THE ADVOCATE V O L . 8 0 P A R T 1 J A N U A R Y 2 0 2 2 11
as giving them jurisdiction over cases involving allegedly ‘discriminatory’
comments made by individuals in private or in public”.9 The statute, the
court noted, “was not enacted to encourage censorship”.10
The majority’s emphasis was on the concept of freedom of expression
and its role in a free and democratic society—which, it pointed out, had
been missing in the analysis of a recent line of cases issued by the Tribunal.
“That line of decisions, which includes the Tribunal’s current judgment”,
the court wrote, “dispenses with any fair balancing of freedom of expression
and protection of the right to the safeguard of dignity … that line of decisions
raises serious concerns in light of our precedents on freedom of
expression”.11 The majority also clarified that the conflict was “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”.12
Ward is now a key case in understanding the fundamental freedom of
expression contained in both the Quebec Charter and the Canadian Charter
of Rights and Freedoms. The court stated:
Like the right to the safeguard of dignity, freedom of expression flows
from the concept of human dignity … 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 1 S.C.R. 927, at p. 968).
As McLachlin J. (as she then was) wrote in R. v. Zundel, 1992 2 S.C.R.
731, “the 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 … . Freedom to express harmless opinions
that reflect a consensus is not freedom … . This is why freedom of expression
does not truly begin until it gives rise to a duty to tolerate what other
people say … . 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” … . 13
Critically, the court also noted that the Quebec Charter needs to conform
to constitutional norms and be interpreted in a manner consistent with the
Canadian Charter of Rights and Freedoms, which guarantees freedom of
expression but does not guarantee a positive right to the safeguard of dignity.
14 It then turned to its own decision in Saskatchewan (Human Rights