This last year has seen surprising developments throughout the Western world. Probably none is more surprising than the changes that have been the consequences of the election of American President Donald Trump. His daily Tweets (his preferred means of communicating White House policy it would seem) are often confusing, contradictory, and,…, well…, frankly concerning. Like many, I have found many of President Trump’s pronouncements troubling. They demonstrate to any who have the most basic comprehension of the proper functioning of western democracies that he does not understand or appreciate the importance of basic constitutional norms. Like freedom of the press. Or worse, like rule of law.
A recent decision of the Supreme Court of Canada regarding the Internet giant, Google, has delivered some very important lessons for future litigants in the field of cyber-speech. In Google Inc. v. Equustek Solutions Inc., 2017 SCC 34, the Court has delivered two two principal lessons:
1. If you are going to allege constitutional values or arguments, such as the importance of freedom of expression, ensure that you develop a full evidentiary record in support of your position;
2. The Court may well understand that there is a distinction between those who provide technology such as search engines and those who use it for the purposes of breaking the law.
In today’s Globe and Mail, Lawrence Martin has underscored the “crisis in journalism”. His opinion piece, “A crisis that cries out for a public inquiry”, presents an important question about the state of the “fourth establishment” and its role in democratic government. He describes the root of the problem as follows:
Today, we have a crisis in the journalism industry unprecedented in scope. A media implosion. Newspapers being reduced to digital editions, large numbers losing their jobs, circulation falling, ad revenues plunging, near monopoly ownership of big-city dailies, the old business model in a state of collapse.
He goes on to observe that “it’s a joke to think that a healthy democracy can be restored given the continuing depletion of the one industry that holds business and government to account”. He asks “[i]f traditional print journalism cannot be sustained, what fills the void?” Good question.
[image from endcyberbullying.org]
On Friday, Justice McDougall of the Nova Scotia Supreme Court ruled that Nova Scotia’s Cyber-Safety Act is unconstitutional, violating both s. 2(b) and s. 7 of the Charter. The Cyber-safety Act was passed in 2013 in response to the public outcry over the suicide death of a young woman, Rehtaeh Parsons, linked to her having been bullied on-line. In his 66 page judgment in Crouch v. Snell, 2015 NSSC 340, Justice McDougall held that the Nova Scotian legislature had gone too far in its attempt to address the dangers of cyberbullying.
On October 19, 2015, Canada goes to the polls. The hurly burly of the Canadian version of democracy has been on display since early August when Prime Minister Stephen Harper asked the Governor General to dissolve Parliament and to call this election. What many of us do not appreciate is that this spectacle is probably one of the best examples of our constitution at work.
Recently, last Friday March 6th in fact, I had the privilege of speaking about freedom of expression to the Association des juristes d’expression française de la Colombie britannique. Normally, I would take my speaking notes and just convert them into a blog post. This is not possible here because first, my notes were “en français” and second, I undoubtedly butchered that otherwise beautiful language. This is part of the reason why there has been a bit of a lull between posts – I have been too busy reactivating old French language brain cells to prepare a new post.
This post is another in the series of posts in which I have explored the new Internet Age realities that exist for freedom of expression (for the other posts see “Freedom of expression and copyright in the Internet – The new realities of a cyberspace inhabited by copycats” (January 24, 2014), “The Internet Turns 25 Years Old – the Courts and the World Wide Web” (March 19, 2014) and, “The iRevolution revisited: when you share, are you expressing?” (November 13, 2014). In this blog post, I advance the thesis that the protection of freedom of expression must include not only the protection of the things expressed but the modalities and, specifically the technological modalities, by which human expression is transmitted and received.
The recent attack on the Paris offices of Charlie Hebdo, a French magazine known for its cutting political satire, by militant jihadists on January 7, 2015 leaving a dozen dead and another dozen wounded has underscored the need for all those who value freedom of speech, freedom of the press and freedom of thought, conscience and opinion to stand up and be counted.
Speakers’ Corner, London, United Kingdom, October 25, 2014 (taken by Arthur Grant)
For over 150 years, people have come to Speakers’ Corner in Hyde Park, London, for the debates. Some come to speak. Others come to heckle. And others just listen and observe. A couple of weeks ago, I ended walking to Speakers’ Corner and listening with great interest to the “debates”. Some of the debates were about religious issues. Some were about immigration. Others seemed to be about nothing at all. It was fascinating to watch this all unfold, this fundamental exercise of freedom of expression. As important as the speakers are the hecklers – described by one of the placards to the Corner as “essential to the dynamics of Speakers’ Corner”. I would also argue that equally important were the observers – those who stood and watched much like me, not saying anything but listening to the cut and thrust of the debates and simply taking in the mood of the crowds.
Speakers’ Corner is an important manifestation of the exercise of free speech. Its origins date to the mid-19th century – some date it even earlier than that. It is a reflection of a time when oral debates – heard and seen by many people – were a means of addressing matters of public interest. The world has changed dramatically since then.
We now live in a world bound together by radio-communications, by cell phones, televisions, mobile devices, satellite signals and, most prominently, by the Internet. The world has become a much smaller place. We communicate with each other around the world using Skype and FaceTime. We text and email and tweet and exchange documents and photos and videos nearly instantaneously. The global village exists now.
Part of that global village involves file-sharing. In earlier posts, I spoke about the importance of the iRevolution to society in general and the dawning realization of the judiciary of the importance of the Internet: “The Internet Turns 25 Years Old – the Court and the World Wide Web”. In this post, I want to underscore the fact that by sharing files, whether they be audio-files, video-files, text-files, or software files, we are engaging in the extension of what is Speakers’ Corner. We are engaged in a human exercise of freedom of expression, freedom of speech.
In one of my earlier posts, “Freedom of Expression and the Internet – The new realities of a cyberspace inhabited by copycats” (January 24, 2014), I provided the first installment respecting the relationship between freedom of expression and the courts in the World Wide Web. This is the next post in that series. The Internet is a relatively recent phenomenon but despite its youth, it has reshaped our human environment. After only 25 years, not only has it changed our economies and our social lives but it is penetrating deep into our jurisprudence. One might argue that the courts and the law are institutions that are slow to alter course. That is usually true. But at the level of the highest court in our land, the Internet appears to have seized the imagination of the justices.
Wikipedia – Winnipeg General Strike 1919
In 1987, a majority of the Supreme Court of Canada held that “the constitutional guarantee of freedom of association in s. 2(d) of the Canadian Charter of Rights and Freedoms does not include, in the case of a trade union, a guarantee of the right to bargain collectively and the right to strike”: Reference Re Public Service Employee Relations Act (Alta),  1 SCR 313, per Le Dain J. Then, after testing the waters in some earlier cases, the Supreme Court of Canada reversed this ruling in 2007 in Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, at para. 86:
“We conclude that the protection of collective bargaining under s. 2(d) of the Charter is consistent with and supportive of the values underlying the Charter and the purposes of the Charter as a whole. Recognizing that workers have the right to bargain collectively as part of their freedom to associate reaffirms the values of dignity, personal autonomy, equality and democracy that are inherent in the Charter.”
While the constitutional status of the right to strike is now in doubt, there is no doubt that the courts, with the Supreme Court of Canada leading the way, are resetting the constitutional balance of power between trade unions on one hand and employer (and especially public sector employers) on the other.