A Proposal for A Canadian Government Speech Doctrine
DOI:
https://doi.org/10.29173/alr2743Abstract
How does section 2(b) law deal with factual scenarios entailing a close connection between government and expression, such that the public reasonably believes the speech in issue emanates from the government and not from a private individual? Foundational principles suggest section 2(b) has internal limits that prevent private speakers from co-opting the government’s voice. This paper reviews section 2(b) doctrine and reveals that existing law does not adequately facilitate consideration of this government nexus, resulting in confusion in lower courts on how to approach these factual scenarios. Drawing on American sources, this article proposes a solution: introduction of a “government speech doctrine.” Such a doctrine, properly modified to take into account the unique Canadian context, could bring conceptual clarity to this area of law.
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