Examining the Limits of Free Expression through Canadian Case Law: Reflections on the Canadian Library Association's Code of Ethics and Its Supporting Statement on Intellectual Freedom

Various library associations around the world have developed codes of ethics to help guide librarians in their conduct as information professionals. The structure of these codes and their enforceability have been the subject of much debate, particularly in the Canadian context. This paper will examine the Canadian Library Association's (CLA) Code of Ethics and its Statement on Intellectual Freedom as applied to the practice of librarianship and its efforts to protect and promote intellectual freedom in Canada. It will begin with a discussion of the right to intellectual freedom under the Canadian Charter of Rights and Freedoms. It will then look at the legal limitations to that right as demonstrated by Canadian case law. Specific attention will be paid to challenges to the legal limits of intellectual freedom in the areas of pornography, child pornography, obscenity, defamation, hate propaganda and the application of public morals on book selection for schools. Taking recent case law into account, the paper will then reflect back on the CLA's Code of Ethics and its Statement on Intellectual Freedom. It will discuss the legal limits of intellectual freedom and the potential impact that those limits have upon professional codes of ethics and statements of values. Finally the paper proposes amending the Statement on Intellectual Freedom so as to better reflect the constitutional guarantees afforded by the Canadian Charter of Rights and Freedoms. Keywords: intellectual freedom, codes of ethics, applied information ethics, Canadian Library Association, Canadian Constitutional law Background In the Canadian context, any discussion of will involve a discussion of the Canadian Charter of Rights and Freedoms [Charter]. As Canada a democracy, one of the regime's central principles majority rule. However, Canada not just a democracy, but a liberal democracy, as a result of which we may also say that the Canadian regime devoted to the protection of fundamental rights (Malcolmson & Myers, 2009). The Charter, which was adopted by the Canadian Government in 1982, entrenched in the Canadian Constitution. Where the Constitution forms the supreme law of the country, any statute that inconsistent with those laws without force or effect. That not to say that are no limits placed on the freedoms guaranteed in the Charter, as one's freedom of expression subject to limitations. But what do such reasonable limitations entail? Section 1 of the Charter states: The Canadian Charter of Rights and Freedoms guarantees the and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society Canadian Charter of Rights and Freedoms, 1982). Under Section 1, Canadian laws may impose limitations on otherwise protected freedoms (Charter rights) in instances where the exercise of those freedoms likely to produce harm to others in society. In this context Michael Gorman's definition of intellectual freedom as a term that is widely used to describe the state of affairs in which each human being has the freedom to think, say, write, and promulgate any idea or belief works in conjunction with the caveat that he attached to such a definition when he stated that there is, of course, no such thing as an absolute freedom outside the pages of fiction and Utopian writings, and, for that reason, intellectual freedom constrained by law in every jurisdiction (Gorman, 2000). The Canadian Library Association (CLA) has woven the language of and freedoms into its Statement on Intellectual Freedom, proclaiming that: All persons in Canada have the fundamental right, as embodied in the nation's Bill of Rights and the Canadian Charter of Rights and Freedoms, to have access to all expressions of knowledge, creativity and intellectual activity, and to express their thoughts publicly. …

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