Freedom of expression and discrimination: a fundamental question debated in the Supreme Court today
Montréal, February 15, 2021 — Before the Supreme Court today, the Commission des droits de la personne et des droits de la jeunesse argued that Mike Ward does not have the right to use humour as an excuse to make comments that denigrate, humiliate and ridicule Jérémy Gabriel based on his disability or the means to palliate his disability. The Commission acknowledges that given his notoriety, Jeremy Gabriel exposes himself to criticism and satire, but this must be done with respect for his fundamental rights. The Commission therefore asks the Supreme Court to uphold the previous judgments of the Human Rights Tribunal (HRT) in 2016 and the Court of Appeal in 2019, which ordered Mike Ward to pay moral and punitive damages to Jérémy Gabriel.
"It is important to underline some essential principles: there is no hierarchy between human rights and freedoms and no right is absolute. For the first time, conciliation between the right to equality and freedom of expression is raised. It is also the first time that the exercise of a fundamental right or freedom is invoked as an exemption to justify discriminatory infringement of a right. The Supreme Court's decision is therefore very important for our society," said Philippe-André Tessier, President of the Commission.
To determine whether the discrimination suffered by Jérémy Gabriel could be justified by Mike Ward's freedom of expression, the Court of Appeal, as did the HRT, conducted a balancing exercise of the rights at issue. Its analysis is contextual, nuanced and reasoned, in the Commission's view. The Court of Appeal concluded that freedom of expression does not permit to say everything, even under the guise of humour, and that in this case, Mr. Ward could not invoke his freedom of expression to justify a discriminatory infringement of Jérémy's rights.
The Commission also points out that effect is what matters when analysing discrimination, not intent. The Court of Appeal did not base its analysis on Mike Ward's intention while saying his controversial remarks, but on the harmful effect his words and their wide public dissemination had on Jérémy's dignity and reputation, and on the link between that effect and the teenager's disability.
According to the Commission, the same scenario happening in a schoolyard could have been considered a bullying situation. The fact that it took place on a public stage does not give it legitimacy and, above all, does not diminish, on the contrary, the prejudicial effect on the teenager who is the object of the bullying.
The HRT's nuanced analysis of the circumstances only minimally limits Mike Ward's freedom of expression. Indeed, only a few "jokes" and excerpts from numbers and videos have been identified as discriminatory and open to reparation for the harm caused. As the Court of Appeal stated, "Mr. Ward could very well have conveyed his message and even included Mr. Gabriel in it without his comments undermining his dignity and reputation".
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- Judgement of the Human Rights Tribunal :
The Commission des droits de la personne et des droits de la jeunesse (Human Rights and Youth Commission) ensures the promotion and respect of the principles set out in the Québec Charter of Human Rights and Freedoms. It also ensures that the interests of children are protected and that their rights recognized in the Youth Protection Act are respected and promoted. In addition, the Commission oversees compliance with the Act respecting Equal Access to Employment in Public Bodies.