Appeal Judgments: 1 Allowed
Human Rights: Discrimination
Ward v. Quebec (Commission des droits de la personne et des droits de la jeunesse), 2019 QCCA 2042, 2021 SCC 43 (39041)
"From September 2010 to March 2013, W, a professional comedian, gave a show that included a routine in which he mocked certain figures in Quebec’s artistic community, including G, a public figure with a disability. W also made a video, posted on his website, in which he made disparaging comments about G. In both his video and his show, W mocked some of G’s physical characteristics. At the time of the events alleged against W, G was a minor and a student in secondary school, and he had an artistic career as a singer.
G’s parents filed a complaint with the Commission des droits de la personne et des droits de la jeunesse, which then asked the Human Rights Tribunal to find that W had interfered with G’s right to full and equal recognition of his right to the safeguard of his dignity, contrary to ss. 4 and 10 of the Quebec Charter. The Tribunal found that all the elements of discrimination under the Quebec Charter had been established. In particular, W had made comments concerning G’s disability, although he had not chosen G because of his disability, but rather because he was a public figure. The Tribunal rejected W’s defence based on freedom of expression, protected by s. 3 of the Quebec Charter, and found that his comments exceeded the limits of what a reasonable person can tolerate in the name of freedom of expression. The Tribunal therefore held that the discrimination suffered by G was not justified. W was ordered to pay moral and punitive damages to G. A majority of the Court of Appeal dismissed W’s appeal. In the majority’s view, the Tribunal could conclude that there was discrimination and that W’s comments were not justified by freedom of expression. The dissenting judge concluded instead that W’s comments did not constitute discriminatory speech."
The SCC (5:4) allowed the appeal.
Chief Justice Wagner and Justice Côté wrote as follows (at paras. 2-6,112-113):
"Very often, discrimination complaints are made in the context of employment, housing, or goods and services available to the public. In this case, the complaint that gave rise to the appeal is quite different, as it concerns a professional comedian, the appellant, Mike Ward, who mocked a public figure with a disability, Jérémy Gabriel.
However, the complaint underlying this appeal led not to an action in defamation based on the comments made by Mr. Ward, but rather to a discrimination claim based on those comments. Could the Tribunal conclude that the discrimination complaint was well‑founded? In our view, the answer must be no, because the elements of a discrimination claim under the Quebec Charter were not established.
It is important to begin by noting 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. 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.
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. 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. In this appeal, we therefore wish to clarify 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 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,  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. 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 impugned comments involved open provocation and systematic exaggeration — methods that increased their derisory effect. They were made by a career comedian known for this type of humour. They exploited, rightly or wrongly, a feeling of discomfort in order to entertain, but they did little more than that. As a result, the comments made in the video and the show, considered in their context, were not likely to have a spillover effect that could lead to discriminatory treatment of Mr. Gabriel.
Accordingly, the Commission did not meet the requirements for succeeding under ss. 4 and 10 of the Quebec Charter. But this conclusion does not mean that Mr. Gabriel was without recourse following these events. Other recourses were available. For example, though we express no opinion on the chances of success of these alternative recourses, Mr. Gabriel could have invoked the protection against harassment provided for in s. 10.1 of the Charter because of the fact that he had been bullied. He could also have brought an action in defamation. However, neither the Commission nor the Tribunal has jurisdiction over defamation. The combination of the norm of equality in the Quebec Charter and the right to the safeguard of dignity cannot confer such jurisdiction on them indirectly."