What does Section 2(b) of the Charter protect?
Answer
Freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.
Explanation
Section 2(b) of the Canadian Charter of Rights and Freedoms protects freedom of expression. The full text reads: 'Everyone has the following fundamental freedoms: (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication'. Section 2(b) is one of the broadest Charter rights and protects most forms of human expression, verbal, written, artistic, and gestural.
The Supreme Court of Canada set out the test for section 2(b) in Irwin Toy Ltd. v. Quebec (Attorney General) (1989). Any activity that conveys or attempts to convey meaning is protected expression, with two exceptions: violent expression and threats of violence. Government action infringes section 2(b) if its purpose or effect is to restrict expression. The Crown must then justify the infringement under section 1 using the Oakes test. Section 2(b) was central to Edmonton Journal v. Alberta (1989, court openness), Ford v. Quebec (1988, language of commercial signs), and RJR-MacDonald Inc. v. Canada (1995, tobacco advertising).
Section 2(b) does not protect every form of harmful expression. The Criminal Code prohibits hate propaganda (sections 318 to 320), uttering threats (section 264.1), criminal harassment (section 264), defamatory libel (sections 297 to 317, rarely prosecuted), and obscenity (section 163). The Supreme Court upheld hate-propaganda provisions in R. v. Keegstra (1990) and R. v. Andrews and Smith (1990). Saskatchewan (Human Rights Commission) v. Whatcott (2013) upheld provincial hate-speech provisions while reading down the Saskatchewan code's ridicule provision.
Modern section 2(b) cases involve protests, online expression, and election-campaign restrictions. Harper v. Canada (Attorney General) (2004) upheld third-party election spending limits. Bracken v. Fort Erie (2017) addressed anti-protest injunctions. Ontario (Attorney General) v. G (2020) addressed sex-offender registry disclosure. The federal Online News Act (Bill C-18, in force December 2023) and the Online Streaming Act (Bill C-11, 2023) have generated section 2(b) debate over the regulation of internet platforms. Recent provincial uses of the section 33 notwithstanding clause (Quebec's Bill 21 and Bill 96, Ontario's Bill 28) have shielded laws from section 2(b) challenge.
Why this matters for your test
Freedom of expression is the most-litigated of the Charter freedoms and shapes everything from journalism to street protest. Recognising section 2(b) and the 1989 Irwin Toy test gives candidates a precise answer.
Source: Department of Justice Canada; Canadian Charter of Rights and Freedoms, s. 2(b)
