Is computer code speech? While this question has received much consideration in the United States, the issue has yet to come to the forefront in Canada. Considering the nature of software code and its expressive qualities, the authors argue that Canadian courts should take a broad approach with respect to the recognition of software as a protected form of expression under the Charter of Rights and Freedoms. The critical question for Canadian courts should not be whether code is a protected form of expression but, rather whether government regulation of software that impedes freedom of expression, is justifiable under section 1 of the Charter. The first part of this article considers the historical underpinnings and policy objectives supporting freedom of speech in the United States and freedom of expression in Canada. Second, the article considers what is meant by computer code. The third part examines the ways in which the court has approached freedom of expression under the Charter in cases involving private property and economic rights. Finally, the article critically explores the Canadian approach to freedom of expression and compares it to the American approach using the regulation of three types of technologies: computer viruses, encryption, and technological protection measures.
