A Reflection on Section 2(b)’s Quixotic Journey, 1982-2012

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Supreme Court Law Review


journey, s.2(b), charter, quixotic, jurisprudence, s.1, court, justice


The point of departure for the journey ahead is the journey behind, from 1982 to 2012. This reflection describes s.2(b)’s journey in the first thirty years of the Charter as quixotic: principle led the way at times but too often and too easily was displaced by unsound methodologies. The expressive freedom jurisprudence developed an incoherent methodology that applied content neutrality under s.2(b) but readily upheld content-based limits under s.1 by deferring to perceptions – both legislative and judicial – that certain expressive activities are harmful. Meanwhile, the status of the press and media under s.2(b) remains unclear because the Court has been unwilling to constitutionalize the newsgathering function or acknowledge that interference with that function violates the Charter. By contrast, the Court’s response to open justice – which engages expressive and press interests – produced a methodology that gave strong protection to values of access, transparency, and accountability in the justice system. Having discussed the doctrinal patterns and anomalies of the first thirty years this reflection looks ahead – to offer a more holistic view of s.2(b) which highlights process values, and outline the steps that must be taken demonstrate that the Charter’s guarantees of expressive and press freedom truly matter.


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