Charter Rights and Facebook
Par Sarah D. Pinsonnault, avocate
par Sarah D. Pinsonnault
De Grandpré Joli-Coeur, s.e.n.c.r.l.
The recent case of R. c. Hunt (2012
QCCQ 4688) could be of interest for those of you who use
Facebook (which, dare I say, in this
day and age is almost everyone?). In this decision, the petitioner stood trial
on the accusation of having posted on Facebook a “threat to cause death or bodily
harm to All Women”, thereby committing an offence punishable on summary
conviction under section 264.1(1) a) (2) b) of the Criminal Code.
The petitioner’s “threat” allegedly resembled a
suicide note and referred to Marc Lepine, the author of the mass shooting of 14
women at the École Polytechnique de
Montréal in 1989. It was discovered by a woman who was surfing the Net and,
being preoccupied by its content, decided to call 9-1-1.
In light of the foregoing, the petitioner
presented numerous motions which basically all stated that his Charter rights
Basically, the petitioner put forward the
argument that whatever he wrote on Facebook, or elsewhere for that matter, is
protected by the fundamental Charter right of freedom of expression, section
2(b) of the Canadian Charter.
The Court dismissed all of the petitioner’s
Charter arguments. With respect to the freedom of expression argument, Justice
Marleau deemed it “obvious” to fail:
“ While it is true that generally speaking,
all types of expression of through, belief, opinion and expression are
protected by section 2, the petitioner’s is oblivious that by virtue of section
1 of the Charter, this freedom is
guaranteed “only to such reasonable limits prescribed by law as can be demonstrably
justified in a free and democratic society”.
 One example of such limits is clearly
section 264 of the Criminal Code which is the accusation on which the
petitioner has to stand trial. Another example could be “hate propaganda” as
outlined in section 318 and subsequent of the Code.
 In other words, the legislator has clearly
defined acts and behaviour, including written or spoken words, which are
prohibited in a free and democratic society, notwithstanding s.2 of the Charter
 Obviously, this first Charter Issue fails.”
Granted, the petitioner’s character and
arguments were peculiar in this case. Nevertheless, I believe this decision is
among the first of many to come that will force judges to call into question
how the Charter plays a role in various social media platforms. Indeed, with
individuals openly posting personal details of themselves or of others in such
a public forum, this will definitely call into play a balancing act between
various Charter rights.
The complete text of the decision is available here.