Freedom of Expression and the Charter: 1982-2022 (Part 1 of 5)

Part 1 of a 5 Part Series:

Section 2(b) solitudes: City of Toronto v. Ontario and Ward v. Quebec

Late in 2021, the Supreme Court of Canada rendered two of its most consequential Charter decisions on freedom of expression in recent years: City of Toronto v. Ontario and Ward v. Quebec. That endpoint in 2021 is the starting point of a 5-part series on s.2(b) of the Charter and its passage from 1982 to the present. The series begins with City of Toronto and Ward, two decisions dividing the Court 5-4 and pointing in opposite directions that raise perplexing questions about expressive freedom – and the Court itself. Of particular concern is the bloc mentality of these decisions and how it undermined principled decision making on important s.2(b) issues.

In City of Toronto, the majority judges rejected the s.2(b) claim arising from provincial legislation that fundamentally altered City Council and disrupted the process during Toronto’s 2018 municipal election. Meanwhile, the minority opinion forcefully defended s.2(b) and the imperative to protect democratic expression during an electoral process.

In Ward v. Quebec the roles reversed but the voting blocs stayed in alignment. There, City of Toronto’s majority bloc granted s.2(b) unprecedented protection from limits under human rights legislation. At the same time, the minority bloc that so faithfully protected s.2(b) in City of Toronto utterly rejected expressive freedom.

The majority bloc in both decisions comprised the Chief Justice, and Justices Moldaver, Coté, Brown and Rowe, and the minority consisted of Justices Abella, Katakatsanis, Martin and Kasirer. No member of the Court broke ranks from one decision to the next, and no judge supported – or rejected – s.2(b) in both cases. 

While the majority opinion in City of Toronto ranks as one of the Court’ most indefensible s.2(b) decisions in the first forty years of the Charter, the dissent in Ward is troubling because the dissenting judges acted on their unreserved distaste for Mike Ward’s comedy routine, sacrificing expressive freedom in the process. Mixing and matching the opinions highlights the polarized conceptions of expressive freedom that were at work in the Court. If pairing the Ward majority and the City of Toronto minority would protect s.2(b), reading the City of Toronto majority and Ward minority together confirms how vulnerable s.2(b) is to judicial will and outcome-oriented decision making. 

City of Toronto: positive rights and “extreme government action”

In the middle of the 2018 municipal election, the province of Ontario enacted legislation – the Better Local Government Act (BLGA) – that fundamentally re-structured Toronto City Council. When Council was precipitously and without warning reduced from 47 to 25 members, boundaries and ballots had to be hastily re-arranged and re-done, and candidates for office had to start over, in re-drawn, enlarged and often unfamiliar wards. The BLGA was promptly and vigorously challenged under s.2(b) of the Charter and the concept of unwritten constitutional principles. 

On its face, City of Toronto could – and should – have been seen as a relatively straightforward s.2(b) case.[1]Under Irwin Toy’s purpose-effects test, government action that affects expressive freedom violates s.2(b) and must be justified under s.1 of the Charter. With cornerstone rights of democratic participation at stake, the caveat that the expressive activity must serve s.2(b)’s underlying values did not arise. 

It was difficult to deny that the BLGA disrupted an ongoing electoral process in an unprecedented way. Any claim that there was no impact on the s.2(b) rights of a large metropolitan electorate actively engaged in the electoral process strained credulity. All things considered, it was surely the purpose of the BLGA to derail the process and force the election under a plan for City Council that was imposed on municipal government by provincial fiat.

Two factors complicated the s.2(b) claim. First, the BLGA restructured City Council without prohibiting or restricting freedom of expression. Legislation that notionally was enacted without regard to the election was silent as to s.2(b) and its rights of democratic participation. From that perspective, interrupting the electoral process might seem like no more than a coincidence. 

Second, separate s.2(b) claims were conflated throughout the litigation. While the legislation’s impact on electoral expression raised a process-based claim, a challenge to the restructuring of City Council posed substantive issues. Even at the Supreme Court of Canada, more than two years after the election, the challenge to the composition of City Council was not abandoned. This conflation of claims enabled the majority bloc to convert a negative entitlement of freedom from government interference in an electoral process into a positive claim requiring the province to affirmatively maintain, or refrain from changing, the pre-BLGA structure of City Council. 

The negative-positive artifice was the cornerstone of Wagner C.J. and Brown J.’s majority opinion. Conceding that the entitlement “superficially resembles a negative claim,” the majority transformed freedom from government interference in a municipal election into a positive but passive obligation not to act.[2] Through that convolution, a conventional entitlement of non-interference became an affirmative entitlement requiring the government not to alter City Council. The majority bloc was adamant that s.2(b) could not impose a positive obligation on the province not to exercise its unfettered jurisdiction over municipal government under s.92(8) of the Constitution Act. 

In the blurring of entitlements, the majority bloc also treated the electoral, process-based claim as a positive obligation. That enabled the Chief Justice and Brown J. to discount the BLGA’s irrefutable effects on electoral boundaries, candidates, campaigns, and the electorate. In doing so, the majority opinion raised the threshold for breach under s.2(b) by a factor of two. First, engaging positive rights analysis moved the bar from Irwin Toy’s undemanding purpose-effects test to Baier v. Alberta, the statutory platform doctrine, and its elevated threshold of substantial interference. 

Second and in addition, City of Toronto shifted the threshold upward from Baier to an alarming and dizzying standard of “extreme government action” that “extinguishes the effectiveness of expression” and “radically frustrates” expressive freedom.[3] According to the majority bloc, it would require government action in the order of an unimaginable 2-day election to present the kind of interference that might trigger a breach of s.2(b).[4] The Court could scarcely have been less equivocal, pronouncing that short of monumental interference rendering participation in an electoral process all but impossible, the provinces are free to change the rules of municipal elections, any time and in any way they choose.[5]

There was no need to unwind the 2018 municipal election or invalidate the BLGA. Rights of participation in the municipal election were separate from a challenge to the restructuring of City Council, and a declaration would confirm the violation of s.2(b)’s fundamental rights of democratic participation. That remedy would make it clear that the government’s choices were to restructure City Council before, after, or not at all, but not during a municipal election. 

Such a declaration might have made political noise but would not involve the courts in micromanaging elections or place institutional relations at risk. In federal and provincial elections, the legislature is dissolved and cannot act against s.2(b) or other Charter rights during the writ period. Other issues that arise during election campaigns, such as who is entitled to participate in leadership debates, are handled by the courts as a matter of course. 

On s.2(b), there was little, if any, common ground between the majority and minority opinions. Led by Abella J., the minority bloc wrote an unflinching defence of expressive freedom and its integral role in the electoral process. Dismissing the positive rights analysis as irrelevant, the minority judges held that the foundational framework of Irwin Toy – its purpose-effects test – applied. Abella J. did not hesitate to conclude that by radically redrawing electoral boundaries during an election that was almost two-thirds complete, the legislation interfered with “the rights of all participants in the electoral process to engage in meaningful reciprocal political discourse.”[6] The minority judges in City of Toronto would have provided a remedy and granted declaratory relief.

If City of Toronto raised an unconventional claim, it is only because the provincial government’s disruption of a municipal election was so extraordinary. It is beyond disheartening that the majority bloc refused to defend s.2(b) at a moment of signal need – when the provincial government mischievously undermined the City of Toronto’s electoral process. It is a toss-up what is worse: the majority bloc’s dismissal of s.2(b)’s foundational rights of democratic participation, or its manipulation of a positive-negative dichotomy to subvert Irwin Toy and reduce the scope of the guarantee.

Ward v. Quebec, “incitement” and human rights legislation

Though its voting blocs did not budge, the Court flipped on the s.2(b) issue in Ward v. Quebec. While the majority bloc protected expressive freedom as assiduously as it had rejected it in City of Toronto, the minority judges who championed s.2(b) in City of Toronto were visceral in their rejection of expressive freedom in Ward. 

From a dispassionate perspective, Ward v. Quebec could also be considered a relatively uncomplicated s.2(b) case. In principle, the question was whether s.4 of the Quebec Charter and its open-ended guarantee safeguarding an individual’s dignity violated s.2(b) of the Charter.[7] Quite apart from Ward’s underlying facts it was imperative, at the least, to place limits on the guarantee to ensure that s.4 of the Quebec charter does not infringe and chill the exercise of expressive freedom. 

In other ways Ward was not an easy case. Mike Ward is a comedian whose public take-down of a disabled teenager with some celebrity status was mean and, to many, not funny at all. Unlike City of Toronto, where s.2(b)’s rights of democratic expression presented the constitutional guarantee in its strongest light, Ward asked the Court to prioritize Ward’s tasteless and offensive expression over Mr. Gabriel’s right to be free from discrimination.

Ward left no doubt of the Court’s sympathies and the majority opinion – as in City of Toronto – was once again all hard edges. Pronouncing that the Quebec Charter was “not enacted to encourage censorship”, Wagner C.J. and Coté J. restricted the Quebec Charter’s jurisdiction over expression as much as possible.[8] Insisting that the Quebec Charter does not address matters of emotional harm or offer a substitute for a private action, the majority opinion set an onerous standard for breach of s.4’s guarantee of dignity. 

Ward accepted that expression short of hate can be limited, but set an almost unattainable standard of inciting discriminatory effects. To establish discrimination it must be shown, first, that a reasonable person would view the expression as “inciting others” to vilify or detest the humanity of the targeted individual; and second, that a reasonable person would view the expression as likely to lead to discriminatory treatment of the individual by others.[9]

It is striking that Ward introduced and endorsed incitement as the s.2(b) standard. Incitement is first amendment vocabulary, and prior to Ward was not part of s.2(b)’s doctrinal tradition. There is no reason to consider this an accident that occurred in the process of translating the reasons from French to English.  Rather, the language of incitement represents a strong and deliberate turn to a more absolute view of expressive freedom.[10] In this way, Ward dramatically restricted the scope of the Quebec charter’s guarantee of dignity.

On the merits, and despite acknowledging that artistic expression does not have special status, Chief Justice Wagner and Coté J. found that a reasonable person would understand the content – or artistic context – and not be incited by Ward to vilify Gabriel or detest his humanity. If others were “inspired” to make fun of him, Ward’s words still did not “encourage” third parties to discriminate against Gabriel. 

The majority bloc in Ward protected expressive freedom more unequivocally than almost any other decision in the s.2(b) jurisprudence on objectionable or offensive content, and it provoked a forceful dissent from Justices Abella and Kasirer. In their view, the case was about Gabriel’s rights and not Ward’s freedom.[11] For that reason, the dissenting opinion failed to address s.2(b) and freedom of expression in a principled way. 

To some extent, Justices Abella and Kasirer responded in kind to the majority opinion, escalating the stakes from a question about s.4’s guarantee of dignity and leaning in to a more inflammatory discussion of bullying.[12] That discussion made a direct appeal to the indignation and anger many may have felt about the content of Ward’s comedy act, but did little to explain how s.4 should be interpreted to avoid violating s.2(b) of the Charter.

In addition, the dissenting opinion reversed the burden, calling on Ward to “point to why” his rights should prevail. Placing the onus on Ward to defend his freedom was wrong in principle and contrary to established Charter doctrine.[13] Moreover, the minority opinion relied on conclusory statements that Ward’s comedy routine was not in the public interest and otherwise was essentially valueless.[14] Dismissing his expressive content as lacking in value and unworthy of constitutional protection was also wrong in principle. The minority opinion’s turn to a focus on expressive content raises concerning questions about how much progress s.2(b)’s guarantee really has made in the last forty years.

Conclusion

What City of Toronto and Ward portend for s.2(b)’s future is open to question. Though the two claims were distinctive there was a pathway in principle for s.2(b) to succeed in each instance. And so it remains difficult to fathom how the majority could so intransigently reject s.2(b) in City of Toronto and so avidly support it in Ward. At the same time, the minority opinions also revealed highly selective conceptions of expressive freedom. Generally, the 2021 decisions confirm that it requires judicial courage to enforce s.2(b) when it is vulnerable to political imperative or the instinct to suppress offensive content. That vulnerability is what City of Toronto and Ward shared in common and the reason why expressive freedom should have prevailed in both.  

The next four posts in this blog series explore the themes and key tenets of the jurisprudence on expressive freedom, chronologically and in (approximate) 10-year increments, before offering thoughts on how s.2(b) is positioned for the future. The next in the series, provisionally titled “Section 2(b): the numbers and their stories”, will provide an overview of s.2(b)’s output in the first forty years and a themed analysis of its landmark decisions from 1982-1990.

Note:

I was counsel for the intervenor, Centre for Free Expression, in City of Toronto, and one of the counsel for the intervenor, Canadian Civil Liberties Association, in Ward v. Quebec. This blog expresses my views and not those either of the CFE or the CCLA.

Part 2 in the series, A quantitative and qualitative inventory of s.2(b) of the Charter: 1982-2022, was published on May 26, 2022.

[1] City of Toronto provoked deep polarization between the judges on the subject of unwritten constitutional principles. That part of the decision is beyond the scope of this comment.

[2] City of Toronto, para. 32.

[3] City of Toronto, paras. 27, 36, 37, 39, 40.

[4] Ibid., para. 27.

[5] Ibid., paras. 33, 37, 39.

[6] Ibid., para. 157.

[7] See s.4 (protecting dignity, honour and reputation) and s.3 (protecting fundamental freedoms, including freedom of expression).

[8] Ward, para. 5.

[9] Ibid., para. 83 See also paras. 6, 108, 109 (repeating the language of incitement).

[10] All members of the majority endorsed the reasons, including the English version.

[11] As they said, Ward is not primarily a case about artistic freedom, but is a case about the rights of vulnerable and marginalized individuals. Para. 117.

[12] Ibid., paras. 194-98.

[13] In their words, Mr. Ward must “point to why the harm to his expressive rights is such that the speech in this case should not be considered to be discrimination”. Ibid., para. 207.

[14] On content, public interest, and the “value” quotient of Ward’s expression, see paras. 214-17.