Introduction
On November 25, 2022, the Max Bell School of Public Policy, in partnership with the Centre for Human Rights and Legal Pluralism, organized a half-day conference entitled Hate Humour and Harm to explore the legal and policy dimensions of the Supreme Court of Canada’s 2021 decision in Ward v Quebec (Commission de droit de la personne et des droits de la jeunesse). Ward involved allegations of discrimination against Quebec comedian Mike Ward and reset the boundaries among freedom of expression, non-discrimination rights, and dignity.
Ward marks a major departure from previous Quebec caselaw where discriminatory speech could be the subject of human rights complaints based on Article 4 of Quebec’s Charter of human rights and freedoms [Quebec Charter], which protects, among other rights, the right to safeguard individual dignity. After Ward, Quebec’s human rights commission acknowledged having to dismiss dozens of investigations in complaints. According to Le Devoir, 194 cases had been shut down.
This blog argues that the majority of the Court undermined human rights protections in Quebec, strengthened the relevance of intent in human rights claims, and altered the legislative structure of the Quebec Charter. While the majority was clear that comedy routines do not benefit from any special form of immunity when it comes to hate speech and discrimination, it also suggested that it would be rare or unusual for comedy to fall afoul of human rights law.
Overview of the Ward decision
On October 29, 2021, the Supreme Court of Canada rendered its decision in the controversial case of Ward v Quebec (Commission de droit de la personne et des droits de la jeunesse). Comedian Mike Ward’s “dark” comedy mocked public figures considered as “sacred cows” in Quebec. One of his targets was Jérémy Gabriel, who was a minor at the time, and has a disability.
Mr. Gabriel achieved a degree of fame as a child performer. He has Treacher Collins syndrome which results in facial abnormalities and, in Gabriel’s case, deafness. Mr. Ward’s routine mocked Mr. Gabriel’s appearance and his singing (Mr. Gabriel had had corrective surgery that allowed him to hear, speak and sing). The comedy routine also included ‘jokes’ about trying to kill Mr. Gabriel by drowning. The comedy show and the video enjoyed wide circulation. Mr Gabriel claimed that he experienced social exclusion, distress and depression, and considered suicide.
A discrimination complaint was filed by Mr. Gabriel’s parents, both for their son and themselves. Quebec’s human rights commission brought the matter successfully to the Quebec Human Rights Tribunal. An appeal to the Quebec Court of Appeal was dismissed 2 to 1 and the Supreme Court of Canada allowed the appeal and decided in favour of Mr. Ward in a narrow 5-4 decision.
Quebec’s Charter: Distinct no more?
The Quebec Charter was designed as a “national” bill of rights and is unique because it does not limit complaints to the usual social areas like employment, public services and housing, unlike other human rights laws in Canada like the Ontario Human Rights Code and the Canadian Human Rights Act. Quebec’s distinct approach is set out in the first paragraph of s. 10 of the Quebec Charter, and provides for full and equal recognition and exercise of specified human rights and freedoms:
s. 10: 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. (Emphasis added.)
Until Ward, caselaw in Canada such as Quebec (Attorney General) v. 9147-0732 Québec inc. had used a purposive interpretation of rights based on the language chosen to articulate specific rights or freedoms, the historical origins of the concepts enshrined and, where applicable, the meaning and purpose of the other specific rights and freedoms. The “human rights and freedoms” mentioned in s. 10 are a reference to rights that are set out in an earlier part of the Quebec Charter, and include the right to safeguard dignity, the right to honour and reputation (s. 4), as well as the right to freedom of expression (s. 3). There are no provisions that limit the operation of s. 10 to social areas like employment, as is the case in other jurisdictions outside Quebec. The majority’s opinion in Ward nonetheless restricted, or even “read down”, the scope of the Quebec Charter so that it only applies to cases in those social areas of employment, services, housing and the like, at least where speech is involved, despite the fact that there is no language in the Quebec Charter to support this reading.
Undoing Dignity?
The Universal Declaration of Human Rights places human dignity at the foundation of human rights law. In Law v. Canada (Minister of Employment and Immigration), the Supreme Court described dignity as concerned with the integrity and empowerment of individuals and groups by addressing unfair treatment premised upon personal traits or circumstances which do not relate to individual needs, capacities, or merits (at para. 53).
While the majority in Ward recognized the significance of dignity, it effectively diminished its role and protection in the human right cases. First, the Court argued that s. 4 of the Quebec Charter does not protect persons but rather the humanity of persons (par 56). Second, the Court suggested that to rise to the level of a violation of human dignity and to avoid debasing the concept of dignity, we should look to the atrocities of the Second World War for “historical context” (para 57). Finally, the Court said there is no right to dignity per se but, rather, a right to safeguard dignity (para 58). The Court also said that dignity-based claims should be filed as defamation proceedings and not as human rights complaints. The result is that the Court narrowed the meaning to be given to s. 10 and altered the structure of the Quebec Charter.
On the basis of these differences, which the Court apparently viewed as significant, dignity’s role in human rights cases where the basis for the discriminatory conduct is expression was severely restricted (paras 85-87). This approach might be contrasted with the 2013 Quebec Court of Appeal decision in Calego International inc. c. Commission des droits de la personne et des droits de la jeunesse. In that case, the Quebec Court of Appeal held that a series of racist, derogatory comments made by an employer about Chinese employees constituted discrimination under ss. 4 and 10 of the Quebec Charter. Notably, Calego did not rely on the specific protections in the Quebec Charter that do exist regarding employment but was based on the right to safeguard dignity. Somewhat confusingly, the Court in Ward acknowledged that Calego remains valid law, at least within the restrictions noted earlier, but also relied on the 2013 Supreme Court case called Saskatchewan (Human Rights Commission) v. Whatcott, in which the Saskatchewan Human Rights Code’s restrictions on hate speech were upheld, while striking down the provision that prohibited speech that ridicules or belittles people or otherwise affronts their dignity.
The word “otherwise” in the Saskatchewan Code is important because it connected dignity claims to speech that merely belittle or ridicule people, without rising to the level of discrimination. The Court in Ward appears to have interpreted Whatcott to mean that few discriminatory speech acts will be only actionable if they fall short of hate speech or force people to argue for their very humanity. To qualify as discrimination, the Court decided that a reasonable person, aware of the relevant context and circumstances, would have to view the expression targeting an individual or group as inciting others to vilify them or to detest their humanity on the basis of a prohibited ground of discrimination.
Conflating hate speech and discriminatory speech acts
The majority in Ward conflated discriminatory speech acts and hate speech in cases where dignity rights are claimed (although similar reasoning may apply in other cases where speech acts are at issue). In the future, and outside specific social areas like employment, only cases meeting the high standard of hate speech are likely to be considered discriminatory. In this respect, the Court was critical of previous caselaw in Quebec:
… 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… 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…, 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 (para 4).
Still, the Court acknowledged that the purpose of preventing hate speech is to prevent discrimination. Discrimination law has long used speech acts not only as proof of discrimination but as part of discrimination itself. In Calego, Mr. Justice Vézina rejected the employer’s argument that discriminatory speech had to amount to hate speech in order to be considered discriminatory (paras 30 ff, paras 110-111). He also noted that defamation and human rights complaints are not mutually exclusive (para 40).
The majority of the judges of the Court of Appeal in Calego further noted that ss. 4 and 10 of the Quebec Charter should be read together, and that the protection of dignity is not the same thing as a right not to be offended, a frequent critique of restrictions on freedom of expression. The Court went on to emphasize that while a free society that values free speech must accept “some excesses,’ the speech acts in Calego were held nonetheless to be discriminatory.
The minority of the Court in Ward made a similar point when it argued that speech can cause individual harm without being considered hate speech, and pointed out that there are several types of limits on freedom of expression that do not have to meet the standards of hate speech (para 157). It also observed that freedom of expression does not limit administrative decision‑makers’ ability to address harmful speech that is not hate speech.1
There are many examples in human rights law of speech that constitutes or incites discrimination, including discriminatory notices, signs and symbols and language that constitutes harassment, among others. Pointing to the level of atrocities of the Second World War as a benchmark for safeguarding dignity creates an almost impossibly high bar. It also creates licence for the majority to verbally attack minority rights. The words of McLachlin J. (as she then was) in R. v. Zundel, [1992] 2 S.C.R. 731 are relevant here: “the view of the majority has no need of constitutional protection” (p. 753). To require that the legal test for hate speech (or speech approximating hate speech) becomes the threshold for actionable discrimination effectively strips vulnerable minorities of their capacity to seek the protection of human rights law for forms of expression that create the very social exclusion and stereotypes that lie at the heart of discrimination law.
Intent and Harm to the Victim
Since 1985, the Supreme Court has said that the test of discrimination lies in its effect and not intent. The Court in Whatcott reiterated this point: the “key is to determine the likely effect of the expression on its audience keeping in mind the legislative objectives to reduce or eliminate discrimination.” (at para 58). The term “hatred” in legislative hate speech prohibitions should be applied objectively, to determine whether a reasonable person, in comparable contexts and circumstances, would view the expression as likely to expose a person or persons to the detestation and vilification that is required to amount to hate speech (at paras 35 and 58). Intention may be relevant for decisions regarding punitive damages, but not for evidence of discrimination itself.2
Nonetheless, the Court was of the view that Mr. Ward’s intent to attack “sacred cows” was sufficient to exonerate him, despite the fact that In both his video and his show, Mr. Ward had explicitly targeted Mr. Gabriel’s physical characteristics, which were the result of his disability. The comedy routine would have made no sense without reference to Mr. Gabriel’s disability and even if disability was relevant, however repugnant that may be, it did not incite others to detest or vilify the humanity of the person targeted, a reference to the hate speech standard. In a related point, the Court also examined the question of whether comedy gets a special pass under human rights law when it might amount to hate speech.
Social harm, humour and hate
In Whatcott and in the earlier 1990 decisions in Canada (Human Rights Commission) v Taylor (at pp. 918‑19) and R. v. Keegstra (at pp. 746‑48) the Supreme Court held that restrictions on hate speech are justified under s 1 of the Charter, not only because of the emotional distress caused to members of vulnerable groups, but also because hate speech tends to propagate premises of inferiority that may gradually desensitize people and lay the groundwork for later, broad attacks. Humour can be an especially effective vehicle for disseminating hateful messages.
While the majority of the Court in Ward declined to give impunity to comedians in matters of hate speech (at para 90), it went on to say that humour, whether in good or in bad taste, will “rarely” give rise to an attitude of hatred and discrimination (at para 89). It observed that “exaggeration, over‑generalization, provocation and distortion of reality” usually allow audiences to identify these methods, and that they will be “discerning enough not to take everything said at face value.” Only in exceptional cases will expression have enough motivating force to lead to discriminatory treatment, according to the majority. This assurance has considerably less persuasive effect, however, when juxtaposed with the minority’s observations:
[216] In this case, Mr. Ward’s message about Mr. Gabriel, albeit one said in jest, was that he was disposable and that society would be better off without him. Unlike other “sacred cows” targeted by Mr. Ward, Jérémy Gabriel fell victim to a stark power imbalance here. The focus of the jokes was not only on Mr. Gabriel’s disability but was connected to harmful, dehumanizing notions associated with the worth of children with disabilities. In this way, the speech strayed far from “the quest for truth, the promotion of individual self‑development or the protection and fostering of a vibrant democracy” said to underlie s. 2(b) (Taylor, at p. 922, quoting Keegstra, at p. 766), and which will justify insulting humour in other contexts. The mere fact that it provoked laughter, or that the speech was delivered in performance, does not change Mr. Ward’s message.
Conclusion
The Supreme Court of Canada’s decision in the Ward case has raised significant concerns about what appear to have been de facto attempts to “read down” or restrict the operation of the Quebec Charter of Human Rights and Freedoms as regards the interaction between the right to safeguard dignity (as distinct from reputation other matters that are normally dealt with under defamation law), freedom of expression, and the right to be free from discrimination.
Speakers at the November 25 conference also noted the attenuated notion of dignity and human rights law that has resulted from the Supreme Court of Canada’s decision, and what may be a regressive effect in human rights law with respect to the relevance of intention in establishing discrimination in Quebec law. Finally, it remains to be seen whether the longer leash given to comedy in matters of discrimination and hate will create a more permissive environment for both forms of expression in Canada.
Pearl Eliadis is a senior human rights lawyer who has led complex global projects for the UN and other multilateral organizations. She has worked in eight countries in Africa and Asia for the UN and other multilateral organizations. She is a member of the Law Society of Ontario and is past President of the Quebec Bar Association’s Human Rights Committee, where she is currently serves on its Expert Group on Human Rights. Pearl is Associate Professor (Professional) at McGill University where she teaches public policy and law. She works on minority rights and language rights and is a member of the federal Committee of Experts of the Court Challenges Program (Official Languages).