Quebec Charter so as 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. Such protection is, in the words of both the Canadian and
Quebec Charters, “fundamental” because in a free, pluralistic and democratic society we
prize a diversity of ideas and opinions for their inherent value both to the community and
to the individual. Free expression was for Cardozo J. of the United States Supreme
Court “the matrix, the indispensable condition of nearly every other form of freedom”
(Palko v. Connecticut, 302 U.S. 319 (1937), at p. 327); for Rand J. of the Supreme Court
of Canada, it was “little less vital to man’s mind and spirit than breathing is to his
physical existence” (Switzman and Elbling (1957), 7 D.L.R. (2d) 337 at p. 358, 117
C.C.C. 129, [1957] S.C.R. 285). And as the European Court stated in the Handyside
case, Eur. Court H.R., decision of April 29, 1976, Series A, No. 24, at p. 23, freedom of
expression:
“… is applicable not only to ‘information’ or ‘ideas’ that are favourably received or
regarded as inoffensive or as a matter of indifference, but also to those that offend,
shock or disturb the State or any sector of the population. Such are the demands of
that pluralism, tolerance and broadmindedness without which there is no
‘democratic society’”
We cannot, then, exclude human activity from the scope of guaranteed free expression
on the basis of the content or meaning being conveyed. Indeed, if the activity conveys or
attempts to convey a meaning, it has expressive content and prima facie falls within the
scope of the guarantee. Of course, while most human activity combines expressive and
physical elements, some human activity is purely physical and does not convey or
attempt to convey meaning. It might be difficult to characterize certain day-to-day tasks,
like
parking a car, as having expressive content. To bring such activity within the protected
sphere, the plaintiff would have to show that it was performed to convey a meaning. For
example, an unmarried person might, as part of a public protest, park in a zone reserved
for spouses of government employees in order to express dissatisfaction or outrage at
the chosen method of allocating a limited resource. If that person could demonstrate that
his activity did in fact have expressive content, he would, at this stage, be within the
protected sphere and the s. 2(b) challenge would proceed.
The content of expression can be conveyed through an infinite variety of forms of
expression: for example, the written or spoken word, the arts, and even physical
gestures or acts. While the guarantee of free expression protects all content of
expression, certainly violence as a form of expression receives no such protection. It is
not necessary here to delineate precisely when and on what basis a form of expression
chosen to convey a meaning falls outside the sphere of the guarantee. But it is clear, for
example, that a murderer or rapist cannot invoke freedom of expression in justification of
the form of expression he has chosen. As McIntyre J., writing for the majority in
R.W.D.S.U. v. Dolphin Delivery Ltd. (1986), 33 D.L.R. (4th) 174 at p. 187, [1986] 2
S.C.R. 573, 9 B.C.L.R. (2d) 273, observed in the course of discussing whether picketing
fell within the scope of s. 2(b):
“Action on the part of the picketers will, of course, always accompany the
expression, but not every action on the part of the picketers will be such as to alter
the nature of the whole transaction and remove it from Charter protection for
