A poll released by Leger late last year revealed an unsettling level of misunderstanding of the constitution among the Canadian public. The survey showed that just one-third of Canadians polled said they had read the Charter of Rights and Freedoms. Many could not understand the difference between the Charter and the U.S. Declaration of Independence, confusing the language of the two.
For example, 88 per cent of respondents to the Leger poll said that the Charter guarantees the right to life, liberty and the pursuit of happiness. It does not – this is the language from the Declaration of Independence. The Charter guarantees the rights to life, liberty and security of person, and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
While disheartening, these revelations should not come as a huge surprise. During the pandemic we saw not just members of the public, but also politicians (and arguably, the courts themselves), confused about the protections afforded by the Charter. The Leger poll also asked Canadians to rank in order which Charter rights need the most protecting. At the top of that list was freedom of expression, selected by 17 per cent of respondents.
Freedom of expression is a widely misunderstood right among the public – and among politicians. One of the greatest misperceptions is who it applies to. The Charter protects citizens from government action. It does not free individuals from consequences for their speech from their employer, from their community or family, or even from social platforms. Some may read this and think that this suggests that the right to freedom of expression is not robust. This is not the case. Although the right does apply only to government action, governments are frequently acting to limit expression.
The desire to silence the speech of those with whom they disagree is the knee-jerk reaction of almost every political actor, even in modern liberal democracies. We saw the political pressure put on Twitter by the Biden administration to silence non-mainstream views on COVID-19. We saw the use of Canada’s most extraordinary and powerful law, the Emergencies Act, to shut down the non-violent (though disruptive) Freedom Convoy protest.
Local municipal governments are often the most severe in terms of censorship. For example, Calgary has banned protests on the basis of subject matter near libraries and community centres, a clear violation of the right to expression, which is content neutral.
Many Canadians will also be familiar with the use of statutorily empowered professional regulators to silence the speech of people in regulated professions, even when their speech is private and outside the scope of their profession. The sanctions against Jordan Peterson by the College of Psychologists of Ontario are just the most recent example of the censorship creep of these bodies.
Freedom of expression is fundamentally important to the functioning of democracy and requires a strong understanding by the citizenry. It is through freedom of expression that we define the contours of all our other rights. Without these guarantees, governments would be free to act unopposed, and their policies, including unjust policies, would be uncontested.
Freedom of expression is also fundamental to basic human dignity. If we cannot engage in truth seeking and express our beliefs we cannot act with autonomy or develop as rational beings.
This is what makes the public’s confusion over the Charter so concerning. Without an understanding of how our constitution functions and how our rights are guaranteed, Canadians are poorly positioned to protect themselves against government overreach.
That’s why the legal charity the Canadian Constitution Foundation has undertaken a new initiative to provide free legal education to Canadians about not just the constitution, but specifically about the right to freedom of expression. At theCCF.ca/learn Canadians can register for free online courses in Constitutional Law 101 as well as a new course on freedom of expression, taught by some of Canada’s leading scholars and practitioners.
Professor emerita Jamie Cameron of Osgoode Hall gives a lecture on the constitutional framework for freedom of expression. Prof. Richard Moon of Windsor Law shares his insight on the philosophical underpinnings of the right. Lawyers Adam Goldenberg and Justin Safayeni speak in the course about major freedom of expression cases from hate speech to defamation to pornography. And University of Saskatchewan Prof. Dwight Newman delves into unexplored areas of freedom of expression, including the rights to thought, belief and opinion as well as press freedom.
If you’re looking for a new year’s resolution, gaining an improved understanding of your basic rights is a great start.
