After discussing the Adbusters case previously mentioned here in class, my constitutional law professor sent me an email elaborating on the subject, and since I thought it was interesting (and since said professor is one of the top constitutional law scholars in Canada), I thought I’d pass along the relevant parts.
The relationship between s.2(b) of the Charter and broadcasting law/policy is a fraught one; optimists would say it is largely unexplored territory, pessimists would say that s.2(b) is going to have little impact in the area.
It is clear that the CRTC is part of the executive branch of government and is thus subject to the Charter pursuant to s.32 (the Adbusters ruling did not address this issue; it did address the question of whether the CRTC could be added as a party to the claim, which is a different issue having more do with [civil procedure rather] than constitutional law).
Even though the CRTC is subject to the Charter, the federal court has tended to say, on appeals of decisions dealing with licensing restrictions or cancellations, that s.2(b) is not violated when the CRTC imposes negative consequences on broadcasters who have failed to comply with the terms of their licences or Canadian broadcasting policy. A good example is the Federal Court ruling in the case challenging the cancellation of the CHOI FM licence a few years ago: see Genex Comm Inc v. Canada 2005 (leave to
appeal to SCC denied)…
The reasoning re s.2(b) in cases like Genex is, to put it charitably, unsatisfying, yet the SCC has shown no inclination yet to try to articulate the scope of freedom of expression on the airwaves. It will have to someday. The approach in the US is far more tolerant of restrictions on expression in broadcast media (think Janet Jackson) than in other contexts.