Law Syrup - S1E3 Transcription [Herman Wong] Welcome to Law Syrup, the show where we talk with special guests about hot topics in Canadian law. This podcast is a co-production with the Ontario Justice Education Network, also known as OJEN. I'm Herman Wong, let's tap in. Before we begin, please note that this show is not intended to be legal advice or be a replacement for a legal representative. On this week's episode, we're diving into the Charter of Rights and Freedoms. The Charter is part of our Constitution here in Canada, and today we'll be focusing on a specific section, section 2B to be precise. That is, our freedom of expression. What does it mean to express yourself? Are there any limits or restrictions? To learn more about this topic, I spoke with Professor Jamie Cameron. She is a constitutional scholar and was a professor and faculty member at Osgoode Hall Law School since 1984. After retiring in January of 2020, she is now a professor Emeritus and continues her work with the Centre for Free Expression. Here's how our conversation went. Hi, Professor Cameron. How are you today? [Professor Jamie Cameron] I'm very well this morning. Thank you, Herman. [Herman Wong] I think with today's topic, section 2B of the Charter and freedom of expression, I think we're going to really benefit from your past experiences in constitutional law, such as your work in the Centre for Free Expression and the Canadian Civil Liberties Association. But before we even get started, just to ask about your career, what was your first memory of the Charter? [Professor Jamie Cameron] Okay, well, thank you for that, Herman. And yeah, it sounds like I've done a lot, but I've been around for quite a while. And one of the things that is so fortunate for me is that I became a young academic in Canada at the very same time that the Charter of Rights and Freedoms was enacted. So the Charter was enacted as part of the 1982 Constitution and the amendments to the Constitution that were part of the patriation of the Constitution. And constitutional rights were introduced as part of that package for the first time. And what that meant was that Canadians were protected in their rights and freedoms from actions by the government, and courts had the authority for the first time to protect a series of rights that were spelled out in the Charter. So that was 1982. And as for myself, I became a young academic, I ended up at Osgoode Hall Law School in Toronto in 1984, which was just when the Supreme Court's first attempts to interpret the Charter were starting to be decided. So for me, first memory of the Charter is that whole decade of the 1980s, where the court was issuing its first blockbuster decisions about the Charter. And the Charter was brand new, no one knew what the court was going to do. So as a young professor at Osgoode Hall Law School, and I'm telling you this because it's not really that long ago, but it sounds like a long time ago, because when the court decided its decisions, we didn't have computers, right? It's 1984, 1985, and so we would wait for the paper copy of the decision to arrive from Ottawa, to arrive in our law library. So all the constitutional law wonks would get a copy of the decision, and we'd sit around together trying to figure out what this game-changing Charter of Rights and Freedoms meant. So it was a very exciting time to be a young law professor in Canada. So that's my memory of the Charter, and it's a nice one. [Herman Wong] That's amazing. I mean, to be in that time when it was being constructed and developed must have been super exciting. What conversations were you having with your fellow colleagues around that time before the Charter came out? Were there things that you were expecting to be included? What was the dialogue like between you and your colleagues? [Professor Jamie Cameron] The drafting of the Charter was a little bit before my time, but of course there was opposition to the Charter at the time that the changes to the Constitution were being debated. Some of the provincial premiers in particular, were more partial to what I call the Westminster system of constitutionalism, which is parliamentary supremacy rather than a system of constitutionally protected rights. Because of that, we ended up including in the Charter something called the Legislative Override, or the Notwithstanding Clause, which allows provincial and federal legislatures to enact legislation which is exempt from certain provisions of the Charter for a period of five years. So I got into a bit of a detour there, Herman, but the process of drafting the Charter was a careful one in which different points of view and different forces came to bear in the structure of a document which gives strong protection to rights, but then allows the legislature to have the last word, if I could put it that way, either through the Notwithstanding Clause, which is not used that frequently, though you will see it in the news if you look for it. It's very topical right now. Our rights and freedoms under the Charter are subject to reasonable limits under Section 1, and Section 1 provides that all the rights and freedoms that are guaranteed by the Charter are subject to reasonable limits that are demonstrably justified in a free and democratic society. And basically what that means is that even where the government has violated our rights, that may be justified because the interests of the democratic community might be more important in that particular case. So maybe I'll stop there and see where you'd like to go next with the talk. [Herman Wong] Yeah, for sure. And I think you really brought us to a really great point. And I think today, because we are focusing on Section 2B of the Charter, we see that there's a lot of fundamental freedoms that are in this section. So maybe you can walk us through Section 2 of the Charter in general, and then we can a little bit more on Section 2B, because when we look at the Charter, we can see that there are different sections like 2A, 2B, 2C, 2D. So maybe walk us through those sections and what they actually mean for us as Canadians. [Professor Jamie Cameron] Okay, that's a great question. So Section 2 sets out the fundamental freedoms that everyone in Canada enjoys. And there are four of them. The first, so it's 2A, 2B, 2C, and 2D. So 2A is freedom of conscience and religion. Section 2B is freedom of expression, including freedom of the press and media. So if I get a chance, I want to come back to the press and media. 2C is freedom of peaceful assembly. And 2D is freedom of association. So together, they comprise our fundamental freedoms. And I think even just by listening, you can see that there are relationships between these freedoms. These are the areas of human endeavour in which we are, as a matter of baseline expectation, entitled to be free from interference by the state. Having said that, we could break it down a little bit more. Section 2A and 2B look a little bit more on the face of it, like individual rights. Although freedom of religion can certainly be exercised communally, and so can freedom of expression. But section 2c and section 2D look a little bit different, because section 2C protects freedom of peaceful assembly, and section 2D protects freedom of association. So, regrettably, freedom of peaceful assembly has had almost no development in the first 40-plus years of the Charter, because anytime there's a demonstration or a gathering in public, the way it has been analysed has been under section 2B. And section 2D, freedom of association, could potentially cover a full range of associational activities where more than two individuals do something together in an organization with certain goals and objectives. Regrettably, in the case of section 2d, its interpretation has almost exclusively been limited to labour relations rights, like the right to strike and the right to engage in collective bargaining. Coming back to section 2B, section 2A, just in passing, freedom of religion, has been very, very important, and there have been a number of very critical Supreme Court of Canada decisions protecting freedom of religion, but also upholding limits on it. Section 2B, however, freedom of expression, I think it's fair to say, has by a long stretch been the dominant guarantee under section 2B, and that's because communication is such a primal function and condition of humanity, and generates a number of legal issues, as well as other kinds of issues. So there's many, many branches of the law that deal with expressive issues. Just to give a rough head count, and it's not 100% accurate, but if we were to look at how many section 2d decisions have been generated by the Supreme Court of Canada in the first 40 plus years of the Charter, it would be about 90. But if we look at section 2c, the number is zero. [Herman Wong] Really? Oh, wow. [Professor Jamie Cameron] If we look at section 2d, I'm guessing a little bit here, but I'm going to say it's between 20 and 25. In 2A, I'm going to say it's maybe between 30 and 35. But even if my numbers on the low range are out a bit, section 2B is far and away the provision that has generated the most work for the court, and the most discussion, I would say. And I can stop, or I can just go a little further with that, and explain a little bit why this happens. [Herman Wong] No, I completely agree with you. And I think something that you mentioned that was really important is the fact that expression forms a large part of us as human beings. Expression comes in many different forms, whether it's what we say, whether it's, you know, online, on social media, or the way that we dress, or the way that we make art. I was actually just wondering in terms of expression, because expression can come in so many different forms. But legally speaking, what is expression? Like, how is it defined in the law? [Professor Jamie Cameron] I'll go to the Charter, because the Charter has a definition of expression. And it's not really, types of expression are defined by the law, but expression per se, like expression, generically, is defined in the charter, simply as any attempt to convey meaning. Any attempt to convey meaning. So I could spit at my computer screen, I suppose. And we can argue about whether that's an attempt to convey meaning about what I think of this podcast or whatever. So it can mean, it's very, very all encompassing. And this sort of brings me to a couple of points. One is that when the court first started to look at freedom of expression, they had to ask themselves, well, should we give it a broad interpretation and include everything? Or should we narrow it down and only give protection to the expressive activity that we think is valuable, that we think is enriching and valuable to our democratic community? And there were proponents on both sides of that question as the cases were making their way up to the Supreme Court of Canada. Some of the lower courts said we should only protect the expressive activity that we think is most important, like expression related to government, democratic government and so forth, political expression. But others said that expressive freedom is a much richer concept. And besides which, if you start to pick and choose which expressive activity is valuable, you run the risk that whoever's making that decision is going to cut out a lot of expressive content just because they don't like it. So to the court's credit, what they said when they were defining freedom of expression or defining expression under Section 2B is they said that we're going to protect everything. We're not going to ask whether it's offensive. We're not going to ask whether it's repugnant. We're not going to ask who thinks it's valuable and who thinks it isn't. We're going to give everything protection at the front end because otherwise we run too much of a risk that we would put our own subjective opinions. So that was permissible because they still had Section 1 that allows reasonable limits. So when we think about expressive activity, we want to be asking the question, well, why do we value it so much after all? Why is it in the Constitution? I think we can all pretty much understand that expressive activity can be enriching. It can be empowering. But as we all know from personal experience, it's also risky. And there's a lot of expressive activity that actually is harmful. So having made the decision that it was not going to do that under Section 2B in drawing a definition, the Supreme Court began to work at that question under Section 1, which is where the court considers what limits are reasonable on expressive freedom. And the limits are reasonable if expressive freedom causes harm. [Herman Wong] Right. For sure. [Professor Jamie Cameron] But we have to ask, what do we mean by that? Because we could think about different kinds of harm and we could put them on a spectrum, right, where there's a relatively low level of harm associated with expressive activity. But then it goes all the way up to a very high level of harm that can be associated with expressive activity, which the best example I can think of is an incitement to violence, incitement to violence. And that reminds me to say that when the court decided that Section 2B would cover any attempt to convey meaning, they excluded violent expression. But under Section 1, the court started grappling with, well, what do we mean by harm? Because different people are harmed in different ways, in different degrees, and with different consequences by expressive activity. And we sort of ask ourselves the question, well, can we regulate all the harm that is associated with expressive activity? Can we allow all of it to be regulated under Section 1? Well, it would be difficult to do, for one thing. But the other thing is, if you regulated all possible harm that's associated with expressive activity, there wouldn't be very much freedom left. Then we got to the question of, what is the threshold? Where along that line between low harm and immediate harm? Where is it that you allow the state to regulate expressive freedom? To answer that question, you have to sort of see if you can pin down the harm a little bit more from an evidentiary point of view. But you also have to ask yourself, well, what is it we value about expressive freedom? And what are we going to lose? What are we going to lose if we allow it to be restricted under Section 1? Well, typically, I shouldn't say typically, it's often the voices of those who are outsiders, those who are trying to make a change of some kind in social values, in environmental values, in governance values, whatever. But they're also the ones who bug us the most, right? They're the ones who we don't really want to hear from, we might dislike, we might consider them offensive, we might just want to censor them. Under Section 1, when the Supreme Court is considering what limits on expressive freedom are reasonable and justifiable, it applies a formulaic test, and you can relax because I'm not taking you through the test. The court established a test that it hoped would set a fairly high threshold for limits on expressive freedom, because that was the overarching ethic of the Charter, to set a threshold for limits on charter rights and freedoms, including Section 2B under Section 1. [Herman Wong] So, what are your opinions on how people use social media these days? [Professor Jamie Cameron] So I think, I'm wondering whether definitely through social media and in other ways, it seems to me, and I could be wrong, but it seems to me that there is a tone of public discourse that is more confrontational, more hostile than, I guess, was my perception in the past. And there's a certain sense on the part of people who are putting their views out there that they don't have to be held accountable for them. So there's a certain amount of inherent accountability, unaccountability, because we can't enforce limits against all expressive activity that we don't like or that we consider harmful. The reaction, though, is that the nastier it gets, the harder it becomes to defend freedom of expression, right? Because a lot of the harm that we're talking about at this point in time has to do with hate speech. So we're at a juncture where we're working through all these difficult issues. And if I could just add, the federal government, the current federal government has been working for a very long time now on a package of regulations to deal with online harm. And they've been working on it for, I think, at least two years. There's been periodic announcements from the government about when we might expect this package of regulations to be introduced. And I think what we learn from the fact that this has been a prolonged process for the government, what we learn is that it's a very, very challenging question for them to address and to consider how to regulate the enormous volume of expressive activity that we see on and offline and how to do that in a way that protects individuals from being harmed by expression, but doesn't over-regulate and prohibit or restrict the expressive activity that is valuable to our society. It's a very difficult challenge. [Herman Wong] You know, social media is this very, very interesting thing because I kind of find that it's very useful because I use social media all the time. That's where I get most of my news from. That's where I connect with friends. I was wondering, do you use a lot of social media? [Professor Jamie Cameron] No. I'm an artifact and I shouldn't do this on a public session, but I'm a bit of a techno bimbo and so I don't relate to it. You know, it's not intuitive to me. I do a certain amount of social media work, but not really that much. But I do, of course, follow the issues and I'm well aware that the generations that are after me don't follow news in the way that I do. I mean, I still read a print newspaper in the morning and I watch television news and I even listen to radio news when I'm in the car. I think that most younger generations do not do that. But the thing that's interesting about social media and just, again, relating it back a little bit to this question of regulation. I mean, as probably most who are listening would be aware, the social media platforms and so on, they regulate expressive activity themselves. [Herman Wong] Right. [Professor Jamie Cameron] They're engaged in self-regulation. You know, in the absence of government regulation, the social media platforms are engaging in their own forms of regulation. Well, you know, so then we can have a debate about where are you better off in terms of expressive freedom? Are you better off with the digital platforms doing their own regulation or are you better off with a series of government protocols that are entrenched in legislation? And where are you better protected? But one of the things that I think is concerning about social media and the social media platforms, because they are the mammoth corporations that have a lot of power over us. Let's be frank here. I mean, I think there's a concern about their tendency or there could be a tendency, well, their tendency either to over-regulate and to quickly censor certain kinds of expressive activity so they don't get into trouble publicly or to under-regulate and just not pay enough attention to what can or should be regulated and how it should be regulated. So, you know, again, the issues of whether material can just be taken down or whether that's unfair to the speaker. These are really important issues. And I forgot to add something, which I would like to add in at this point. And that is that when we talk about freedom of expression, we think about the speaker, right? [Herman Wong] Right. [Professor Jamie Cameron] But the listener is really important too. Our Section 2B jurisprudence acknowledges and protects the rights of the listener because whenever the speaker is stopped or restricted, those who might want to listen to the speaker also lose something. And so the rights of the listener are an important part of our understanding of freedom of expression in Canada. I meant to say that earlier, and I'm glad I remembered. [Herman Wong] Something I also want to ask is whether the freedom of expression also protects access to forms of expression. So in other words, does it protect all the different methods we can use to convey meaning? Like, does it protect our use of social media, for instance? [Professor Jamie Cameron] Okay, well, so generally anyone would have access to expressive freedom as long as there are no restrictions in the way. But sometimes you need access in the form of permission to go to certain, I'll call them platforms. So I'll give an example. So, access to our courts. That's a very, very highly cherished principle in our system of law. Citizens have access to courthouses and proceedings and it's understood and it's constitutionally, it's a constitutional principle that the state and the judiciary cannot restrict your access without it being justifiable or prohibit you from recording what's going on in the courtroom. But then the question is, well, what does that, what does access mean? Does that mean I can bring my iPhone into the court and start recording the proceedings and then broadcast them? Does it mean I can tweet during court and so on? So there's the general principle of access. But then when it gets granular, you get all the interesting questions that you just raised. And so other kinds of access that people are talking about at this point in time are access to information. You know, the government doesn't have to give you information. How can you get access to that information? I think you meant more something else, like how do you get access to what social media if you're kicked off? I think that's fully in stride on regulation and regulating the social media giant is something that hasn't yet happened. But I would say that there are areas of law where if your expressive rights have been violated, you might have recourse. One of them is anti-discrimination law. And there's other ones like defamation law and so forth. [Herman Wong] Well, thank you so much for answering that. I think that before we end off here, I do want to clarify, you know, the differences between the chart that we have here in Canada, but also what they have in the United States with the First Amendment, because, you know, people always say, oh, I'm asserting my First Amendment rights. And I think it's really interesting to see the differences or subtle nuances because on paper, they might seem very similar, you know, Section 2B and the First Amendment. But what are those subtle differences between these two pieces of legislation? [Professor Jamie Cameron] OK, well, I'm glad you asked me that because I was an academic in the U.S. before I came home to Canada and the First Amendment was what I learned in the U.S. And so and also you mentioned that people say I'm just asserting my First Amendment rights. And I hear that a lot, not as much recently, but I would prefer to hear them saying I'm asserting my Section 2B rights. But the First Amendment is sort of like shorthand for freedom of speech. So the U.S. tradition of free speech is somewhat different than ours. It's a long tradition. It's a long tradition in a country that venerates its constitution in different ways than we have in Canada. And the First Amendment is the most venerated, I think, of U.S. rights. I'll get into trouble for that, but I think it's the first freedom in the U.S. Bill of Rights. And the other thing to notice about the First Amendment, and this is really important, both as a matter of text and ideological significance and historical importance, the First Amendment says Congress shall make no law abridging the freedom of speech. Congress shall make no law abridging the freedom of speech. That's unequivocal. It's absolute. It's, you know, it's, as I say, unconditional. And so that's the textual frame in which freedom of speech appears in the United States. As I've explained earlier in this podcast, in Canada, we have Section 2B, which protects freedom of expression. And we've explained that it's a strong protection. But then we have Section 1 that places reasonable limits on freedom of expression. And it's a very different setup. And it's just the setup alone sends a very different message about the status of rights under the Constitution and the particular status of expressive freedom under the Constitution. It's subject to justifiable limits. The other thing I would say about the U.S. is that their broader constitutional culture is based on a sort of a distrust of state authority. We'll take a long time to explain that. Whereas what they always say about us is that we are more, we defer more to authority. It's a bit of an overgeneralization, but you hear it quite often. And the way it sort of plays in the First Amendment context is that there's a much greater fear of censorship in the United States than typically we would see in Canada. I'll just give one really quick example because I know we're coming to the end of this. In Canada, a court order prohibiting the publication of information would be called a publication ban. So that's a ban on the publication of court proceedings or a publication ban. There could be a publication ban on a book or whatever. But we call it a publication ban. In the U.S., what it's called is a gag order. So it tells you something about the presumptions, the presumptions that follow restrictions on expressive freedom. [Herman Wong] Wow. So that's really interesting because I think people don't really know the difference between the U.S. and the Canadian legislations that much. They kind of think that they're interchangeable in some ways. So it's really useful to hear from you in terms of the perceptions that people have of the constitutions in both Canada and the U.S. And I think it's really important to recognize these subtle differences as well. Now, before we end off, I think something that will really help the listeners of this podcast to know, and you've really given us so many different entry points for listeners to potentially research more about Section 2B. But before we end off here, if someone would want to learn more about this specific fundamental freedom of the Charter generally, what are a couple of things that you would recommend that they do? [Professor Jamie Cameron] First and foremost, I would say just watch the news. Wherever you get the news, just watch or listen to it, because these issues are percolating up on a daily basis. And most of them don't get litigated, but there are numerous expressive freedom contests that surface, and some become bigger and more important, and some are just kind of like a flash in the pan. But when you see them, show some interest. You know, read the article or listen to the article. Test your instincts. Ask yourself, well, am I on the side of expressive freedom in this situation, or am I not? And do I think the speaker should be stopped? Ask yourself, and then just get into the practice of doing that. Because, you know, it's a form of civic engagement, right? It's a way for you to sort of participate in the kind of community discourse that is going on around you. And I think that's probably what I would recommend first and foremost. There's always ways to, say, read a book or read an article, read some comics on freedom of expression. But I think just paying attention to the world around you can be really very enriching and very challenging. Because if you test where you stand on propositions, and you're honest about it, you'll appreciate how difficult these issues are. And I try to do this myself on a daily basis. [Herman Wong] Right. Also, all great points. Well, Professor Cameron, those are all the questions that I have for you today. I just want to thank you so much for taking the time out of your day to spend, you know, chatting with me about Section 2B. It's a fabulous day outside. What do you have planned for the rest of the day? [Professor Jamie Cameron] I'm making dinner for the family. [Herman Wong] Well, enjoy that. Thank you so much again for participating. We really appreciate you. And yeah, if we have anything else, maybe we'll call you back for another episode. [Professor Jamie Cameron] Thank you so much. It was an honour to be on your program. [Herman Wong] Awesome. Thank you so much, Professor. We appreciate you. Thank you for tuning in to this episode of Law Syrup. On the next episode, I reconnect with one of my former professors at Carleton University, Janice Tibbetts, as she takes us through her career as a justice reporter and how she is paving the way forward for future journalists in the field. Law Syrup is produced by me, Herman Wong, and the Ontario Justice Education Network. For more information, check out www.ojen.ca and our show notes. See you next time.