by Mr. Hansman’s expression, and not in the consideration of a “chilling effect” on
Public Interest in Protecting the Defendant’s Expression
[79]
The other side of the weighing exercise evaluates the public interest in
protecting the defendant’s expression. In making this assessment, s. 2(b) Canadian
Charter of Rights and Freedoms jurisprudence “grounds the level of protection
afforded to [the defendant’s] expression in the nature of the expression” (Pointes, at
para. 77). Similarly, s. 15(1) considerations may factor into the weighing analysis in a
proper case. In Pointes, at para. 80, Côté J. cited “the possibility that the expression or
the claim might provoke hostility against an identifiably vulnerable group or a group
protected under s. 15 of the Charter or human rights legislation” as a relevant factor
for courts to consider. As our Constitution recognizes, not all expression is created
equal, and the level of protection to be afforded to any particular expression can vary
widely according to the quality of the expression, its subject matter, the motivation
behind it, or the form through which it was expressed (see Pointes, at paras. 74, 76 and
120). The closer the expression lies to the core values of s. 2(b), including truthseeking, participation in political decision-making and diversity in the forms of selffulfillment and human flourishing, “the greater the public interest in protecting it”
(para. 77).
[80]
Some speakers seek to contribute to public discourse by countering
ignorant or harmful expression with an informed or compassionate response
2023 SCC 14 (CanLII)
others if Mr. Neufeld could not proceed with his defamation suit.
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