jurisprudence grounds the level of protection afforded to the defendant’s expression in
weighing analysis. As the 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. The closer the expression lies to the core
values of s. 2(b), including truth-seeking, participation in political decision-making and
diversity in the forms of self-fulfillment and human flourishing, the greater the public
interest in protecting it.
Some speakers seek to contribute to public discourse by countering
ignorant or harmful expression with an informed or compassionate response. In s. 2(b)
jurisprudence, this idea of “counter-speech” inheres in the recognition that the open
exchange of ideas is a precondition to unlocking the value of free expression. While
counter-speech is not necessarily a complete solution to harmful expression, its close
proximity to the values at the core of s. 2(b) is beyond doubt. Counter-speech motivated
by the defence of a vulnerable or marginalized group in society also engages the values
at the core of s. 15(1); namely, the equal worth and dignity of every individual. Targets
of degrading expression belonging to a vulnerable group in society may lack the ability
or authority to effectively combat the harmful speech themselves. Discourse can then
take on an uneven quality, making protective counter-speech by the group or
individual’s more powerful advocates all the more influential and important.
2023 SCC 14 (CanLII)
the nature of the expression. Similarly, s. 15(1) considerations may factor into the
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