Freedom of Expression (Human Rights)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-05-18
CLNP Page ID:	1796
Page Categories:	[Constitutional Law], [Category:Human Rights]
Citation:	Freedom of Expression (Human Rights), CLNP 1796, <>, retrieved on 2024-05-18
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.