Concept 5: Freedom of Expression

Section 2

The guarantees of fundamental freedoms are very important aspects of our democracy and carefully guarded by citizens and courts.

2(b) Freedom of Expression

  1. Everyone has the following freedoms:
    • b) freedom of thought, belief, opinion, and expression, including freedom of the press and other media communication

The s. 2(b) protection of freedom of expression protects everyone's right to hold any opinion or belief and to express those beliefs, through their words, actions or any other means of expression so long as the expression is not violent in form or in content. An assault on another person would not be defendable as an expression deserving protection. However any non-violent expression is deserving of protection under s.2(b). Infringement of this right is frequently justified under s.1 to protect the safety of others, or to promote and maintain an orderly society.

School Context i

Freedom of expression issues arise in the school whenever a student expresses a view that is contrary to the educational goals of the school. This might include the censoring of a school newspaper, or the restriction of content in a school play. It may arise when a student chooses to express an opinion in class that perpetrates discrimination. Students' efforts to affect the content of the course or to communicate their ideas in an extracurricular event may also invoke their freedom of expression. Schools may choose to limit students' freedom of expression in order to ensure an orderly learning environment, to focus course material on particular topics, to protect other students, to limit criticism or to ensure age appropriate discussions for all students.

Elementary and secondary school educators are subject to Section 2(b) which can relate to the selection of reading material, as one example. In choosing appropriate learning materials for classes, school boards are often involved and must use government mandated guidelines. The criteria set forth states that recommended learning resources need to be "appropriate in terms of the age, maturity, and learning needs of the student" and needs to be "fair, free from gratuitous violence, propaganda and discrimination," among other things.ii

Material and substantial interference with the school order or other students justifies restrictions on speech. Lewd or offensive speech can also be limited because schools have a role in inculcating values and serving as role models for studentsiii. Written speech associated with school curriculum or classroom activity can be regulated by administrators. Canadian courts would potentially follow limitations that balance the right of students to express their opinion with the needs of schools to maintain order and protect students.

  1. Based on the work of Sarah McCoubrey and Greg Sitch, The Charter in the Classroom, presented at the CAPSLE conference, St. Andrew's by the Sea, New Brunswick 2002. This material is intended for legal education and is not legal advice. The authors do not take any responsibility for reliance on this material.
  2. Chamberlain v. Surrey School District No. 36, 2002 SCC 86, [2002] 4 S.C.R. at 32
  3. This statement that rights are not absolute has been addressed in a Canadian context, though not in relation to the school setting. In the 1984 case R. v. Keegstra (1984), 19 C.C.C. (3d) 254, at 260, the Supreme Court of Canada approvingly included the following statement from the 1966 report of the Special Committee on Hate Propaganda in Canada: "Because social progress seemed to be going hand in hand with the liberating of the individual from legal and social restraints in that period, people came to talk of individual freedoms as if it were an absolute rights subject to no limits at all. Recent History particularly in this century has shown that individual rights cannot be supported in absolute terms. An unlimited right to do what we like fosters anarchy and thus imperils organized social life… It is just as important in our way of life to maintain healthy society (which always imposes by custom and law some limits in what each of us may do) as it is to maintain individual freedom of expression and action.

Disclaimer - The resources presented in this learning tool, the Charter in the Classroom: Students, Teachers and Rights (CC: STAR) are included only to assist in the study of the Canadian Charter of Rights and Freedoms. They do not necessarily represent an endorsement of a position or issue, opinion or view of its contributors, the University of Ontario Institute of Technology, Inukshuk Wireless, the Ontario Justice Education Network, the Canadian Civil Liberties Education Trust or any of the people, organizations, or institutions affiliated with it.