Compelling Freedom on Campus: A Free Speech Paradox

Abstract

In 1985, it was largely unknown how the Supreme Court of Canada would respond to the Charter.¹ At first glance, a drugstore’s right to be open for business on Sunday, selling groceries, plastic cups, and a bicycle lock, seemed an unlikely source of inspiration for the Court’s first pronouncement on the essence of freedom. Perhaps unexpectedly, the justices enforced the entitlement, finding that a Sunday closing law compelling a corporation to comply with the Christian Sabbath infringed section 2(a)’s guarantee of religious freedom.² In doing so, R v Big M Drug Mart defined freedom as “the absence of coercion or constraint,” stating without equivocation that no one who is compelled “to a course of action or inaction” is “truly free”.³ In Justice Dickson’s considered view, coercion includes “blatant forms of compulsion”, such as “direct commands to act or refrain from acting on pain of sanctions”, as well as forms of indirect control.4 In plain and unmistakeable terms, Big M promised that, under the Charter, “no one is to be forced to act in a way contrary to his beliefs or conscience”.⁵

^{* Professor Emeritus, Osgoode Hall Law School. I thank Kate Bezanson and Alison Braley-Rattai for including
me in this special issue of Constitutional Forum, and am grateful to Kate Bezanson for her comments on
an earlier draft. I also thank Ryan Ng (JD 2021) for his valuable research assistance in the preparation of
this paper. Finally, I note that I was a member of York University’s Free Speech Working Group in fall 2018.
This paper does not in any way express the views of York University or the Working Group, which has long
since disbanded.}

¹Canadian Charter of Rights and Freedoms, s 2(a), Part I of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (UK), 1982, c 11 [Charter].
²R v Big M Drug Mart, [1985] 1 SCR 295, 18 DLR (4th) 321 [Big M].
³Ibid at 336.
⁴Ibid.
⁵ Ibid at 337.