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Canadian judiciary, judicial role, judicial free speech, judicial free speech, judges, Canadian judges, judicial impartiality, judicial independence, judicial accountability, Charter of Rights and Freedoms, freedom of expression


In this article Wayne MacKay argues that effective interpretation of section 2 of the Charter of Rights and Freedoms requires the weighing of real world impacts beyond the traditional liberal parameter of judicial decisions. The usual judicial unwillingness to acknowledge "freedoms" as opposed to "rights" limits governmental legal action while not recognizing political and economic barriers to freedom of expression. The trend toward limiting protected expression both at the definitional stage and through section 1 reasonable limits reflects this cautious approach.This article examines who the early beneficiaries of freedom of expression have been: those affected by criminal sanctions and those who can afford litigation. The latter group consists largely of business pursuing commercial free speech and the corporate controlled media pursuing "freedom of the press".

Focusing on freedom of the press, the author asks the "crucial question": whose interests are being served? The tacit acceptable of liberalism is implicit in the usual notion of a free press. This fails to consider that the press is not neutral and most frequently favours business elites whose interests are already well-served by the political process without the protections of the Charter. The balancing of various interests by the courts is closely examined in sections covering media access to the courts and possible conflict between freedom of the press and other legal rights.

In conclusion, MacKay calls for a shift away from the role of freedom of expression as an instrument in the democratic process, toward its use to promote primarily community self-actualization, entailing judicial willingness to stop relying on liberal theory and focus on actual life impacts on disparate, and often marginalized, groups in society.