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Legal Ease: Did the city deny freedom of speech?

We live in a democracy, a system by which a society governs itself through its elected representatives. This is how citizens participate, albeit indirectly, in making decisions that affect them and which become law.

Our Constitution sets out the major parameters within which our legal system is created. The Canadian Charter of Rights and Freedoms which forms part of the Constitution sets out and guarantees those basic rights and freedoms which define our democratic society and which we value as members of that society. The rights listed are: democratic rights, mobility rights, legal rights, equality rights, and language rights. The fundamental freedoms guaranteed are: freedom of conscience and religion, freedom of thought, belief, opinion, and expression, including freedom of the press and other media of communication, freedom of peaceful assembly, and freedom of association.

We are granted these rights and freedoms and we are free to exercise them without being discriminated against for doing so.

The Quebec Charter of Human Rights and Freedoms stipulates “every person is the possessor of the fundamental freedoms, including freedom of conscience, freedom of religion, freedom of opinion, freedom of expression, freedom of peaceful assembly and freedom of association.” Not only does every person possess these rights and freedoms, but “every person has a right to full and equal recognition and exercise of his human rights and freedoms, without distinction, exclusion or preference based on race, colour, sex, pregnancy, sexual orientation, civil status, age except as provided by law, religion, political convictions, language, ethnic or national origin, social condition, a handicap or the use of any means to palliate a handicap.” Our basic rights and freedoms cannot be removed for any of these reasons and to do so would be considered discrimination.

Recently a Muslim man, Hamza Chaoui, applied to Mercier-Hochelaga-Maisonneuve borough for a permit to open and operate a community centre. This was refused on the grounds that this man preaches a fundamentalist interpretation of the Koran, including ideas about women and homosexuals, which, under our law, are unacceptable. One newspaper report states that he was asked to leave another community centre because his remarks were considered radical. There is no evidence that he has ever advocated the use of violence. The question is: was the refusal to grant the permit justified? A municipality has the legal power to respond to the changing needs and interests of its citizens in the areas, among others, of culture, recreation and community activities and, in so doing, can grant and refuse to issue permits. But it must be remembered that a municipality is also governed by the law. It too must not discriminate on the basis of religion or the exercise of free speech.

There are limits however, and the guarantee of those rights and freedoms provided in the Charter extends only “to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” The preamble to the Quebec charter guarantees rights and freedoms to all of us as equals in worth and dignity and entitled to equal protection of the law. It recognizes the equality of women and men. It speaks of the “common well-being.” The Charter also stipulates that: “In exercising his fundamental freedoms and rights, a person shall maintain a proper regard for democratic values, public order and the general well-being of the citizens of Quebec.”

What can we justify, or not justify, in our free and democratic society? Should one man’s freedom to exercise a right be permitted when he espouses ideas contrary to our democratic values and we believe his actions could result in harm to us? Is refusal to issue the permit discriminatory as a limitation of free speech or is it a reasonable limit imposed in a free and democratic society? We will each have our own opinion. Because we are a democracy, the rule of law must prevail, and the courts will probably have the final word.

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