Part 5 of a 5 Part Series:
Looking ahead: a plan for section 2(b)’s future
So far, this blog series has commented on City of Toronto v. Ontario (2021) and Ward v. Quebec (2021); offered a quantitative and qualitative synopsis of the s.2(b) case law; provided a critique of Irwin Toy and the contextual approach; and addressed the Supreme Court of Canada’s jurisprudence on the open court principle and freedom of the press and media. Even so, when complete the series will still leave much unsaid about s.2(b) and its challenges.
The final blogpost returns to two foundational issues: the first concerns the positive rights doctrine, which received an emboldened, substantive boost in City of Toronto; and the second is s.2(b)’s current methodology, specifically Irwin Toy’s standard of breach and s.1’s reliance on the contextual approach. I address these issues, rather than others, because of their importance to the conceptual integrity and evolution of s.2(b)’s guarantee of expressive freedom.
The objective of this blogpost and the series more generally is to spark concern and debate about the building blocks of the s.2(b) jurisprudence. Though expressive freedom has been granted protection under the Charter, the guarantee’s building blocks do not rest on an insightful and principled conception of expressive freedom. I suggest in brief how s.2(b)’s building blocks can be re-thought and re-constructed to set expressive freedom under the Charter on a more principled plane in the future.
Negative thoughts on positive obligations
Most violations of s.2(b) occur when the government prohibits expressive activity or otherwise interferes with expressive freedom. On some occasions, the exercise of s.2(b) rights depends on access to property or services that are owned and regulated by the state. Entitlements such as access to government property (i.e., public streets and parks) and processes (i.e., the administration of justice) are managed by issue-specific doctrines. In a handful of decisions – the most important of which are Haig v. Canada (1993), Baier v. Alberta (2007), Greater Vancouver Transportation Authority v. Canadian Federation of Students (Translink) (2009), and City of Toronto (2021) – the Court addressed the issue of positive obligations under s.2(b).
The Court’s majority opinions in Baier and City of Toronto relied on a hard negative-positive distinction to exclude the entitlement from s.2(b). Rather than nonsuit these claims, Baier introduced an onerous standard of breach for “positive” obligations under s.2(b). Subsequently, and though Translink discouraged reliance on it, City of Toronto invoked and escalated the Baier doctrine, introducing a threshold that requires proof of “extreme government action” that “radically frustrates” expressive freedom. In this way, the Court adopted a double standard under s.2(b), which singles “positive” obligations out for an exacting standard that can rarely be met.
In City of Toronto, the Court dismissed a s.2(b) challenge to provincial legislation that restructured City Council during a municipal election by designating the claim a positive obligation. There, the issue was whether the Better Local Government Act (BLGA) interfered with democratic rights during an electoral process (i.e., a negative entitlement or freedom from interference with those rights). The other view was that those who challenged the BLGA were essentially claiming an affirmative constitutional right to preserve the composition of City Council (i.e., a positive obligation on government not to change the BLGA).
The majority opinion reasoned that the province has constitutional authority to alter City Council, and that there is no s.2(b) right relating to the structure of City Council, during an election or not. That conclusion enabled the Court to deflect issues about the BLGA’s impact on s.2(b)’s democratic rights to the Baier doctrine, and then articulate a near-insurmountable threshold for breach.
Without directly prohibiting expressive activity, the BLGA had profound consequences for all participants in a municipal election. Cutting City Council almost in half in the middle of the election required electoral boundaries to be re-drawn, ballots to be re-printed, and candidates to re-start their campaigns in new municipal ridings, amid widespread confusion in the electorate. The positive-negative dichotomy allowed the Court to vault Irwin Toy’s low threshold, create a prohibitive standard of violation, and conclude that the BLGA’s mid-election changes to City Council did not radically frustrate s.2(b)’s democratic rights.
On the evidentiary record before it, the Court could only deny the scale of the interference with s.2(b)’s democratic rights by altering Baier and elevating the standard of breach. City of Toronto’s threshold set a barrier that will make it next to impossible for entitlements defined as “positive” to establish a breach of s.2(b). Under this doctrinal scheme, the initial classification of an entitlement as positive or negative will be determinative in most instances. As such, City of Toronto placed unprecedented restrictions on the scope of s.2(b).
City of Toronto’s re-modelling of Baier marks a backward step for expressive freedom and must be overruled at the earliest opportunity. The Court’s decision diverged to some extent from other decisions on positive rights. For instance, both Haig v. Canada and Translink queried the positive-negative distinction, acknowledging that it can be unreliable and can be misused to narrow the scope of s.2(b). And while Baier dismissed the claim, the Court held that the positive rights doctrine targets issues of under inclusion, where the legislature grants opportunities to exercise s.2(b) rights to some, but not all, speakers. There was no issue of under inclusion in City of Toronto and, as the dissent pointed out, Baier’s narrow and focused doctrine simply did not apply.
In Translink, Justice Fish wrote a concurring opinion that opposed the positive rights doctrine. He challenged Haig’s concept of “statutory platforms” and the Baier doctrine, maintaining that the decision was never intended to break “fresh constitutional ground” and should be limited to its specific facts. Fish J. went on to explain that there is “no principled basis” for a doctrine that bases s.2(b) on an idea of access – or permission – to use a statutory platform. As he stated, not every claim can be “comfortably shoehorned into one preconceived slot or another.”
The concept of positive obligations serves little purpose and functions primarily to exclude claims from s.2(b). Haig’s underinclusive residency rules for voting in a federal referendum had a negative impact on expressive freedom, and the Court could have found a s.2(b) violation on that basis. As for Baier, the statutory provision prohibited school employees from running for school board office and fell within a traditional concept of s.2(b), as Fish J. concluded in dissent. Neither Translink (which excluded political and allowed commercial advertising on the exterior of city buses), nor City of Toronto (in which the BLGA’s indisputably interfered with democratic rights) raised a question of positive entitlement.
The rigid distinction between negative and positive obligations should be rejected in favour of an approach that, apart from doctrines for the open court principle and access to public property, integrates and treats s.2(b) claims the same way.
Renewing s.2(b)’s concepts of breach and justification
The second part of this blogpost sets out a scheme for the renewal of s.2(b)’s guarantee of expressive freedom. The proposal that is sketched in brief here has been developed in two longer articles that analyze the deficiencies of the current methodology and explain in more detail how it should be modified. The elements of the proposal are difficult to condense but consist of three key steps. The first, which was addressed in the third blogpost on “Section 2(b) building blocks”, analyzed the problems that are embedded in the current methodology. The second and third steps, undertaken here, begin the task of reconstructing s.2(b)’s doctrinal foundations.
The first point is that any proposal for s.2(b)’s renewal must be holistic, spanning and co-ordinating the concepts of breach and justification. Each side of the current analytical framework compromises expressive freedom, and both must be considered together.
At present, the s.2(b) methodology is skewed against expressive freedom. On the issue of breach, in most instances s.2(b) requires no more than a perfunctory analysis. Once a prima facie entitlement is established, the focus shifts to s.1 and the question of justifiable limits. Lost in the haste to reach s.1 is any consideration of the meaning of freedom, or of the nature, severity, and gravity of the violation. Expressive freedom is disadvantaged on arrival at s.1, because the failure to establish the substantive nature of the infringement under s.2(b) conditions the analysis of reasonable limits.
Under s.1, the problems for expressive freedom are compounded by an approach that uses s.2(b)’s abstract values to conduct a putatively contextual analysis and support a conclusion in most cases that “low value” expressive content deserves little or no constitutional protection. The contextual approach is transparently outcome oriented and invariably serves to diminish the status of expressive freedom under s.1.
In these ways, the current methodology belittles expressive freedom at both stages of the analysis and must be corrected holistically, under ss.2(b) and s.1.
Section 2(b) and a “case to meet”
In 1989, Irwin Toy granted s.2(b) a seemingly open-ended interpretation that required most limits to be justified under s.1. Yet expressive freedom did not fully benefit from this generosity, because Irwin Toy’s prima facie definition of expression made the question of breach too easy. Section 2(b)’s underlying values receded to the background, and there was no doctrinal incentive, under Irwin Toy, to discuss the infringement. A bare bones finding of breach proceeded to s.1, where the reasonable limits analysis was not troubled by concerns about the severity of the violation.
The point can be placed in perspective. In Saskatchewan (Human Rights Commission) v. Whatcott (2013) – the Court’s landmark decision upholding a hate speech provision in human rights legislation – the analysis of breach required no more than one paragraph, but the s. 1 analysis took 88 paragraphs to discuss. To compare, the Court’s decision in Fraser v. Canada (2020), which was 356 paragraphs long, was the opposite, focusing almost exclusively on s.15’s equality guarantee. While the majority reasons spent 99 paragraphs on s.15 and only 12 on s.1, the two dissenting opinions did not address s.1 at all. Whatever else might be said about the imbalance between breach and justification in the equality jurisprudence, the Court cannot be accused of brushing lightly over the question of entitlement under s.15.
Addressing the imbalance between breach and justification in expressive freedom cases is a central tenet of my proposal. The two-step Irwin Toy test, comprising the attempt-to-convey meaning test and purpose-effects analysis, is incomplete. The first step defines expression but does not address the question of infringement, and the purpose-effects test failed in that role because it was invariably bypassed in the analysis.
The s.2(b) analysis of breach can be elevated and re-oriented in two relatively simple but critical steps. The first eliminates the purpose-effects step and the second introduces a standard of violation that completes the analysis of breach. In doing so, it borrows the Amselem standard from s.2(a). Under s.2(b), the modified Amselem test would require proof of an interference with expressive freedom that is more than trivial or insubstantial. Combining Irwin Toy’s definition of expression with Amselem’s standard of violation produces an approach to breach – the Irwin Toy/Amselem test – that addresses the scope of the entitlement and its infringement by the state.
Another element must be added to incorporate substantive content into the analysis of breach. In determining whether an infringement is more than trivial or insubstantial, courts must consider the magnitude and scale of the interference with expressive freedom, explaining how and in what ways the infringement impacts s.2(b).
A s.2(b) doctrine with the elements discussed here sets up a s.2(b) “case to meet” under s.1. The importance of this cannot be overstated. Courts must be explicit about the violation of expressive freedom to inform the analysis of justification and ensure that the infringement is given sufficient weight under s.1. Put another way, the s.2(b) analysis must present a case to meet under s.1 that goes beyond a conclusory finding of prima facie breach, because the rights violator can only be held accountable under s.1 if the violation is taken seriously under s.2(b).
These changes to s.2(b) are designed to affect the complexion of the s.1 analysis and compel courts to grapple with a conception of the entitlement that is informed by a rights-protecting perspective of expressive freedom.
Justifying “justifiable” limits
Since its landmark decision in Irwin Toy, the Court has found ways to alter the s.1 analysis downward and uphold limits on expressive freedom. Irwin Toy’s suggestion of a differential standard and higher/lower threshold under s.1, depending on whether the state was acting as a “singular antagonist”, or making policy choices and protecting the vulnerable, was quickly eclipsed by the contextual approach. Introduced in Edmonton Journal and incorporated into the s.1 analysis in Keegstra, the contextual approach has been dominant for most of the s.2(b)’s history.
As explained on several occasions, this approach is flawed at several levels. In the first instance, it employs s.2(b)’s aspirational values to rate or gauge the content of expression. Where objectionable content is concerned there is no contest, and the contextual approach enables courts to discount expressive activity, deeming it low in value and for the most part unworthy of constitutional protection. Second, the stated purpose of this approach is to calibrate – and manipulate – the evidentiary threshold under s.1. Third, in doing so, the contextual approach problematically conflates the evidentiary question of harm with a subjective assessment of expressive content’s value. Under this approach, outcomes turn on subjective perceptions of expressive content’s value, and not on evidence of harm. For these reasons, the contextual approach is anathema to a principled conception of expressive freedom.
The contextual approach is not only counter productive to s.2(b)’s freedom purposes but unnecessary at this point in time. At the outset, it served two analytical purposes. First, to some extent a contextual approach under s.1 compensated for the poverty of the s.2(b) analysis, which was limited to a conclusion that the state had interfered with an attempt to convey meaning. The proposal sketched above has addressed that deficit by introducing a standard of breach that entails discussion of the infringement.
Second, and though it was flawed in doing so, the contextual approach undertook some of the functions that could be – and are now – served by a robust conception of proportionality balancing. At the time the contextual approach crystallized, the final step in the Oakes test was either overlooked or dealt with in passing. After remaining passive in theanalysis for a long time, this step has more recently come into its own. Without yet realizing its potential, proportionality balancing creates a mechanism, within the structure of Oakes, to squarely confront and address the consequences of the infringement and test the benefits of the violation against those consequences.
My proposal for re-structuring the s.1 analysis rejects the contextual approach in favour of a renewed form of proportionality balancing that adequately factors the violation of expressive freedom into the calculus. Re-vitalizing this step requires recognition of its role in the Oakes test: to enable a right or freedom to prevail against an infringement that is otherwise justifiable. Because it only arises after a violation has passed the other steps of the Oakes test, the goal of proportionality balancing is rights protection: to determine whether the deleterious consequences for s.2(b) are outweighed by the salutary benefits of a limit that is justifiable.
This is where the renewed analysis of breach under the proposed Irwin Toy/Amselem test becomes significant, because it anchors the proportionality balancing. In specific terms, s.1’s consideration of the deleterious consequences of the infringement draws s.2(b)’s analysis of the breach directly into s.1. At this stage, the state must demonstrate that the benefits of infringing the guarantee justify the consequences for constitutional rights. The deleterious consequences of an infringement are front and centre in that analysis, and an infringement cannot prevail without a full and fair analysis of its impact on expressive freedom.
This, in brief, is the proposal. Much more should be said about how proportionality balancing can be structured to ensure that the analysis is evidence based and robust in nature. For now, a couple of examples in the jurisprudence suffice. For two exemplary models of proportionality balancing under s.2(b) – each of which addresses the deleterious consequences of the violation in detail – see Justice Abella’s dissenting opinion in R. v. Bryan (2007) and the joint Abella-Cromwell opinion in Alberta (Information & Privacy Commissioner) v. UFCW, Local 401 (2013). In each instance, the reasons model the way proportionality balancing engages s.2(b)’s values and tests the salutary benefits of the violation against a detailed analysis of its deleterious consequences for expressive freedom. These opinions illustrate how proportionality balancing can incorporate s.2(b)’s guarantee of freedom and the implications of an infringement into s.1.
As stated above, the purpose of this proposal is to generate debate and discussion about s.2(b) and what must be done now to address longstanding problems in the jurisprudence.
The courts play little or no role in resolving the enormous array of expressive freedom issues that arise daily, in Canada and around the world. Expressive freedom will always be a fragile entitlement because it calls on a democratic community to show “democratic humility”, or forbearance from censorship in the face of opinions, ideas, and expressive activities that threaten conventions and expectations of conformity with societal values. Even so, the courts play an essential and formative role, not only in setting constitutional standards, but in conditioning the community’s conception of expressive freedom and understanding of reasonable but justifiable limits.
It matters greatly what courts say about expressive freedom and how they decide s.2(b) cases. The starting point in any conception of the guarantee is the foundation, or building blocks, of expressive freedom. The methodology that evolved in the first forty years of the Charter places expressive freedom at ongoing risk because of fault lines in the foundations. The premise of this blogpost is that for s.2(b) to realize its promise, the jurisprudential foundations must be shifted and placed on new building blocks. If that can be done – if there is a judicial will to re-consider the bedrock of expressive freedom – s.2(b) could look quite different at its check-in on the next Charter milestone.
 See Jamie Cameron, “Resetting the Foundations: Renewing Freedom of Expression under Section 2(b) of the Charter.” Pp 120-151 in B. Bird and D. Ross, eds., Forgotten Foundations of the Canadian Constitution. LexisNexis Canada, 2022. The second paper, Jamie Cameron, “Renewing Freedom of Expression, Part 2: From the Contextual Approach to Proportionality Balancing” is forthcoming, 2023.