The right to freedom of expression in Canada was not created by the Charter. Canadians enjoyed a right to free speech and freedom of expression prior to 1982.
Before she became Chief Justice, Justice McLachlin said in Keegstra that “freedom of speech is a fundamental Canadian value”, and
Freedom of speech and the press had acquired quasi-constitutional status well before the adoption of the Charter in 1982.
She further said that,
The enactment of s.2(b) of the Charter represented both a continuity of [this] tradition, and a new flourishing of the importance of freedom of expression in Canadian society.
Quoting from A. W. MacKay, "Freedom of Expression: Is It All Just Talk?" (1989), 68 Can. Bar Rev. 713, Justice McLachlin went on to affirm that,
Freedom of expression was not invented by the Charter of Rights and Freedoms...
Justice McIntyre shared Justice McLachlin’s view. In the Supreme Court of Canada Dolphin Delivery decision of 1986, Justice McIntyre indicated the fundamental importance of freedom of expression for our democratic institutions.
Freedom of expression is not, however, a creature of the Charter. It is one of the fundamental concepts that has formed the basis for the historical development of the political, social and educational institutions of western society. Representative democracy, as we know it today, which is in great part the product of free expression and discussion of varying ideas, depends upon its maintenance and protection.Now that you know all this, doesn't it make you wonder what Dean Steacy (the lead Canadian Human Rights Commission investigator in the Marc Lemire case) meant when he said,
Freedom of speech is an American concept, so I don't give it any value... It's not my job to give value to an American concept.Actually, Mr. Steacy, freedom of speech is a fundamental Canadian value that the Supreme Court of the land has ruled responsible for the maintenance and protection of Canadian society.