Canada: The Supreme Court Writes About The Legal Framework That Applies To Discrimination Claims Involving Freedom Of Expression Under The Charter Of Human Rights And Freedoms
Litigation and Dispute Resolution Bulletin

Introduction

On October 29, 2021, the Supreme Court of Canada put an end to the high-profile legal saga involving comedian Mike Ward and Jérémy Gabriel, a public figure.

The case arose in 2012 when Mr. Gabriel's parents filed a complaint in their own and their son's names with the Commission des droits de la personne et des droits de la jeunesse (the "Commission") based on Mr. Ward's comments about Mr. Gabriel in his comedy shows and in comedy videos posted on his website. Mr. Ward allegedly mocked some of Mr. Gabriel's physical characteristics, Mr. Gabriel being a person with a disability, having been born with Treacher Collins syndrome, a congenital disease characterized, in his case, by malformations of the head and profound deafness.

Procedural History

On July 20, 2016, the Human Rights Tribunal (the "Tribunal") found that Mr. Ward had infringed Mr. Gabriel's right to the safeguard of his dignity, which is protected by sections 4 and 10 of the Quebec Charter of human rights and freedoms (the "Charter"), in a discriminatory manner. The Tribunal was of the opinion that the comments made had exceeded the limits of what a reasonable person could tolerate in the name of freedom of expression, as protected by section 3 of the Charter, and that the discrimination was not justified. The Tribunal noted that while Mr. Ward had made comments about Mr. Gabriel's disability, he had not chosen Mr. Gabriel because of his disability, but because he was a public figure.¹

On November 28, 2019, the Quebec Court of Appeal found that the Tribunal could reasonably have found that there was a distinction based on a prohibited ground and that Mr. Ward's comments were not justified by freedom of expression.²

Mr. Ward then obtained leave to appeal the decision of the Court of Appeal to the Supreme Court of Canada.

Decision of the Supreme Court

In a decision that divided the judges of the Court, the Supreme Court of Canada (the "Court") allowed the appeal and set aside the decision of the Court of Appeal.

Discrimination Claim

The majority, composed of Chief Justice Wagner and Justices Moldaver, Côté, Brown and Rowe, held first that the claim made was for discrimination and not for defamation. That distinction was crucial, since the jurisdiction of the Tribunal was limited to complaints of discrimination or exploitation based on sections 10 to 19 and 48 of the Charter.

The Court addressed the trend by the Commission and the Tribunal, in their decisions, to interpret the Charter as giving them jurisdiction over cases involving allegedly discriminatory comments made by individuals, either in private or in public. According to that line of decisions, hurtful expression relating to a ground listed in section 10 of the Charter (right to equality in the recognition and exercise of rights and freedoms) constituted discrimination and might be within the Tribunal's jurisdiction, even in the absence of the social effects of discrimination, such as the perpetuation of prejudice or disadvantage. The Court was of the opinion that this trend deviated from its jurisprudence and reflected a misinterpretation of the provisions at issue. The Court noted that the Tribunal had no power to decide actions in defamation or other civil liability actions.

Legal framework that applies to a discrimination claim

The Court clarified the legal framework that applies to a discrimination claim under the Charter in a situation involving freedom of expression.

To succeed, a plaintiff must establish all of the elements of discrimination under section 10 of the Charter:

1. that they were the victim of a distinction, exclusion or preference, that is, a decision, measure or conduct that affects them differently from others to whom it may apply;
2. based on one of the grounds listed in the first paragraph of section 10 of the Charter; and
3. that its effect was to impair the right to full equality in the recognition and exercise of a human right or freedom.

Where the plaintiff has proved these three factors, the burden of justifying the discrimination falls on the defendant.

The right to freedom of expression is therefore not a defence, but a limit to the scope of the right invoked by the plaintiff. Accordingly, the third step is when the conflict between the plaintiff's right to the safeguard of his dignity and the defendant's right to freedom of expression must be resolved. The plaintiff must therefore first show that the expression incites others to vilify them or detest their humanity on the basis of a prohibited ground of discrimination. They must then establish that the expression, considered in its context, is likely to result in discriminatory treatment of them.

Right to the safeguard of dignity and freedom of expression

The concept of humanity is central to the right to the safeguard of dignity (section 4 of the Charter), in that it does not protect every person as such, but protects the humanity of every person in its most fundamental attributes. The concept of freedom of expression (section 3 of the Charter) flows from the concept of human dignity and protects the right of everyone to manifest their thoughts, opinions or beliefs.

Since the Charter does not establish any hierarchy between these two rights, the proper approach when they are in conflict is to interpret them so that both are exercised with a proper regard for democratic values, public order and the general well-being of the citizens of Quebec, as required by section 9.1 of the Charter.

The Court stated the test that applied in order to resolve a conflict between the right to freedom of expression and the right to the safeguard of dignity in the context of the Charter. What must be determined is:

1. whether a reasonable person, aware of the relevant context and circumstances, would view the representations as exposing or likely to expose a person or class of persons to detestation or vilification on the basis of a prohibited ground of discrimination; and
2. whether a reasonable person would view the expression, considered in its context, as likely to lead to discriminatory treatment of the person targeted, that is, to jeopardize the social acceptance of the individual or group.

It is therefore an objective analysis focused on the likely effects of the expression on third parties, that is, the discriminatory treatment likely to result from it, and not a subjective approach based on the emotional harm suffered by the person alleging discrimination.

Conclusions of the Supreme Court

Applying the legal framework and the principles already established in this case, the Court concluded that the elements of a discrimination claim based on the Charter had not been established.

The Court was of the opinion that although Mr. Gabriel was made subject to a distinction by being targeted by Mr. Ward's comments, the distinction was not based on a ground prohibited by the Charter. In so finding, the Court relied on the conclusion of the Tribunal that Mr. Ward did not choose Mr. Gabriel because of his disability, but rather because he was a public figure. The second step of the test was therefore not met.

The Court stated that even if it had concluded that the first two steps had been met, Mr. Gabriel's claim would have had to fail. The Court concluded that "a reasonable person aware of the relevant circumstances would not view Mr. Ward's comments about Mr. Gabriel as inciting others to vilify him or to detest his humanity on the basis of a prohibited ground of discrimination"³ and that "[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."⁴

To summarize, the Court was of the opinion that Mr. Ward's comments at his shows and in his online comedy videos were not likely to have a spillover effect that could have led to discriminatory treatment of Mr. Gabriel.

Dissent

The four dissenting judges of the Court (Abella, Karakatsanis, Martin and Kasirer) were rather of the opinion that Mr. Ward's comments resulted in a violation of the right to the full and equal exercise of the right to the safeguard of dignity enshrined in the Charter and that his freedom of expression could not justify that violation. They would therefore have dismissed the appeal.

Conclusion

In addition to being a leading decision on the duality of freedom of expression and the right to dignity in the context of a claim of discrimination, Ward v. Quebec (Commission des droits de la personne et des droits de la jeunesse) points to the importance of choosing one's remedy wisely at the outset. After dismissing the claim, without ruling as to the chances of success, the Court said that Mr. Gabriel could have invoked the protection against harassment provided for in section 10.1 of the Charter or brought an action in defamation.⁵ It is therefore crucial to explore alternative remedies with one's legal advisor before launching a trek through the courts that could last several years.

Footnotes

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