The Supreme Courts Understanding of the protection

afforded by the Charter of Rights and Freedom to Freedom of

Speech has been remarkably expansive

According to Kent Greenawalt, in Free Speech in the United

States and Canada Canadian courts have drawn extensively from the
legal materials of other countries, including the United States, and
from sources in international law. Both Canadian and American
Supreme Courts have an expansive sense of free speech that is based
on the centrality of speech for liberal democracy.

In Dolphin the SCC asserted that the Charter applies only to

governmental action, and to the common law, except where matters
are solely between private parties private parties or common law.
Nevertheless, it was agreed that judges should always attempt to
interpret the common law in light of the charter. In Dolphin,
secondary picketing was held to be an expression with the meaning of
s.2(b). According to S&R the post-Charter jurisprudence of this Court
has indicated that the guarantee of freedom of expression in s. 2(b) of
the Charter is not confined to political expression. S&R suggest that in
Dolphin we were not dealing with traditional political expression. S&R
believe that the expression in question in Dolphin was expression that
had an economic purpose.

Commercial Speech
Originally commercial speech was considered beyond the scope
of first amendment but it was later extended to protect
advertisements. Commercial Speech is now afforded protection by
American and Canadian courts. The American courts have developed a
less rigorous test of regulation for commercial speech than for other
forms. Similarly, according to Machlachlin in Rocket, the Canadian
approach recognizes not all expression is equally worthy of protection.
In addition, the Canadian approach also recognizes it cannot be said
that all infringements of free expression are equally serious. Therefore,
like in American courts it was decided that a less rigorous test should
be applied for commercial speech. However, in RJR this less rigorous
test was not followed strictly. According to Hutchinson affording
commercial speech protection is dangerously problematic and
threatens free choice in a democratic society. However, in both Ford
and Rocket the court ruled in favour of the claimant, which expanded
the protection and definition given to the freedom of expression. In
Rocket the SCC accepted that a professional body was entitled to
regulate advertising by its members to protect the public and that
restrictions on expression of this kind might be easier to justify than
other infringements. (ROACH) In Ford it was stated that freedom of
expression should be given a wide and generous definition admitting

few exceptions. Yet at the same time the Court recognized that
expression might be subdued if the standard of section 1 is met.
(Sharpe & Roach) According to S&R Hogg this broad definition given
to expression by the SCC in Ford and Irwin has expanded the
Charters protection afforded to freedom of speech.

As previously mentioned Commercial speech is afforded

protection by both American and Canadian courts. However, the
general manner in which these courts protect freedom of expression is
fairly different. In the U.S, freedom of expression is protected by the
first amendment. It provides that, Congress shall make no law
respecting an establishment of religion, or prohibiting the free exercise
thereof; or abridging the freedom of speech, or of the press; or the
right of the people peaceably to assemble, and to petition the
government for a redress of grievances. In Canada the right to freedom
of expression is given to every citizen through the Charter and then an
infringement on that right can be justified in some circumstances
under s 1. Simply put, in Canada each citizen is given the right through
the charter while in the US the right is protected by limiting congresses
power. The fundamental distinction according to John C Major
between first amendment methodology and s 1 being, in the former
the court is asked whether commercial speech is a category deserving
of protection, whereas the latter asks why it should NOT be included.

Hate Speech
In the context of commercial speech the Charter and First
Amendment have similarities. However, this is not necessarily the case
with regards to Hate speech. In the Keegstra judgment, Dickson
considered First Amendment jurisprudence as it pertained to hate
propaganda. Dickson considered first amendment jurisprudence but
found that differences required that Canadas constitutional vision
depart from that endorsed in the United States. Although Dickson
stated that he found the American experience tremendously helpful in
coming to his own conclusions regarding the appeal, and by no means
rejected the whole of the First Amendment doctrine, he found the
application in a number of respects to be dubious, in the context of a
challenge to hate propaganda legislation. In addition, there was
relatively little importance afforded to s 27.

AccordingtoJohnC.MajorintheUnitedStatesthepresentapproachoftheCourtisto
saythatgovernmentcannotbancertaintypesofspeechbasedontheircontent.Onthe
contrary,inCanadatherecanbebansoncontentascanbeseenfromKeegstra.The
protectionaffordedtofreedomofexpressionintheU.S.ispowerful.Thelimitsplacedon
freedomofexpressionintheUnitedStatesseemtobeofalesserextentthaninCanada.
ThisisevidentfromthecasesCollinv.SmithandR.A.V.v.CityofSt.Paul.InCollin
vSmithanordinanceforbiddingthedisseminationofanymaterialpromotingand

incitingracialhatredwasstruckdown.(Unconscious Parallelism:
Constitutional Law in Canada and the United States )(John C.
Major) TheSupremeCourtrefusedtoheartheappeal,andtheresultwasthatneo
NaziswereallowedtomarchthroughthepredominantlyJewishvillageofSkokie.
InR.A.VvCityofSt.PaulthecityofStPaulstruckdownthebiasmotivated
crimeordinanceTheordinanceprohibitedthedisplayofasymbolthatoneknows
arousesanger,alarmorresentmentinothersonthebasisofrace,color,creed,religion,
orgender.TheKeegstradecisionseemstodisplayanoppositeapproachtakenby
Canadiancourts.InKegstraateacherwaschargedforwillfullypromotinghatredagainst
anidentifiablegroupbycommunicatingantiSemiticstatementstohisstudents.
AccordingtoWeinribthelegacyoftheKeegstrajudgmentisthatrestrictionson
promotinghatredagainstidentifiablegroupsbothpubliclyandwillfullymanifesta
commitmenttovibrantdemocracy(weinrib).However,KentRoachandDavid
SchneidgermansuggestthejudgmentinKeegstrashouldntbeseenascreatinga
distinctiveCanadianjurisprudenceonfreedomofexpression.Thisisbecauseofhow
closelydividedthecourtwasinthedecisionandthefactthat2yearslater,concerns
expressedbyMcLachlinJ.onbehalfoftheminorityinKeegstraabouttheprotectionof
freeexpressionresurfacedinherdecisionforamajorityofthecourtinZundel
(Roach&Schneidgerman).

Conclusion

Canadian Courts have been able to pawn from first amendment

jurisprudence but this has been limited to certain circumstances,
including commercial speech. On the contrary in Keegstra, Dickson
found American jurisprudent regarding hate speech dubious stating
that differences between the nations may require that Canadas
constitutional vision depart from that endorsed in the United States.
Canadian courts have proved that they are prepared to provide
freedom of expression expansive coverage.