Mr. Neufeld, and he suggested that public debate should be favoured in light of the
[168]
The chambers judge failed to direct his mind to the quality of the
expression (Pointes, at para. 74). This constitutes a reviewable error. In fairness, he did
not have the benefit of our Court’s decision in Pointes. However, such an inquiry is
essential to determine “what is really going on” in the case, which is ultimately the
exercise contemplated by s. 4(2)(b) of the PPPA (Pointes, at para. 81; Bent, at
para. 172).
[169]
The role of this Court is not and should not be to evaluate the soundness of
Mr. Hansman’s and Mr. Neufeld’s respective positions on SOGI 123 (C.A. reasons, at
para. 2; chambers judge’s reasons, at para. 177). Freedom of expression is
content-neutral, which is why its scope even encompasses expression that is
“unpopular, distasteful or contrary to the mainstream” (Irwin Toy Ltd. v. Quebec
(Attorney General), [1989] 1 S.C.R. 927, at p. 968). This fundamental freedom would
be seriously undermined if the outcome of the public interest weighing exercise under
the PPPA depended on the alignment between the views expressed by the applicant
and those held by the court.
[170]
In my opinion, my colleague follows an improper path of reasoning when
she justifies reinstating the chambers judge’s dismissal order on the basis that
Mr. Hansman’s expression “promotes equality”, which is also a “fundamental
democratic value” (para. 9). Equality is not one of the competing values at play under
2023 SCC 14 (CanLII)
limited damage suffered by Mr. Neufeld (paras. 160-61).
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