Freedom of Expression in Canada Compared to the United States

In Canada, Section 2(b) of the Charter of Rights and Freedoms protects the freedom of expression of Canadians. In the United States, the First Amendment serves the same purpose. However, there are major doctrinal differences between the two countries in this area.

Let’s start with the commonalities. In both Canada and the United States, certain crimes are characterized by speech, such as conspiracy, aiding and abetting, intimidation, fraud and criminal contempt of court. In both countries, the traditional crimes listed above do not implicate freedom of speech protections. The issue arises when criminalizing or otherwise restraining speech beyond these traditional crimes.

Additionally, some forms of expression are regulated because they are less important when it comes to guaranteeing all citizens the right of freedom of expression. Therefore, commercial advertising is straightforwardly regulated. Viewpoint-neutral regulations, such as limitations on time, location (traditional public forum versus nonpublic forum) and manner of expression, are allowed if they serve a compelling state interest and are narrowly tailored to their goal (Ward v. Rock Against Racism). Therefore, most freedom of expression issues instead revolves around some manner of viewpoint discrimination.

In the United States, with rare exceptions, neither state law nor federal law can restrain a person from publishing or expressing a thought (Near v. Minnesota). Speech may be restricted if it was intended to and would likely provoke an “imminent lawless action”, where “imminent” strictly means “within a very short span of time” (Brandenburg v. Ohio). In other words, mere advocacy of violence is constitutionally protected, along with offensive or inflammatory speech. This includes speech with political motivation suggesting that somebody should commit a crime against a particular target (e.g., nosy journalists or doctors who perform abortions).

Nonetheless, there are a few circumstances, other than the above traditional crimes, where speech would not be protected. For example, there is no constitutional protection for “fighting words”, defined as “a direct personal insult or an invitation to exchange fisticuffs” (Texas v. Johnson). Therefore, it is not unconstitutional for a state to criminalize fighting words. The exception is narrowly drawn, nonetheless. Nazis displaying swastikas and wearing military-style uniforms marching through a Jewish neighborhood are not an example of “fighting words” (Collin v. Smith).

Another focus of controversy is the use of “breach of the peace” laws to suppress a particular viewpoint. In Cox v. Louisiana, the defendant led a march to protest the arrests of civil rights advocates, and he was arrested for “disturbing the peace”. The Court held that “provocative and challenging” speech that has “profound unsettling effects” is nonetheless protected. The Court also held that, even though the state statute was facially constitutional, the way that it was applied to the defendant was unconstitutional because there were no “uniform, consistent, and nondiscriminatory” standards for allowing public gatherings under the statute – the police had too much discretionary when it came to interpreting the statute.

When it comes to symbolic speech, the government may ban an act if there is a cognizable reason for the prohibition other than to suppress speech. Flag burning, generally, is not illegal but a law banning the destruction of draft cards was held constitutional (United States v. O’Brien).

In Canada, the publication of material that is offensive to Christianity, called “blasphemous libel”, was an offense under the Criminal Code until December 2018, when it was finally repealed. Currently, “hate speech” is an offense under the Criminal Code, defined as including the act of “willfully promoting hatred against any identifiable group, by making statements (other than in private conversation)”. “Identifiable group” means “any section of the public distinguished by color, race, religion, ethnic origin or sexual orientation …” In R. v. Keegstra, a narrow majority of the Supreme Court upheld the statute although the dissent argued that “hatred” is too broad a term, which could catch “non‑nefarious” statements and precipitate a “chilling effect on legitimate activities.”

In addition to criminal sanctions, many provinces have human rights codes and administrative tribunals that can impose civil remedies for hate speech. In Saskatchewan Human Rights Commission v. Whatcott, the defendant was an activist against homosexual acts (while seeking to reform persons of homosexual orientation). He published and distributed leaflets alleging dangers of introducing homosexuality into the primary school curriculum. The leaflets described homosexual acts as “perverted”, “filthy” and “sick”. He was found liable by the Saskatchewan Human Rights Commission and appealed ultimately to the Supreme Court of Canada, which upheld the decision and held that speech, to be prohibited, does not necessarily have to target an “identifiable group” if it targets conduct closely associated with an “identifiable group” (e.g., homosexual acts are closely associated with homosexuals).

Obviously, the Canadian restrictions on free speech would be found unconstitutional if they were enacted in the United States. The speech prohibited by the Criminal Code and by the human rights codes would be First Amendment protected, along with other offensive and inflammatory speech, because they do not provoke an “imminent lawless action”.

“Identifiable groups” as defined in the Criminal Code by implication have more rights than others who do not fit into this definition. And it immediately brings politics into the equation, because politically strong groups can more robustly influence the justice system to enforce their statutory rights than politically weak groups, whose statutory rights end up existing in theory only.

For example, when an Islamic activist group brought a case against a major Canadian media outlet for allegedly expressing hatred toward Islam, even though the human rights tribunal ultimately ruled that the expressions did not rise to “hatred”, this immediately triggered a debate among the public about whether the relevant provision of the law was too broad, and it was ultimately repealed.

While there may be some merit in refusing to protect certain speech that detrimentally targets certain groups, the Whatcott case shows how this is a slippery slope that leads to viewpoint censorship. In that case, the Court held that the defendant’s views were outside of the scope of permissible political discourse (“[The Code] extricates only an extreme and marginal type of expression which contributes little to the values underlying freedom of expression and whose restriction is therefore easier to justify”) and that the defendant’s criticism of homosexual acts, by operation of law, is “a proxy for” attacks on homosexual persons. This holding effectively makes it so that criticizing homosexual acts is illegal even if the criticism is ostensibly intended to serve the public interest.

Given the way the Court in Whatcott deemed the defendant’s criticism of homosexual acts to be “a proxy for” attacks on homosexual persons, it is not a reach to suggest by analogy that the Court could find criticism of the State of Israel to be an attack on Jews generally. Therefore, a conclusion would be drawn: any criticism of the State of Israel, including criticism of the circumstances of its existence or the actions that have been taken in its name to perpetuate it, would not be protected by the Charter of Rights and Freedom and may even be an offense under the Criminal Code. By comparison, in the United State, at least thus far, criticism of the State of Israel has not been criminalized. Professor Jeffrey Sachs, among others, has criticized the Israeli lobby’s influence on the U.S. Congress. One wonders if it would be legal for a Canadian professor to offer similar views in Canada.

In June 2024, a controversial Muslim community leader Adil Charkaoui gave a speech denouncing “Zionist aggressors” and calling for the deaths of “the enemies of the people of Gaza”. The RCMP launched an investigation into these remarks to see whether the Attorney General was willing to proceed with a prosecution under Criminal Code section 319. The Federal Minister of Justice Arif Virani said that he was open to amending the Criminal Code, presumably to restrain Charkaoui’s remarks. This event shows how political power can be used to subvert the principle of free expression in a situation where Charkaoui’s criticism was neither targeted toward any person or group in Canada nor was likely to, by a chain of cause and effect, incite violence in another corner of the world. He was merely expressing a political viewpoint on events happening elsewhere in the world, and this was considered suspicious enough to the Canadian authorities that the federal justice minister had to address it.

Even Criminal Code 318(1), which makes it an offense to advocate or promote genocide against an identifiable group, can suppress legitimate speech. If one group were to commit genocide against another group, then would the second group be entitled to promote genocide against the first group as a form of self-defense? It is not an adequate answer to say that the second group could make a complaint about the first group to law enforcement since the first group might not be subject to Canadian law. There is nothing stopping two groups in two different countries and jurisdictions from hating one another. The group that happens to be in Canada should not be disadvantaged if it advocates or promotes genocide against another solely to defend itself against an aggressor.

In Canada, the police may arrest protesters and detain them for no more than 24 hours for “breach of the peace”, even though it is not a criminal offense itself. There is also the offense of “causing a disturbance”, which the Supreme Court has held must involve an “externally manifested disturbance of the public peace” that was reasonably foreseeable by the offender – merely shouting, swearing or being annoying is not enough. The Federal Court of Canada found that the government use of emergency powers to shut down a trucker protest violated their constitutional right to protest. It held that the government may prohibit “serious threats to persons or property”, but the harm caused to the economy by protestors blocking the roads did not rise to that level.

It is clear that, when it comes to issues under the general umbrella of hate speech, the constitutional jurisprudences of Canada and the United States take entirely different approaches. The United States takes freedom of expression very seriously. It is a bright line, outside of very limited exceptions. On the other hand, the Supreme Court of Canada does not treat freedom of expression as a bright line rule but instead often undertakes a balancing assessment where it usually defers to Parliament and provincial legislatures. The Canadian courts do not distinguish between a facial challenge to the constitutionality of a statute versus constitutionality as applied to the party. They do not review whether the actions taken by authorities under that statute are also constitutional (or instead they unconstitutionally exercised discretion). Typically, however, statutory law merely reflects the political power held by various groups in society and so it necessarily fails to protect socially unpopular viewpoints.

Now let’s put aside hate crimes and turn our attention to libel, which is not protected because it is not true or not accurate. Under Canadian constitutional law, Charter rights are limited to rights against government action. Between private individuals, there are no Charter rights to enforce. There are only Charter values to consider.

In the United States, the common law tort of defamation was judicially modified by First Amendment protection of statements about public officials (New York Times v. Sullivan). When it comes to public officials, to constitute defamation, the speech must have been made with actual malice – the speaker must know it was false or have a reckless disregard for the truth. Even in cases of defamation brought by non-public officials, only actual (no punitive) damages may be awarded unless there is actual malice (Gertz v. Robert Welch, Inc.).

The common law tort of intentional infliction of emotional distress was judicially modified by the First Amendment’s protection of satire about public figures (Hustler Magazine v. Falwell). Fictional works employing literary devices like parody and satire are fully protected by the First Amendment.

In Canada, up until 2008, defamation law was similar to what existed in the United States prior to New York Times v. Sullivan. Falsity and damages were assumed if the statement made about the plaintiff is the kind capable of being defamatory. The defendant was required to prove the affirmative defense that the contents of the allegedly defamatory speech were true, and therefore is not defamation.

In 2008, the Supreme Court of Canada in WIC Radio Ltd. v. Simpson expanded the affirmative defense of “fair comment” and, in 2009, the Supreme Court in Grant v. Torstar Corp. created a new affirmative defense of “responsible communications on matters of public interest.” The shifting to a pro-defendant position for “public interest” related defamation suits had an impact similar to New York Times v. Sullivan. The Court in Torstar acknowledged that giving the public more leeway to make controversial statements (even if they turn out to be untrue) promotes political discourse and ultimately uncovering the truth through debate.

Therefore, after Torstar Corp., the law of defamation in Canada is now closer to that in the United States, except for American courts following Hustler Magazine v. Falwell giving more robust protection to parody and satire. It should be noted that Canadians are typically not as litigious as Americans and Canadian courts are typically not as amendable to assessing punitive damages so the balance in Canada is shifting to a pro-defendant position overall. However, there is an additional wrinkle in that the Criminal Code of Canada includes an offense for “defamatory libel”. Any writing may be a crime under this provision if it is “designed to insult” somebody without lawful justification or excuse whether “directly or by insinuation or irony”. This Criminal Code provision has not yet been challenged before the Supreme Court.

On the topic of freedom of speech, it is worth noting that Canada takes a different approach to media regulation compared to the United States.

In 2011, Canadian regulators considered amending a rule that forbids licensees from broadcasting false or misleading news. It turned out that this rule lay at the heart of what makes Canadian values different from American values. Decades ago, the United States had a similar rule called the “Fairness Doctrine”, which required broadcast stations to present a balance of both sides to any controversial issue. The Fairness Doctrine was repealed in 1987, which led to the rise of broadcast stations that favored one political agenda over another. The proposed rule amendment in Canada caused an uproar as most people did not want “American style” media and the amendment was shelved. Today, the Canadian broadcasters are still institutionally oriented toward a politically centrist position.

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