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Charter - s.2(b) Freedom of Expression (5). Canada (Attorney General) v. Canadian Civil Liberties Association [freedom of expression]
In Canada (Attorney General) v. Canadian Civil Liberties Association (Fed CA, 2026) the Federal Court of Appeal dismissed a federal AG JR, this brought against "the Federal Court’s finding that the declaration of a public order emergency was unreasonable and that some provisions of the Regulations and of the Economic Order violated the Charter", here where the emergency order was made under the federal Emergencies Act.
The court considered the implication for the Emergency Act Regulations as they bear on Charter s.2(b) ['freedom of expression'], which the Federal Court found wanting under Charter s.1 and the Federal Court of Appeal agreed with:(2) Paragraph 2(b) of the Charter
[298] Paragraph 2(b) of the Charter provides that everyone has "“freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication”". At issue here is subsection 2(1) of the Regulations, which provides that "“[a] person must not participate in a public assembly that may reasonably be expected to lead to a breach of the peace”" in various ways, including by "“the serious disruption of the movement of persons or goods or the serious interference with trade”". Also prohibited is "“the interference with the functioning of critical infrastructure”" and "“the support of the threat or use of acts of serious violence against persons or property”".
[299] Subsection 4(1) of the Regulations is also in issue. It provides that "“[a] person must not travel to or within an area where an assembly referred to in subsection 2(1) is taking place”". The respondents also challenge section 5 of the Regulations, which states that "“[a] person must not, directly or indirectly, use, collect, provide[,] make available or invite a person to provide property to facilitate or participate in any assembly referred to in subsection 2(1) or for the purpose of benefiting any person who is facilitating or participating in such an activity”".
[300] The Federal Court found that the impugned provisions of the Regulations were overbroad to the extent that they captured peaceful protesters who simply wanted to support the protest by standing on Parliament Hill carrying a placard ("“peaceable protesters”").
[301] Although such individuals would not likely have been the focus of enforcement efforts by the police, they could nevertheless have been subject to enforcement actions under the Regulations in the same way as someone who parked their truck on Wellington Street and behaved in a manner that could reasonably be expected to lead to a breach of the peace. This led the Federal Court to find that the right to freedom of expression of individual protesters who did not participate in the disruption of the peace was thus infringed.
[302] Insofar as the section 1 justification was concerned, the Federal Court found that the GIC had a pressing and substantial objective in enacting the Regulations, and that they were rationally connected to the goal of ending the blockades. The Court nevertheless found that the AGC had not established that protesters’ right to freedom of expression had been infringed "“as little as is reasonably possible”" within a range of reasonable options leaving a reasonable margin of actions available to the state: Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37 [Hutterian Brethren] at para. 194. At paras 303-382 the Court of Appeal walks through it's own analysis, largely agreeing with the Federal Court's conclusions (above).
. Canada (Attorney General) v. Canadian Civil Liberties Association [freedom of expression and the Emergency Act]
In Canada (Attorney General) v. Canadian Civil Liberties Association (Fed CA, 2026) the Federal Court of Appeal dismissed a federal AG JR, this brought against "the Federal Court’s finding that the declaration of a public order emergency was unreasonable and that some provisions of the Regulations and of the Economic Order violated the Charter", here where the emergency order was made under the federal Emergencies Act (EA).
The court considers whether breaches of Charter of s.2(b) ['freedom of expression'] were justified under Charter s.1, here in this national security EA and political speech context:(iv) Step 3: Can the limitation on protesters’ freedom of expression imposed by the Regulations be justified under section 1 of the Charter?
[354] Section 1 of the Charter provides that rights protected by the Charter may be subject to "“reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”".
[355] To the extent that some forms of participation in the Convoy protests could be considered to be protected forms of political expression, the AGC submits that the Federal Court erred in finding that the limits placed on such expressive rights by the Regulations were not justified under section 1 of the Charter. The AGC says that the Regulations were a proportional means of achieving the government’s goal, which was to bring about a peaceful end to the unlawful occupations and blockades with their significant adverse impacts, and to prevent their recurrence.
[356] The party seeking to uphold a limitation on a right or freedom guaranteed by the Charter bears the burden of demonstrating on a balance of probabilities that the infringement is justified: R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103, [1986] S.C.J. No. 7 [Oakes] at paras. 66–67. We understand the parties to agree that the test to be applied in determining whether the Regulations are saved by section 1 of the Charter is that first articulated by the Supreme Court in Oakes.
[357] That is, to establish a section 1 justification, the AGC must demonstrate that the objectives of the Regulations were pressing and substantial. The AGC must further demonstrate that the impairment of the rights at issue was proportional to the importance of those objectives, in that the means chosen were rationally connected to the objectives of the Regulations, and that they impair the Charter rights minimally or "“as little as possible”": R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. 295, [1985] S.C.J. No. 17 at para. 139. That is, whether "“the law falls within a range of reasonable alternatives”": see RJR-MacDonald Inc. v. Canada (Attorney General), 1995 CanLII 64 (SCC), [1995] 3 S.C.R. 199, [1995] S.C.J. No. 68 [RJR-MacDonald Inc.] at para. 160.
[358] The proportionality inquiry attempts to guide the balancing of competing individual and group interests protected by section 1 of the Charter: Keegstra at para. 42.
[359] The infringing measures must, moreover, be justified based on a "“rational inference from evidence or established truths”": RJR-MacDonald Inc. at para. 128. Bare assertions will not suffice: evidence, supplemented by common sense and inference, is needed: Sharpe at para. 78.
[360] There is no real dispute between the AGC and most of the respondents that the Government had a pressing and substantial objective in enacting the Regulations, namely clearing out the blockades that had formed as part of the protests. The CCF and CCLA further acknowledge that the Regulations were rationally connected to the goal of ending the blockades. The issue that divides the parties is whether the measures set out in the Regulations were minimally impairing, that is, whether protesters’ right to freedom of expression was infringed as little as is reasonably possible.
[361] The AGC notes that properly characterizing the Regulations’ objective is essential in assessing the proportionality of the means chosen to achieve them. Here, however, the Federal Court went no further than describing the purpose of both the Regulations and the Economic Order as being "“to clear out the blockades that had formed as part of the protest”". Although the Federal Court accepted that this purpose was pressing and substantial and that the measures chosen by the GIC were rationally connected to it, the AGC says that the Court’s failure to appreciate how the measures operationalized it compromised its analysis.
[362] As noted earlier, the AGC contends that the Federal Court erred in finding that the Regulations were not proportional, as section 1 of the Charter "“does not demand that the limit on the right be perfectly calibrated, judged in hindsight, but only that it be ‘reasonable’ and ‘demonstrably justified’”": Hutterian Brethren at para. 37. It is also not necessary to show that Parliament adopted the least restrictive means of achieving its goal in order to establish that the measures taken minimally impaired the rights in issue. Rather, it will be sufficient if the means adopted fall within a range of reasonable solutions to the problem confronted, leaving a reasonable margin of actions available to the state.
[363] The AGC submits that, to the extent that the Regulations limited protesters’ right to freedom of expression, the measures chosen by the GIC in this case were minimally impairing as any such limit was minimal, temporary, and justified in light of the unique urgency and circumstances of the unfolding public order emergency.
[364] The Supreme Court tells us, however, that a law must "“be reasonably tailored to its objectives”" and that "“it must impair the right no more than reasonably necessary, having regard to the practical difficulties and conflicting tensions that must be taken into account”": Sharpe at para. 96 [underlining in the original].
[365] As noted, the AGC submits that the Regulations were carefully tailored and fell within the range of reasonable alternatives for practically resolving the blockades and occupations. According to the AGC, the Federal Court erred by failing to consider whether, at the relevant time, the GIC reasonably considered that the protests could spread, and that national measures were necessary. Instead, the AGC says the Federal Court came to its own hindsight-driven conclusion, without affording the GIC the deference required under section 1 of the Charter.
[366] As a result of the occupation, many government functions were undermined and conditions in downtown Ottawa had become intolerable due to the blockade. Considering this, the AGC says that the Federal Court erred by requiring the GIC to have accepted options that would have been less effective in achieving the Regulations’ objectives, and that it was necessary for all individuals to be removed and denied further access to protest sites in order to ensure a safe and effective resolution that would re-establish public order permanently.
[367] Moreover, where, as here, the interests and rights of the parties conflicted, the AGC says that it was not open to the Federal Court to intervene merely because, with the benefit of hindsight, it thought of better, less intrusive ways to manage the problem. The Federal Court erred by failing to accord deference where the means chosen by the GIC fell within a range of reasonable solutions to the problem confronted. Peaceable protesters were free to protest outside of the restricted areas, and once order had been re-established and the Proclamation was revoked, peaceable protesters were once again able to resume their protests on Parliament Hill.
[368] In light of these considerations, the AGC says that the Regulations were minimally impairing, and their collective benefit outweighed any deleterious effects that they may have had. As a result, any limitation of protestors’ paragraph 2(b) right to freedom of expression was proportional and justified under section 1 of the Charter.
[369] The respondents submit that one less-impairing way to have achieved the government’s goal would have been to limit the geographic reach of the Regulations to the places where protests actually existed, instead of having them apply nationally. For example, the reach of the Regulations could have been limited to Ontario, which faced the most intransigent situations. While this was the case at the time that the Regulations were enacted, the AGC submits that the Government could not have assumed that the situations would remain constant.
[370] We agree, but note that even if the GIC could not have known on February 15, 2022, that existing legislative tools were proving effective in Alberta, or have known with any degree of certainty that the border blockade at Coutts had in fact been finally resolved by the time that the Emergencies Act was invoked and the Regulations enacted, there were other, less impairing alternatives that were available to the GIC.
[371] For example, the GIC would have known on February 15, 2022, that the geographic reach of the Regulations could have been limited to Ontario and Alberta, where protests had been most active. The Regulations could then have been amended to cover other jurisdictions in the future, if necessary. This is not a "“hindsight driven”" suggestion. The wording of the Emergencies Act specifically contemplates that public order emergencies do not need to be declared nationally, but can extend "“only to a specified area of Canada”": subsection 19(2).
[372] Another way that the Regulations could have been made less impairing would have been to limit their application to those individuals actually disrupting the flow of traffic or otherwise behaving in a manner that could reasonably be expected to lead to a breach of the peace. The GIC could have created an exception within the Regulations for peaceable protesters.
[373] As discussed earlier, while the Regulations captured protesters who parked their trucks on Wellington Street and refused to move, disrupting the flow of traffic or who otherwise behaved in a manner that could reasonably be expected to lead to a breach of the peace, the Regulations also caught peaceable protesters. The Regulations were clearly not minimally impairing as they related to these individuals.
[374] That is, the GIC could have achieved the federal government’s goal by limiting the reach of the Regulations to participants in the blockades themselves, instead of creating a prohibition on participating in a protest that involved a blockade. Rather than prohibiting participation in a protest that involved a blockade, the GIC could have prohibited the creation of blockades, tying its prohibition to the act of interrupting the normal flow of traffic, differentiating peaceable protesters from those creating blockades.
[375] Indeed, prohibiting the creation of blockades was the approach taken in Nova Scotia and Ontario in their emergencies measures responses, both of which were enacted prior to February 15, 2022.
[376] Nova Scotia’s Highway Blockade Ban (Direction of the Minister under a Declared State of Emergency (Section 14 of the Emergency Management Act) (22-002) (dated January 28, 2022)) tied its prohibition to the specific act of interrupting the "“normal flow of vehicle traffic”", differentiating those who were peacefully protesting the government from those who were creating blockades and disrupting traffic. The directive also refrained from imposing criminal sanctions. Instead, it created fines of between $3,000 and $10,000 for individuals and $20,000 and $100,000 for corporations.
[377] Ontario’s emergency regulation similarly limited the prohibitions to those actually engaged in the specific harm of blockades. The Critical Infrastructure and Highways Regulation, O. Reg. 71/22, prohibited people from impeding access to critical infrastructures and highways, giving police the power to order a person to move or to remove objects such as trucks, if they had reasonable grounds to believe that the person was contravening the Regulation. If the person failed to comply, police could remove the object.
[378] The Federal Court thus did not err in finding that the limitations on freedom of expression created by subsection 2(1) of the Regulations had not been justified under section 1 of the Charter, as the scope of the Regulations was overbroad, and thus not minimally impairing.
[379] Section 4 of the Regulations was similarly overbroad. It captured peaceable protesters who simply walked over to a public assembly where others were disrupting the movement of traffic, even if they had no intention of helping or joining in the disruption of movement. These individuals were caught by the Regulations and subject to up to five years imprisonment, not because of anything they were doing but because they were at the same event as other people who either were breaching or might breach the peace.
[380] Moreover, by prohibiting anyone from providing "“property”" to those participating in a "“public assembly”", section 5 of the Regulations caught people who provided food or water to peaceable protesters, while others were disrupting traffic, once again limiting the expressive rights of people who had done nothing to breach the peace.
[381] The minimal impairment analysis does not ask whether the GIC chose the "“most effective”" option for achieving its objective. Indeed, "“the court need not be satisfied that the alternative would satisfy the objective to exactly the same extent or degree as the impugned measure”": Hutterian Brethren at para. 55. It asks instead whether there was another option, less impairing of Charter rights, that was "“sufficient”".
[382] As explained above, there were a number of options open to the GIC that would have been less broad, and less impairing of individuals’ expressive rights. Consequently, the AGC has failed to establish that the Regulations were minimally impairing, or that their collective benefit outweighed any deleterious effects that they may have had. As a result, the breach of protestors’ paragraph 2(b) right to freedom of expression was not justified under section 1 of the Charter. . Canada (Attorney General) v. Canadian Civil Liberties Association [political expression]
In Canada (Attorney General) v. Canadian Civil Liberties Association (Fed CA, 2026) the Federal Court of Appeal dismissed a federal AG JR, this brought against "the Federal Court’s finding that the declaration of a public order emergency was unreasonable and that some provisions of the Regulations and of the Economic Order violated the Charter", here where the emergency order was made under the federal Emergencies Act.
The court sets out steps for a s.2(b) 'freedom of expression' test from Irwin Toys, in this political expression and national security context:[327] The Supreme Court held in Irwin Toy that the first step in the paragraph 2(b) analysis requires that a court determine whether the activity being regulated falls within the sphere of conduct protected by freedom of expression. If the activity being regulated has expressive content and does not convey a meaning through a violent form, it is prima facie protected by paragraph 2(b) of the Charter: Irwin Toy at para. 41.
[328] The second step in the Irwin Toy analysis requires the court to determine whether the purpose or effect of the government action in question is to restrict freedom of expression: at para. 45. If it does, a breach of paragraph 2(b) is made out: Irwin Toy at para. 55. The third step in the analysis is then whether the breach of freedom of expression has been justified under section 1 of the Charter: Weisfeld v. Canada, 1994 CanLII 3503 (FCA), [1995] 1 F.C. 68, 116 DLR (4th) 232 (FCA) [Weisfeld] at para. 42.
(ii) Step 1: Does the activity being regulated fall within the sphere of conduct protected by freedom of expression?
[329] In determining whether there had been a violation of the right to freedom of expression, a court must first determine whether the activity in question falls within the protected sphere of expression.
[330] In assessing whether something constitutes "“expression”", paragraph 2(b) is content-neutral: that is, it does not consider the worthiness of the opinion in question. The purpose of protecting freedom of expression is "“to ensure that everyone can manifest their thoughts, opinions […] however unpopular, distasteful or contrary to the mainstream”" they may be: Ward v. Quebec (Commission des droits de la personne et des droits de la jeunesse), 2021 SCC 43 at para. 59, citing Irwin Toy at para. 41. The only exception to this broad protection is for expressive acts involving or threatening violence.
[331] As noted, the AGC submits that while activities that are purely physical—such as blockades that operate through physical coercion—might bolster or supply infrastructure for a protest, they do not themselves convey meaning. Consequently, they are not expressive activities within the scope of paragraph 2(b) of the Charter: Irwin Toy at para. 41. The Regulations only prohibited participation in public assemblies that might reasonably be expected to breach the peace by disrupting the movement of persons or goods, by seriously interfering with trade or with critical infrastructure, or by supporting the threat or use of serious violence. According to the AGC, such actions are not constitutionally protected or free from reasonable limits.
[332] However, contrary to the AGC’s contention that "“purely physical”" activities are not expressive, the Supreme Court has recognized that subject only to narrow exceptions, paragraph 2(b) of the Charter captures "“any activity or communication that conveys or attempts to convey meaning”": Thomson Newspapers at para. 81, citing Libman v. Quebec (Attorney General), 1997 CanLII 326 (SCC), [1997] 3 S.C.R. 569, [1997] S.C.J. No. 85 at para. 31; Canadian Broadcasting Corp. v. Canada (Attorney General), 2011 SCC 2 at para. 34.
[333] In Irwin Toy, the Supreme Court recognized that paragraph 2(b) of the Charter guarantees freedom of expression, and not just freedom of speech, and that activities will be expressive if they attempt to convey meaning. Indeed, the Supreme Court specifically identified illegal or unauthorized parking as an example of non-verbal activity that could qualify as expressive if the rights claimant could demonstrate that the activity was performed to convey or to attempt to convey a meaning: Irwin Toy at paras. 41, 42. That is clearly the case here.
[334] The symbolic location of protests at border crossings and on the street in front of Parliament Hill also cannot be overlooked as it too conveyed meaning: Weisfeld at para. 29. This is because "“the dissemination of an idea is most effective when there are a large number of listeners”" and that "“the economic and social structure of our society is such that the largest number of individuals, or potential listeners, is often to be found in places that are state property”": Committee for the Commonwealth of Canada at para. 11. State property such as border crossings and Parliament Hill are thus ideal locations for persons wishing to communicate ideas.
[335] Given this, we are satisfied that the protests and blockades at issue in this case were activities that clearly attempted to convey meaning and constituted "“expression”" within the meaning of paragraph 2(b) of the Charter.
[336] Having found that the protesters’ activities constituted "“expression”", the next question is whether there were circumstances that would warrant removing the expressive activities from the sphere protected by paragraph 2(b): Irwin Toy at para. 52.
[337] Although the Charter provides robust protection for protest activities, not all activities associated with protests fall within the scope of section 2 freedoms, including freedom of expression. As noted earlier, violent expression and expression that threatens violence is not protected by paragraph 2(b) of the Charter: Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11 at para. 112; Greater Vancouver Transportation Authority v. Canadian Federation of Students—British Columbia Component, 2009 SCC 31 at para. 28; Dolphin Delivery at para. 20.
[338] Like violence itself, threats of violence "“undermine the very values and social conditions that are necessary for the continued existence of freedom of expression”" and "“take away free choice and undermine freedom of action”", undermining the rule of law: R. v. Khawaja, 2012 SCC 69 [Khawaja] at paras. 67 and 70.
[339] Protests are inherently disruptive: indeed, that disruption is part of the expression. Protesting is "“a well-established expressive activity”": Figueiras at para. 69. It has also been said that "“the right to protest government action lies at the very core of the guarantee of freedom of expression”": Ontario Teachers’ Federation at para. 34.
[340] Moreover, as the Court of Appeal for Ontario has confirmed, "“a protest does not cease to be peaceful simply because protestors are loud and angry”": Bracken v. Fort Erie (Town), 2017 ONCA 668 at para. 51.
[341] The AGC says that the Regulations did not violate paragraph 2(b) of the Charter because they sought to end blockades and disruptive protest activity that fell outside its protection. The Regulations did more than that, however: they sought to end the blockades and disruptions by stamping out entire protests—affecting those involving violent acts as well as protesters engaged in entirely peaceful, non-violent activities.
[342] That is, the Regulations prohibited peaceful political protests, inhibiting basic and essential forms of non-violent democratic participation, including those involving protesters in Ottawa who chanted, carried signs, and expressed their political beliefs and opinions in an entirely peaceful manner. Moreover, as the respondents observed, the Regulations did more than simply prohibit the creation of blockades: they also prohibited attendance at a protest where a blockade might occur, regardless of what individuals were actually doing at the protest.
[343] It is true that some protesters did breach the peace by blockading downtown Ottawa, disturbing the peace with incessant noise from truck horns, train-type whistles, late night street parties, fireworks and constant megaphone-amplified cries of "“freedom”". While undoubtedly disruptive and very annoying to residents of downtown Ottawa, this was non-violent expressive activity that manifestly attempted to convey protesters’ dissatisfaction with the federal government’s Covid policies.
[344] However, as the Federal Court found, the Regulations did not just catch people involved in non-peaceful activities such as those described in the previous paragraph, they also caught peaceable protesters. Such individuals would violate section 2 of the Regulations through their mere presence at a protest in a non-violent capacity. These individuals could, moreover, have been subject to enforcement actions as much as someone who parked their truck on Wellington Street, or otherwise engaged in conduct that could lead to a breach of the peace.
[345] The Regulations thus criminalized mere attendance at the protests by anyone, whether or not they participated in the violent conduct or otherwise breached the peace. By criminalizing the entire protest, the Regulations limited the expressive rights of protestors who wanted to convey their dissatisfaction with Government policies in a peaceful, non-violent manner.
[346] The actions of such individuals did not warrant removing their expressive activities from the protected sphere under paragraph 2(b) of the Charter, as their activities did not convey meaning through a violent form. Their expressive activities were therefore prima facie protected by paragraph 2(b): Irwin Toy at para. 41.
(iii) Step 2: Does the purpose or effect of the Regulations restrict freedom of expression?
[347] The second step in the Irwin Toy analysis requires the court to determine whether the purpose or effect of the government action in question was to restrict freedom of expression: Irwin Toy at para. 45.
[348] As discussed in the previous section of these reasons, the effect of the Regulations was to criminalize attendance at public assemblies that may reasonably be expected to lead to a breach of the peace by anyone, including peaceable protesters.
[349] By criminalizing entire protests, the Regulations did not just limit the right to freedom of expression of those who were engaged in activities that breached the peace. They also limited the right to freedom of expression of protestors who wanted to convey their dissatisfaction with Government policies in a peaceful, non-violent manner, who did not intend to participate in the blockades or otherwise disrupt the movement of traffic or the functioning of critical infrastructure, and who did not support the threat or use of acts of serious violence against persons or property. Such individuals were nevertheless violating section 2 of the Regulations through their simple presence at a public assembly where a breach of peace was happening or might reasonably have happened or might happen in the future. The purpose and effect of the Regulations were thus to restrict the freedom of expression of such individuals.
[350] The restriction on travel contained in section 4 of the Regulations was similarly overbroad, capturing individuals who simply walked over to a public assembly where others were disrupting the movement of traffic or otherwise disrupting the peace, even if the individual had no intention of helping or joining in with the disruption of movement. Once again, such individuals were subject to prosecution, even if all they wanted to do was to stand quietly on public property in solidarity with other protesters.
[351] Moreover, by prohibiting anyone from providing "“property”" to those participating in such a broadly defined "“public assembly,”" section 5 of the Regulations caught anyone who gave food or water to people standing peacefully on Parliament Hill while others were disrupting traffic or otherwise breaching the peace. It also caught anyone who donated funds in support of peaceable protesters who were adding their voices in support of the goals of the protests—clearly an expressive act.
[352] The purpose or effect of the Regulations was thus clearly to restrict the freedom of expression of these individuals. . Canada (Attorney General) v. Canadian Civil Liberties Association [political speech]
In Canada (Attorney General) v. Canadian Civil Liberties Association (Fed CA, 2026) the Federal Court of Appeal dismissed a federal AG JR, this brought against "the Federal Court’s finding that the declaration of a public order emergency was unreasonable and that some provisions of the Regulations and of the Economic Order violated the Charter", here where the emergency order was made under the federal Emergencies Act.
Here the court considers basics of Charter s.2(b) 'freedom of expression', here focussing on political speech:(i) Paragraph 2(b) of the Charter and Political Expression
[321] Freedom of expression is one of the four fundamental freedoms guaranteed by section 2 of the Charter.
[322] While paragraph 2(b) of the Charter guarantees freedom of expression, freedom of expression is not just a creation of the Charter. It is, rather, "“one of the fundamental concepts that has formed the basis for the historical development of the political, social and educational institutions of western society”": RWDSU v. Dolphin Delivery Ltd., 1986 CanLII 5 (SCC), [1986] 2 S.C.R. 573, [1986] S.C.J. No. 75 [Dolphin Delivery]. Indeed, representative democracy "“is in great part the product of free expression and discussion of varying ideas”": both quotes at para. 12.
[323] Freedom of expression is described in section 2 of the Charter as a "“fundamental freedom”" "“because in a free, pluralistic and democratic society we prize a diversity of ideas and opinions for their inherent value both to the community and to the individual”": Irwin Toy at para. 41. Indeed, freedom of expression has been described as "“a necessary feature of modern democracy”": Dolphin Delivery at para. 14.
[324] The Supreme Court has further held that "“[t]he connection between freedom of expression and the political process is perhaps the linchpin of the s. 2(b) guarantee”", and that "“the nature of this connection is largely derived from the Canadian commitment to democracy”": R. v. Keegstra, 1990 CanLII 24 (SCC), [1990] 3 S.C.R. 697, [1990] S.C.J. No. 131 [Keegstra] at para. 89. The Supreme Court has, moreover, repeatedly held that "“liberal democracy demands the free expression of political opinion, and [has] affirmed that political speech lies at the core of the ""Canadian Charter of Rights and Freedoms’"" guarantee of free expression”": Harper v. Canada (Attorney General), 2004 SCC 33 [Harper] at paras. 1, 47, 66 and 84.
[325] Indeed, the Supreme Court has stated that "“[p]olitical speech […] is the single most important and protected type of expression”", that "“lies at the core of the guarantee of free expression”": Harper at para. 11 [our emphasis], citing R. v. Guignard, 2002 SCC 14 at para. 20; Sharpe at para. 23; Thomson Newspapers Co. v. Canada (Attorney General), 1998 CanLII 829 (SCC), [1989] 1 S.C.R. 877, [1998] S.C.J. No. 44 [Thomson Newspapers] at para. 92; Committee for the Commonwealth of Canada v. Canada, 1991 CanLII 119 (SCC), [1991] 1 S.C.R. 139, [1991] S.C.J. No. 3 [Committee for the Commonwealth of Canada] at p. 175; Edmonton Journal v. Alberta (Attorney General), 1989 CanLII 20 (SCC), [1989] 2 S.C.R. 1326, [1998] S.C.J. No. 124 at p. 1336; Irwin Toy at para. 41.
[326] Given the importance of political speech and its place at the core of the freedom of expression guaranteed by paragraph 2(b) of the Charter, it "“warrants a high degree of constitutional protection”": Harper at para. 84, and can be restricted only for the most substantial and compelling reasons. Broad protection is, moreover, required at the paragraph 2(b) stage, as governments can limit freedom of expression where they can justify the limitation under section 1 of the Charter: Montréal (City) v. 2952-1366 Québec Inc., 2005 SCC 62 at para. 79.
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