Resetting the Foundations: Renewing Freedom of Expression under Section s.2(b) of the Charter

The 40th anniversary of the Canadian Charter of Rights and Freedoms on April 17, 2022 is a time for reckoning, and an opportunity to ready s.2’s fundamental freedoms for the future. In particular, this article offers a moment of pause to invest in s.2(b)’s guarantee of expressive freedom and its renewal. The discussion begins by addressing s.2(b)’s “fault lines”, which are embedded in the jurisprudence at both stages of the analysis – breach as well as justification. What then follows is a proposal for renewal that begins, under s.2(b), with a theory or principle of freedom and a revised approach to the question of breach. Specifically, the proposal eliminates Irwin Toy’s purpose-effects test and replaces it with s.2(a)’s standard of infringement, from Syndicat Northwest v. Amselem. To complete s.2(b)’s renewal it is necessary, under s.1, to eliminate the contextual approach and re-invigorate the Oakes test. Taking these steps and engaging this process of renewal can place s.2(b) on principled foundations and constrain the power of legislatures and regulators to infringe the Charter’s guarantee of expressive freedom