s. 2 Everyone has the following fundamental freedoms:
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(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
Section 2(b) isa broadly protected right in Canada. Itprotects any activity that conveys, or attempts to convey, a meaning. This covers avery widescope, including (for example) speaking, writing,artwork, dancing,clothing choices and tattoos. It includes all forms of expression so long as they do not include violence or threats of violence(The Attorney Generalof Quebec v Irwin Toy Ltd., [1989] 1 SCR 927).
We protect free expressionfor three major reasons:free expression seeks touphold the truth, encourages political and social participation, and promotes self-fulfillment (The Attorney Generalof Quebec v Irwin Toy Ltd., [1989] 1 SCR 927).
The Test
Threequestions areasked to determine ifyour freedom of expression has been violated:
Did your words or actions convey, or attempt to convey, a meaning or a message?
Does the method or location of expression remove it from s. 2(b) protection?
Didthe purpose or effect of the government action restrict your ability to convey that meaning? (Greater Vancouver Transportation Authority v Canadian Federation of Students — British Columbia Component, 2009 SCC 31 at para 37).
1. Did your words or actions convey, or attempt to convey, a meaning or a message?
The Charter protection offreeexpression is verybroad.Any activity is "expressive" if it attempts to convey meaning (R v Keegstra, [1990] 2 SCR 697). As outlined above, this would include talking, singing, clothing choices, signs on one's property, artwork, or gestures.
2. Does the method or location of expression remove it from s. 2(b) protection?
Even if an activity has "expressive content", s. 2(b) protectionmay be denied in the method or location of expression removes it from s. 2(b)'s scope.
Method: Violence, and threats of violence, are not protected by s. 2(b) (Greater Vancouver Transportation Authority v Canadian Federation of Students — British Columbia Component, 2009 SCC 31 at para28).
Location:Not all public places are protected by section 2(b). It protects locationswhere freedom ofexpression would be expected, and which does notconflict with the purposes of section 2(b)(democratic discourse, truth-finding, and self-fulfilment).
To determine if free expression would be expected in a place, you have toconsider two questions(Montreal (City) v 2952-1366 Quebec Inc, [2005] 3 SCR 141at para 74; Greater Vancouver Transportation Authority v Canadian Federation of Students — British Columbia Component, 2009 SCC 31 at para39):
Is the historical or actual function of the place compatible with free expression?
Are there any other aspects of the space which indicate that allowing free expression would undermine the core values of freedom of expression under the Charter?
3. Didthe purpose or effect of the government action restrict your ability to convey that meaning?
Government actionwill infringe s. 2(b) if it has thepurposeor effect ofrestricting expression.
Purpose: If the purpose of the government action or legislationis tolimit expression, it willviolate s. 2(b). For example, a law that forbids wearing the colour red in public parks has a restrictive purpose.
Sometimes it is difficult to determine if a law's purposeseekstocontrolexpression, or if it is merely aimed atthe physical consequences of the expression.If a law is purely aimed at the physical consequences of an activity, its purpose does not run afoul ofs. 2(b). This can be a confusing concept that is best explained by way of example:A law thatprohibits distributing pamphlets restricts expression, because itseeks to control a person's ability tocommunicate a message.On the other hand, a law that prohibitslittering may adversely impact the distribution of pamphlets, but its purpose is aimed at consequences (littering), not the expression itself (Irwin Toy Ltd. v. Quebec (Attorney general), [1989] 1 SCR 927 at 974-975).
Effect: Even if the purpose of government action or legislation is aimed at something other than expression, it may still run afoul s. 2(b) if theeffect impacts your freedom of expression. Ifchallenging aneffect-based action or legislation, you must be able to prove that your activity or expression fits within one of thecore values protected by freedom of expression: truth, democracy, or self-fulfillment (Retail, Wholesale and Department Store Union, Local 558 v Pepsi-Cola Canada Beverages (West) Ltd., [2002] 1 SCR 156 at 32). The less a form of expression fits within these core values, the less likely a court is going to find that your right to expression was violated.
Reasonable Limits on s. 2(b)
Many laws or government actions that infringe s. 2(b) are nonetheless upheld. The government can, and often does, justify its restrictions on expression as reasonable and justifiable limits. While s.1 justifications are discussed in more detail here, some of the well known government restrictions on expression are discussed below.
Hate Speech
Hate speech can frustrate the values protected by s. 2(b). It is an attempt to marginalize individuals based on their membership in a particular group, which canlead to serious attacks on vulnerable groups. Laws prohibiting hate speechhave been upheld asreasonable limits on freedom of expression. For example, see Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11; R v Keegstra, [1990] 2 SCR 697).
Hate Crimes
TheCriminal Code also limits freedom of expression. It has a number of provisions curtailing expressions or conduct that provoke hatred towards a person or a group, including the:promotion of genocide (s. 318); public incitement of hatred against an identifiable group (s. 319(1)); wilful promotion of hatred (s. 319(2)); mischief against a religious property (s. 430.4.1); and offences that are motivated by hate (s. 718.2(a)(i)).
Some of theselaws have been challenged as breaching freedom of expression. Where challenged, the Courts have agreed that a s. 2(b) violation occurred, but upheld the laws as reasonable and justifiable limits under s. 1. For example, see R v Keegstra, [1990] 2 SCR 697.
Obscenity
The Criminal Code has various provisions that prohibit obscene material, thatoften arises in the case of p*rnography or other sexually explicit material. Material is"obscene" ifthe exploitation of sex is its dominant characteristic, and that exploitationis undue.Undueexploitation is determined by examining whetherCanadians, as a whole, would not tolerate other Canadians being exposed to itbecause of the degree of harm resulting from such exposure (the "community standards test"). Obscenity lawsviolate s. 2(b) of theCharter, but are nonetheless upheld as a reasonable limit on free expression(for example, see R v Butler, [1992] 1 SCR 452).Greaterprotection may be afforded to sexually explicit materials which has a broader artistic or literary purpose
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