom under the
Charter. It can be restrained, however, when it is obvious that it will
lead to escalation of the conflict beyond the immediate parties.
Moreover, the Supreme
Court of Canada has held that court employees on a legal strike can no
longer picket courthouses, as such conduct amounts to criminal contempt
of court. (B.C.G.E.U. v. B.C.)
The Court reaffirmed
that peaceful picketing is a form of expression protected under the Charter's
right to freedom of expression. Assuring unimpeded access to the courts,
however, is plainly, in the court's opinion, an objective of sufficient
importance to warrant overriding a constitutionally protected right or
freedom. Picketing of this type could lead to massive disruption of the
court process, which would be an intolerable interference with the legal
and constitutional rights of Canadians.
an Ontario court granted an injunction against anti-abortion protest activity
in the vicinity of free-standing clinics and doctors' offices. Although
this injunction infringed the guarantee of freedom of expression, the
physiological, psychological and privacy interests of women about to undergo
an abortion constituted objectives of sufficient importance to allow the
freedom to be overridden.
g. Other Issues (Defamatory Libel,
Statements against Belief)
In March 1996,
the Ontario Court (General Division) struck down section 301 of the Criminal
Code of Canada, which prohibited the publication of defamatory libel,
defined as matter published without lawful justification that is likely
to injure the reputation of any person by exposing that person to hatred,
contempt or redicule, or that is designed to insult the person to which
the matter refers. The R. v. Gill case involved two individuals
who had published "wanted" posters, alleging that six Kingston
Penitentiary guards had tortured and killed an inmate. The Court had no
difficulty finding that section 301 infringed the rights of the accused
under section 2(b) of the Charter, and also that the section was not saved
under section 1.
A few cases have
also arisen on the issue of whether persons or organizations can be compelled
to make a statement against their wishes or beliefs. In an Ontario action
for libel, the judge of the Provincial Court found in favour of the plaintiff
and, in addition to damages, ordered that the defendant newspaper publish
a retraction and apology in the part of the newspaper where the original
article had appeared. A 1989 appeal was allowed, on the grounds that the
Provincial Court had no jurisdiction to order this type of equitable relief;
however, the appeal judge indicated that otherwise the order would have
been constitutionally valid.
The appeal judge
cited a 1989 Supreme Court of Canada decision, Slaight Communications,
in which the court upheld the order of an adjudicator under the Canada
Labour Code who had found that a radio station employee had been unjustly
dismissed. As well as monetary compensation, the adjudicator ordered the
employer to provide the dismissed employee with a letter of recommendation
setting out certain facts relating to the dispute (the "positive
order"). He also ordered that any queries about the dismissed employee
to any management or staff at the radio station should "be answered
exclusively by sending or delivering a copy of the said letter of recommendation"
(the "negative order").
Mr. Justice Beetz
dissented from the decision, on the grounds that the employer could be
forced to write statements that he personally might consider inaccurate
or misleading. It was one thing to prohibit the disclosure of certain
facts, but quite another to order a person to affirm facts regardless
of whether or not he or she believed them. While the objective of protecting
the employee was valid, it could have been achieved by other means, such
as a letter stating that the adjudicator had found the facts in question
to be true. The "negative order" in particular was, in Mr. Justice
Beetz's opinion, disproportionate and unreasonable.
discussed above under Freedom of Commercial Expression, the Supreme
Court of Canada dealt with a similar issue in the comments on the unattributed
warnings required by the Tobacco Products Control Act.
3. Freedom of Peaceful Assembly (Section 2(c))
The word "peaceful"
is probably used in this subsection to make it clear that no doubt is
cast on our laws regarding either breach of the peace or riots. It is
also clear that there is a natural affinity between freedom of assembly
and freedom of speech, as those who are denied access to the media to
express their views usually rely heavily on various forms of assembly
to get their message across.
an Ontario court has indicated that it will give at least some weight
to the right of freedom of peaceful assembly. In this case, the court
deleted certain conditions that had been imposed upon an accused following
his release on bail pending trial on a charge of obstructing police. These
conditions required that the accused not attend a demonstration, or demonstrate,
or in any way cause a disturbance, within half a mile of a plant that
was used to manufacture components for weapons. The court felt that the
onus was upon the Crown to show a compelling reason why the basic rights
of an individual to do what is lawful should be curtailed. The court went
on to say that, in order to justify an interference with fundamental rights,
the Crown must show that the restriction furthers an important or substantial
state interest unrelated to the suppression of expression, and that the
limitation sought on this freedom is no greater than is necessary or essential
for the protection of the public. If this type of reasoning continues
to be applied, a situation similar to that in the Dupond case would
require the municipality to defend the ban on assemblies by showing that
all assemblies were for non-peaceful purposes.
The Ontario case
of Dieleman dealt with an interlocutory injunction granted to the
Attorney General to restrain anti-abortion protest activity. The injunction
was held to infringe the freedom of peaceful assembly under section 2(c),
but the limitation was found to be justified, as was the limitation on
the freedom of expression guaranteed by section 2(b) in the same case
(see discussion above).
4. Freedom of Association (Section 2(d))
The freedom of
association guaranteed by section 2(d) includes various labour relations
and collective bargaining rights, as well as certain family, political
and economic association rights; it also includes a right not to associate.
In the Maltby
case, the Saskatchewan trial court determined that limited visiting privileges
given to remand inmates at Saskatchewan Correctional Centres do not violate
the right to freedom of association. The restrictions imposed were determined
to be incidental to a legitimate government purpose, namely security.
In Public Service
Alliance of Canada v. The Queen in Right of Canada it was held
that the Charter was not infringed by the Public Sector Compensation
Restraint Act (S.C. 1980-81-82-83, c. 122), which extended
compensation plans for employees in the federal public sector, fixed their
wage increases for a two-year period and thus limited collective bargaining
during the extension. The majority of the Supreme Court of Canada determined
that freedom of association does not guarantee the right to strike or
bargain collectively. Therefore, it was not necessary for the Court to
investigate whether the Act would be justified under section 1. The
legislatures were said to be free when they find it necessary to define
and qualify in various ways the rights that flow from association.
Chief Justice Dickson,
dissenting in part, and Madam Justice Wilson, dissenting, stated that
the right to strike is indeed protected by the Charter. Employees in the
collective bargaining process require the protection of their freedom
when collectively withdrawing their services.
The right not to
associate has been held not to be impaired by the mandatory collection
of union dues pursuant to a check-off clause in a collective agreement.
The employees remain free to oppose the union, and to work with others
for the purpose of seeking to have the union's bargaining rights terminated.
The compelled payment does not identify the employee personally with any
of the political, social or ideological objectives that the union may
support financially or otherwise. Further, it was also held in Lavigne
v. O.P.S. E.U. that there is no infringement of section 2(d)
of the Charter by the provision of the Colleges Collective Bargaining
Act that deems all employees in the bargaining unit to be taking part
in a strike where the union gives notice of a lawful strike, and precludes
all employees from being paid salary or benefits during the period of
Another area in
which differing decisions have been rendered involves the spending of
union dues on political causes. The British Columbia Supreme Court decision
in B.C.G.E.U. v. B.C. held that this type of spending by
the B.C. Government Employees' Union did not violate the freedom of association.
On the other hand in a decision by an Ontario Court it was held that it
was contrary to the Charter for the Ontario Public Service Employees'
Union to use compulsory union dues for non-collective bargaining activities.
On appeal to the Ontario Court of Appeal, the trial decision was overturned.
The Court of Appeal held that union dues and their use are private internal
matters, not covered by the Charter. The court noted that the union was
just doing what unions have traditionally done in Canada and in political
The Courts have
consistently held that the guarantee of freedom of association provided
in section 2(d) of the Charter does not extend to the filial relationships
of parent and child, nor of husband and wife. In the immigration context,
orders separating parent from child and husband from wife (where the marriage
was for immigration purposes) have been upheld (Re Downes and Re Horbas).
In another Saskatchewan
case, Re S. and Minister of Social Services, it was also determined
that freedom of association could be overridden when a child is taken
into protective custody because the welfare officer has reasonable grounds
to believe that the health and welfare of the child is in immediate jeopardy.
It was decided that the deprivation of association was in the best interests
of the child and as such was a reasonable limit prescribed by law that
could be demonstrably justified in a free and democratic society.
Children's Aid Society of Metropolitan Toronto v. S.(T.), Ontario's
child welfare legislation was found not to infringe section 2(d)
in requiring the denial of access by the birth parents where a child is
placed for adoption. Even if this paragraph were designed to protect the
association between parent and child, section 1 of the Charter must
prevail to limit that freedom, in accordance with the best interests of
the child. The fundamental freedoms guaranteed by the Charter have a public
nature, and the desire of a parent to be with a child has no goal or purpose
similar to the economic, political, religious, social, charitable or even
entertainment purposes of associations.
Beaudoin, Gerald-A. and Errol Mendes (eds). Canadian
Charter of Rights and Freedoms. 3rd ed. Carswell, Scarborough, 1996.
Gibson, Dale. The Law of the Charter: General
Principles. Carswell, Toronto, 1986.
Hogg, Peter W. Constitutional Law of Canada.
Loose-leat edition, 4th ed. Carswell, Scarborough, 1997.
Laskin, J.B. et al., eds. The Canadian Charter
of Rights, annotated. 5 vols. Canada Law Book, Aurora, Ontario,
A.G. Canada v. Dupond,  2 S.C.R.
A.G. of Quebec v. Irwin Toy Ltd., 
1 S.C.R. 927.
Adler v. Ontario (1994), 116 D.L.R. (4th)
1 (Ont. C.A.), upheld  3 S.C.R. 609.
Amherst (Town) v. Canadian Broadcasting Corp.
(1994), 111 4 D.L.R. (4th) 301 (N.S.S.C.); affirmed (1994), 22 C.R.R.
(2d) 129, 133 N.S.R. (2d) 277 (C.A.).
B. (R.) v. Children's Aid Society of Metropolitan
Toronto (1995), 122 D.L.R. (4th) 1 (S.C.C.).
B.C. G.E.U. v. British Columbia (Attorney
General),  2 S.C.R. 214.
Blackman v. B.C. (Review Board) (1995)
95 C.C.C. (3d) 412 (B.C.C.A.)
Canada (Human Rights Commission) v. Taylor,
 3 S.C.R. 892.
Canadian Broadcasting Corporation v. New
Brunswick (Attorney General) (1991), 85 D.L.R. (4th) 57 (S.C.C.).
Canadian Broadcasting Corp. v. New Brunswick
(Attorney-General) (1994), 116 D.L.R. (4th) 506 (N.B.C.A.); reversed
(1996), 110 C.C.C. (3d) 193 (S.C.C.).
Canadian Civil Liberties v. Ontario (Education
Minister) (1990), 65 D.L.R. (4th) 1 (Ont. C.A.).
Canadian Newspapers Co. v. Victoria (City)
(1989), 63 D.L.R. (4th) 1 (B.C.C.A.).
Carbaret Sex Appeal Inc. v. Montreal (City)
(1994), 120 D.L.R. (4th) 535 (Que CA).
Catholic Children's Aid Society of Metropolitan
Toronto v. S.(T.) (1989), 60 D.L.R. (4th) 397, 69 O.R. (2d)
Dagenais v. Canadian Broadcasting Corp.,
 3 S.C.R. 835.
Edmonton Journal v. Alberta (A.G.) (1989),
64 D.L.R. (4th) 577 (S.C.C.).
Epilepsy Canada v. Alberta (Attorney General)
(1994), 115 D.L.R. (4th) 501 (Alta. C.A.)
Ford v. Quebec (Attorney General), 
2 S.C.R. 712
Grant v. Canada (Attorney General) (1994)
94 C.L.L.C. 14035, affd 125 D.L.R. (4th) 556 (Fed. C.A.), leave
to appeal to S.C.C. refused (1996) 130 D.L.R. (4th) vii (Note).
Griffin v. College of Dental Surgeons
(1989), 64 D.L.R. (4th) 652 (B.C.C.A.).
Her Majesty the Queen v. Canadian Newspapers,
 2 S.C.R. 122.
Hockey v. Hockey (1989), 60 D.L.R. (4th)
765 (Ont. Div. Ct.).
Hothi v. The Queen,  3 W.W.R. 256
(Man. Q.B.), affirmed  3 W.W.R. 671 (Man. C.A.), leave to appeal
to S.C.C. refused (1986) 4 Man. R. (2d) 240 (note).
Institute of Edible Oil Foods v. Ontario
(1989), 64 D.L.R. (4th) 380 (Ont. C.A.).
Jones v. The Queen,  2 S.C.R. 284.
L. (C.P.) (Re) (1988), 70 Nfld. & P.E.I.R.
287 (Nfld. S.C.).
Lavigne v. O.P.S.E.U. (1991), 81 D.L.R.
(4th) 545 (S.C.C.).
MacKay v. Manitoba,  2 S.C.R. 357.
MacMillan Bloedel Ltd. v. Simpson (1994)
113 DLR (4th) 368 (B.C.C.A.), leave to appeal to S.C.C. refused (1995)
C.R.R. (2d) 192n with respect to Charter issues, affirmed without consideration
of Charter issues.
Moore v. Canadian Newspapers Co. (1989),
60 D.L.R. (4th) 113 (Ont. Div. Ct.).
Moysa v. Alberta (Labour Relations Board),
 1 S.C.R. 1572.
National Citizens' Coalition Inc. v. A.G.
Canada (1984), Can. Charter of Rights Ann. 9.2-10 (Alta. Q.B.).
Native Women's Association of Canada v. Canada, 
3 S.C.R. 627.
New Brunswick Broadcasting Co. v. Nova Scotia
(Speaker of the House of Assembly),  1 S.C.R. 319.
Newfoundland Teachers Association v. Newfoundland
(1988), 53 D.L.R. 4th) 161 (Nfld. C.A.).
Nova Scotia Board of Censors v. McNeil,
 2 S.C.R. 662.
Ontario Adult Entertainment Bar Assoc. v. Metropolitan
Toronto (1995) 129 D.L.R. (4th) 81 (Ont. Div. Ct.).
Ontario (Attorney General) v. Dieleman
(1994), 117 D.L.R. (4th) 449 (Ont. Ct. (G.D.)), leave to appeal to S.C.C.
refused 126 D.L.R. (4th) vii.
Ontario (Attorney General) v. Langer
(1995), 123 D.L.R. (4th) 289 (Ont. Ct. (G.D.)), leave to appeal to SCC
refused (1995) 42 C.R. (4th) 410 (Note).
OPSEU v. Attorney General of Ontario
(1988), 52 D.L.R. (4th) 701 (H.C.J.).
Osborne v. Canada (Treasury Board) (1991),
82 D.R.L. (4th) 321 (S.C.C.).
O'Sullivan v. Canada (1991), 84 D.L.R.
(4th) 124 (F.C.T.D.).
P.(D.) v. S.(C.),  4 S.C.R. 141.
Peel v. Great Atlantic and Pacific Co.
(1991), 2 O.R. (3d) 65 (CA).
Prior v. Canada,  2 F.C. 371 (aff'd
89 D.T.C. 5503).
Public Service Alliance of Canada v. R.
(1987), 38 D.L.R. (4th) 161,  1 S.C.R. 313.
R. v. Andrews and Smith,  3 S.C.R.
R. v. Big M. Drug Mart Ltd.,  1
R. v. Butler (1992), 89 D.L.R. (4th)
R. v. Collins (1982), 31 C.R. (3d) 283
(Ont. Co. Ct.).
R. v. Edwards Books,  2 S.C.R.
R. v. Fringe Products Inc. (1990), 53
C.C.C. (3d) 422 (Ont. Dist. Ct.).
R. v. Gill (1996) 35 C.R.R. (2d) 369
(Ont. Gen. Div.).
R. v. Gruenke,  3 S.C.R. 263.
R. v. Keegstra (1990), 1 C.R. (4th) 129
R. v. London Free Press (1990), 75 O.R.
(2d) 161 (H.C.J.).
R. v. Pinehouse Plaza Pharmacy Ltd, 
2 W.W.R. 554 (Sask. C.A.).
R. v. Ramsingh (1984), 14 C.C.C. (3d)
230 (Man. Q.B.).
R. v. Red Hot Video Ltd. (1985), 18 C.C.C.
(3d) 1 (B.C.C.A.), leave to appeal refused  2 S.C.R.
R. v. Reid (1988), 40 C.C.C. (3d) 282,
83 A.R. 7 (C.A.).
R. v. Robinson (1983), 148 D.L.R. (3d)
185 (Ont. C.A.).
R. v. Zikman (1986), 16 W.C.B. 451 (Ont.
R. v. Zundel (1987), 35 D.L.R. (4th)
338 (Ont. C.A.), leave to appeal to S.C.C. refused 61 O.R. (2d) 588n.
R. v. Zundel,  2 S.C.R. 731.
Ramsden v. Peterborough (City) (1993),
15 O.R. (3d) 548 (S.C.C.).
Re Black and Metropolitan Separate School Board
(1988), 52 D.L.R. (4th) 736 (Ont. Div. Ct.).
Re Downes and Minister of Employment & Immigration
(1986), 1 A.C.W.S. (3d) 28 (F.C.T.D.).
Re Horbas et al. and Minister of Employment &
Immigration (1985), 22 D.L.R. (4th) 600 (F.C.T.D.).
Re Koumoudouros et al. and Municipality of Metropolitan
Toronto (1984), 8 C.C.C. (3d) (364 (Ont. Div. Ct.), revd on other
grounds (1985), 23 C.C.C. (3d) 286, leave to appeal to S.C.C. refused
65 N.R. 78.
Re Luscher and Deputy Minister, Revenue Canada,
Customs and Excise (1985), 17 D.L.R. (4th) 503,  1 F.C. 85
Re Maltby and A.G. Saskatchewan (1982), 143
D.L.R. (3d) 649 (Sask. Q.B.), appeal to Sask. C.A. dismissed (10 D.L.R.
Re Ontario Film & Video Appreciation Society
and Ontario Board of Censors (1983), 147 D.L.R. (3d) 58, 41 O.R.
(2d) 583 (Div. Ct.), aff'd. 45 O.R. (2d) 80n (C.A.).
Re Red Hot Video Ltd. and City of Vancouver
(1983), 5 D.L.R. (4th) 61, 48 B.C.L.R. 381 (S.C.).
Re S. and Minister of Social Services (1983),
21 A.C.W.S. (2d) 219 (Sask. Q.B.).
Re Service Employees' International Union Local
240 v. Broadway Manor Nursing Home (1984), 13 D.L.R. (4th)
220 (Ont. C.A.).
Re Southam Inc. and the Queen (1986), 53 O.R.
(2d) 609 (C.A.).
Re University of Manitoba and Deputy Minister, Revenue
Canada, Customs and Excise (1983), 4 D.L.R. (4th) 658 (Man. Co.
Reference Re Public Service Employee Relations Act
(Alta.),  1 S.C.R. 313.
Reform Party of Canada v. Canada (Attorney
General) (1995), 123 D.L.R. (4th) 366 (Alta. C.A.).
Retail, Wholesale and Department Store Union, Local
580 v. Dolphin Delivery Ltd.,  2 S.C.R. 573.
Rheaume v. Ontario (Attorney-General)
(1989), 63 D.L.R. (4th) 241 (H.C.J.), appeal to Ont. C.A. dismissed
(1992), 89 D.L.R. (4th) 11.
RJR MacDonald Inc. v. Canada (Attorney General),
127 D.L.R. (4th) 1 (S.C.C.).
Rocca Enterprises v. University Press of
New Brunswick (1989), 21 C.P.C. (2d) 30 (Q.B.).
Rocket v. Royal College of Dental Surgeons
of Ontario,  2 S.C.R. 232.
Ross v. Moncton Board of School Trustees,
District No. 15 (1993), 110 D.L.R. (4th) 241 (N.B.C.A.)
Russow v. British Columbia (Attorney-General)
(1989), 62 D.L.R. (4th) 98 (B.C. S.C.).
Saskatchewan (Human Rights Commission) v. Bell
(1994), 114 D.L.R. (4th) 371 (S.C.A.)
Slaight Communications Inc. v. Davidson,
 1 S.C.R. 1038.
Somerville v. Canada (Attorney General),
(1996) 39 Alta. L.R. (3d) 326 (C.A.).
Thomson Newspapers Co. v. Canada (Attorney
General), unreported decision of the Supreme Court of Canada, 29
May 1998, (file # 25593).
Weisfeld v. Canada (Minister of Public Works)
(1994), 116 D.L.R. (4th) 232 (Fed. C.A.).
Young v. Young,  4 S.C.R. 3.
Zylberberg et al. v. The Director of Education of the Sudbury
Board of Education (1988), 65 O.R. 641 (Ont. C.A.).
The original version of this Current Issue Review was published in
February 1984; the paper has been regularly updated since that time.