Thank you, Madam Chair.
I'm grateful for the invitation to address the Standing Committee on Canadian Heritage and to express my esteem for Parliament and those who serve here for the common good.
Freedom of expression enjoys a prominent place in the Canadian Constitution and the fundamental freedoms of the charter. It is listed second, along with freedom of thought, belief, opinion and the press. Only the freedom of conscience and religion has a more important place in the charter.
The charter guarantee prevents governments from restricting expression. The usual way governments might do that is by statute, with citizens then seeking relief in the courts.
I wish to highlight other methods used by governments to limit freedom of expression. These are methods that make it more difficult or even impossible for citizens to seek relief in the courts. This represents a new danger to freedom of expression. I offer three methods.
The first method is the use of the government's spending power. The government might offer a benefit with conditions that limit fundamental freedoms. For example, such was the case with the Canada summer jobs program when initially the federal government program required applicants to attest that they assented to the government's views on abortion. For example, a landscaping business that otherwise took no public policy positions would have to assent to the government's view of Canada's abortion licence. Widespread objection led the government to revise the required attestation in an implicit recognition that the original requirement violated fundamental freedoms in subsections 2(a) and 2(b) of the charter.
A second danger arises from regulatory bodies that have been granted vast powers by the state. For example, professional accreditation and licensing bodies may use their power over citizens' livelihoods to restrict freedom of expression. The Jordan Peterson case has brought this to prominent attention, but the problem is older than his particular case. Medical professionals in particular face restrictions on freedom of expression, as well as other fundamental freedoms, for reasons of ideological conformity, not professional competence. This has been a particular problem in the health care field in relation to euthanasia.
The third way the state might restrict freedom of expression is by establishing and funding institutions that seek to restrict expression. For example, Kimberly Murray, the independent special interlocutor for missing children in unmarked graves and burial sites associated with Indian residential schools, has called for so-called “denialism” regarding burial sites to be subject to government sanction and even criminal penalty. That would include even asking scientific questions.
Having funded the interlocutor, the Attorney General at the time—this was June 2023—the Honourable David Lametti indicated his openness to deploying the criminal law in such manner. That is government directly supporting those who wish to restrict fundamental freedoms—in fact those the government itself set up and funded. It is true that Mr. Lametti was fired from the cabinet soon after that, but I don't think the two things were connected.
Those are three non-statutory ways in which the government could restrict freedom of expression that leave less redress for citizens to go to the courts. I look forward to your questions.
Thank you.