SUPREME COURT OF CANADA
Appeal Heard: February 15, 2021 Judgment Rendered: October 29, 2021 Docket: 39041
Between: Mike Ward Appellant and Commission des droits de la personne et des droits de la jeunesse Respondent - and - Sylvie Gabriel, Jérémy Gabriel, Association des professionnels de l'industrie de l'humour, International Commission of Jurists (Canada), Canadian Civil Liberties Association, Canadian Constitutional Foundation and League for Human Rights of B'Nai Brith Canada Interveners Official English Translation: Reasons of Wagner C.J. and Côté J. Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ.
Joint Reasons for Judgment:
Wagner C.J. and Côté J. (Moldaver, Brown and Rowe JJ. concurring)
(paras. 1 to 114)
Joint Dissenting Reasons:
Abella and Kasirer JJ. (Karakatsanis and Martin JJ. concurring)
(paras. 115 to 224)
Mike Ward Appellant
v.
Commission des droits de la personne et des droits de la jeunesse Respondent
and
Sylvie Gabriel,
Jérémy Gabriel,
Association des professionnels de l'industrie de l'humour,
International Commission of Jurists (Canada),
Canadian Civil Liberties Association,
Canadian Constitutional Foundation and
League for Human Rights of B'nai Brith Canada Interveners
Indexed as: Ward v. Quebec (Commission des droits de la personne et des droits de la jeunesse)
2021 SCC 43
File No.: 39041.
2021: February 15; 2021: October 29.
Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ.
on appeal from the court of appeal for quebec
Human rights — Right to safeguard of dignity — Right to equal recognition and exercise of human rights and freedoms — Freedom of expression — Discrimination claim brought on behalf of public figure with disability against professional comedian who mocked some of his physical characteristics — Scope of jurisdiction of Commission des droits de la personne et des droits de la jeunesse and Human Rights Tribunal with respect to discrimination — Legal framework that applies to discrimination claim based on expression where there is conflict between right to safeguard of dignity and freedom of expression –– Charter of human rights and freedoms, CQLR, c. C‑12, ss. 3 , 4 , 9.1 , 10 .
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.
Held (Abella, Karakatsanis, Martin and Kasirer JJ. dissenting): The appeal should be allowed.
Per Wagner C.J. and Moldaver, Côté , Brown and Rowe JJ.: The elements of a discrimination claim under the Quebec Charter have not been established. A discrimination claim is not, and must not become, an action in defamation. The two are governed by different considerations and have different purposes. A discrimination claim must be limited to expression whose effects are truly discriminatory. 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 . In this case, G was made subject to a distinction by being targeted by W's comments. However, in light of the Tribunal's finding that W did not choose G because of his disability but rather because he was a public figure, the distinction was not based on a prohibited ground. Moreover, even if there had been differential treatment based on a prohibited ground, G's right to full and equal recognition of his right to the safeguard of his dignity was not impaired.
A plaintiff claiming the protection of s. 10 of the Quebec Charter , which provides for a right to equality in the recognition and exercise of the other rights and freedoms guaranteed by the Quebec Charter , must satisfy a burden of proof that has three elements. First, the plaintiff must prove a distinction, exclusion or preference, that is, a decision, a measure or conduct that affects them differently from others to whom it may apply. Second, the plaintiff must establish that one of the characteristics expressly protected in s. 10 was a factor in the differential treatment complained of. Third, the plaintiff must show that the differential treatment impairs the full and equal exercise or recognition of a freedom or right guaranteed by the Quebec Charter . It is only where these three elements are established that the burden of justifying the discrimination then falls on the defendant. Hurtful expression relating to a ground listed in s. 10 of the Quebec Charter and harm suffered are insufficient to constitute discrimination and thus to be within the Tribunal's jurisdiction where the social effects of discrimination, such as the perpetuation of prejudice or disadvantage, are absent.
In addition, s. 9.1 of the Quebec Charter determines the scope of the fundamental right on which the alleged infringement of s. 10 is based. In a context where a discrimination claim is based on a right guaranteed by any of ss. 1 to 9 and where the defendant also asserts a right set out in those provisions, the respective scope of the rights being asserted must be determined in light of s. 9.1. Because s. 9.1 does not apply to s. 10 , this balancing exercise must be undertaken in analyzing the third element of discrimination. The right relied on by the defendant is not a defence, but a limit to the scope of the right invoked by the plaintiff. Before it can be found that there has been discrimination in the recognition or exercise of a right provided for in any of ss. 1 to 9, the protection of that right must be called for in light of the democratic values, public order and general well-being of the citizens of Quebec referred to in s. 9.1. There is no discrimination if, in a particular context, s. 9.1 gives the right exercised by the defendant precedence over the right invoked by the plaintiff in combination with s. 10 .
Where the claim brought requires a determination, in light of s. 9.1, of the respective scope of the right to the safeguard of dignity guaranteed by s. 4 and the freedom of expression protected by s. 3 , the analysis of the third element of discrimination involves interpreting these rights so that both are exercised with a proper regard for democratic values, public order and the general well‑being of the citizens of Quebec.
The right to the safeguard of dignity set out in s. 4 of the Quebec Charter permits a person to claim protection from the denial of their worth as a human being. It protects the humanity of every person in its most fundamental attributes. To be contrary to s. 4 of the Quebec Charter , conduct must therefore reach a high level of gravity that does not trivialize the concept of dignity. Such conduct cannot be assessed in a purely subjective manner; an objective analysis is required instead, because dignity is aimed at protecting not a particular person or even a class of persons, but humanity in general. Where a person is stripped of their humanity by being subjected to treatment that debases, subjugates, objectifies, humiliates or degrades them, there is no question that their dignity is violated. In this sense, the right to the safeguard of dignity is a shield against this type of interference that does no less than outrage the conscience of society.
The exercise of freedom of expression, for its part, presupposes, at the same time that it fosters, society's tolerance of expression that is unpopular, offensive or repugnant. Limits on freedom of expression are justified where, in a given context, there are serious reasons to fear harm that is sufficiently specific and cannot be prevented by the discernment and critical judgment of the audience, or where freedom of expression is used to disseminate expression that forces certain persons to argue for their basic humanity or social standing as a precondition to participating in the deliberative aspects of democracy. These limits also apply in an artistic context. Freedom of expression cannot give an artist a level of protection higher than that of other persons.
The principles arising from Saskatchewan (Human Rights Commission) v. Whatcott , 2013 SCC 11 , [2013] 1 S.C.R. 467, are indispensable to the required analysis of the legal framework that applies to a discrimination claim under the Quebec Charter in a context involving freedom of expression. In that case, the Court considered whether the prohibition against hate speech in s. 14(1) (b) of The Saskatchewan Human Rights Code was constitutional under s. 2(b) of the Canadian Charter of Rights and Freedoms . The Court limited the prohibition created by the provision in question 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 declined to limit freedom of expression in order to confer protection from emotional harm.
The test for resolving a conflict between the right to freedom of expression and the right to the safeguard of dignity, in the context of the Quebec Charter , requires that it be determined, first, whether a reasonable person, aware of the relevant context and circumstances, would 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. Hate speech within the meaning of Whatcott is therefore prohibited, as is expression that has the same effects on personal dignity without meeting the definition of hatred given in that case. Second, it must be shown that 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. The analysis is focused on the likely effects of the expression on third parties, that is, the discriminatory treatment likely to result from it, and not on the emotional harm suffered by the person alleging discrimination. The mode of expression and the effect of the mode of expression are determinative.
In this case, G was made subject to a distinction by being exposed to mockery in W's comedy show and videos. However, in light of the Tribunal's finding that W did not choose G because of his disability but rather because he was a public figure, the distinction was not based on a prohibited ground. Moreover, the comments made by W meet neither of the two requirements of the test established to resolve the conflict between the fundamental rights invoked by the parties. The first requirement of the test is not met: a reasonable person aware of the relevant circumstances would not view W's comments about G as inciting others to vilify him or to detest his humanity on the basis of a prohibited ground of discrimination. His comments, considered in their context, cannot be taken at face value. The second requirement of the test is also not met: a reasonable person could not view the comments made by W, considered in their context, as likely to lead to discriminatory treatment of G. The impugned comments exploited, rightly or wrongly, a feeling of discomfort in order to entertain, but they did little more than that. The Commission therefore does not meet the requirements for succeeding under ss. 4 and 10 of the Quebec Charter .
Per Abella , Karakatsanis, Martin and Kasirer JJ. (dissenting): The appeal should be dismissed. This case is about the rights of vulnerable and marginalized individuals, particularly children with disabilities, to be free from public humiliation, cruelty, vilification and bullying that singles them out on the basis of their disability and the devastating harm to their dignity that results. 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.
W's jokes about G, who was between 10 and 13 years old, were pejorative slurs based on his disability. W referred to G as the "ugly singing kid" and he mocked him as unable to close his mouth and as having a "sub‑woofer" on his head in describing a hearing aid device. His jokes about drowning G drew on pernicious stereotypes about persons with disabilities as objects of pity and as burdens on society who are disposable. W 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 W's authorization. Each time the jokes were repeated, so too was the harm to G. W's comments were so widespread that G could not ignore them. Neither could his classmates. W's jokes followed him to school where other children repeated the insults and magnified the mockery. This was a direct consequence of W, a well‑known figure in Quebec, distributing his routines about G widely. 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. W's comments caused G anguish and prompted him to isolate himself from his peer group and even to contemplate suicide. The language used by W about G's disability, both in live performances and on the internet, constituted a discriminatory interference with his right to dignity, honour and reputation.
At issue in this case is s. 10 of the Quebec Charter , which protects the equal exercise of other individual rights and freedoms, including the right to the safeguard of one's dignity. This provision serves to protect individuals from discriminatory speech so harmful that a reasonable person in their circumstances would refuse to tolerate it. To determine whether speech constitutes discrimination, the same framework as the one used for other claims of discrimination under s. 10 of the Quebec Charter applies. In this case, the impairment of the equal exercise of the right to dignity meets the threshold of sufficient seriousness through the widely disseminated taunting of a child with a disability that plays on dehumanizing notions associated with his disability. This impairment to the equal exercise of the right to dignity is not justified by W's freedom of expression. W's remarks result in a violation of the equal exercise of the right to the safeguard of dignity enshrined in the Quebec Charter .
The framework or test for claims of discrimination under s. 10 of the Quebec Charter was confirmed by the Court in 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. The approach to discrimination under the Quebec Charter , which is in keeping with the Court's application of the test for discrimination across the country, is to consider, at the first step, whether a case of prima facie discrimination is made out, and, at the second step, to determine if the conduct is justified.
At the first step, the complainant must show that the exercise of one of the rights and freedoms guaranteed by the Quebec Charter , other than equality, was affected in a discriminatory way. The complainant's burden is limited to showing prejudice and its connection to a prohibited ground of discrimination. The complainant does not have to show that that right or freedom was independently violated. There will be a distinction based on a prohibited ground whenever a complainant carries a burden that others do not, by reason of an enumerated personal characteristic. The use of an overtly discriminatory slur constitutes a distinction, exclusion, or preference based on an enumerated ground, while comments which are not overt slurs may constitute discrimination depending on how a person in the marginalized group at issue would understand them. Uniform treatment which fails to accommodate differences may also constitute a prohibited distinction. Whether there is a distinction on a ground listed in s. 10 in a particular case is a question of mixed fact and law that is owed deference on appeal.
If the complainant can show prima facie discrimination on a balance of probabilities, the defendant is entitled to present a defence or a justification. At this second step, the burden of proof shifts to the defendant to justify his or her decision or conduct on the basis of the exemptions provided for in the applicable human rights legislation or those developed by the courts.
As neither the Canadian Charter nor the Quebec Charter make hate speech the threshold at which discriminatory comments can be actionable, there is no constitutional bar to legal recourse in circumstances involving speech that can cause individual harm without being hateful. This is the case, for example, with harassment, defamation, and the Quebec Charter 's s. 4 right to the safeguard of one's dignity, honour and reputation. Section 10 of the Quebec Charter also places a prima facie limit on s. 2(b) of the Canadian Charter by prohibiting speech that prevents the equal exercise of the right to the safeguard of dignity, honour and reputation.
The legislative purpose underlying s. 10 is inherently tied to the other individual human rights and freedoms guaranteed by the Quebec Charter . It goes beyond preventing harm on a group scale and the perpetuation of discriminatory attitudes in the public at large. Its proper interpretation cannot be understood in reference to principles governing the constitutionality of a different provision with a different objective, such as the provision at issue in Whatcott , a case that concerns hate speech. Whatcott is not the proper standard to decide the present appeal. It is well recognized that speech can cause individual harm without being hateful. Nor does freedom of expression limit the ability of administrative decision‑makers to address harmful speech that is not hate speech.
Section 10 should continue to be interpreted in a way that allows for this individual harm to be addressed, in keeping with the standard set out by the Quebec Court of Appeal in Calego International inc. v. Commission des droits de la personne et des droits de la jeunesse , 2013 QCCA 924 , [2013] R.J.D.T. 517. The appropriate threshold for discriminatory speech under the Quebec Charter was set out in Calego . The determination of whether speech undermines the equal exercise of the right to dignity is an objective one, not subjectively determined, but it is one that takes into account the circumstances of the complainant. Only comments which are a particularly contemptuous affront to their racial, ethnic or other identity and one that has grave consequences will constitute discrimination. This is a fact specific and highly contextual inquiry. Based on Calego , speech based on an enumerated ground will violate the s. 10 guarantee of equality in the exercise of the s. 4 right to the safeguard of one's dignity when it constitutes such a contemptuous affront to the individual's identity that it would have serious consequences for the reasonable person in that individual's circumstances. The reasonable person would be aware of the importance of freedom of expression in a democratic society, and would therefore be expected to tolerate hurtful speech, even related to protected grounds, that does not rise to a high level of gravity. While the assessment of whether speech impairs dignity is objective, it must account for the particular characteristics of the plaintiff and it must consider all of the context in which the remarks are made.
When a claim involves a discriminatory interference with the exercise of the rights and freedoms outlined in the Quebec Charter , s. 10 is engaged and the Human Rights Tribunal has jurisdiction to hear the claim. While there is resemblance between a s. 10 claim based on equal exercise of dignity and a claim of defamation, because s. 4 of the Quebec Charter is implicated in both, a claim for defamation does not necessarily engage the distinct right to dignity and it is not based on the plaintiff's membership in a particular group. The grounds of defamation and discrimination each address related but distinct violations.
The rights set out in ss. 1 to 9 of the Quebec Charter may be recognized as justifications to prima facie discrimination. Generally, conflicts between individual Quebec Charter rights are resolved under s. 9.1, which requires consideration of democratic values, public order and the general well‑being of the citizens of Quebec in balancing rights. Ensuring a proportionate balance between the rights of individuals under the Quebec Charter involves a consideration of the specific rights at issue, the values that underpin them and the circumstances of the particular case. Because of s. 9.1, the right to freedom of expression protected by s. 3 , like the s. 4 right, may not be exercised in a way that is disproportionately harmful or abusive. Only by properly balancing the complainant's right to the safeguard of his dignity and the defendant's freedom of expression can the scope of the s. 10 right to the equal exercise of the right to the safeguard of dignity be appreciated. The s. 9.1 balancing thereby ties back to the standard expressed in Calego , which is attuned to the value of free expression in society.
In determining whether there is a proportionate public interest justifying an exercise of freedom of expression which violates another person's Quebec Charter rights, courts must consider all of the values concerned. With well‑known personalities, as with anyone else, courts must consider all the competing interests at stake, the harm caused and whether there is an actual identifiable public interest permitting the impugned expression. Artistic expression, like any other expression, may cross a boundary when its effect is to disproportionately harm others.
There is disagreement with the majority that the Tribunal was wrong to find a distinction on an enumerated ground, or that it committed a palpable and overriding error in doing so. The Tribunal concluded, rightly, that both W's widely disseminated video clips and his stand‑up special subjected G to a distinction based on his disability. W targeted aspects of G's public personality which were inextricable from his disability, which made him stand apart from the other public figures that W mocked as "sacred cows".
The existence of prima facie discrimination depends on whether this distinction had the effect of impairing G's right to free and equal recognition of the s. 4 right to the safeguard of his dignity, as a fundamental right under s. 10 of the Quebec Charter . The applicable standard that W's speech had to meet to constitute an actionable violation of this prohibition on discrimination is whether W's comments were likely to cause serious harm to a reasonable person in G's circumstances. On the modified objective standard that the Tribunal should have applied, there are unique aspects of this case that constitute facts sufficient to conclude that the Commission met its burden and that prima facie discrimination was made out. When W began performing his show in which he joked about drowning him, G was 13. In his stand‑up routine, W remarked that he defended G from criticism only until he found out that he was not dying, at which point he took it upon himself to drown him. W's jokes implied that society would be better off if G were dead and invoked archaic attitudes advocating for the exclusion and segregation of children with disabilities. W preyed on G's disability and the way it manifests itself in order to make his audience laugh, portraying the child as a subject of ridicule rather than as an individual deserving of respect. These are clearly the types of comments which lead a disabled child to question his self‑respect and self‑worth, violating s. 10 of the Quebec Charter and causing severe dignitary harm.
This conclusion shifts the onus to W to justify his prima facie discriminatory speech. He attempts to do so by invoking his right to freedom of expression under s. 3 of the Quebec Charter and s. 2(b) of the Canadian Charter as a defence. However, W's justifications that he did not intend to discriminate, that he was treating G like any other celebrity, and that his artistic licence as a comedian gave him a right to mock a disabled child have no basis in law. The Court's jurisprudence confirms that it is the impact of the conduct that matters, not the intention: it is immaterial whether W intended to mock G because he has a disability, whether W was joking or being serious, or whether G was skewered in the same way as other celebrities. The Court's jurisprudence also rejects the proposition that it is acceptable to discriminate if it results from treating likes alike. It also rejects the proposition that freedom of expression includes the right to discriminate. The jurisprudence also confirms the principle that the dignity of public figures is not necessarily subservient to the right to express harmful remarks. There is no reason to depart from that jurisprudence.
W's remarks cannot be justified in the circumstances and they result in a violation of the equal exercise of the right to the safeguard of dignity enshrined in the Quebec Charter . W's exercise of his expressive rights under s. 3 of the Quebec Charter are completely disproportionate when compared to the s. 4 harm suffered by G. A reasonable person in G's circumstances, even one attuned to the importance placed on freedom of expression, including artistic expression and satire, would not be expected to bear the speech at issue in this case. The Tribunal was entitled to grant punitive damages and there is no reason to overturn or modify them. Punitive damages here serve not only a denunciatory purpose, but serve to deter people like W from profiting from the intentional interference with the Charter rights of others and treating compensation for this harm as merely the cost of doing business.
Cases Cited
By Wagner C.J. and Côté J.
Applied: 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; Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65 ; followed: Saskatchewan (Human Rights Commission) v. Whatcott , 2013 SCC 11 , [2013] 1 S.C.R. 467; Devine v. Quebec (Attorney General) , [1988] 2 S.C.R. 790; considered : Calego International inc. v. Commission des droits de la personne et des droits de la jeunesse , 2013 QCCA 924 , [2013] R.J.D.T. 517; referred to: Housen v. Nikolaisen , 2002 SCC 33 , [2002] 2 S.C.R. 235; Aubry v. Éditions Vice‑Versa inc . , [1998] 1 S.C.R. 591; Béliveau St‑Jacques v. Fédération des employées et employés de services publics inc. , [1996] 2 S.C.R. 345; Prud'homme v. Prud'homme , 2002 SCC 85 , [2002] 4 S.C.R. 663; Mouvement laïque québécois v. Saguenay (City) , 2015 SCC 16 , [2015] 2 S.C.R. 3; Commission des droits de la personne et des droits de la jeunesse v. Filion , 2004) v. Montréal (City) , 2000 SCC 27 , [2000] 1 S.C.R. 665; Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Maksteel Québec Inc. , 2003 SCC 68 , [2003] 3 S.C.R. 228; Ontario Human Rights Commission v. Simpsons‑Sears Ltd. , [1985] 2 S.C.R. 536; Ford v. Quebec (Attorney General) , [1988] 2 S.C.R. 712; Bruker v. Marcovitz , 2007 SCC 54 , [2007] 3 S.C.R. 607; Health Services and Support — Facilities Subsector Bargaining Assn. v. British Columbia , 2007 SCC 27 , [2007] 2 S.C.R. 391; Quebec (Public Curator) v. Syndicat national des employés de l'hôpital St‑Ferdinand , [1996] 3 S.C.R. 211; R. v. Kapp , 2008 SCC 41 , [2008] 2 S.C.R. 483; Cinar Corporation v. Robinson , 2013 SCC 73 , [2013] 3 S.C.R. 1168; Gauthier v. Beaumont , [1998] 2 S.C.R. 3; Fortier v. Québec (Procureure générale ), 2015 QCCA 1426 ; Commission des droits de la personne et des droits de la jeunesse v. 9185‑2152 Québec inc. (Radio Lounge Brossard) , 2015 QCCA 577 ; Genex Communications inc. v. Association québécoise de l'industrie du disque, du spectacle et de la vidéo , 2009 QCCA 2201 , [2009] R.J.Q. 2743; Solomon v. Québec (Procureur général) , 2008 QCCA 1832 , [2008] R.J.Q. 2127; Procureur général du Canada v. Manoukian , 2020 QCCA 1486 , 70 C.C.L.T. (4th) 182; J.L. v. S.B. , [2000] R.R.A. 665 ; Bourdeau v. Hamel , 2013 QCCS 752 ; Hébert v. Giguère , [2003] R.J.Q. 89; Commission des droits de la personne et des droits de la jeunesse v. 9113‑0831 Québec inc. (Bronzage Évasion au soleil du monde) , 2007 QCTDP 18 , [2007] R.J.D.T. 1289; Law v. Canada (Minister of Employment and Immigration) , [1999] 1 S.C.R. 497; Irwin Toy Ltd. v. Quebec (Attorney General) , [1989] 1 S.C.R. 927; R. v. Zundel , [1992] 2 S.C.R. 731; Montréal (Ville de) v. Cabaret Sex Appeal inc. , [1994] R.J.Q. 2133; Hill v. Church of Scientology of Toronto , [1995] 2 S.C.R. 1130; Bou Malhab v. Diffusion Métromédia CMR inc. , 2011 SCC 9 , [2011] 1 S.C.R. 214; R. v. Keegstra , [1990] 3 S.C.R. 697; Canada (Human Rights Commission) v. Taylor , [1990] 3 S.C.R. 892; R. v. Butler , [1992] 1 S.C.R. 452; Little Sisters Book and Art Emporium v. Canada (Minister of Justice) , 2000 SCC 69 , [2000] 2 S.C.R. 1120; R. v. Sharpe , 2001 SCC 2 , [2001] 1 S.C.R. 45; Brodie, Dansky and Rubin v. The Queen , [1962] S.C.R. 681; WIC Radio Ltd. v. Simpson , 2008 SCC 40 , [2008] 2 S.C.R. 420; Trudeau v. AD4 Distribution Canada inc. , 2014 QCCA 1740 ; Hydro‑Québec v. Matta , 2020 SCC 37 , [2020] 3 S.C.R 595.
By Abella and Kasirer JJ. (dissenting)
Calego International inc. v. Commission des droits de la personne et des droits de la jeunesse , 2013 QCCA 924 , [2013] R.J.D.T. 517; 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; Velk v. McGill University , 2011 QCCA 578 , 89 C.C.P.B. 175; Quebec (Commission des droits de la personne) v. St‑Jean‑Sur‑Richelieu, Commission scolaire (1994) , 117 D.L.R. (4th) 67; British Columbia (Public Service Employee Relations Commission) v. BCGSEU , [1999] 3 S.C.R. 3; McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l'Hôpital général de Montréal , 2007 SCC 4 , [2007] 1 S.C.R. 161; Moore v. British Columbia (Education) , 2012 SCC 61 , [2012] 3 S.C.R. 360; British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights) , [1999] 3 S.C.R. 868; Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City) , 2000 SCC 27 , [2000] 1 S.C.R. 665; Janzen v. Platy Enterprises Ltd. , [1989] 1 S.C.R. 1252; Desroches v. Commission des droits de la personne , [1997] R.J.Q. 1540; Commission des droits de la personne et des droits de la jeunesse v. Remorquage Sud‑Ouest (9148‑7314 Québec inc.) , 2010 QCTDP 12 ; St‑Éloi v. Rivard , 2018 QCTDP 2 ; Commission des droits de la personne et des droits de la jeunesse v. Camirand , 2008 QCTDP 11 ; Commission des droits de la personne et des droits de la jeunesse v. Paradis , 2016 QCTDP 17 ; Commission des droits de la personne et des droits de la jeunesse v. Quenneville , 2019 QCTDP 18 ; De Gaston v. Wojcik , 2012 QCTDP 20 ; Commission des droits de la personne et des droits de la jeunesse v. Brisson , 2009 QCTDP 3 ; Eldridge v. British Columbia (Attorney General) , [1997] 3 S.C.R. 624; Commission scolaire régionale de Chambly v. Bergevin , [1994] 2 S.C.R. 525; Andrews v. Law Society of British Columbia , [1989] 1 S.C.R. 143; Dennis v. United States , 339 U.S. 162 (1950); Withler v. Canada (Attorney General) , 2011 SCC 12 , [2011] 1 S.C.R. 396; Mouvement laïque québécois v. Saguenay (City) , 2015 SCC 16 , [2015] 2 S.C.R. 3; Ontario Human Rights Commission v. Simpsons‑Sears Ltd. , [1985] 2 S.C.R. 536; Saskatchewan (Human Rights Commission) v. Whatcott , 2013 SCC 11 , [2013] 1 S.C.R. 467; Canada (Human Rights Commission) v. Taylor , [1990] 3 S.C.R. 892; Canadian Broadcasting Corp. v. Canada (Attorney General) , 2011 SCC 2 , [2011] 1 S.C.R. 19; Commission des droits de la personne et des droits de la jeunesse v. Sfiridis , 2002 QCTDP 42; McCoy v. McCoy , 2014 QCCS 286 ; Bou Malhab v. Diffusion Métromédia CMR inc. , 2011 SCC 9 , [2011] 1 S.C.R. 214; British Columbia Human Rights Tribunal v. 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APPEAL from a judgment of the Quebec Court of Appeal (Savard, Roy and Cotnam JJ.A.), 2019 QCCA 2042 , 62 C.C.L.T. (4th) 230, [2019] AZ‑51648647, [2019] J.Q. n o 10380 (QL), 2019 CarswellQue 10278 (WL Can.) , setting aside in part a decision of the Quebec Human Rights Tribunal, 2016 QCTDP 18 , 35 C.C.L.T. (4th) 258, 84 C.H.R.R. D/155, [2016] AZ‑51307297, [2016] Q.H.R.T.J. No. 18 (QL), 2016 CarswellQue 13003 (WL Can.) . Appeal allowed, Abella, Karakatsanis, Martin and Kasirer JJ. dissenting.
Julius H. Grey and Geneviève Grey , for the appellant.
Stéphanie Fournier and Lysiane Clément‑Major , for the respondent.
Stéphane Harvey , for the interveners Sylvie Gabriel and Jérémy Gabriel.
Walid Hijazi , for the intervener Association des professionnels de l'industrie de l'humour.
Guy Régimbald , for the intervener the International Commission of Jurists (Canada).
Christopher D. Bredt , for the intervener the Canadian Civil Liberties Association.
Annamaria Enenajor , for the intervener the Canadian Constitutional Foundation.
David Matas , for the intervener the League for Human Rights of B'nai Brith Canada.
English version of the judgment of Wagner C.J. and Moldaver, Côté, Brown and Rowe JJ. delivered by
The Chief Justice and Côté J. —
I. Introduction
[ 1 ] This appeal concerns the legal framework that applies to a discrimination claim involving a public figure's right to the safeguard of his dignity, on the one hand, and a professional comedian's freedom of expression, on the other. It invites us, incidentally, to clarify the scope of the jurisdiction of the Commission des droits de la personne et des droits de la jeunesse ("Commission") and the Human Rights Tribunal ("Tribunal") with respect to discrimination claims based on the Charter of human rights and freedoms , CQLR, c. C‑12 (" Charter " or " Quebec Charter ").
[ 2 ] 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.
[ 3 ] 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.
[ 4 ] 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.
[ 5 ] 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.
[ 6 ] 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 , [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. 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.
[ 7 ] In this case, we are of the opinion that the elements of a discrimination claim under the Quebec Charter have not been established. We would therefore allow the appeal.
II. Background
[ 8 ] The appeal is between Mr. Ward and the Commission, which is acting here for the benefit of Mr. Gabriel. In the proceedings below, the Commission also acted on behalf of Mr. Gabriel's parents, Sylvie Gabriel and Steeve Lavoie. We note that Mr. Gabriel and Ms. Gabriel are interveners in this appeal.
[ 9 ] At the time of the events alleged against Mr. Ward, Mr. Gabriel was a minor and a student in secondary school, and he had an artistic career as a singer. The circumstances in which Mr. Gabriel began that career, at the age of 8 and with his parents' support, are commendable. He was born with Treacher Collins syndrome, which caused certain malformations of the head as well as profound deafness. When he was 6 years old, he received a bone‑anchored hearing aid that made it possible for him to hear 80 to 90 percent of sounds. Thanks to that hearing aid, he learned to speak and to sing.
[ 10 ] The first two years of his career, 2005 and 2006, were highlighted by several events that received media coverage (e.g., performance of the national anthem at a sporting event, an invitation to sing for Céline Dion, and a musical performance in Rome in the presence of Pope Benedict XVI). He carried on with his career by taking part in a number of television shows, the production of a documentary about Treacher Collins syndrome that was broadcast in France, the release of an album and then his autobiography, and concerts. As a result of his fame, Mr. Gabriel became a patient ambassador for Shriners Hospitals in 2012. He travelled in Canada and the United States and volunteered to participate in shows and fundraisers.
[ 11 ] Mr. Ward, for his part, is a professional comedian and a graduate of the École nationale de l'humour whose career began in 1993. His performances, for which he has won many awards, are, he says, in the style of dark comedy, a comedy genre in which shocking subjects or social taboos are "tackled".
[ 12 ] From September 2010 to March 2013, Mr. Ward gave a show called Mike Ward s'eXpose , the main theme of which was tolerance and the fact that [ translation ] "we are all the same". Around 135,000 tickets were sold. This litigation centres on one of the routines in that show, called [ translation ] The Untouchables . In that routine, Mr. Ward mocked certain figures in Quebec's artistic community whom he described as [ translation ] "sacred cows" that could not be made fun of for various reasons, whether because of their wealth or their influence, or because "they are seen as weak" (examination‑in‑chief of Mr. Ward, A.R., vol. III, at p. 146, excerpts quoted in C.A. reasons, at paras. 75, 14 and 168). Mr. Gabriel was one of the public figures referred to in the routine.
[ 13 ] In addition to that show, Mr. Ward made several videos on topical subjects that were posted on his website. The videos were about a number of public figures. One of them was posted in connection with the release of Mr. Gabriel's autobiography. In that video, Mr. Ward made disparaging comments about Mr. Gabriel's physical appearance.
[ 14 ] The evidence shows that students attending the same secondary school as Mr. Gabriel drew inspiration from some of the comments in that video to make fun of him. The evidence also shows that, at the time, Mr. Gabriel was already the subject of tasteless jokes by people who drew a connection between his performance for Pope Benedict XVI or his meeting with Cardinal Ouellet and pedophilia, well before Mr. Ward made his comments about him.
[ 15 ] In 2012, Mr. Gabriel's parents filed a complaint with the Commission, on their own behalf and on behalf of Mr. Gabriel, sometime after the broadcast of a television interview with Mr. Ward that included an excerpt from the routine called The Untouchables concerning their son. The Commission concluded that there was a basis for discrimination and referred the complaint to the Tribunal.
III. Procedural History
A. Human Rights Tribunal, 2016 QCTDP 18 , 35 C.C.L.T. (4th) 258 (Judge Hughes presiding)
[ 16 ] The Tribunal considered the three elements of discrimination within the meaning of the Charter , namely: (1) a distinction (2) based on a prohibited ground (3) that has the effect of nullifying or impairing the equal recognition or exercise of a human right or freedom. First, Mr. Ward had subjected Mr. Gabriel to differential treatment by making comments about him in order to make his audience laugh. Second, Mr. Ward had made comments concerning Mr. Gabriel's disability, although he had not chosen Mr. Gabriel because of his disability. Third, Mr. Ward's derogatory comments attained the degree of seriousness required by Calego International inc. v. Commission des droits de la personne et des droits de la jeunesse , 2013 QCCA 924 , [2013] R.J.D.T. 517. The Tribunal therefore concluded that by exposing Mr. Gabriel to mockery because of his disability, Mr. Ward had infringed Mr. Gabriel's right to the safeguard of his dignity in a discriminatory manner.
[ 17 ] Having found that all the elements of discrimination had been established, the Tribunal considered Mr. Ward's "defence" based on freedom of expression. In its view, Mr. Ward's 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 Mr. Gabriel was not justified. Mr. Ward was ordered to pay $25,000 in moral damages and $10,000 in punitive damages. He then appealed that judgment.
B. Quebec Court of Appeal, 2019 QCCA 2042 , 62 C.C.L.T. (4th) 230
(1) Majority Reasons (Roy and Cotnam JJ.A.)
[ 18 ] The appeal was dismissed by the majority, Justices Claudine Roy and Geneviève Cotnam, who noted that the standard of review applicable in an appeal from a decision rendered by the Tribunal is reasonableness. [1] First, they pointed out that Mr. Ward had chosen Mr. Gabriel both because of his fame and because of his disability and that the impugned comments had been directed specifically at the physical characteristics associated with that disability. In their view, the Tribunal could reasonably find that there was a distinction based on a prohibited ground. The Tribunal's finding on the third element of discrimination was also upheld on the basis that, even in a pluralistic society, a reasonable person targeted by Mr. Ward's comments would have had their dignity impaired in a discriminatory manner.
[ 19 ] The majority then analyzed the "defence" raised by Mr. Ward. In their opinion, the Tribunal had accurately applied the approach outlined by this Court in Bombardier by treating freedom of expression as a means of justifying expression that is prima facie discriminatory. They also adopted the test set out in Calego , which involves determining whether a reasonable person accustomed to a pluralistic society in which freedom of expression is valued and some immoderate language is accepted would regard the affront suffered as particularly contemptuous and fraught with consequences for them. In the majority's view, the Tribunal could reasonably conclude that Mr. Ward's comments were not justified by freedom of expression. The majority declined, in obiter , to recognize that comedy performances have a special status when it comes to freedom of expression.
(2) Dissenting Reasons (Savard J.A.)
[ 20 ] In dissent, Justice Manon Savard (as she then was) began by pointing out the only legal issue raised in the case:
[ translation ] The issue raised by the appeal is of an entirely different nature. It concerns the analytical framework to be adopted by the Human Rights Tribunal ("Tribunal") when it has to decide a complaint of discrimination resulting from expression, and nothing else, based on a ground prohibited under section 10 of the Charter of human rights and freedoms . The issue also requires a review, within that framework, of the appropriate balance between the right to dignity and freedom of expression. Beyond the impugned expression, which was in the style — by definition shocking and trenchant — of the type of humour used by the appellant, did he discriminate against the impleaded parties? And I stress that I am saying discriminate and not defame, because the Tribunal has no jurisdiction in the latter case. [Emphasis in original; footnote omitted; para. 7.]
[ 21 ] In the view of Savard J.A., who would have allowed Mr. Ward's appeal, the Tribunal had erred by excluding any comparative and contextual analysis in finding differential treatment. The fact that a person is targeted by name in a comedy show is not enough to establish a distinction within the meaning of s. 10 of the Quebec Charter . Savard J.A. also found that references to a prohibited ground that characterizes a person cannot on their own satisfy the first two elements of discrimination. In her opinion, the Tribunal had also erred by considering interference with the right to the safeguard of dignity in isolation; it should have considered freedom of expression not as a defence that could justify discriminatory conduct, but as a limit to the scope of that right pursuant to s. 9.1 of the Quebec Charter . That provision, she found, requires a balancing of freedom of expression and the right to the safeguard of dignity. Relying on the principles set out in Saskatchewan (Human Rights Commission) v. Whatcott , 2013 SCC 11 , [2013] 1 S.C.R. 467, Savard J.A. concluded that Mr. Ward's comments did not constitute discriminatory speech and that the Tribunal had therefore erred in finding otherwise.
IV. Issue
[ 22 ] The only issue is 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. Before dealing with that issue, we think it will be helpful to say a few words about the applicable standard of review and to note the distinction that must be drawn with respect to jurisdiction over, on the one hand, an action in defamation and, on the other, a discrimination claim in the context of the Quebec Charter .
V. Relevant Provisions of the Quebec Charter
[ 23 ] The provisions of the Quebec Charter at issue in this appeal, as they read at the relevant time, are as follows:
CHAPTER I
FUNDAMENTAL FREEDOMS AND RIGHTS
Every person is the possessor of the fundamental freedoms, including freedom of conscience, freedom of religion, freedom of opinion, freedom of expression, freedom of peaceful assembly and freedom of association.
Every person has a right to the safeguard of his dignity, honour and reputation.
9.1. In exercising his fundamental freedoms and rights, a person shall maintain a proper regard for democratic values, public order and the general well‑being of the citizens of Québec.
In this respect, the scope of the freedoms and rights, and limits to their exercise, may be fixed by law.
CHAPTER I.1
RIGHT TO EQUAL RECOGNITION AND EXERCISE OF RIGHTS AND FREEDOMS
- 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, 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.
Discrimination exists where such a distinction, exclusion or preference has the effect of nullifying or impairing such right.
VI. Applicable Standard of Review
[ 24 ] As stated above, the Court of Appeal found that reasonableness was the standard of review that applied in this case. However, the applicable standard of review was modified by Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65 , which was released a few weeks after the Court of Appeal's judgment. According to Vavilov , the presumption that reasonableness is the applicable standard of review for an administrative decision will be rebutted where the legislature has provided for "a statutory appeal mechanism from an administrative decision maker to a court, thereby signalling the application of appellate standards" (para. 33).
[ 25 ] Here, ss. 132 and 133 of the Quebec Charter state that the Tribunal's decisions may be appealed to the Quebec Court of Appeal. Because there is a statutory appeal mechanism, appellate standards apply rather than the reasonableness standard ( Vavilov , at para. 37 ; see Housen v. Nikolaisen , 2002 SCC 33 , [2002] 2 S.C.R. 235). The applicable standard is correctness for questions of law and palpable and overriding error for questions of mixed fact and law.
VII. Jurisdiction Over Defamation and Discrimination
[ 26 ] Any action for compensation for the moral or material prejudice resulting from an infringement of a right guaranteed by the Quebec Charter is subject to the ordinary rules of civil liability ( Aubry v. Éditions Vice‑Versa inc . , [1998] 1 S.C.R. 591, at para. 49 ; Béliveau St‑Jacques v. Fédération des employées et employés de services publics inc. , [1996] 2 S.C.R. 345, at para. 122 ). An action in defamation, whose purpose is to remedy the consequences of wrongful interference with reputation, is no exception to this principle. Although it encompasses the right of every person to the safeguard of their reputation set out in s. 4 of the Charter , it still requires proof of the coexistence of fault, injury and a causal connection between the two ( Prud'homme v. Prud'homme , 2002 SCC 85 , [2002] 4 S.C.R. 663, at para. 32 ).
[ 27 ] In this regard, it is important to be clear that the comments made by Mr. Ward about Mr. Gabriel did not lead to an action in defamation, but rather to a discrimination claim. This distinction is important because 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 ( ss. 111 , 80 and 71(1) of the Quebec Charter ; Mouvement laïque québécois v. Saguenay (City) , 2015 SCC 16 , [2015] 2 S.C.R. 3, at para. 40 ). The Tribunal can hear disputes involving expression like the comments made in this case only if the expression may constitute discrimination within the meaning of s. 10 of the Charter .
Appeal allowed without costs, Abella , Karakatsanis , Martin and Kasirer JJ. dissenting.
Solicitors for the appellant: Grey Casgrain, Montréal.
Solicitor for the respondent: Bitzakidis, Clément‑Major, Fournier (CDPDJ), Montréal.
Solicitor for the interveners Sylvie Gabriel and Jérémy Gabriel: Stéphane Harvey Avocat Inc., Québec.
Solicitor for the intervener Association des professionnels de l'industrie de l'humour: Walid Hijazi, Montréal.
Solicitors for the intervener the International Commission of Jurists (Canada): Gowling WLG (Canada), Ottawa.
Solicitors for the intervener the Canadian Civil Liberties Association: Borden Ladner Gervais, Toronto.
Solicitors for the intervener the Canadian Constitutional Foundation: Ruby Shiller Enenajor DiGiuseppe, Toronto.
Solicitor for the intervener the League for Human Rights of B'nai Brith Canada: David Matas, Winnipeg.
[1] This standard of review was modified by Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65 , which was released a few weeks after the Court of Appeal's decision. We will refer to that case in Part VI of these reasons.
[2] Vavilov , decided a few years after Whatcott , modified the standards of review that apply in a context in which there is a statutory right of appeal from an administrative tribunal's decision.
[3] This includes not only the "Fundamental Freedoms and Rights" set out in ss. 1 to 9 , but also the "Political Rights" set out in ss. 21 and 22, the "Judicial Rights" set out in ss. 23 to 38 and the "Economic and Social Rights" set out in ss. 39 to 48 .
[4] Quebec has also declared itself to be bound by the CRC (Décret 1676-91, (1992) 124 G.O. II, 51).
[5] Quebec has also declared itself to be bound by the convention (Décret 179-2010, (2010) 142 G.O. II, 1196).
