History

For the past 40 years freedom of expression, including freedom of the press and other media of communication, has been entrenched as a fundamental freedom guaranteed to all persons under the Canadian Charter of Rights and Freedoms. The Supreme Court of Canada has repeatedly explained that the rationales underlying this freedom include democratic discourse, truth finding and self-fulfillment.

It is less well-known that freedom of expression in Canada predates the Charter. As the United Kingdom was a democracy at the time of Confederation, Canada, too, became a democracy. Thus, when Canada received “a constitution similar to that of the United Kingdom”, free expression was implied at Confederation and imported into our laws.

A democracy cannot function properly without freedom of expression and a free press. It is for this reason that in 1938, after Confederation but decades before the Charter was enacted, the Supreme Court of Canada struck down Alberta’s Accurate News and Information Act, which required newspapers to print “clarifications” on stories that the government deemed to be “inaccurate”. In his reasons for striking down the law, Justice Cannon stated that the foundation of a democracy is free inquiry and free discussion on all matters affecting the state. To survive, he wrote, a democracy requires “untrammeled publication of the news”.

Is Canada’s independent media under threat?

Presently, there are two government bills before the House of Commons which appear to interfere with Canada’s long history of free expression. One bill, the Online Streaming Act (Bill C-11), seeks to expand the authority of the CRTC by bringing streaming services within its regulatory framework. Some critics of this bill are concerned that the CRTC will control the comments Canadians post on social media sites like YouTube, and that these controls will extend to content produced by independent media companies who have, hitherto, operated outside of government regulations.

Another bill, the Online News Act (Bill C-18), will force digital platforms like Google to make financial payments to “eligible news businesses”. Some critics suggest that this bill will empower the government to determine which news outlets are “eligible news businesses”, reward legacy media companies for their lack of innovation and give them an unfair advantage over news organizations that will not meet the government’s eligibility test to receive payments. This concern is amplified by the fact that legacy media companies have already received hundreds of millions of taxpayer dollars from the federal government, which has caused some to question their independence.

Conclusion

Freedom of expression and a free media are crucial for the proper, healthy maintenance of Canada’s democracy. Laws which attempt to regulate the media through reward and punishment put our democracy at risk by preventing Canadians from comment and criticism of important social and political issues.