Anonymity, Charter of Rights and Freedoms, free expression
The first part of this article will discuss what anonymity is, and the costs and benefits that anonymity confers on expressive activity. I will demonstrate that anonymity is a double-edged sword in that it can both promote and harm free expression. In the second part, I will suggest that there is no doubt that anonymity can be protected under section 2(b) of the Charter. When I first began this article, I intended to examine ‘‘whether’’ anonymity can be constitutionally protected under section 2(b). As my research progressed, I quickly realised that I was asking the wrong question. I discovered that section 2(b) has been interpreted so broadly by the Supreme Court of Canada that there is no doubt that anonymity can be protected in some circumstances. However, since anonymity can harm free expression, and since Charter analysis is contextual, a more interesting and difficult question is how the courts will analyse anonymity in a particular factual circumstance. What conceptual framework is necessary for a reasoned analysis of anonymity to take place?
In the third part of the article, I will consider the case law under section 2(b) of the Charter. The objective will be to determine whether the current approach taken by the courts to section 2(b) can accommodate an analysis of anonymity. The model of expression that has developed in the Supreme Court of Canada’s jurisprudence (the jurisprudential model) will be discussed, and will be compared with a basic model of communication, which is taken from elementary communication theory (the communication model). This study will reveal that the jurisprudential model has developed beyond the view in Irwin Toy v. Quebec that expression is made up of form and content. It will also reveal that the jurisprudential model resembles an impoverished version of the communication model. The comparison will demonstrate that the jurisprudential model is inadequate, and is unable to accommodate a proper analysis of anonymity. I will conclude by suggesting that the approach to freedom of expression must be developed if anonymity is to be properly analysed under section 2(b), and will describe how this development should occur.
Peter Carmichael Keen, "Anonymity and the Supreme Court's Model of Expression: How Should Anonymity be Analysed Under Section 2(b) of the Charter?" (2003) 2:3 CJLT.