The abuse of anti-discrimination law as an instrument of censorship would have been only the beginning, writes Leonid Sirota.
By Leonid Sirota, November 12, 2021
It ends well.
That’s the most comforting takeaway from the Supreme Court of Canada’s judgment in Ward v Quebec. By a 5-4 majority, it quashed an award of damages granted to Jérémy Gabriel, a child celebrity, by a human rights tribunal. Gabriel had been cruelly mocked by a well-known comedian, Mike Ward. The tribunal, and the Québec Court of Appeal, found that this amounted to discrimination in the exercise of Mr. Gabriel’s right to “the safeguard of his dignity” under section 4 of Québec’s Charter of Human Rights and Freedoms (Québec Charter). The majority of the Supreme Court resoundingly held otherwise.
While the most important thing about Ward is what, if anything, it means for the freedom of expression, there are a few other things to mention before I get to that. I will mostly focus on the majority opinion before moving on to the dissent.
A human face
While the majority decision is correct, and indeed it was very important that Mr. Gabriel not win this case, I want to start by acknowledging that he has had it very hard. Mr. Ward’s jokes at his expense were cruel. Mr. Gabriel did suffer, greatly – we are told that he even tried to kill himself at one point. I think we can wonder whether the connection between these things is all that strong. I’m not persuaded by the dissent’s imputation to Mr. Ward of the full responsibility for Mr. Gabriel’s bullying by his classmates. We can also argue that anti-discrimination law – perhaps any law – isn’t the solution. But we can recognize that a person has been in a lot of undeserved pain.
The question of jurisdiction
At the beginning of the decision, the majority’s states:
This appeal … invites us … to clarify the scope of the jurisdiction of the Commission des droits de la personne et des droits de la jeunesse … and the Human Rights Tribunal … with respect to discrimination claims based on the … Quebec Charter. (1)
Clarify the “jurisdiction”? The majority uses the term several times in the course of its reasons. In particular, it speaks of “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” (22).
This is odd. Just two years ago, in Canada v. Vavilov, all the Ward majority judges signed an opinion that not only eliminated jurisdictional questions as a distinct category of correctness review, but seemed to endorse scepticism at the very “concept of ‘jurisdiction’ in the administrative law context” (66). Vavilov said that what might previously have been thought of as jurisdictional questions are legal questions like all others, subject to reasonableness review, except when the respective jurisdictions of two administrative bodies must be demarcated.
One recent example of this reasoning is the decision of the Ontario’s Superior Court of Justice in Morningstar v WSIAT, about which I have written. The Court roundly rejected the argument that, as I summarized it:
the jurisdictional boundary between a tribunal and the ordinary courts should be policed in much the same way as, Vavilov said, “the jurisdictional boundaries between two or more administrative bodies”,  ― that is, by hav[ing] the court ensure the boundary is drawn correctly.
I thought – and still think – that was a correct application of Vavilov. Ward, though, says that there is indeed a jurisdictional boundary between administrative tribunals and courts. I don’t think this is consistent with Vavilov. Nothing turns on this here because the case gets to the courts by way of statutory appeal rather than judicial review. And, under Vavilov, the correctness standard applies to all legal questions in such circumstances. But the tensions inherent in Vavilov, including its attempt to rid Canadian administrative law of the fundamental concept of the law of judicial review, are becoming apparent.
One of the things the majority is right about is that Ward is, among other things, a case about interpretation. It requires the courts to make sense of a somewhat peculiar statutory scheme, which protects rights to the freedom of expression and to the “safeguard of [one’s] dignity,” says that “the scope of the freedoms and rights, and limits to their exercise, may be fixed by law,” and protects equality in “the exercise and recognition” of these rights.
The majority deserves credit for trying to work out an independent meaning for the right to the safeguard of one’s dignity. As it notes, dignity is a very tricky concept – and the Supreme Court itself has tried to avoid putting too much weight on it in other contexts. But the Québec Charter makes it a distinct right, and the courts must treat it as such. At the same time, they have to give it defined contours. The majority seeks to do so by stressing the importance of the safeguard of dignity, to which the right is directed:
Unlike, for example, s. 5 [of the Québec Charter], which confers a right to respect for one’s private life, s. 4 does not permit a person to claim respect for their dignity, but only the safeguarding of their dignity, that is, protection from the denial of their worth as a human being. 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. (58)
What the majority does is a careful and, I think, pretty convincing reading of the statutory text, although there are some disconcerting moments. For instance: “the interpretation of this provision must be refocused on its purpose by considering its wording and context.” No, no, no. Interpretation should be focused on text understood in context. Purpose can sometimes help a court understand the words and enrich its understanding of the context, but it should not be the focus of interpretation. And then, there is this:
This Court’s jurisprudence also establishes “that mere differences in terminology do not support a conclusion that there are fundamental differences in the objectives of human rights statutes” … It follows that, as long as this is not contrary to the usual rules of interpretation, symmetry in the interpretation of the various instruments that protect human rights and freedoms is desirable. (68; quoting Quebec v Montréal (City) (47))
What are we to make of this? If usual rules interpretation is to prevail, differences in terminology must make a difference, if not to the objectives then to the effects of human rights as of any other statutes. And the idea that differences in wording don’t matter because objectives are key to interpretation is specifically rejected in the majority opinion in Quebec v 9147-0732 Québec inc – signed onto by the same five judges who are in the majority in Ward.
Between the jurisdiction issue and this, I cannot help but wonder whether their Lordships remember what they said last year. Or are they trying to say that we are not supposed to? This stream of inconsistent pronouncements – by the same people! – reveals, at best, a lack of attention to legal doctrine and craft. It is very disappointing.
Freedom of expression
I finally come to the meat of the case. Here too, I want to praise the majority for getting things fundamentally right, but also to criticize them for saying things along the way that are doubtful, inconsistent, or even wrong.
Let me start with a quick note from the “judges are not philosophers” file. The majority’s discussion of the freedom of expression begins with the assertion that it, “[l]ike the right to the safeguard of dignity … flows from the concept of human dignity” (59). Perhaps. But in the next paragraph the majority quotes Joseph Raz’s claim that “a person’s right to free expression is protected not in order to protect him, but in order to protect a public good, a benefit which respect for the right of free expression brings to all those who live in the society in which it is respected” (60).
These are two quite different views of the foundations and purposes of the freedom of expression – one deontological, the other utilitarian. Perhaps nothing turns on which of these is correct in this case, but if so, the majority shouldn’t be making these philosophical declarations at all. And I suspect in some cases the choice might make a difference. The majority’s approach is muddled and unhelpful.
Now for some good things, especially: “freedom of expression does not truly begin until it gives rise to a duty to tolerate what other people say” (60). This is the key to so many disputes about freedom of expression. Speech is not harmless. It can hurt. It can propagate falsehoods. It can inflame base passions. But freedom of expression means sometimes having to tolerate such things – just like freedom of assembly means having to tolerate noisy protests, and freedom of religion means having to tolerate heresy and blasphemy – even when their cost falls on particular groups or even individuals.
The majority adds that “[l]imits 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” (61). This sets a fairly high bar to limits that will be considered justified. It also acknowledges that the audience has its share of responsibility in appreciating troublesome words. Courts assessing a limit on the freedom of expression should not assume that citizens are, by default, unthinking and gullible playthings for the tellers of tall tales. This is also good and important. Assuming away all critical sense among the citizens would help justify all kinds of restrictions on speech, including, and perhaps especially, in the political arena. It is fundamentally incompatible with the notion of self-governing, responsible citizenry.
But this insistence sits uneasily, to say the least, with the Court’s position in Harper v Canada:
The legislature is not required to provide scientific proof based on concrete evidence of the problem it seeks to address in every case. Where the court is faced with inconclusive or competing social science evidence relating the harm to the legislature’s measures, the court may rely on a reasoned apprehension of that harm. (77)
This is in contrast to the Harper dissent’s concern that “[t]here [was] no demonstration that” the limits on “third party” spending at issue were “required to meet the perceived dangers of inequality, an uninformed electorate and the public perception that the system is unfair” (38). By my lights, Ward‘s insistence on serious reasons to fear specific harm, as well as on audience discernment, is much more in tune with the Harper dissent. Because I regard Harper as an abominable decision, I am happy to see Ward go in a different direction. But there is no comment in Ward on how these cases interact. Again, it’s as if the judges don’t remember what the law says, though at least Harper is a much older case that Vavilov and Québec Inc.
All that said, the substance of the majority’s decision is right and reassuring (or it would be reassuring if more than five judges had signed on). The majority insists that the right to the safeguard of one’s dignity must not be “vague” or given “a scope so broad that it would neutralize freedom of expression” (80). It stresses the objective nature of the test for whether this right is breached and rejects the modified objective standard of “a reasonable person targeted by the same words,” because “[t]hat approach results in a shift toward protecting a right not to be offended, which has no place in a democratic society” (82).
What matters is neither “the repugnant or offensive nature of the expression [nor] the emotional harm caused” (82), but the effect of the words on listeners. Would “a reasonable person, aware of the relevant context and circumstances, … view the expression … as inciting others to vilify [its targets] or to detest their humanity on the basis of a prohibited ground of discrimination” (83)? Or would “a reasonable person would view the expression, considered in its context, as likely to lead to discriminatory treatment of the person targeted” (84)?
All this is the more important since the list of prohibited grounds of discrimination under the Québec Charter is very broad and includes “political convictions.” As I have written here, “even if we accept the need to protect vulnerable minorities from hate speech targeting them, I struggle to see what makes it necessary to extend this protection to members of political parties or movements.” Protecting people from mockery, let alone hurt feelings, based on their political views is incompatible with lively democratic debate. However much we can wish for such debate to usually be civil, I think it’s a mistake to insist that it always must be, and certainly a grave mistake to put government officials in charge of deciding whether it is sufficiently civil on any given occasion.
The insistence on the need for objective assessment and the clear rejection of a right not to be offended will, I hope, be the key takeaway from Ward. For them, we can forgive the majority opinion its many flaws. That there can be no right not to be offended in a society that proclaims its commitment to the freedom of expression and to democracy might have been self-evident 10 years ago, but it evidently isn’t anymore. Unfortunately, the dissent offers us a glimpse of a world in which this truth isn’t recognized.
A woke dissent
The thinking animating the dissenting opinion in Ward would severely undermine freedom of expression in the name of equality and safety.
The dissent in Ward is, in a word, woke. And I don’t mean “woke” as a generic insult. Nor do I mean, incidentally, that Mr. Gabriel is a “snowflake.” As noted above, I think he deserves sympathy on human level, though not the protection of the law for his claim. Rather, what I mean by calling the dissent woke is that it embraces specific tenets of contemporary social-justice ideology, which, if they become law – and remember that they were only one vote away from becoming law – would be utterly corrosive to freedom of expression.
For starters, the dissent all but erases the line between words and actions, so that disfavoured words are treated as deeds and therefore subjected to vastly expanded regulation. Justices Abella and Kasirer write:
We would never tolerate humiliating or dehumanizing conduct towards children with disabilities; there is no principled basis for tolerating words that have the same abusive effect. Wrapping such discriminatory conduct in the protective cloak of speech does not make it any less intolerable when that speech amounts to wilful emotional abuse of a disabled child. (116)
In what is going to be a theme of my comment, this twists the meaning of words beyond recognition; conduct is conduct and speech is speech. Using words instead the proverbial sticks and stones is not just a disguise; it’s the better part of civilization. The law relies on a distinction between words and actions all the time. This is a principle, and a general one, but it has also been a cornerstone of the law of the freedom of expression in Canada since the early days of the Charter. As noted above, the majority deserves criticism for disregarding precedent and doctrine. The dissent does the same, only much worse.
Besides, as I once noted here, the negation of the distinction between speech and conduct often combines with a belief that violence against some politically heretical group or other is permissible into the toxic belief that “[w]hat one says, or does, is expression; what one’s opponents say, or do, is violence.” This, in turn, means that law dissolves into a raw competition for political power, with the ability to decide whose expression will stripped of its “protective cloak” and proscribed as the ultimate prize.
Another way in which the dissent is woke is its wilful blindness to the context in which words appear. Like critics dragging a writer for the words of an unsavoury character, Justices Abella and Kariser claim that:
Mr. Ward remarked that he defended Mr. Gabriel from criticism only until he found out that he was not dying, at which point he took it upon himself to drown him. This implies that it would be too burdensome for society to accept Jérémy Gabriel in the mainstream permanently and that ultimately society would be better off if he were dead.
No, it really doesn’t. Mr. Ward is a profane comedian. He is making an obviously hyperbolic statement, a joke – not remarks at a political meeting. The joke was in poor taste, to be sure, but in no non-woke person’s mind is it a statement about what is best for society. Insofar as Mr. Ward’s comedy was meant as a social commentary, it targeted taboos around joking about certain people or subjects – not the supposed burdens, or otherwise, of disabled persons for society.
A further symptom of coddling wokeness in the dissenting opinion is its bizarre insistence that Mr. Ward bullied Mr. Gabriel. Justices Abella and Kasirer claim that “[i]n a 2012 interview, Mr. Ward himself acknowledged the view that his comments constituted bullying” (196). But this isn’t quite true. They quote the relevant interview passage early on in their opinion: it is the interviewer who suggests that Mr. Ward’s jokes amounted to bullying. Mr. Ward himself says “I don’t know. I don’t know. It’s a good point” (126). Not quite an admission, by my lights.
In any case, the idea that comments about a person whom one has never met and will likely never meet, over whom one has no actual power, with whom, indeed, one shares nothing at all can amount to bullying are just twisting the meaning of this emotionally charged word. Nobody can defend bullying of course, just as nobody can, say, defend racism. And Justices Abella and Kasirer again take a leaf out of the woke playbook to redefine words in a way that attempts to put their decision beyond the reach of reasonable criticism.
Mr. Gabriel’s classmates seem to have bullied him, and to have used Mr. Ward’s jokes in doing so. But it is only on a woke view that Mr. Ward can be held liable for their behaviour. He did not commission or instigate their actions. He doesn’t even know about their existence. This is reminiscent of calls for the “cancellation” of a work of fiction or some scientific article on the basis that, regardless of its author’s intentions, it will contribute to discrimination by others.
Justices Abella and Kasirer clearly do not agree that Mr. Ward had no power over Mr. Gabriel. A preoccupation with power hierarchies imagined to run neatly along the lines of “privileged” and “oppressed” demographic categories is perhaps the clearest sign of their opinion’s wokeness. They write that:
there is value in the performance of comedy and in criticizing those in power in society. But in the circumstances of this case, condoning the humiliation and dehumanization of a child, let alone one with a disability, would fly in the face of the very idea of the public interest. … Mr. Ward’s message about Mr. Gabriel, albeit one said in jest, was that he was disposable and that society would be better off without him. Unlike other “sacred cows” targeted by Mr. Ward, Jérémy Gabriel fell victim to a stark power imbalance here. (215-16)
This focus on power imbalance explains, I suspect, the seeming inconsistency between the position of the dissenters in Ward and in Toronto v Ontario, highlighted by Christopher Bredt (and recall that the same four judges dissented in both cases). The Lawyer’s Daily reports that Mr. Bredt was part of the legal team that:
represented the intervener Canadian Civil Liberties Association, said he finds it incongruous that the minority in the Ward appeal comprises the same four judges who earlier this month vigorously defended freedom of expression to the extent that they would have struck down the Ontario government’s downsizing of wards during Toronto’s municipal election.
The incongruity resolves itself once you account for the fact that in City of Toronto the “stark power imbalance” ran the other way – the free speech claimants were the less powerful side, and hence the good side in the moral framework that decides worth according to where a person or group stands in an a priori power hierarchy.
In the real world, power hierarchies are not so neat – which is one of many reasons why they should not be given nearly as much importance as the woke worldview attaches to them. As the editors of The Line point out:
this is a kid who became famous in all of Quebec, sang, and was enthusiastically cheered by entire hockey stadiums. He performed in front of some of the most famous people in the world. And we’re to believe that the ugly jokes of one stand-up comedian was enough to undo all of this honour and fame? That Mike Ward is uniquely responsible for a disabled child’s ostracization from his peer group and suicidal thoughts?
Justices Abella and Kasirer insist that a celebrity must be treated like everyone else and does not lose his rights. That’s true – in a liberal legal system where everyone has equal rights to begin with. In a system whose starting point is not equality, relative positions in power hierarchies, insistence that cultural prestige, sympathy, and (in other cases) even wealth are to be disregarded are absurd. But it too is characteristic of the specifically woke take on power and inequality.
Like some others who have written about Ward, I find it frightening that this opinion got four votes at the Supreme Court. Had the dissenters found another colleague to agree with them, it’s not only comedians that would have come under the potential fire of human rights tribunals. Make a disparaging remark about a member of any of the protected groups that references that membership? There, you’re a law-breaker. Make fun of Greta Thunberg in a way that touches on her Asperger’s and selective mutism? Don’t be surprised if the equality bureaucracy comes calling.
And remember, too, that under the Québec Charter, “political convictions” are a prohibited ground of discrimination as well. Of course, for the foreseeable future, mockery of literal Nazis is undoubtedly safe. You wouldn’t expect human rights tribunals condemn right-thinking members of society. But that’s only good until the day “common good” conservatives get their chance to appoint these tribunals’ members. Then, I’m afraid, the boundaries of permissible discourse will shift.
But abuse of anti-discrimination law as an instrument of censorship would be only the beginning. If speech can be conduct; if the intent of a speaker doesn’t matter for attributing liability for words; if public criticism or mockery can be bullying; if speech can be censored based on how people over whom the speaker has no control might respond to it, or if the right to be free from censorship depends on one’s place in a rigid hierarchy of oppression; then hardly any restriction on freedom of speech is unjustified. It will all be done in the name of safety and equality of course. But it will be no less the end of the freedom of speech, and with it, liberal democracy.
Leonid Sirota is a scholar of public law. From January 2022, he will be Associate Professor at the University of Reading. This article is an edited condensed version of two posts on the Double Aspect blog.