Case Summary and Outcome

The Supreme Court of Canada held that jokes made by a comedian—Mike Ward—at the expense of a famous, disabled child—Jérémy Gabriel—did not amount to a discriminatory violation of Mr. Gabriel’s right to the safeguard of his dignity under Quebec’s Charter of Human Rights and Freedoms.  The jokes at issue expressly mocked Mr. Gabriel’s disability as part of a comedy routine targeting Quebec celebrities whom Mr. Ward believed benefited from a social taboo against making fun of them.  The jokes included ridiculing Mr. Gabriel’s appearance and singing, and commenting on his having lived beyond early childhood – referring to him as being “unkillable.”  Mr. Gabriel’s parents complained about the jokes to the Commission des droits de la personne et des droits de la jeunesse, and the Commission brought a discrimination claim on their behalf to the Quebec Human Rights Tribunal.  After the Tribunal held that Mr. Ward’s jokes amounted to discrimination on the basis of disability and ordered him to pay $35,000 CAD in damages to Mr. Gabriel in compensation—a decision upheld by the Quebec Court of Appeal—Mr. Ward appealed to the Supreme Court of Canada.  The Court allowed Mr. Ward’s appeal, holding that both the Tribunal and Court of Appeal erred in articulating and applying the legal framework for adjudicating the discrimination claim against Mr. Ward.  Moreover, the Court concluded that, applying the proper legal framework, Mr. Ward’s jokes did not amount to discrimination for three reasons:  first, Mr. Ward targeted Mr. Gabriel due to his fame, rather than his disability; second, the jokes did not incite others to vilify Mr. Gabriel or to detest his humanity on the basis of his disability; and third, the jokes were unlikely to lead to discriminatory treatment of Mr. Gabriel.  In doing so, the Court stressed the importance of protecting freedom of expression, including artistic freedom, while affirming that freedom of expression is not absolute in Canadian law.

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Facts

Mike Ward is a professional comedian specializing in dark comedy, a genre in which a comedian tells jokes relating to sensitive subjects or social taboos.

At the time of the events giving rise to the case, Jérémy Gabriel was a disabled child and public figure.  Mr. Gabriel suffers from Treacher Collins syndrome, which caused certain malformations of his head as well as severe 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.  Thereafter, Mr. Gabriel pursued a career as a singer, which led to, among other experiences, him: singing the Canadian national anthem at a Montreal Canadiens hockey game; singing with Céline Dion; and singing for Pope Benedict XVI in Rome.

In 2007, when he was 10 years old, Mr. Gabriel released an autobiography. Shortly afterwards, Mr. Ward posted several video clips on his website mocking and imitating Mr. Gabriel.  Between September 2010 and March 2013, when Mr. Gabriel was between the ages of 13 and 16, Mr. Ward performed a comedy show called Mike Ward s’eXpose.  The show was performed 230 times, with approximately 135,000 tickets sold.  It was videotaped in 2012 and was available for download from Mr. Ward’s website in 2013 and for sale on DVD, with 7,500 copies produced.

One of the routines in Mr. Ward’s show was called The Untouchables, during which he mocked certain figures in Quebec’s artistic community whom he described as “sacred cows” [para. 12] 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” [para. 12].  Mr. Gabriel was one of the public figures Mr. Ward mocked during the routine:

You remember little Jérémy, y’know, the kid with the subwoofer on his head?

When little Jérémy came, everyone complained except me, I was the only one who defended him. Y’know when he came, he sang for the Pope, people said, “He’s really bad, he’s off‑key, he sings badly”. I defended him, I said, “He’s dying, let him live out his dream, he’s living out a dream. His dream was to sing off‑key in front of the Pope”.

Then after he sang for the Canadiens, people complained again, “He sings badly. He’s off‑key, he’s no good”. Christ, he’s living out a dream, let him live out his dream.

[He] sang for Céline, again with the “He really sucks, he’s off‑key, he sings badly”. Christ, he’s dying, let him live out his dream. I defended him . . .  Except now . . . five years later . . . he’s still not dead!

Idiot that I am, I defended him like an idiot, and he doesn’t die.

I saw him with his mother at a Club Piscine. I tried to drown him . . . couldn’t do it, couldn’t do it, he’s unkillable.

I went online to see what his illness was. You know what’s wrong with him? He’s ugly!  [para. 123]

During a television interview in 2012, Mr. Ward reiterated his belief that his comments about Mr. Gabriel were funny, but he also appeared to acknowledge that they may have crossed the line of acceptability, and that some viewers may believe his comments amounted to bullying a disabled child.

Following the interview, Mr. Gabriel’s parents filed a complaint with the Commission des droits de la personne et des droits de la jeunesse (the “Commission”), on their own behalf and on behalf of Mr. Gabriel, alleging that Mr. Ward’s comments violated their rights under ss. 4 and 10 of the Charter of Human Rights and Freedoms (the “Quebec Charter”), which enshrine, respectively, the right to “the safeguard of dignity, honour and reputation”, and the right to equality.

Mr. Gabriel and other witnesses testified that Mr. Ward’s comments—together with subsequent bullying inflicted by Mr. Gabriel’s peers at school—made Mr. Gabriel question his own worth, feel lost, fragile, and isolated, become taciturn and withdrawn, experience suicidal thoughts, and perform worse academically.

The Commission determined that Mr. Ward’s comments constituted discrimination and brought the complaint to the Quebec Human Rights Tribunal (the “Tribunal”).  The Commission acted on behalf of Mr. Gabriel and his parents before the Tribunal and during all subsequent proceedings.  Before the Tribunal, it sought $40,000 in moral damages for Mr. Gabriel and an order directing Mr. Ward to cease making comments about Mr. Gabriel or his parents that relate to his disability and to cease publishing his image or reporting his actions.

Mr. Ward sought to justify his comments on the basis that they fell within the scope of his right to freedom of expression as laid out in s. 3 of the Quebec Charter.

The Tribunal concluded that Mr. Ward had exposed Mr. Gabriel to mockery because of his disability, and that Mr. Ward had therefore infringed Mr. Gabriel’s right to the safeguard of his dignity in a discriminatory manner.  It rejected Mr. Ward’s reliance on freedom of expression on the basis that his comments exceeded the limits of what a reasonable person can tolerate in the name of freedom of expression.  The Tribunal awarded Mr. Gabriel $25,000 in moral damages and $10,000 in punitive damages.

Mr. Ward appealed the Tribunal’s decision to the Quebec Court of Appeal, which upheld the Tribunal’s decision by a 2–1 majority.  The majority, consisting of Justices Claudine Roy and Geneviève Cotnam, concluded that the Tribunal’s decision was reasonable, including the Tribunal’s conclusion that Mr. Ward’s comments were not justified by freedom of expression.  The dissenting judge, Justice Manon Savard, would have allowed Mr. Ward’s appeal on the basis that the Tribunal committed several legal errors and because, in her view, Mr. Ward’s comments did not constitute discriminatory speech.

Mr. Ward sought leave to appeal the Quebec Court of Appeal’s decision to the Supreme Court of Canada.  The Supreme Court of Canada granted Mr. Ward’s application for leave to appeal on July 30, 2020.

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Decision Overview

Chief Justice Wagner and Justice Côté wrote the majority judgment of the Supreme Court of Canada, with which Justices Moldaver, Brown, and Rowe concurred.  The Court had to decide whether a comedian’s comments regarding a famous child’s disability amounted to discrimination under the Quebec Charter and, more broadly, how to resolve the inherent tension between Mr. Ward’s right to freedom of expression and Mr. Gabriel’s right to the safeguard of his dignity.

Mr. Ward argued that his comments did not amount to discrimination and that the Tribunal and the majority of the Court of Appeal erred in identifying and applying the legal framework for s. 10 of the Quebec Charter.  Specifically, he argued that the elements of a discrimination claim cannot be examined in isolation without considering freedom of expression, which limits the right to the safeguard of dignity.

The Commission argued in response that Mr. Ward’s comments interfered with Mr. Gabriel’s “right to equal recognition of the right to the safeguard of his dignity” [para. 31] and that such interference was not justified by freedom of expression.

The majority began its decision by clarifying the proper legal framework applicable to discrimination claims under the Quebec Charter, including the relationship between various of its sections.  The Court noted that, unlike the Canadian Charter of Rights and Freedom, the Quebec Charter does not protect equality per se.  Rather, the right to equality set out in s. 10 of the Quebec Charter is protected only in the “recognition and exercise” [para. 35] of the other rights and freedoms guaranteed by the Quebec Charter, such as the right to the safeguard of dignity under s. 4. 

The majority then clarified the import of s. 9.1 of the Quebec Charter, which, at the relevant time, provided:

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.

The majority explained that, pursuant to s. 9.1, “[n]o right [under the Quebec Charter] is absolute.”  [para. 37]  Rather, s. 9.1 “temper[s] the absoluteness of the freedoms and rights set out in ss. 1 through 9 [of the Quebec Charter] . . . by imposing limits . . . on the holders of those rights and freedoms in relation to other citizens.”  [para. 38]   More specifically, 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.  Accordingly, the Court held that for Mr. Gabriel’s discrimination claim, his right to the safeguard of dignity must be balanced with Mr. Ward’s right to freedom of expression.

Drawing upon the Court’s previous decision 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 majority held that Mr. Gabriel had to prove three elements in order to make out his discrimination claim under s. 10 of the Quebec Charter:

1. A distinction, exclusion, or preference (i.e., a decision, a measure, or conduct that affects him differently from others to whom it may apply);
2. Based on one of the grounds listed in s. 10 (i.e., one of the listed grounds—such as disability—need only have contributed to the distinction, exclusion, or preference);
3. That has the effect of nullifying or impairing the equal recognition or exercise of a right under the Quebec Charter whose protection is called for in light of s. 9.1 in the context in which it is invoked.  

The majority explained that, where these three elements are established, there is a prima facie case of discrimination and the burden of justifying the discrimination falls on the defendant.  Ultimately, there will be no discrimination if, in a particular context, s. 9.1 gives the right exercised by the defendant (e.g., freedom of expression) precedence over the right invoked by the plaintiff in combination with s. 10 (e.g., the right to the safeguard of dignity).

The majority then elaborated on the third element of a discrimination claim under s. 10 of the Quebec Charter.  In particular, it explained how to resolve a conflict between ss. 3 (freedom of expression) and 4 (the right to the safeguard of dignity) of the Quebec Charter in the context of a discrimination claim.  In doing so, the majority confirmed that the purpose of protecting freedom of expression is to “ensure that everyone can manifest their thoughts, opinions, beliefs, indeed all expressions of the heart and mind, however unpopular, distasteful or contrary to the mainstream.”  [para. 59]  That said, the majority affirmed that limits on freedom of expression can be justified, such as the prohibition against “hate speech” upheld in the Court’s previous decision in Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11, [2013] 1 S.C.R. 467.

However, the majority also held that limits on freedom of expression may be justified even if the expression at issue does not constitute hate speech—such as where the expression forces certain persons “to argue for their basic humanity or social standing, as a precondition to participating in the deliberative aspects of our democracy.”  [para. 63]  To explain the nature of this limit, the majority relied heavily upon the Court’s previous decision in Whatcott.  In fact, the majority concluded that both the Tribunal and the Quebec Court of Appeal “erred in excluding Whatcott from their reasoning.”  [para. 71]

Drawing upon Whatcott’s approach to hate speech, the majority held that the proper test for resolving a conflict between freedom of expression and the right to the safeguard of dignity in a discrimination claim requires, first, that “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.”  [para. 83]  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.”  [para. 84]  Thus, the majority explained, only expression that, considered in its context, is “likely to jeopardize the social acceptance of the individual or group” [para. 84] is discriminatory. 

Before applying the law to the facts, the majority offered some general comments regarding freedom of expression and the application of the proper legal framework:

• Expression that “appeals to an audience’s reason or to emotions free of any real motivating force” is “unlikely” to amount to discrimination [para. 85];
• Expression occurring in private may qualify as discriminatory, albeit only in “exceptional cases” [para. 86];
• Expression that ridicules people will only qualify as discriminatory in “extreme and unusual circumstances” [para. 88]; and
• Humourous expression, whether in good or bad taste, will “rarely” amount to discrimination, especially where the humour comes from a person publicly known for their particular type of humour or where it targets a public figure whose fame exposes them to such commentary.

The majority then analyzed whether Mr. Ward’s comments regarding Mr. Gabriel amounted to discrimination.  It agreed with the Tribunal that the Commission had proved the first element of its discrimination claim—a distinction, exclusion or preference—because Mr. Ward’s comments specifically targeted Mr. Gabriel, among other public figures, for ridicule.

However, the majority disagreed with the Tribunal regarding the second element. The Tribunal had initially concluded that Mr. Ward “did not choose [Mr. Gabriel as a target] because of his handicap”, but rather “because he was a public personality who attracted public sympathy and seemed to be ‘untouchable.’”  [para. 97]   It had also concluded that “[Mr.] Ward’s decision to make jokes about [Mr. Gabriel] was not in itself discriminatory.”  [para. 98]  However, notwithstanding those conclusions, the Tribunal went on to hold that the distinction, exclusion, or preference was based on a prohibited ground of discrimination because Mr. Ward’s comments referred to Mr. Gabriel’s disability.

The majority of the Court considered this last conclusion erroneous.  In the majority’s view, the mere mention of a prohibited ground of discrimination cannot in itself establish that that ground was a factor in the differential treatment.  In light of the Tribunal’s conclusion that Mr. Ward targeted Mr. Gabriel because of his fame—and not because of his disability—the majority held that the Tribunal “had no choice but to conclude that the second element of discrimination had not been established.”  [para. 100]

Regarding the third element, the majority began its analysis by balancing Mr. Gabriel’s “right to full and equal recognition of his right to the safeguard of his dignity” [para. 103] against Mr. Ward’s right to freedom of expression.  Applying the two-part test drawn from Whatcott, the majority concluded that:  (1) a reasonable person aware of the relevant circumstances would not view Mr. Ward’s comments as inciting others to vilify Mr. Gabriel or to detest his humanity on the basis of a prohibited ground of discrimination; and (2) a reasonable person could not view Mr. Ward’s comments, considered in their context, as likely to lead to discriminatory treatment of Mr. Gabriel.  

Accordingly, the majority held that “the Commission did not meet the requirements for succeeding under ss. 4 and 10 of the Quebec Charter” [para. 113—italics in original] and, therefore, allowed Mr. Ward’s appeal and set aside the judgments of the Tribunal and the Quebec Court of Appeal.

Justices Abella and Kasirer wrote dissenting reasons, with which Justices Karakatsanis and Martin concurred.  The dissenting judges would have dismissed Mr. Ward’s appeal.  Regarding the proper legal framework, the dissenting judges wrote that “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.”  [para. 163]

When analyzing whether Mr. Ward’s comments amounted to discriminatory interference with Mr. Gabriel’s right to the safeguard of his dignity, the dissenting judges would have upheld the Tribunal’s decision, stressing the repetition and broad dissemination of Mr. Ward’s comments, the harmful content of those comments, Mr. Gabriel’s age at the relevant time —characterized by the dissenting judges as “reasonable young person”—, and Mr. Gabriel’s anguish.  The dissenting judges also would have rejected Mr. Ward’s attempt to justify his comments by reference to freedom of expression, on the basis that his comments were not in the public interest and the harm suffered by Mr. Gabriel was severe.

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