Over the palpably outraged dissent of minority judges Rosalie Silberman Abella, Andromache Karakatsanis, Sheilah Martin and Nicholas Kasirer, a five-judge majority allowed Ward’s appeal from a 2019 Quebec Court of Appeal decision which affirmed that the Quebec Human Rights Tribunal — after balancing complainant Jérémy Gabriel’s Quebec Charter-guaranteed human right to dignity with Mike Ward’s right to freedom of expression — reasonably concluded that Ward’s comments were discriminatory, and surpassed what Gabriel, whose facial appearance was repeatedly derided, could reasonably tolerate: Ward v. Quebec (Commission des droits de la personne et des droits de la jeunesse), 2021 SCC 43.
Writing jointly for Justices Michael Moldaver, Russell Brown and Malcolm Rowe, Chief Justice Richard Wagner and Justice Suzanne Côté stressed that a discrimination claim is not, and must not become, an action in defamation — i.e. the two are governed by different considerations and purposes — and disapproved the trend of human rights tribunals in Quebec to broadly interpret their home statute, the Quebec Charter, as giving them jurisdiction over cases involving offensive speech that allegedly amount to “discriminatory” comments made by individuals, either in private or in public.
“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’,” the majority said. “It leads to the suppression of expression whose content is perceived to be discriminatory and to significant monetary awards against the speakers.”
The majority said the only issue in the appeal was “that of the legal framework that applies to a discrimination claim under the Quebec Charter, in a context involving freedom of expression, in order to determine whether, in this case, Mr. Ward interfered with Mr. Gabriel’s right to the safeguard of his dignity and thereby in fact discriminated against him.”
The majority went on to hold that the Quebec Human Rights Tribunal did not have jurisdiction to proceed with the case, and award damages, as “the elements of a discrimination claim under the Quebec Charter have not been established.”
The majority ruled that a reasonable person would not view the comedian’s comments as inciting others to detest or vilify the young person’s humanity on the basis of a prohibited ground of discrimination.
“His comments, considered in their context, cannot be taken at face value,” the majority explained. “Although Mr. Ward said some nasty and disgraceful things about Mr. Gabriel’s disability, his comments did not incite the audience to treat Mr. Gabriel as subhuman.”
The majority said it was clarifying the legal framework that applies to a discrimination claim in a context involving freedom of expression.
“Briefly stated, a complainant must, in order to succeed, establish all the elements of discrimination, as required by s.10 of the Quebec Charter,” the majority explained. “The complainant must show (1) a distinction, exclusion or preference; (2) based on one of the grounds listed in the first paragraph of s.10; (3) that has the effect of impairing the right to full and equal recognition and exercise of a human right or freedom (Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39, [2015] 2 S.C.R. 789, at para. 35). At this last step, the scope of the fundamental right on which the alleged infringement is based must be determined in light of s. 9.1 [of the Quebec Charter]. 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.”
The majority concluded that in this case the first requirement of the test was not met. Making fun of a person’s physical characteristics, as Ward did in both a video and his show, “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,” the majority said. “But expression of this kind does not, simply by being repugnant, incite others to detest or vilify the humanity of the person targeted (Whatcott, at paras. 90‑91).”
Moreover, the majority said, even if the judges had found that the comments did incite others to vilify Gabriel or to detest his humanity on a prohibited ground, “the analysis of the second requirement of the test set out in this decision would also have led to the denial of his claim. A reasonable person could not view the comments made by Mr. Ward, considered in their context, as likely to lead to discriminatory treatment of Mr. Gabriel.”
The majority emphasized that the Quebec Charter, which elevates freedom of expression to a fundamental freedom, “was not enacted to encourage censorship. It follows that expression in the nature of rude remarks made by individuals does not in itself constitute discrimination under that statute. But this does not mean that the Quebec Charter can never apply to expression of this kind in very specific circumstances.”
The Supreme Court’s four dissenting judges agreed with the human rights tribunal’s conclusion that Ward’s comments amounted to discrimination under Quebec’s Charter, with Justices Abella and Kasirer writing jointly that “this is an appeal about discriminatory speech that targets a disabled child. It involves a comedian relying on his artistic license to skewer public figures, and a child with a physical disability who became known as a singer. The issue is whether the child with disabilities lost protection from discrimination and the right to be free from public humiliation and bullying just because he is well known.”
They went on to emphasize that “this country has spent generations working towards creating a society that values human rights and protects individuals from harm caused by their differences of race, religion, disability, colour, or sexual orientation, among other grounds.”
“We would never tolerate humiliating or dehumanizing conduct towards children with disabilities; there is no principled basis for tolerating words that have the same abusive effect,” Justices Abella and Kasirer wrote. “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.”
Gabriel, was 15 at the time he and his mother complained to the human rights commission. He has Treacher Collins syndrome, a rare genetic disorder characterized by abnormalities of the head and face. He attained fame in Quebec by publicly singing, from a very young age, for well-known public figures.
During a performance by Ward in 2012, he made several comments mocking Gabriel’s physical characteristics as part of what the comedian described as “dark humour” aimed at deflating a number of public figures who he called “sacred cows” of Quebec’s artistic milieu.
The Quebec Human Rights Tribunal held that Ward discriminated against Gabriel, and ordered the comedian to pay the youth $25,000 in moral damages and $10,000 in punitive damages: 2016 QCTDP 18.
Ward’s appeal was dismissed 2-1 by the Quebec Court of Appeal with Justice Manon Savard (since appointed chief justice of Quebec) dissenting on the basis that Ward’s statements about the complainant did not amount to discriminatory speech in the circumstances: 2019 QCCA 2042.
Annamaria Enenajor of Toronto’s Ruby Shiller, co-counsel with Stephanie DiGiuseppe for the intervener Canadian Constitutional Foundation (CCF), said her client is “very pleased” with the Supreme Court’s majority’s decision.
“The CCF argued that the test for discrimination should be modified to reflect the role freedom of expression plays in properly defining and limiting what constitutes discriminatory speech under the Quebec Charter,” she said. “The Supreme Court of Canada agreed with us and adopted the test for discrimination proposed by our client. Where there are competing rights under the Quebec Charter, these rights must be interpreted so that they are exercised with a proper regard for democratic values, public order and the general well-being of the citizens of Quebec.”
Enenajor added that the majority affirmed the CCF’s position that freedom of expression is not a defence, but rather is a limit, to the scope of the rights protected in ss. 1 to 9 of the Quebec Charter. “This is an important statement that speech — even controversial or repugnant speech — has social value and should be protected from unjustified state intrusion,” she said.
Christopher Bredt of Toronto’s Borden Ladner Gervais, who with Laura Wagner, Mannu Chowdhury and Jamie Cameron represented the intervener Canadian Civil Liberties Association, said he finds it incongruous that the minority in the Ward appeal comprises the same four judges who earlier this month vigorously defended freedom of expression to the extent that they would have struck down the Ontario government’s downsizing of wards during Toronto’s municipal election.
Bredt said: “I was surprised that this was such a close judgment. The idea that human rights commissions are going to take a role in monitoring what happens in comedy clubs, in the light of the expressive freedoms that are protected, to me would just be shocking and surprising. A lot of humour is discriminatory in nature.”
Bredt said many comedians use ethnic or cultural stereotypes to lampoon people, or engage in other speech that offends people. For human rights commissions to police offensive speech would be a “very serious” infringement of freedom of expression, he suggested.
Winnipeg’s David Matas, co-counsel with Sarah Teich for the intervener League for Human Rights of B’Nai Brith Canada, said the majority’s decision points up the need in Canada to follow the example of Belgium, by enacting legislative changes to expressly ban “incitement to discrimination” that does not amount to hate speech.
“The decision highlights a gap in Canadian human rights legislation,” Matas said. “The Quebec Charter, the Ontario Human Rights Code, and other provincial human rights legislation need to be amended to include incitement to discrimination as a form of discrimination.”
Matas said such a change to Canada’s human rights laws would be consistent with art. 7 of the Universal Declaration of Human Rights, which states: “All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.”
Stéphane Harvey of Québec City, counsel for the intervener Jérémy Gabriel, said his 26-year-old client is, of course, very disappointed by the outcome of his decade-long legal odyssey. At the same time his client recognizes that the highest court was closely split, with a strong dissent.
Harvey agreed with Matas that legislating a human rights prohibition against incitement to discrimination is a good idea, given that the Supreme Court has now spoken with finality on the current human rights legislation. In that regard, “we can do nothing more,” Harvey said.
Stéphane Beaulac of Montreal’s Dentons, who with Guy Régimbald of Gowlings Ottawa and University of Ottawa law professor Errol Mendes, represented the intervener International Commission of Jurists, said what principally divided the majority and minority in their analysis, and tipped the balance, was that the majority focused on the likely discriminatory effects of the expression, not on the emotional harm suffered by the person alleging discrimination.
Beaulac, a law professor at the Université de Montréal, said the standard adopted by the majority is important for human rights lawyers practising in common law provinces to know about, notwithstanding that Quebec’s non-discrimination provisions differ substantively from other laws.
He said the majority relied on principles set out in Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11, where the court limited the prohibition against hate speech in s.14(1)(b) of The Saskatchewan Human Rights Code to expression that could inspire extreme feelings of detestation likely to affect the vulnerable group’s acceptance within society, and that also had enough motivating force to lead to the type of discriminatory treatment the legislature was seeking to address. The court refused to limit freedom of expression in order to confer protection from emotional harm.
Beaulac said the majority in Ward slightly adjusted the test downward to put the bar for establishing offensive expression human rights claims not quite as high as the test for hate speech, but “put it much higher than the dissent ... that would have been willing to consider severe emotional harm ... evaluated on an objective test.”
The “pejorative slurs based on his disability” directed at Gabriel by Ward, while the boy was between 10 and 13 years old, were detailed by Justices Abella and Kasirer in their minority opinion.
Ward referred to Gabriel as the “ugly singing kid,” they said. He was mocked as unable to close his mouth, and as having a “sub‑woofer” on his head in reference to his hearing aid. Ward’s “jokes about drowning Gabriel drew on pernicious stereotypes about persons with disabilities as objects of pity and as burdens on society who are disposable,” the dissenters wrote. “Ward performed his stand‑up routine 230 times to a combined audience of over 100,000 people, and sold over 7,500 DVD copies of it. His video clips remained accessible to all on his website for a year, and were made available on other platforms without Ward’s authorization.”
The minority said that each time the jokes were repeated, so was the harm to Gabriel. “Ward’s comments were so widespread that Gabriel could not ignore them. Neither could his classmates. Ward’s jokes followed him to school where other children repeated the insults and magnified the mockery. This was a direct consequence of Ward, a well‑known figure in Quebec, distributing his routines about Gabriel widely,” Justices Abella and Kasirer said. “This must be considered as a factor in the determination of whether W’s comments were likely to cause serious harm to a reasonable person in his circumstances. Ward’s comments caused Gabriel anguish and prompted him to isolate himself from his peer group and even to contemplate suicide. The language used by Ward about Gabriel’s disability, both in live performances and on the internet, constituted a discriminatory interference with his right to dignity, honour and reputation,” they concluded.
However, the majority held that the elements of a discrimination claim under the Quebec Charter were not established. Gabriel was made subject to a distinction by being exposed to mockery in the comedy show and videos. But in light of the tribunal’s finding that Ward did not choose Gabriel because of his disability but rather because he was a public figure, the distinction was not based on a prohibited ground, the majority said. Moreover, Ward’s comments met neither of the two requirements of the test established to resolve the conflict between the fundamental rights invoked by the parties.
Photo of Chief Justice Richard Wagner by Supreme Court of Canada Collection
Photo of Justice Suzanne Côté by Phillipe Landreville
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