Free Speech in Canada?

Others have commented on this point, but you may appreciate some concrete examples.

Section 3 of the Charter guarantees the right to vote in federal and provincial elections. That means that the federal and provincial governments must pass laws to create an electoral system, so we will be able to exercise our right to vote.

Section 11(d) guarantees the right to a fair trial before independent and impartial courts. That means that the governments must pass laws creating courts, legal aid systems, and fair systems of criminal procedure, since otherwise we can’t have a fair trial.

Section 16 guarantees various language rights in dealing with the federal government. The federal government has to ensure that their administration will enable people to exercise those rights in dealing with the feds.

By contrast, the freedoms protected by section 2 are self-implementing - you have freedom of speech, meaning you can stand up on your soapbox and go to it. You don’t need anything from the goverment to be able to exercise that freedom. Freedom of religion means that you can go to whatever religious organisation you want, or none at all - you don’t need the government to create a religious group for you. Same for freedom of association and peaceful assembly - you can just go out and exercise those freedoms.

Does that help?

No worries. As with any other criminal charge, the Constitution including the Charter applies, and the common law applies. Regular criminal procedure in the regular judicial process applies.

Seditious libel is libel with seditious intention, but the Criminal Code never defines “seditious”, so the whole section might fail for vagueness if it were tested today. At the very least, it is OK say the government policies, laws and actions are wrong and should be changed, and it is OK to participate in political discourse, but advocating use of force against the government is sedition.

Here is the pertinent part of the sedition section Criminal Code. Note how the Code takes care to protect political discourse:

Boucher (1936) was the last case of seditious libel in Canada. A Jehovah’s Witness sent pamphlets throughout predominantly Roman Catholic Quebec saying “Quebec’s burning hatred for God, … the shame of all Canada.” He was arrested and charged with sedition. He was convicted, the conviction was upheld by the Quebec Court of Appeal, but the Supreme Court of Canada overturned the conviction. All the S.C.C. judges agreed that for there to be a conviction, the words must have been seditious in and of themselves by being “calculated to excite disaffection between his majesty and his majesty’s subjects, or to promote feelings of hatred and ill will between different classes of his majesty’s subjects.” Four of nine said that this was enough, essentially saying that you can be convicted of sedition on the basis of words alone. The majority of five said there was also a second element, that the Crown must prove that when the words were said the accused did so with the “intention of inciting riot, tumult or disorder.” Essentially, the majority was saying it is OK to say bad things, but not OK to run about stirring up riots. Mr. Justice Rand expressly accepted Mill’s harm principle, which says that concerning expression, the state may not legitimately control expression within itself. Boucher was sent back for a new trial and that trial was never held, so essentially the S.C.C. acquitted him. The bottom line is that words alone are not enough, there must be an intention to harm.

The Law Reform Commission in 1986 recommended removal or revision of seditious libel, but nothing was done.

There was some talk of using sedition to cover hate crimes, but instead, actual hate crime legislation was put in place, and the charge of sedition has simply languished on the books. Short of someone trying to raise a mob to storm Parliament, or terrorists publically calling out for direct support, I don’t see the charge going anywhere. Hey, if we made it through WWII, the 50’s Red Scare, the political upheaval of the 60s and 70’s, the recent return to right, and the recent increase in terrorism, all without recourse to the charge of sedition, then I doubt if it would be used today without being shot down by the Court.

Bzzzt, wrong! The initial decision to charge someone with sedition (Criminal Code, ss. 59-61) would be made by the police. The charge would then go to the Crown prosecutor for review. The Crown prosecutor decides whether or not to proceed with the charge, based on the law and available evidence. If the matter goes to trial, it would be in front of the superior court of the province in question. The judges of that court have constitutionally guaranteed tenure and independence. The accused would have the right to elect trial by judge alone, or by judge and jury. That trial would determine if the Crown has proven the charge of sedition, beyond a reasonable doubt, and with all of the normal constitutional guarantees of a fair trial.

Yes. Section 52 of the Constitution Act, 1982 reads:

Since the Charter came into force in 1982, the courts have struck down a variety of laws because they interfered with freedom of speech or freedom of the press.

Just as an aside, recently things have been going to hell and a hand-basket locally. Legal aid rates paid to lawyers are so low and the hours authorized so limited that in my district the lawyers have for the most part refused to take on new legal aid funded clients (e.g. most criminal law clients). That has clogged the court with unrepresented accused. To help handle the backlog, bail court has now been extended to Saturdays, with an inherent increase in cost to the government. To help reduce such cost, bail court is now held by video, where the accused stays in jail and stands in front of a video camera that transmits to the courtroom. Unfortunately, no one bothered to change the regulations pertaining to court security, so the police have to go in on overtime on Saturdays to stand guard in court despite there not actually being any accused there.

[Queen Elizabeth voice]We are not amused.[/Queen Elizabeth voice]

Well, there’s at least two different meanings to “constitution”, which can create some confusion.

The older meaning, used in Britain, is the complete ensemble of laws and customs which provide for the government of the nation. By that definition, Britain does indeed have a constitution, and the British do refer to the “British Constitution” and “constitutional law.” It’s a conglomeration of statutes and common law, including the common law governing the Crown’s prerogative powers. If you mean that type of constitution, the United Kingdom arguably has one of the oldest constitutions in the world.

(But note that it doesn’t have the oldest Parliament - that honour belongs to the Tynwald of the Isle of Man - follow the link and click on “Tynwald History.” The Tynwald has met regularly for over a thousand years.)

On the other hand, another meaning of “constitution” is a written document (or collection of documents) which have a clear hierarchical status over ordinary laws and can only be amended by special procedures. The U.S. constitution is the oldest constitution of that sort, so far as I know.

(Constitutional scholars sometimes call this type of constitution a “rigid constitution” to distinguish it from the more organic type of constitution that the U.K. enjoys. The U.K. constitution is sometimes called “unwritten” to distinguish it from the “rigid” type of constitution.)

And yes, Canada does have a constitution, in both senses of the word. The main structure of the federal and provincial governments is set out in the Constitution Act, 1867 (formerly called the British North America Act, 1867), while restrictions on the governments, and the amending formula, are set out in the Constitution Act, 1982. There are also “unwritten” aspects of the Constitution, mainly the powers of the Crown which are incorporated by reference through the Constitution Act, 1867.

Something of interest given what is going on in the USA with regard to the treatment of alleged terrorists and combatants, is Canada’s revoked War Measures Act and its replacement Emergencies Act.

The War Measures Act was put in place in 1914. It permitted the cabinet of the Federal government to trigger it, and once triggered it permitted the government to do pretty much whatever it deemed necessary “for the security, defence, peace, order and welfare of Canada”. In short, it permitted rights and freedoms to be tossed out the window. It permitted censorship, arrest without charge, deportation without trial, expropriation of property, you name it. Most importantly, there were no oversight provisions. The elected Parliament did not get a say in it. The judiciary did not get a say in it.

The War Measures Act was used in both world wars to place people in internment camps and to seize their property.

In 1970, during the FLQ crisis (terrorism in Quebec), Prime Minister Trudeau invoked the War Measures Act. The army moved into Montreal and other cities in Quebec, many people were detained without bail, and of several hundred who were arrested, only about twenty were ever convicted of anything. By 1971 the FLQ was no longer a problem.

Parliament has tried to find a balance between liberty and stability, so in 1988 it replaced the War Measures Act with the Emergencies Act. The Emergencies Act put oversight protection in place by making the government far more responsible to Parliament and to the courts. Specifically, Parliament must review a declaration of an emergency by the Cabinet, and any temporary laws made under the Act are subject to the Charter of Rights and Freedoms. In short, it is still possible for a nation emergency to result in severe impingements on a person’s rights and freedoms, including the freedom of speech, but at least now the entire Parliament and the judiciary will have the power to stop the insanity. One only hopes that they will have the wisdom to use such oversight powers rationally in times of crisis.