The Canadian Charter of Rights and Freedoms protects the basic rights of Canadians. However these rights are not absolute. The Charter recognizes that these rights are subject to reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
A fundamental right that becomes the subject of debate is the Freedom of thought, belief, opinion and expression, which we commonly refer to as freedom of speech. There are many people who believe that the freedom of speech should not be limited in any way. At the far extreme, there are many people who think that speech should be limited in circumstances, usually when they do not agree with the message.
In Canada, the law has recognized appropriate to limits the freedom of speech and expression. This often involves weighing the relative damage that could be caused by the expression against the value of such an expression.
The most obvious example is the criminal charge for uttering threats. The courts and society have long recognized that a person’s freedom to express themselves does not extend to allow them to threaten the safety of another person. Similarly, the creation and possession of child pornography is prohibited in order to reduce the risk of harm to children. There is little opposition to the argument that these are reasonable limits to expression in a free and democratic society.
A further limitation on freedom of expression comes in the form of laws against hate speech. Much like laws prohibiting threats or child pornography, these laws are intended to protect individuals from harm. The risk of harm from a statement calling for death or harm to a group of individuals would outweigh the rights of the individual making the expression.
More limits to freedom of expression are found in slander and libel laws. Making a statement that hurts another person’s reputation is reasonably limited unless certain criteria apply. To defend a civil libel or slander action it is necessary for the person who made the defamatory statement to show that the statement was, true, it was made in fair comment, it was responsible communications on matters of public interest, or that a form of absolute or qualified privilege applies. Absolute privilege applies to statements made in a judicial or quasi-judicial proceeding or in parliament. Qualified privilege applies to statements made when the person making the statement can establish that they had a duty or interest in communicating the statement to a person who has an interest in receiving it.
There are many reasonable limits on Freedom of Expression that are accepted in a fair and democratic society. It is important that we are careful in weigh these rights appropriately.
Scott Buchanan is an associate at the law firm of Cobb & Jones LLP. For more articles, visit the Library Page at www.cobbjones.ca.