John Milton asked in his pamphlet Areopagitica, published in England in 1644, for “the liberty to know, to utter and to argue freely, according to conscience, above all liberties”.¹ Freedom of expression continues to be directed towards these goals. The democratic tradition recognizes the right to know, to speak and to express opinions without first seeking the permission of authorities and without the risk that the law will be used to forbid or punish the exercise of the right. The understanding is that free expression is so fundamental to democratic societies that it can be limited only for clear and...

The freedom of expression in theConstitution Act, 1982, is not, strictly speaking, the product of positive law. Although now sanctioned by the “supreme law of Canada”, the fundamental freedoms have been understood historically as areas of human behaviour and action with which the State may not interfere. Put differently, there has been an historical understanding in liberal democracies that the State cannot enact statutes to create such freedoms; they are presumed to exist outside the domain of the legislated order. The State’s responsibilities begin at the point where the exercise of such freedoms threatens an equally fundamental social interest....

The courts are public institutions. Their business is public business. Accordingly, there is a tradition in common law countries that the courts will remain open to the public and, subject to certain rules, what happens in them may be fully described in the media. The Constitution of Canada contains expressions of these principles. They are implied in the guarantees of freedom of the press in section 2(b) of the Charter, and explicit in section 11(d) which says that a person charged with an offence has the right “to be presumed innocent until proven guilty in a fair and public hearing...

The laws protecting religious belief, minority groups and morality belong conceptually to criminal libel. Just as the law of seditious libel was used historically to protect the legitimacy (or the reputation) of the State and its institutions, the law of blasphemous libel has been used to protect the name of the Divine. Just as the law of seditious libel was used to prohibit incitements to riot, modern hate propaganda law is intended to prevent incitements which could harm racial or ethnic groups. The laws relating to obscene libel exist partly to promote standards of conduct and belief, but also to...

While many of the limitations on freedom of expression are found in the criminal law, some are also found in the civil law of the provinces.

The most important part of the provincial law affecting freedom of expression and, more particularly, the freedom of journalists is the law of civil defamation. The common law and provincial defamation statutes confer on individuals a right to sue journalists or others who publish or broadcast material which unjustifiably damages their reputation.

Defamation encompasses the two sub-categories of libel and slander. Since libel is the part of the law which directly affects journalists, the...