Freedom of expression is often used interchangeably with freedom of speech but freedom of expression is broader. Freedom of expression is the idea that individuals should be allowed to convey whatever ideas they wish, however unpopular, distasteful or contrary to mainstream opinion, without the government silencing or censoring them. 

Freedom of expression includes all attempts to convey meaning, not just those conveyed by physically moving our lips, tongues and vocal chords, which is freedom of speech. It also covers expressions conveyed using our bodies (including middle fingers), those expressed in writing, physical acts like parking one’s car in a certain way to send a message (Irwin Toy Ltd. v. Quebec (Attorney General), 1989 CanLII 87 (SCC)), and even gardening expressively (Ruck v. City of Mississauga, 2026 ONSC 73).

Yes, freedom of expression is constitutionally protected in Canada. Freedom of expression was protected from the start by Canada’s Constitution Act, 1867. Although that constitutional statute does not protect the freedom explicitly, it states in its preamble that the provinces were uniting into one country “with a Constitution similar in Principle to that of the United Kingdom,” where free expression has been protected for centuries.

Freedom of expression became explicitly protected in 1982 when the Canadian Charter of Rights and Freedoms became part of the constitution. Section 2(b) states: “Everyone has the following fundamental freedoms: 2(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.”

Constitutional protection means that all laws and state actions must not violate freedom of expression, except in cases where the government can demonstrate that their law or action is the type of limit that can be justified in a free and democratic society, as section 1 of the Charter provides. Nearly all free expression controversies and court cases stem from disagreements about the limits of expression in a free and democratic society.

The Supreme Court of Canada has said that freedom of expression exists so that everyone can express their views, “however unpopular, distasteful or contrary to the mainstream” (Irwin Toy Ltd. v. Quebec (Attorney General), 1989 CanLII 87 (SCC)). 

Why do we need to protect expressions that are unpopular, distasteful or contrary to the mainstream? For three main reasons, according to the Supreme Court in Irwin Toy: (1) seeking and attaining the truth is an inherently good activity; (2) participation in social and political decision-making is to be fostered and encouraged; and (3) the diversity in forms of individual self-fulfillment and human flourishing ought to be cultivated. 

The first reason, known as the truth-seeking rationale, was famously examined by the English philosopher John Stuart Mill in his popular 1859 book “On Liberty”. It’s the idea that when governments silence people, they may be preventing not only that person, but also everyone else from determining what is true. We may feel very confident that we know the truth, but the reality is there are countless ideas that people generally believed in the past that most people now believe to be false. Since there is no infallible arbiter who can confirm once and for all that any given opinion is correct, governments must let people express all opinions if we want to get closer to the truth as individuals. 

The second justification – often called the self-government or democracy rationale – is the idea rooted in ancient Athenian philosophy that, to have a self-governing democracy, citizens need to be able to challenge the ideas of those in power. Individuals can’t challenge the ideas of those in power unless they can speak without punishment.

The third justification – the self-actualization rationale – is a bit more abstract, but the basic idea is that expressing oneself through dance, poetry, art, etc. can be fulfilling to an individual even if it’s not aimed at finding the truth or facilitating self-government.

Yes, the Charter only applies to government actions and to laws. It does not generally apply to the actions of private individuals or institutions.

Generally, the Charter protection for free expression can only be used as a shield against laws or actions taken by the federal government, Indigenous governments (generally), provincial governments, municipal governments and government employees on the clock. This means Charter applies, for example, when individuals are interacting with public servants like police officers and librarians, who are directly employed by the state, and with hospital employees, who aren’t employed by the state but are delivering a government program. The Charter doesn’t apply to actions taken by social media companies acting on their own accord, even though some argue that these are the new town square.

There are two exceptions to the general rule: the Charter applies to private institutions if they’re so controlled as government that they can be considered government, or if they’re delivering a government program such that they’re government purpose of that program (Eldridge v. British Columbia (Attorney General), 1997 CanLII 327 (SCC)).

Yes, the speech of students in kindergarten to grade 12 public school classrooms is protected by the Charter. For example, if a student wears a T-shirt with a political message, that is protected expression, and rules against doing so may limit his or her freedom. Expressing one’s political opinion during class is also protected expression. 

However, that does not mean that classrooms are an absolute “free speech zone.” Under the Charter, student expression can be limited under s. 1 if the restriction is reasonable and justified in a free and democratic society. The question a court will typically ask is “does restricting the student’s expression reasonably further a legitimate educational objective, and is the limit proportionate?” While wearing a T-shirt with a political message is protected, a student could still be subject to discipline that may be upheld by a court in certain contexts. For example, if the T-shirt causes repeated conflicts, threats, or serious disruption, or is targeted at another student or group of students.

The answer is generally no. However, it depends on the province and the activity in question. Universities and colleges are typically considered private institutions, even though we tend to think of them as public because they receive some public funding.

That said, the Charter applies to an institution’s action if the state controls an institution so much that it can be said to be part of the government or where the institution is implementing a government program or policy.

In Ontario, courts have found in many cases that post-secondary activities were not subject to the Charter (see Lobo v. Carleton University, 2012 ONSC 254, University of Toronto (Governing Council) v. Doe et al., 2024 ONSC 3755 and Telfer v. The University of Western Ontario, 2012 ONSC 1287). In British Columbia, the Charter did not apply in at least one such case (Maughan v. University of British Columbia, 2009 BCCA 447).

However, in Manitoba, a court found that a misconduct policy was subject to Charter scrutiny because it was mandated by the province (Zaki v. University of Manitoba, 2021 MBQB 178), and in Alberta, courts have found that, because of the wording of the provincial post-secondary learning statute, universities were implementing government programming when they provided post-secondary education generally, such that universities violated the freedom of expression of students who had been blocked from expressing their views on campus (see Pridgen v. University of Calgary, 2010 ABQB 644 and UAlberta Pro-Life v Governors of the University of Alberta, 2020 ABCA 1). 

The Charter generally cannot be used against student unions, as they tend to be private organizations, at least in Ontario (Arriola v. Ryerson Students’ Union, 2018 ONSC 1246).

The Charter offers no direct protection for freedom of speech in the workplace for employees working for private employers.

The Charter may offer limited protection for those employed by governments. For example, the Supreme Court has said that public servants have a right “actively and publicly express opposition to the policies of governments,” but only if it doesn’t impact their ability “to perform effectively the duties of a public servant or the public perception of that ability” (Fraser v. P.S.S.R.B., 1985 CanLII 14 (SCC)). This means that while a bus driver’s comments posted on Facebook on municipal government’s policy may be protected, similar comments made by a spokesperson for the municipality may not be.

The Charter does apply to the actions of professional regulators that limit freedom of expression because they are exercising authority delegated to them by governments.

The Supreme Court has said that section 2(b) of the Charter protects all content of expression, or all attempts to convey meaning, except for physical violence (i.e. even though punching someone tends to convey a message, it is not protected by freedom of expression). This includes artistic, political, commercial and even obscene expression.

To say that all content of speech is protected by 2(b) does not mean that government actions that limit that speech will be unconstitutional, since they may still be – and often are – upheld under section 1 of the Charter. To say that all content of expression except violence is protected simply means that, if challenged in court by an individual, governments will be required to bring evidence to justify it.

Importantly, the Supreme Court has said that some types of expression are more valuable than others and are therefore harder to limit than other types of content: for example, political speech is considered to be more valuable than commercial speech (RJR-MacDonald Inc. v. Canada (Attorney General), 1995 CanLII 64 (SCC)).

Saying that some types of content are more valuable than others is called the “contextual approach” and it is disliked by freedom of expression advocates since it seems to undermine the rationales underlying the protection for freedom of speech.

The Supreme Court of Canada has upheld all sorts of limits on freedom of expression. This includes both limits aimed at the form or direct physical consequences of speech (called “time, place and manner restrictions”) and limits on the content of speech (that is those targeting the message or idea a person is trying to convey).

Content-based limits are, however, more difficult for governments to justify than time, place and manner restrictions. In Irwin Toy, the Supreme Court cited scholar Archibald Cox for the proposition that this distinction “reflects the difference between the state’s usually impermissible effort to suppress “harmful” information, ideas, or emotions and the state’s often justifiable desire to secure other interests against interference from the noise and the physical intrusions that accompany speech.”

The Supreme Court has upheld limits on a statute that limited commercial speech in the form of advertisements aimed at children (Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 SCR 927), limits on billboards aimed at protecting the aesthetic beauty of particular neighbourhoods (Vann Niagara Ltd. v. Oakville (Town), 2003 SCC 65), a criminal ban on wilful promotion of hatred (R. v. Keegstra, 1990 CanLII 24 (SCC)), a criminal ban on obscenity (Little Sisters Book and Art Emporium v. Canada (Minister of Justice), 2000 SCC 69), and criminal prohibitions on child pornography (R v Sharpe, 2001 SCC 2).

The Supreme Court has not upheld (struck down) limits on secondary picketing by unions (R.W.D.S.U., Local 558 v. Pepsi-Cola Canada Beverages, [2002] 1 S.C.R. 156), a total ban on postering to advertise a band on utility poles (Ramsden v. Peterborough (City), [1993] 2 S.C.R. 1084), a total ban on commercial speech that is not in French, (Ford v Quebec, [1988] 2 SCR 712), and a total ban on political advertising on public transit vehicles (Greater Vancouver Transportation Authority v. Canadian Federation of Students — British Columbia Component, 2009 SCC 31 (CanLII)).

Hate speech is a difficult concept to understand because whether a certain message comes across as “hateful” rather than merely an idea the listener doesn’t like tends to be in the eye of the beholder. Are certain passages of religious texts hateful? Is it hateful to suggest that men and women are different? Is it hateful to claim that certain cultural practices are immoral? Different people have different opinions. This subjectivity makes it hard to discern between hate speech and merely offensive speech.

While hatred is morally repugnant, many free speech advocates believe that the criminal law is the wrong tool for fighting hatred. Free speech advocates argue that the threat of imprisonment undermines freedom of expression by preventing people from speaking out on controversial topics. This is often referred to as a “chilling effect.”

However, the Supreme Court found in a 4-3 decision that restrictions on hate speech including imprisonment are constitutional (R. v. Keegstra, 1990 CanLII 24 (SCC)). Chief Justice Brian Dickson and three other judges found that although hate speech was protected by section 2(b), the criminal ban on “wilful promotion of hatred provision” was a reasonable limit because historical evidence such as the Holocaust proved to Dickson that hate speech could cause enough pain, tension, and violence to justify nullifying some people’s free speech rights. Justice Beverley McLachlin and two others would not have upheld the provision, in part because of the chilling effect.

“The combination of overbreadth and criminalization may well lead people desirous of avoiding even the slightest brush with the criminal law to protect themselves in the best way they can — by confining their expression to non-controversial matters,” McLachlin wrote. “Novelists may steer clear of controversial characterizations of ethnic characteristics… Scientists may well think twice before researching and publishing results of research … Given the serious consequences of criminal prosecution, it is not entirely speculative to suppose that even political debate on crucial issues such as immigration, educational language rights, foreign ownership and trade may be tempered.”

The definition of hate speech used by the Supreme Court is those “extreme” manifestations of the emotion described by the words “detestation” and “vilification,” as judged by “a reasonable person, aware of the context and circumstances…” (Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11). This does not include the expression that “while repugnant and offensive, does not incite the level of abhorrence, delegitimization and rejection that risks causing discrimination or other harmful effects.”

This definition is difficult to apply in practice, but is aided by looking for what the Supreme Court calls the “hallmarks of hatred.” The hallmarks of hatred listed in Whatcott include speech that “vilifies the targeted group by blaming its members for the current problems in society,” speech “alleging that members of a group are a “powerful menace,” speech that “accuses a group of carrying out secret conspiracies to gain global control or that they are plotting to destroy western civilization,” speech that “suggests members are illegal or unlawful,” such as by labelling them “liars, cheats, criminals and thugs” or “pure evil,” speech that “equates the targeted group with groups traditionally reviled in society, such as child abusers, pedophiles or deviant criminals who prey on children,” speech that describes members of a group as “animals or as subhuman,”  speech that “calls into question whether group members qualify as human beings,” and speech that refers to them as “horrible creatures who ought not to be allowed to live,” “incognizant primates,” “genetically inferior,” “lesser beasts” or “sub-human filth.”

No. The Supreme Court has made clear that limits on freedom of expression can only be justified for reasons akin to offense in two situations: the first is when it meets the definition of hate speech, and the second is where speech nonetheless forces certain persons “to argue for their basic humanity or social standing, as a precondition to participating in the deliberative aspects of our democracy,” known as “discriminatory effects” (Ward v. Quebec, 2021 SCC 43).

Speech can be limited to prevent discriminatory effects based on the idea espoused by scholar Jeremy Waldron, quoted in Ward, that “a person [must be able] to walk down the street without fear of insult or humiliation, to find the shops and exchanges open to him, and to proceed with an implicit assurance of being able to interact with others without being treated as a pariah.” This includes limits to protect people’s participation “in the political process and the ordinary activities of society just like everyone else.”

Human rights codes and human rights acts that require services to be provided to the public free from discrimination including by publishing discriminatory speech are examples of justified limits on expression aimed at preventing discriminatory effects.

Freedom of the press refers to the freedom to publish ideas. This was done historically using a printing press to create books or pamphlets (hence the name), but now the idea also protects the publications we make online.

It’s a common misconception that journalists, often referred to as “the press,” have more constitutional protection than others as a result of the reference to “freedom of the press” in section 2(b) of the Charter.

For example, the Supreme Court has said there is no “class privilege” that protects journalists when speaking to confidential sources. Justice Binnie wrote for the majority in R v National Post, 2010 SCC 16 that the reasons for this lack of privilege are obvious:

“First is the immense variety and degrees of professionalism (or the lack of it) of persons who now “gather” and “publish” news said to be based on secret sources,” Justice Binnie wrote. “In contrast to the legal profession there is no formal accreditation process to “licence” the practice of journalism, and no professional organization (such as a law society) to regulate its members and attempt to maintain professional standards. Nor, given the scope of activity contemplated as journalism in Grant v. Torstar, could such an organization be readily envisaged.”

The Supreme Court has found that people can be held liable for damaging the reputations of others, known as defamation, even though this is an obvious limitation on the right to freedom of expression.

Defamation consists of either libel (written or recorded statements) or slander (spoken statements) that would tend to lower the plaintiff’s reputation in the eyes (or estimation) of a reasonable person, and that are communicated to at least one other person.

In Canada, the defences are less robust than in America, where the Supreme Court has long required actual malice (New York Times Co. v. Sullivan, 376 US 254 (1964) to prove defamation against public figures. In Canada, libel and slander does not require actual malice. There are nonetheless some defences to defamation in Canada aimed at protecting free speech, including fair comment and responsible communication on matters of public interest (Grant v. Torstar Corp., 2009 SCC 61). Consult a defamation lawyer for more.