Supreme Court clarifies the test applicable to discrimination claims under the Québec Charter

On October 29, 2021, the Supreme Court of Canada (Court) handed down a highly anticipated decision on discrimination claims based on the Québec Charter of Human Rights and Freedoms (Québec Charter).

In Ward v Québec, a divided Court clarifies the test that applies in cases where the alleged discrimination stems from comments against the victim. This case highlights the delicate balance that must be struck between freedom of expression and the right to the safeguard of a person’s dignity. 

Factual background

The facts are widely known, as this case has received considerable media coverage. Between 2010 and 2013, Mike Ward, a Québec comedian known for his dark humour, gave a show that included a routine in which he mocked certain figures in Québec’s artistic community whom he described as “sacred cows.” In this routine and video clips posted on his website, Mr. Ward made disparaging comments about the physical appearance of Jérémy Gabriel, a child with Treacher Collins syndrome, which causes certain malformations of the head, ears and palate. Mr. Gabriel was a public figure due to his singing performances and television appearances. 

In 2012, Mr. Gabriel’s parents filed a complaint before the Commission des droits de la personne et des droits de la jeunesse on their behalf and that of Mr. Gabriel. The Commission concluded that there was a basis for discrimination and referred the complaint to the Human Rights Tribunal (Tribunal).

Judicial background

The Tribunal 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 (protected under s. 4 of the Québec Charter) in a discriminatory manner. The Tribunal then dismissed Mr. Ward’s defence based on his right to freedom of expression (protected under s. 3 of the Québec Charter) as, in its view, Mr. Ward had exceeded the limits of what is acceptable in a democratic society. The Court of Appeal of Québec, in a 2-1 majority decision, dismissed Mr. Ward’s appeal.

Reasoning of the Court’s majority justices

In the reasoning drafted by Chief Justice Wagner and Justice Côté, the majority justices first state that based on the Court ruling Vavilov,¹ appellate standards apply to Tribunal decisions. 

The majority justices then note that the Tribunal’s jurisdiction is limited to complaints of discrimination or exploitation based on ss. 10 to 19 and 48 of the Québec Charter. The justices are of the view that the Tribunal’s jurisdiction has been extended over the course of the past few years as a result of a line of decisions generously interpreted protecting the right to equality (s. 10 Québec Charter) and to the safeguard of dignity, honour and reputation (s. 4 Québec Charter). They insist on the fact that “a discrimination claim is not, and must not become, an action in defamation” (italics in original).

The justices moreover point out that unlike the Canadian Charter of Rights and Freedoms, the Québec Charter does not protect the right to equality per se; this right is protected only in the recognition and exercise of the other rights and freedoms guaranteed by the Charter. This particularity has a considerable impact on the analytical framework established by the Court, as s. 9.1 of the Québec Charter “temper[s] the absoluteness of the freedoms and rights set out in ss. 1 through 9,”²  which include the right to dignity. 

Here, the right to the safeguard of Mr. Gabriel’s dignity (s. 4), invoked in relation to his right to equality (s. 10), interferes with Mr. Ward’s right to freedom of expression (s. 3). The majority justices dismiss a certain line of decisions and the doctrinal position holding that disrespect of a right is regarded as an infringement of the right to the safeguard of dignity as long as it is of some seriousness. Without establishing a narrow definition for dignity, they emphasize that s. 4 “does not protect every person as such, but protects the humanity of every person in its most fundamental attributes” (italics in original).

As for freedom of expression, the justices point out that this right presupposes “society’s tolerance of expression that is unpopular, offensive or repugnant.” As a result, freedom of expression may be limited in a given context where “there are serious reasons to fear harm that is sufficiently specific and cannot be prevented by the discernment and critical judgment of the audience.”

Therefore, in a discrimination claim, if the right to equality is invoked in relation to a freedom or right that is guaranteed by one of sections 1 to 9 of the Charter, the applicant must prove that:

1) there is “distinction, exclusion or preference”; 

2) it is based on one of the grounds listed in s. 10; 

3) it has the effect of nullifying or impairing the equal recognition or exercise of a right whose protection is called for in light of s. 9.1 in the context in which it is invoked. 

In addition, where the case raises a conflict between the plaintiff’s right to safeguard of dignity and the defendant’s right to freedom, the Tribunal must ask itself, in the third step of the test, whether: 

a) 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; and

b) a reasonable person would view the expression, considered in its context, as likely to lead to discriminatory treatment of the person targeted.

The mode of expression and the effect of the mode of expression are determinative since the analysis is focused not on the content of the expression as such, but on its likely effects on third parties. 

In this case, the majority justices conclude that Mr. Gabriel was made subject to a distinction (1^st criterion), but the distinction was not based on a prohibited ground (2^nd criterion), with the Tribunal having found that Mr. Ward had not targeted him because of his disability, but rather because of his social status. The Tribunal thus erred when it continued its analysis by focusing on Mr. Ward’s comments, which referred to Mr. Gabriel’s physical appearance. This analysis is similar to that applicable in matters of defamation, where the plaintiff does not have to establish differential treatment based on a prohibited ground. Based on this last criterion, the majority justices conclude as follows: 

In our view, a reasonable person aware of the relevant circumstances would not view Mr. Ward’s comments about Mr. Gabriel 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. Although Mr. Ward said some nasty and disgraceful things about Mr. Gabriel’s disability, his comments did not incite the audience to treat Mr. Gabriel as subhuman.³

For the majority justices, the fact that the comments made by a comedian known for his dark humour, mainly during a performance where an adult audience had paid to hear it, is relevant. In fact, according to the majority justices, expression that attacks or ridicules people generally does not encourage the denial of their humanity or their marginalization in the eyes of the majority.

In brief, the majority justices find that there was no discrimination and allow Mr. Ward’s appeal. 

Practical consequences 

In our opinion, the Court’s reformulation of the third element to be established in order to find discrimination has an importance consequence on the burden of proof. In fact, before Ward, authors were of the opinion that a fundamental right or freedom invoked by a defendant to justify infringing a complainant’s equality rights came into play at a subsequent stage of the test, i.e. after the infringement had been established prima facie.⁴ It was therefore a means of defence, of which the burden of proof shifts to the defendant. This is the approach taken by the Tribunal and the majority justices of the Court of Appeal in this case, and the Court’s previous case law could be interpreted in this way.⁵

Now, when a complainant alleges an infringement of his right to equality in relation to one of the rights or freedoms set out in sections 1 to 9 of the Québec Charter – for example, the right safeguard dignity –, the onus is on him to establish that protecting this right is necessary in light of section 9.1 of the Charter, including when his rights conflict with the defendant’s fundamental rights or freedoms. This reformulation of the test can certainly be seen as more consistent with the well-established principle that the Québec Charter establishes no hierarchy among the rights and freedoms it protects. 

That said, this position, combined with the contours of the right to dignity as outlined by the Court in Ward, establishes a more restrictive framework for discrimination claims. It should be noted, however, that this framework applies in very specific contexts where the alleged discrimination is based on comments made about the victim. It should also be noted that this decision does not alter the legal framework applicable to damage to reputation. As such, the derogatory comments made towards a person that would not satisfy the Ward test could still constitute defamatory statements and lead to an action in defamation.