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.

...

[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).