Limits of free speech were not breached in comic's stand-up routines, majority finds
A Quebec comedian did not discriminate against a young handicapped singer by mocking him in his stand-up routine, the Supreme Court ruled today in finding that the Quebec Human Rights Tribunal did not have jurisdiction to proceed with the case.
In 5/4 decision in Ward v. Quebec (Commission des droits de la personne et des droits de la jeunesse), the majority of the Supreme Court found that Mike Ward’s mocking of Jérémy Gabriel, a then-teenaged singer with a disability, did not constitute discrimination under the Quebec Charter of human rights and freedoms.
“The principles that emerge from this judgement are the rights ones,” says Julius Grey, senior partner at Grey Casgrain, s.e.n.c. in Montreal, and counsel for the appellant.
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Notably, he says, the majority decision includes a broad interpretation of freedom of expression; a relatively narrow interpretation of the notion of discrimination and dignity – “not because they're not important, but because they're stronger if they're defined precisely”; a limit to the powers of the human rights tribunals, which across the country “have been going beyond the narrow discrimination mandate that had been given to them,” he says.
There was also “a very important dictum that human rights legislation should be given a uniform interpretation across the country,” Grey says. “It's an excellent day for liberty in Canada. I think people like stand-up comedians, actors, university professors, journalists, writers, the caricaturists [and] critics, all should feel safer with a judgement which says that you cannot easily be dragged before Human Rights Court.”
As well, the majority concluded that “the subjective feeling of having been insulted, or humiliated, or being dissatisfied with what somebody said, is not enough to constitute an attack on your dignity, or on your equality.”
In his stand-up comedy routines, Ward used dark humour to mock whom he referred to as “sacred cows” of Quebec’s artistic milieu, and targeted a number of prominent figures. One was Gabriel, a young man with Treacher Collins Syndrome who had become well-known for singing for well-known public figures. Ward made a number of comments In his routine relating to Gabriel’s physical characteristics resulting from his handicap, and Gabriel and his parents filed a complaint of discrimination with the Commission des droits de la personne et des droits de la jeunesse (Quebec’s human rights commission).
The Commission submitted an application to the Human Rights Tribunal, which concluded Ward’s comments were discriminatory under Quebec’s Charter of human rights and freedoms. It held that the comments violated Gabriel’s right to dignity and that the violation was not justified by Ward’s right to freedom of expression. Damages for moral injury and punitive damages were awarded to Gabriel and to his mother.
The majority of the Court of Appeal allowed Ward’s appeal in part. It found that the comedian had infringed Gabriel’s right to dignity because of his disability under sections 4 and 10 of the Quebec Charter. In the majority reasons, Justice Manon Savard (now chief justice of Quebec) also found that Ward’s comments exceeded the limits of what a reasonable person would tolerate as freedom of expression under section 3 of the Quebec Charter. However, the appellate court quashed the order awarding damages to Gabriel’s mother. A dissenting judge would have allowed the appeal in full; she did not find reasonable the Tribunal’s conclusion that the comments were discriminatory.
In today’s judgment the majority of the Supreme Court sided with the dissenting justice.
“It must be recognized at the outset that the Quebec Charter, which elevates freedom of expression to a fundamental freedom, was not enacted to encourage censorship,” wrote Chief Justice Richard Wagner and Justice Suzanne Côté in their reasons, with Justices Michael Moldaver, Russell Brown and Malcolm Rowe concurring.
“It follows that expression in the nature of rude remarks made by individuals does not in itself constitute discrimination under that statute.”
Jurisdiction of tribunal and discrimination claims
The Tribunal had found that Gabriel was the target of Ward’s jokes due to his fame, not due to his disability, the majority noted; but fame is not a prohibited ground of discrimination under the Quebec Charter.
Under s. 10 of Quebec’s Charter of human rights and freedoms, a complainant must establish three elements of discrimination: i) a distinction, exclusion or preference, ii) based on one of the grounds listed in the first paragraph of s. 10, iii) that has the effect of impairing the right to full and equal recognition and exercise of a human right or freedom.
Section 10 states that “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, gender identity or expression, 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.”
Here, Gabriel was targeted by Ward’s comments, and so the first test of distinction was met. However, the majority held that the second two elements were not made out. Gabriel was being mocked as a public figure, the majority found, which is not a prohibited ground of discrimination.
As well, the majority found, “Where the right to the safeguard of dignity is in conflict with freedom of expression, the complainant must first show that the expression incites others to vilify them or to detest their humanity on the basis of a prohibited ground of discrimination. The complainant must then establish that the expression, considered in its context, is likely to result in discriminatory treatment of them.”
Annamaria Enenajor, co-counsel for the intervener Canadian Constitution Foundation, is satisfied that the ruling does not relegate freedom of expression to only a secondary consideration.
The decision “clarifies how to assess discrimination in the context of competing rights under the Quebec Charter,” says Enenajor; “so, equally positioned competing rights: in this case, freedom of expression and the right to dignity.” Under the Quebec Charter, that hadn't been assessed previous to the Supreme Court of Canada ruling, she says.
The majority also noted that Ward’s comments about Gabriel did not lead to an action in defamation, but to a discrimination claim. “This distinction is important,” they wrote, “because the Tribunal has no power to decide actions in defamation or other civil liability actions, since its jurisdiction is limited to complaints of discrimination or exploitation based on ss. 10 to 19 and 48 of the Quebec Charter.”
“It is important to [note] that this question draws attention to a trend by the Commission and the Tribunal, in their decisions, to interpret their home statute, the Quebec Charter, as giving them jurisdiction over cases involving allegedly ‘discriminatory’ comments made by individuals, either in private or in public,” they continued.
“With respect, we are of the view that this trend deviates from this Court’s jurisprudence and reflects a misinterpretation of the provisions at issue in this case, particularly ss. 4 and 10 of the Quebec Charter, which guarantee, respectively, the right to the safeguard of dignity and the equal recognition and exercise of human rights and freedoms, including in a context where expression is allegedly ‘discriminatory.’ It leads to the suppression of expression whose content is perceived to be discriminatory and to significant monetary awards against the speakers [emphasis added].”
The majority also noted the public interest at play.
“Before it can be found that there has been discrimination in the recognition or exercise of a right provided for in any of ss. 1 to 9, the protection of that right must be called for in light of the ‘democratic values, public order and the general well‑being of the citizens of Québec’ referred to in s. 9.1, as it read at the relevant time.”
“What this decision makes clear is that it takes much more than offence [against an individual] to create a foul,” says Enenajor. “There has to be a harm that is causally linked to the impugned speech.” With this decision, “you are [now] interpreting the individual’s claim for discrimination in a way that looks at whether the speech that is supposed to be discriminatory is exercised in a way that has proper regard” for democratic principles and the public interest.
Legal framework for discrimination
The last element of discrimination required establishing whether the differential treatment based on a prohibited ground impaired Gabriel’s right to full and equal recognition of his right to the safeguard of his dignity. The majority found that a reasonable person would not view the comedian’s comments as inciting others to vilify him or detest his humanity on the basis of the prohibited ground.
“[M]aking fun of a person’s physical characteristics may be repugnant; it most certainly is when the person in question is a young person with a disability who contributes with determination to society. But expression of this kind does not, simply by being repugnant, incite others to detest or vilify the humanity of the person targeted.”
Second, the majority found that a reasonable person could not view the comments as likely to lead to discriminatory treatment of Gabriel, and the comments therefore did not exceed the limits of what a reasonable person would tolerate as freedom of expression under section 3 of the Quebec Charter.
Dissent
In a strongly worded dissent, Justices Rosalie Abella and Nicholas Kasirer, also writing for Justices Andromache Karakatsanis and Sheilah Martin, described in detail Ward’s stand-up patter that was insulting to Gabriel. The fact that Gabriel was famous as a child performer and a public figure did not mean that discrimination had not occurred, they found.
“Wrapping such discriminatory conduct in the protective cloak of speech does not make it any less intolerable when that speech amounts to wilful emotional abuse of a disabled child,” the dissenting justices wrote.
“Legislatures and the courts have consistently taken action to prevent and compensate for the serious harm that can be caused by speech. This is not, therefore, primarily a case about artistic freedom. It is a case about the rights of vulnerable and marginalized individuals, particularly children with disabilities, to be free from public humiliation, cruelty, vilification and bullying that singles them out on the basis of their disability and the devastating harm to their dignity that results.”
Counsel for the Commission des droits de la personne et des droits de la jeunesse was unavailable for comment.
“This is one of the most complicated social issues we’re facing right now, in terms of the balance between everybody's right to feel free from discrimination, and free speech,” says Stephanie DiGiuseppe, a partner in Ruby Shiller Enenajor DiGiuseppe in Toronto, who was co-counsel for the intervener Canadian Constitution Foundation with Enenajor.
“I think the Supreme Court did a really thorough job thinking through those issues and trying to come up with something that creates a fair and healthy society.”
Enenajor says the decision “should give comfort to those wishing to push the envelope through the exercise of their expressive rights. It elevates the test, and makes it have a much higher threshold, but also a much more objective one.”
