Compelled speech

Freedom of expression is a fundamental freedom under Section 2 of the Canadian Charter of Rights and Freedoms. The Supreme Court of Canada has interpreted this right as including "the right to say nothing or the right not to say certain things."[1] In RJR-MacDonald Inc v Canada (AG), tobacco companies successfully challenged legislation requiring them to include unattributed health warnings on packaging. In Lavigne v Ontario Public Service Employees Union, the Court held that mandatory union membership and dues, some of which were used for purposes the union member disagreed with, did not violate his right to freedom of expression. In Slaight Communications Inc. v Davidson,[2] the Court held that a requirement to provide a reference letter for a former employee who was unjustly dismissed did infringe the employer's freedom of expression, but this infringement was upheld as a reasonable limitation under section 1 of the Charter.[3]

In 2016, University of Toronto psychology professor and clinical psychologist Jordan Peterson argued that amendments to the Canadian Human Rights Act and the Criminal Code would require compelled speech.[4] The amendments added gender expression and gender identity as protected grounds to the Canadian Human Rights Act and to the Criminal Code provisions dealing with hate propaganda, incitement to genocide, and aggravating factors in sentencing. Peterson argued that the law would allow him to be fined or imprisoned if he refused to refer to students by their preferred gender pronouns.[4][5] Legal experts challenged Peterson's interpretation, saying that the bill would not criminalize using non-preferred pronouns.[6]

Article 10 of the European Convention on Human Rights protects the right of freedom of expression, and section 3(1) of the Human Rights Act 1998, requires that as far as possible all legislation be given effect in a way which is compatible with this. In Lee v Ashers Baking Company Ltd, the Supreme Court considered whether a bakery in Northern Ireland had violated anti-discrimination law by refusing to decorate a cake with a message in support of gay marriage, with which the bakers disagreed on religious grounds. They held that although the bakery may have discriminated on the basis of the customer's political beliefs, which would in itself contravene the Fair Employment and Treatment (Northern Ireland) Order 1998,[7] the legislation had to be "read down" in a way which would not violate the defendants' Article 10 rights, taken to include the right not to express a particular opinion. The right in Article 9 is a limited right because it permits restrictions on free speech that are necessary in a democratic society in pursuit of a legitimate aim, but the Supreme Court found that no such justification existed in this case.[8] (The court also considered whether the defendants had discriminated based on sexual orientation, but because they concluded that they had not done, the court did not need to consider whether the relevant legislation should be similarly read down.[9])

Margaret Wilson, executed by drowning for refusing to swear an oath.

During The Killing Time of the 1680s an Abjuration Oath could be put to suspects where they were given the option to abjure or renounce their allegiances. The terms of the oath were deliberately designed to offend the consciences of the Presbyterian Covenanters. Those who would not swear "whether they have arms, or not" could be "immediately killed" by field trial "before two witnesses" on a charge of high treason.[10] John Brown was included among those executed in this judicial process by John Graham, 1st Viscount Dundee (Bluidy Clavers) on 1 May 1685.[11] The wives and children of such men could also be put out of their houses if they had spoken to the suspect or refused the oath themselves. Eighteen year old Margaret Wilson and sixty-three year old Margaret McLaughlan were killed "without human hand" when they were drowned in the sea for refusing to take the Abjuration Oath.[12]