Baier: Restraints on meaning of ‘expression’?
As a student in a first-year Constitutional Law class, we learn that there is typically a low threshold for what constitutes “expression” in s. 2(b) Charter jurisprudence. In a case for infringement of freedom of expression, we learn that typically getting recognition of a behaviour as “expression” is the easier part, and that convincing a court that it’s not justified under s. 1 is the more difficult part. But with the Supreme Court of Canada’s (“SCC”) decision last Friday in Baier v Alberta,  2 SCR 673 [Baier], it seems there may be a sentiment at the SCC that this may be changing.
In Baier, members of Alberta Teacher’s Association challenged the constitutionality of amendments made to the Local Authorities Election Act, RSA 2000, c L 21, s. 22. Before the enactment of these amendments (formally the School Trustee Statutes Amendment Act, 2002), school employees were only prevented from running for school trustee positions in jurisdictions where they worked. Afterwards, the restrictions extended to preclude candidacy for any school board position across the province unless the employee chose to resign from his or her position. Because remuneration for a school trustee position is quite low, the claimants claimed that this effectively nullified their ability to run for a school trustee position, and as such, infringed upon their freedom to express themselves in that manner.
On its way to the SCC, the Court of Queen’s Bench found that the amendments violated s. 2(b) of the Charter and weren’t justified under s. 1. In contrast, the Court of Appeal found that the amendments neither violated s. 2(b) nor s. 15(1) of the Charter.
The SCC addressed the claims under both sections of the Charter, but I will only address the s. 2(b) claims here. For that claim, the 5-member majority relied heavily on the precedent set in Haig v Canada,  2 SCR 995, where it was found that the government has no positive obligation to provide a statutorily-enabled platform of expression. From that premise, the court reasoned that since the ability to run for a school trustee position is enabled through the School Act, RSA 2000, c S-3, the action of the government in changing who is able to run for this position was just a removal of a platform that these individuals once had, and not an infringement of an inherent constitutional right. The court went on further to say that the exception to this rule found in Dunmore v Ontario (Attorney General),  3 SCR 1016 was not made out. Rothstein J. writes,
The consistent approach of this Court has been to characterize a claim such as the appellants’ as a claim to a platform for expression, which engages s. 2(b). The platform approach strikes an appropriate balance by maintaining this Court’s traditional broad approach to freedom of expression, without constitutionalizing a positive obligation on governments to provide platforms of expression except in unusual circumstances. I have found that such unusual circumstances are not present in the appellants’ case (para 60).
The telltale passage with regards to the definition of “expression” is in the concurring opinion of 3 members of the court, where Lebel J. considers the vast landscape of activity that has been considered “expression.” He writes,
Nearly everything people do creates opportunities for expression if ‘expression’ is viewed expansively enough. … At some point, one must question whether the guarantee of freedom of expression should be viewed so broadly that every human activity with a communicative content might be swept under it. The recourse to the notion of ‘platforms of expression’ and the reliance on the sometimes delicate distinction between positive and negative rights evidence the concerns arising from such a broad definition of freedom of expression and application of s. 2(b) of the Charter (para 76).
While Fish J. still voiced a strong dissent, and this concurring opinion was only shared by 3 judges, it seems that there may be the beginnings of a sentiment that the scope of what falls within the definition of “expression” for s. 2(b) may indeed be too broad. Though this case may very well just be just a bump in the road in a long line of cases for broad readings of “expression,” it will be interesting to see if Lebel J.’s concerns spread to other members of the court in future s. 2(b) cases, especially if broader types of activities are brought under s. 2(b) scrutiny.
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