Freedom of Expression (Human Rights)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-04-20
CLNP Page ID:	1796
Page Categories:	[Constitutional Law], [Category:Human Rights]
Citation:	Freedom of Expression (Human Rights), CLNP 1796, <>, retrieved on 2024-04-20
Editor:	Sharvey
Last Updated:	2021/10/29

Ward v. Quebec (Commission des droits de la personne et des droits de la jeunesse), 2021 SCC 43 (CanLII)

[43] In the present case, as Savard J.A. correctly noted, the conflict is not between the right to equality and freedom of expression, but rather between the complainant’s right to the safeguard of his dignity and the defendant’s right to freedom of expression. An approach of this kind is consistent with the structure of the Quebec Charter and the principles laid down by this Court in Devine.

[44] Where a discrimination claim is based on a freedom or right guaranteed by any of ss. 1 to 9, the plaintiff must therefore prove on a balance of probabilities:

1. A “distinction, exclusion or preference”;

2. based on one of the grounds listed in s. 10;

3. that has the effect of nullifying or impairing the equal recognition or exercise of a right whose protection is called for in light of s. 9.1 in the context in which ::it is invoked.

Proof of these elements establishes, on the face of it, that there is discrimination. In some situations, such as in matters of employment, the Quebec Charter creates specific defences for the defendant. In such a case, it will fall to the defendant to justify their decision, action or conduct that is prima facie discriminatory (Bombardier, at para. 37).

[45] The applicable legal framework having been outlined, nothing further needs to be said about the first two elements of the plaintiff’s burden, as their application remains consistent with the approach proposed in Bombardier. However, it is necessary to clarify the analysis of the third element of discrimination where the claim brought requires, as it does here, a determination of the respective scope of the right to the safeguard of dignity and freedom of expression in light of s. 9.1.

...

[61] Limits on freedom of expression are justified where, in a given context, there are serious reasons to fear harm that is sufficiently specific and cannot be prevented by the discernment and critical judgment of the audience (Whatcott, at paras. 129‑35; Moon, at pp. 1‑2 and 4).

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[63] In our view, limits on freedom of expression are also justified where it is used to disseminate expression that, even if it does not fully meet the definition of hatred set out in Whatcott, nonetheless forces certain persons “to argue for their basic humanity or social standing, as a precondition to participating in the deliberative aspects of our democracy” (Whatcott, at para. 75; see also Keegstra, at p. 765). As Professor Waldron writes:

[A] person [must be able] to walk down the street without fear of insult or humiliation, to find the shops and exchanges open to him, and to proceed with an implicit assurance of being able to interact with others without being treated as a pariah. [p. 220]

Freedom of expression would not benefit society as a whole if it prevented a person or class of persons from truly participating in the political process and the ordinary activities of society just like everyone else.

[64] It is understood that these limits also apply in an artistic context. This Court has already recognized, in Butler, that artistic expression rests at the heart of the values underlying freedom of expression (p. 486). However, the Court has declined to make artistic expression a category in its own right with a status superior to that of general freedom of expression (Aubry, at para. 55). There is no reason to reverse that position. The artistic context of an expressive activity is and will always be relevant, as this Court’s decisions clearly demonstrate. Ever since Brodie, Dansky and Rubin v. The Queen, 1962 CanLII 80 (SCC), [1962] S.C.R. 681, which concerned the censorship of Lady Chatterley’s Lover, a novel by D. H. Lawrence, this Court has been very reluctant to hinder the development of arts and literature (see, e.g., Butler, at p. 486; Little Sisters, at paras. 195‑96, per Iacobucci J., dissenting on another point). In our view, however, freedom of expression cannot give an artist — to the extent that a person can be described as such — a level of protection higher than that of other persons.

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[77] In short, the Court limited the prohibition created by s. 14(1)(b) to expression that could inspire extreme feelings of detestation likely to affect the vulnerable group’s acceptance within society and that also had enough motivating force to lead to the type of discriminatory treatment the legislature was seeking to address. The Court declined to limit freedom of expression in order to confer protection from emotional harm. Professor Rainville aptly summarizes the nature of the social harm that justified limiting freedom of expression in Whatcott:

[translation] Canadian law protects the victim’s social standing while forgoing protection of the victim’s emotional serenity. Offensive words are tolerated, whereas expression that is likely to lead to discrimination, ostracism or violence against [individuals] is prohibited.

The harm that may, in this context, justify departing from freedom of expression therefore has two characteristics: the apprehended harm is meant to be collective and social in nature. . . .

The prohibited harm is therefore social and not mental, collective and not individual. [Emphasis in original.]

(La répression de l’art et l’art de la répression: La profanation de la religion à l’épreuve des mutations du droit pénal au sujet du blasphème et de la protection des identités religieuses (2019), at p. 61)

[78] With these principles established, we must now determine how they apply in the context of the Quebec Charter.

(4) Test That Applies Where There is a Conflict Between the Right to the Safeguard of Dignity and the Right to Freedom of Expression

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[83] The test for resolving a conflict between the right to freedom of expression and the right to the safeguard of dignity requires rather that it be determined, first, whether a reasonable person, aware of the relevant context and circumstances, would view the expression targeting an individual or group as inciting others to vilify them or to detest their humanity on the basis of a prohibited ground of discrimination. This first criterion is more in keeping with the requirements of the Canadian Charter as formulated in Whatcott. Hate speech within the meaning of Whatcott is therefore prohibited, as is expression that has the same effects on personal dignity without meeting the definition of hatred given in that case.

[84] Second, it must be shown that a reasonable person would view the expression, considered in its context, as likely to lead to discriminatory treatment of the person targeted. This second criterion takes the objectives of the Quebec Charter into account (Whatcott, at paras. 178 and 191). The purpose of s. 10 is to eliminate discrimination in the recognition and exercise of human rights and freedoms. The recognition of a right implies “the social acceptance of a general duty to respect . . . it” (Ontario Human Rights Commission, at p. 554). Discrimination within the meaning of the Quebec Charter therefore involves differential treatment that affects an individual’s social acceptance. As a result, only expression that, considered in its context, is likely to jeopardize the social acceptance of the individual or group is discriminatory (Whatcott, at paras. 178 and 191). The analysis is focused not on the content of the expression as such, but on its likely effects on third parties, that is, the discriminatory treatment likely to result from it (Whatcott, at paras. 54, 58 and 82).