I am still exploring the idea. But one of the cases from the Supreme Court of Canada, R v Committee for the Commonwealth of Canada helps me in thinking through the issue. In particular, I want to focus on the concurring opinion of Justice L'Heureux-Dubé.
I won’t go into comprehensive detail but a few areas jumped out at me that are relevant. In her opening paragraph, I thought this line was particularly elegant.
However, rather than importing ready-made "tests" into our jurisprudence, one must be attentive to the unique character of our Constitution, recognizing that it has evolved within, and will continue to shape, the Canadian parameters and approach to these complex, yet challenging issues. The present case provides a logical context in which to cultivate this undertaking.
Case studies are effective ways to explore an idea and this case study involving pamphleteering is a great way to explore the idea of expression. I liken this to online politicking and would argue that these sites (Twitter, Facebook, etc.) function in effect like an airport in that while they are ostensibly private, their public use virtually renders them public as will be demonstrated based on a US example.
She argues that s. 2 of the Charter is “fundamental law”. Section 2 of the Charter of Rights and Freedoms reads:
2. Everyone has the following fundamental freedoms:
· (a) freedom of conscience and religion;
· (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
· (c) freedom of peaceful assembly; and
· (d) freedom of association.
Quoting Justice Dickson in another case, she writes concerning the fundamental nature of Section 2 that:
It is because of the centrality of the rights associated with freedom of individual conscience both to basic beliefs about human worth and dignity and to a free and democratic political system that American jurisprudence has emphasized the primacy or "firstness" of the First Amendment. It is this same centrality that in my view underlies their designation in the Canadian Charter of Rights and Freedoms as "fundamental". They are the sine qua non of the political tradition underlying the Charter.
She goes on to discuss freedom of expression in greater detail and then, in the context of the distinction between protected speech and private property, argues that even private property has not been ruled absolute but must be interpreted as public even if it is private!
Ownership does not always mean absolute dominion. The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it. (Marsh v. Alabama, 326 U.S. 501 (1946), at p. 506).
She develops this line further regarding a shopping mall and it is here that the jurisprudence gets a bit dicy and the private status of companies is not settled. This case involved government property and free expression. The issue of online content prohibition is still very current.
Viva Frei does a great job of outlining how the US Supreme Court landed on the issue of expression and tech companies. I am not aware if this has been tested in Canada and would be interested in reading how they might land.
At the end of the day, though, free speech is a democratic value that should be carried into public use such as the internet, irrespective of the character of the space (i.e. technically private). I have heard the latest political movement being launched is “the great reset” alluded to by Justin Trudeau. I am not sure what it is exactly but I believe it involves re-alignment of the global capitalist order. I will have more to write on this but, in broad strokes, I agree with the concept as I understand it in terms of its objective of systemic economic international reform (although the devil and God are both very much in the details!).
To the extent that free speech online is concerned, I think we should lean towards an expansive interpretation of s2 of the Charter and tech companies should at least adopt the spirit of these findings for their settings rather than hide behind the veneer of private domain as a means of not addressing challenging questions.
Finally, Justice L'Heureux-Dubé sums up the spirit of the entire issue of supporting any kind of government censorship. She supports the well worn notion of airing out perspectives in "the marketplace of ideas". She writes that “Robert J. Sharpe explains the futility of basing this axiom merely upon some yearning for ultimate truth, in "Commercial Expression and the Charter" (1987), 37 U.T.L.J. 229, at p. 236: The essence of the market-place of ideas argument is that control and regulation of expression is intolerable because we can trust no government to know the truth. Those who purport to legislate the truth invariably turn out to be tyrants. The market-place of ideas argument prescribes an open process precisely because we cannot agree on what is the truth. [Emphasis added.]
Styxenhammer, who I listen to, and occasionally agree with, framed the issue in a vlog a few years back. I would like to debate him on this point even though I think he is generally joining the issue correctly. I think he draws a fair point here although I disagree with his hesitation to make tech companies public utilities. I think they should be public utilities on the ground of speech issues. I post this because I think he raises the correct issue although I will come across on the different side.
I agree, though, that the Charter should be a philosophical value generally shared as a democratic value and not perceived as a legislative enactment. It should be something much deeper - and tied to our very nature of what it means to be human and to express it freely.