Freedom of expression occupies a central place in our democratic society. It is protected both by the Canadian Charter of Rights and Freedoms and by the Quebec Charter.

Art. 2 of the Canadian Charter

“Everyone has the following fundamental freedoms:

b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication”

Art. 3 of the Quebec Charter

“Every person is the holder of fundamental freedoms such as freedom of conscience, freedom of religion, freedom of opinion, freedom of expression, freedom of peaceful assembly and freedom of association.”

Thus, this right covers a multitude of ways of expressing oneself. It includes speech, writing, songs, humour, demonstrations, artistic works, political or religious criticism, etc.

Moreover, this right includes not only the ability to share one’s ideas, but also to receive information. As well as to hear the opinions of others… or even to remain silent.

But, like any fundamental right, freedom of expression has its limits. It cannot be exercised at the expense of the rights of others.

A broad freedom, protected in all spheres of life

At work, in public spaces, or online, everyone may express their convictions on the subjects of their choice. In addition, the Charter even protects expressions that disturb, shock, or offend : a free society must be able to tolerate unpopular ideas.

However, this freedom does not protect everything. For example :

• Violence and threats
• Incitement to hatred or discrimination
• Statements that unlawfully harm reputation
• Speech or conduct that violates the right to privacy, image, or dignity

Why and when can freedom of expression be limited?

Courts often have to arbitrate between two competing rights, for example :

• A person’s freedom of expression, versus;
• Another person’s right to dignity, equality, privacy, or reputation.

A landmark decision : the case of Ward v. Gabriel

The Ward decision of the Supreme Court of Canada perfectly illustrates how courts reconcile freedom of expression and the right to dignity.

What the Court decided

In this case, comedian Mike Ward made jokes targeting Jérémy Gabriel. The issue was whether these statements constituted discrimination based on disability, which is prohibited by the Quebec Charter.

The majority of the judges concluded :

• No discrimination, because Ward did not mock Gabriel because of his disability.
• Even though the statements were hurtful, they did not infringe his dignity in the legal sense required to conclude that discrimination had occurred.
• The complaint would have been better addressed as a defamation claim, a field over which the Human Rights Tribunal has no jurisdiction.

• Do the statements lead a reasonable person to despise or dehumanize the individual targeted because of a prohibited ground (e.g., disability, origin, sex)?
• Are these statements likely to lead to discriminatory treatment or compromise the social acceptance of the person?

In summary : a delicate balance

Freedom of expression :

• Protects shocking, controversial, or offensive ideas
• Allows social, political, religious, or artistic criticism
• Does not protect violent, hateful, defamatory, or discriminatory statements
• Does not allow encroachment on the dignity or reputation of others