Speak Up or Shut Up? - Free Speech

Freedom of expression is one of the hallmarks of a free and democratic society. Since 1982 it has been formally enshrined in the Canadian Charter of Rights and Freedoms (the “Charter”) at section 2(b) as one of the “fundamental freedoms”. Section 2(b) protects freedom of thought, belief, opinion, and expression, and protects a free press and other forms of media. Local governments might feel the lofty protection to be somewhat remote and perhaps rarely to be encountered in their functions. However, as the authors hope to make clear, there are a lot of ways in which local governments may limit expressive behaviour.

George Orwell once wrote, in an unpublished preface to Animal Farm:

If liberty means anything at all, it means the right to tell people what they do not want to hear.

Despite his decision to excise that phrase in the editing process, the authors of this paper intend to use Orwell’s words as a guide, as they describe the different ways that local government can impinge on expression, permissibly or not.

While this paper deals with numerous topics, it is broadly organized into two parts. First, we address local government regulation of expression “outside the council chamber”, touching on matters such as signs and panhandling. Second, we address speech “inside the council chamber”, by both elected individuals and members of the public. One highlight is codes of conduct, which many local governments have begun to adopt and amend, and which can have a significant impact on free expression. Before we turn to these matters, however, we begin with a refresher on what it means for freedom of expression to be constitutionally protected.

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