The Charter of Rights and Freedoms

1. “Humans have a right to hold opinions without interference and receive information and ideas through any media.” --Universal Declaration of Human Rights

2. The Charter of Rights and Freedoms In Canada, everyone has the following fundamental freedoms: freedom of conscience and religion; freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; freedom of peaceful assembly; and freedom of association.

3. Freedom of Expression • Freedom of expression is one of the most important rights that we have in a democratic society. • Our ability to express our ideas, without fear of reprisal, allows us to criticize government actions, voice our opinions, and influence the choice of who will run our government

4. What is Freedom of Expression? • It is the freedom to communicate ideas without restraint, whether orally or in print or by other means of communication.

5. The rights in Section 2 of the Charter allow Canadians to enjoy a free life, however these rights are accompanied by corresponding responsibilities.

6. For example: • While we have the right to freedom of opinion and expression, we do not have the right to say what we want, whenever we want. Defamation laws, for example, prevent us from damaging another person’s reputation with lies;

7. We are free to express our opinions openly on any topic and believe whatever we wish, however criminal law establishes censorship of obscene materials and of communications that wilfully promote hatred against identifiable groups.

8. LIMITS ON FREE EXPRESSION • While our freedoms are considered fundamental, they are not absolute; they are subject to “reasonable limits” that are “justifiable in a free and democratic society” • Over the years, fundamental freedoms have led to many legal disputes and Charter challenges.

9. LIMITS ON FREE EXPRESSION • There is considerable room for disagreement regarding the appropriate limits to free expression – when is it ok to tell someone that they do not have the right to freely express themselves?; • Considerations for when to limit this freedom include: • The likelihood of harm occurring; • The degree of that harm as the result of the exercise of the right of free expression;

10. How “harm” is defined is key; it could mean offending human dignity, or causing breaches of the peace and actual physical harm to one or more persons, HOWEVER • the Supreme Court of Canada has made it clear that its the form in which the expression is conveyed, not the content, that is to be evaluated when determining whether or not to limit these freedoms. • This means that you still have the right to express yourself freely, but HOW you do it and WHERE you do it is what matters.

11. DETERMINING WHEN TO LIMIT FREE EXPRESSION • Speech that is not protected by Section 2 of the Charter includes: • Speech that threatens harm to harm some substantial public interest, i.e. The inherent dignity and worth of the human person – the very basis of free expression itself; • Speech that incites undesirable instincts, i.e. Obscenities or “fighting words” that are likely to provoke a breach of the peace or racial hatred; • Speech that threatens the equal worth of all human beings in society; • Speech that undermines the constitutional norm of multiculturalism set out in Section 27 of the CCC.; • Speech that results in Canada’s being in opposition to international obligations, such as prohibiting the spread of hate literature; • Speech that violates traditional Canadian constitutional norms (the rights and freedoms all Canadians enjoy); • Speech that is of such little social value that any benefit is clearly outweighed by the public interest in inherent dignity and equal worth of all human beings in our society.

12. CHARTER CHALLENGES • In Canada, child pornography, obscenity and hate propaganda are considered illegal activities under the Criminal Code; • it is for these crimes that there have been many Charter challenges under the claim of free expression.

13. HATE PROPAGANDA • The Criminal Code creates three offences with reference to hate propaganda: • advocating or promoting genocide; • inciting hatred against any identifiable group by communicating statements in any public place where such incitement is likely to lead to a breach of the peace; and • wilfully promoting hatred against an identifiable group by communicating statements, other than in private conversation.

14. CHILD PORNOGRAPHY • The Criminal Code defines child pornography as including • any visual representation, whether or not made electronically or mechanically, depicting a minor engaged in explicit sexual activity or having as its dominant characteristic the depiction of a minor’s sexual organs or anal region, or • any written material or visual representation advocating or counselling such illegal sexual activity with a minor.

15. CHILD PORNOGRAPHY CONTINUED • In relation to child pornography, the Criminal Code prohibits three activities: • publication, that is making, printing, publishing or possessing for the purpose of publication; (guilty of an offence and liable to a prison term of up to 10 years)‏ • distribution including importing, selling or possessing for the purpose of distribution; (guilty of an offence and liable to a prison term of up to 10 years) and • simply possessing child pornography (up to 5 years prison).

16. OBSCENITY • An OBSCENE publication is defined as any publication that contains • Explicit sex with violence; • Explicit sex without violence but that is degrading or dehumanizing; • Explicit sex that does not contain violence, is not degrading or dehumanizing, but employs children in producing it. • The SCC has also introduced a “community standard of tolerance” test: • Intended to indicate what the community will not tolerate other Canadians being exposed to.

17. OBSCENITY CONTINUED • The Criminal Code creates three distinct offences: • publication of obscene material; • distribution of obscene material (including possession for purposes of distribution); • knowingly selling or exposing to public view obscene material (or having possession for such purposes).

18. Assignment • Complete the tasks on the Freedom of Expression handout.