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The majority of the Supreme Court of Canada found a comedian’s routine about a youth with a disability was not discriminatory

Ontario

,

Canada

From September 2010 to March 2013, the appellant, Mike Ward, a professional comedian, gave a show that included a routine in which he mocked certain figures in Quebec’s artistic community, including Jeremy Gabriel, a public figure in Quebec with a disability.Ward also made a video, posted on his website, in which he made disparaging comments about Gabriel. In both his video and his show, Ward mocked some of Gabriel’s physical characteristics. At the time of the events alleged against Ward, Gabriel was a minor and a student in secondary school, and he had an artistic career as a singer.

The Supreme Court considered Ward’s appeal in Ward v. Quebec (Commission des droits de la personne et des droits de la jeunesse), 2021 SCC 43.

Procedural History

Gabriel’s parents filed a complaint with the Human Rights Commission. The Commission referred the complaint to the Tribunal, alleging that Ward had interfered with Gabriel’s right “to the safeguard of his dignity” and therefore discriminated against him under the Quebec Charter.

The Tribunal found that there was discrimination under the Charter based on a breach of Gabriel’s right to dignity. The Tribunal rejected Ward’s freedom of expression defense, finding that his comments were not protected free speech.

On appeal, the majority of the Quebec Court of Appeal dismissed Ward’s appeal, finding that the Tribunal could reasonably conclude that Ward’s speech was not protected speech.

The Majority’s Decision

Chief Justice Wagner and Justice Côté, writing for the majority, found that a discrimination claim under the Quebec Charter had not been established. The majority found that hurtful expression relating to a prohibited ground in the Quebec Charter and hard suffered thereto are insufficient to constitute discrimination (paras 91-113).

Since the Tribunal found as fact that Ward did not select Gabriel as a subject on the basis of his disability, there was no link between the distinction and the prohibited claim. The allegation was more appropriately considered to be a defamation claim (paras 91-113).

Tribunal’s Lack of Jurisdiction

Chief Justice Wagner and Justice Côté emphasized that 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 (paras 26-30).

Freedom of Expression is not a Defence

Freedom of expression is not a defense to consider after a claim for discrimination has been established. Rather, where two rights protected under the Quebec Chart are in apparent conflict, in this case, the right to safeguard one’s dignity in s. 4 and freedom of expression in s. 3 – the two rights must be considered together to determine the scope of the protected rights.

The majority outlined the following two-part test for reconciling the right to safeguard one’s dignity with freedom of expression (paras 79 – 90):

  1. would a reasonable person, aware of the relevant context and circumstances, 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 and,
  2. would a reasonable person 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?

The majority concluded that neither part of the test was met on the facts.

Minority Decision

The minority decision, written by Justices Abella and Kasirer, held that Ward’s comments were discriminatory and in breach of the Quebec Charter. In particular, the minority decision emphasized the harm done by Ward’s comments directed at a youth with a disability.

April 14, 2022
Ward v. Quebec (Commission des droits de la personne et des droits de la jeunesse), 2021 SCC 43