The point of departure for the journey ahead is the journey behind, from 1982 to 2012. This reflection describes section 2(b)’s journey in the first 30 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 section 2(b) but readily upheld content-based limits under section 1 by deferring to perceptions — both legislative and judicial — that certain expressive activities are harmful. Meanwhile, the status of the press and media under section 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 30 years, this reflection looks ahead — to offer a more holistic view of section 2(b) which highlights process values, and to outline the steps that must be taken to demonstrate that the Charter’s guarantees of expressive and press freedom truly matter.
"A Reflection on Section 2(b)’s Quixotic Journey, 1982-2012."
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
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