Freedom of Expression: Values and Harms

Abstract

When considering restrictions on socially disfavoured expression, the Supreme Court of Canada has often considered the targeted expression’s “value.” In the seminal cases of Ford v. Quebec and Irwin Toy Ltd. v. Quebec, the Supreme Court articulated the importance of expressive freedom by relating it to three core values: (1) seeking and attaining the truth; (2) participation in democratic institutions; and (3) diversity in forms of individual self- fulfillment. Subsequent cases considering restrictions on expression have evaluated the extent to which the targeted expression advances these values. Ironically, although Ford and Irwin Toy embraced a broad conception of expressive freedom, the Supreme Court has used the values analysis developed in these cases to justify limiting disfavoured expression. As applied to marginalized ideas, the Supreme Court has tailored its balancing test under R. v. Oakes such that expression found to be “distant from the core of free expression values” is granted little protection under the Canadian Charter of Rights and Freedoms. Under this test, legal restrictions on hate speech, obscenity, and other forms of disfavoured expression have been upheld based on the Supreme Court’s low assessment of the value of the underlying expression.

This article argues that although certain forms of expression may be validly restricted under the Charter, the Supreme Court’s practice of assessing the value of targeted expression when applying the Oakes test is both politically illegitimate and vulnerable to error. This practice should be abandoned in favour of an alternative application of Oakes that balances (1) the severity of the restriction against (2) the harm of the targeted expression. Under this analysis, the value of the expression is not a factor because all expression is considered equally valuable. This approach adopts a relativistic perspective on the value of free expression and denies the ability of courts to mediate absolute truth. According to this view, the only characteristic of targeted expression that may justify its restriction is its likelihood to cause harm, a question more susceptible to judicial determination than its underlying value. The impetus for my argument is that, as applied, the Supreme Court’s values analysis inevitably imposes political preferences onto Charter interpretation. A more politically- neutral framework would be more consistent with section 2’s unqualified protection of “thought, belief, opinion and expression,” as well as section 1’s concern for “a free and democratic society.”