Freedom of Expression (Human Rights)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-23
CLNP Page ID:	1796
Page Categories:	[Constitutional Law], [Category:Human Rights]
Citation:	Freedom of Expression (Human Rights), CLNP 1796, <>, retrieved on 2024-11-23
Editor:	Sharvey
Last Updated:	2021/10/29

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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.

...

[59] Like the right to the safeguard of dignity, freedom of expression flows from the concept of human dignity (D. Grimm, “Freedom of Speech and Human Dignity”, in A. Stone and F. Schauer, eds., The Oxford Handbook of Freedom of Speech (2021), 106, at p. 111; J. Waldron, The Harm in Hate Speech (2012), at p. 139; R. Dworkin, “Foreword”, in I. Hare and J. Weinstein, eds., Extreme Speech and Democracy (2009), v, at pp. vii‑viii). The Quebec Charter recognizes that all human beings are equal in worth and dignity; this equality would be hollow if some people were silenced because of their opinions. The purpose of protecting freedom of expression is therefore to “ensure that everyone can manifest their thoughts, opinions, beliefs, indeed all expressions of the heart and mind, however unpopular, distasteful or contrary to the mainstream” (Irwin Toy Ltd. v. Quebec (Attorney General), 1989 CanLII 87 (SCC), [1989] 1 S.C.R. 927, at p. 968).

[60] As McLachlin J. (as she then was) wrote in R. v. Zundel, 1992 CanLII 75 (SCC), [1992] 2 S.C.R. 731, “[t]he view of the majority has no need of constitutional protection” (p. 753). In fact, the exercise of freedom of expression presupposes, at the same time that it fosters, society’s tolerance of expression that is unpopular, offensive or repugnant (Irwin Toy, at pp. 969‑71; Montréal (Ville de) v. Cabaret Sex Appeal inc., 1994 CanLII 5918 (QC CA), [1994] R.J.Q. 2133 (C.A.)). Freedom to express harmless opinions that reflect a consensus is not freedom (R. Moon, “What happens when the assumptions underlying our commitment to free speech no longer hold?” (2019), 28:1 Const. Forum 1, at p. 4). This is why freedom of expression does not truly begin until it gives rise to a duty to tolerate what other people say (L. C. Bollinger, The Tolerant Society (1986); Dworkin (2009), at p. vii). It thus ensures the development of a democratic, open and pluralistic society. Understood in this sense, “a person’s right to free expression is protected not in order to protect him, but in order to protect a public good, a benefit which respect for the right of free expression brings to all those who live in the society in which it is respected, even those who have no personal interest in their own freedom” (J. Raz, “Free Expression and Personal Identification” (1991), 11 Oxford J. Leg. Stud. 303, at p. 305).

[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).

[62] For example, the law of defamation rests on the idea that “[f]alse allegations can so very quickly and completely destroy a good reputation. A reputation tarnished by libel can seldom regain its former lustre” (Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] 2 S.C.R. 1130, at para. 108; see also Bou Malhab v. Diffusion Métromédia CMR inc., 2011 SCC 9, [2011] 1 S.C.R. 214, at para. 18). Similarly, the prohibition against hate speech is justified not only because it causes emotional distress to the members of a vulnerable group, but also because it propagates, within social discourse, premises of inferiority that may gradually desensitize the majority and lay the groundwork for later, broad attacks (R. v. Keegstra, 1990 CanLII 24 (SCC), [1990] 3 S.C.R. 697, at pp. 746‑48; Canada (Human Rights Commission) v. Taylor, 1990 CanLII 26 (SCC), [1990] 3 S.C.R. 892, at pp. 918‑19; Whatcott, at para. 74). Similar social harm justifies the prohibition against exposing to public view certain types of obscene material that portrays degrading and dehumanizing depictions of sex as being normal, acceptable and even desirable, insofar as such material predisposes those exposed to it to sexually violent behaviour incompatible with the proper functioning of society (R. v. Butler, 1992 CanLII 124 (SCC), [1992] 1 S.C.R. 452, at pp. 493‑97 and 501‑2; Little Sisters Book and Art Emporium v. Canada (Minister of Justice), 2000 SCC 69, [2000] 2 S.C.R. 1120, at paras. 59‑60; see, to the same effect, R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45, at paras. 34 and 88‑92). In contrast, the prohibition against publishing false news was held to be unconstitutional because it was based on a very vague definition of the social harm to be addressed, a definition that made it far too broad (Zundel, at pp. 769‑75).

[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.

...

[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