When is Controversial Speech “Discriminatory”? The Supreme Court Weighs In

• Michael
  Swanberg

  Michael
  Swanberg

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The Supreme Court has issued an important decision which clarifies the test for determining when controversial or abhorrent expression constitutes “discrimination” under provincial human rights legislation (Ward v. Quebec (Commission des droits de la personne et des droits de la jeunesse), 2021 SCC 43). The Court reaffirms that a balancing exercise is necessary when considering whether forms of expression violate provincial human rights legislation, and sets an appropriately high bar for finding expression to be discriminatory as opposed to defamatory. Only expression which could reasonably lead to actual discriminatory treatment would be caught by the Supreme Court’s framework, and the emotional harm experienced by the complainant is irrelevant to that analysis.

In Ward, a high profile comedian in Quebec made a number of jokes in a comedy routine about the complainant, who was a child musician who suffered from Treacher Collins syndrome. The jokes mocked the complainant’s physical characteristics, and were later incorporated into videos that were widely disseminated. The complainant suffered bullying at the hands of his classmates. Rather than filing a defamation lawsuit, the complainant instead initiated a complaint with Quebec’s Commission des droits de la personne et des droits de la jeunesse (which is functionally equivalent to human rights tribunals in other provinces, including Alberta).

The Supreme Court’s decision focuses on when abhorrent and distasteful speech can be considered “discriminatory” under human rights legislation. The majority found that discrimination claims under provincial human rights legislation cannot be the same as actions in defamation (para 30). The two types of actions serve different purposes, and are governed by different tests, objectives and considerations. Human rights tribunals only have jurisdiction over discrimination claims, not defamation claims. In discrimination claims, the majority found that the standard test would apply in determining whether jokes (or other forms of expression) are discriminatory (para 36):

1. The plaintiff must prove a “distinction, exclusion or preference” that affects them differently from others;
2. The plaintiff must establish that the differential treatment is grounded in a protected characteristic; and
3. The plaintiff must show that the differential treatment impairs the full and equal exercise or recognition of a freedom or right guaranteed in the applicable legislation.

If those three elements are proven, the burden then shifts to the defendant to justify the discriminatory treatment.

In discrimination claims involving expression, the defendant’s right to freedom of expression inevitably comes into conflict with the plaintiff’s rights, and the tribunal must then engage in a balancing exercise (para 46).

The Court confirmed that, in considering whether controversial speech is discriminatory in a particular circumstance, “the applicable test must not be focused either on the repugnant or offensive nature of the expression or on the emotional harm caused to the person” (para 82). Rather, the majority identified two factors that must be proven:

1. “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” (para 83); and
2. “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).

The focus on context is central to the majority’s analysis. The majority opines that “expression that stirs up extreme and intrinsically dangerous emotions like hatred in an audience clearly does not have the same impact as expression that is calm and rational” (para 85). For humour, the majority notes that it would be rare for humour to spillover into an attitude of hatred and discrimination among third parties, except in rare and unusual circumstances (para 89).

Applied to the facts, the majority determined that the comedian’s jokes were not discriminatory. The majority noted that the complainant was chosen as the object of the jokes because of his fame, not his disability, which on its own meant that the distinction was not on a prohibited ground (i.e. a person’s “fame” is not a protected ground in Quebec’s human rights legislation – see para 97). Further, the fact that the joke referred to the complainant’s disability, on its own, was not sufficient to find that the alleged differential treatment was based on that protected ground (para 99). Accordingly, the first and second elements of the test for discrimination were not met, because the evidence did not show actual differential treatment grounded in a protected characteristic (disability).

With respect to the third part of the test, the majority examined whether differential treatment based on a prohibited ground impaired the complainant’s right to full and equal recognition of his right to safeguard his dignity (para 103). The Court’s analysis focused on the context of the comedian’s speech; that is, as part of a comedy routine. Again, the focus was on the “likely discriminatory effects of the comments, not on the emotional harm suffered by the person targeted” (para 107, emphasis added). While the Court agreed that mocking the complainant’s disability was “repugnant”, the majority was not satisfied that the statements would reasonably “incite others to detest or vilify the humanity of the person targeted”, given they were delivered in the context of a comedy routine intended to draw attention to the limits of free expression in society (para 109).

Further, the majority was not satisfied that the jokes would have been likely to lead to discriminatory treatment of the complainant. While there was evidence that the complainant’s classmates were inspired by the jokes to make fun of him, the Court noted that the test is objective, so this evidence on its own is insufficient – “the fact that people are inspired by certain comments does not mean that this is a likely effect of those comments “(para 111). Again, context is key – abhorrent speech delivered in the context of a comedy routine is not objectively likely to lead to differential treatment of a particular person or group.

While this decision was focused on Quebec’s human rights legislation, the majority noted that the analysis can and will also apply to other human rights legislation in other provinces, notwithstanding differences in terminology and structure (at para 68). The Supreme Court’s discussion regarding the balancing of freedom of speech against other rights is applicable in Alberta, as Alberta’s Human Rights Act prohibits publishing statements and other communications which evince an intention to discriminate against a person or class of persons, or is likely to expose a person or a class of persons to hatred or contempt (Alberta Human Rights Act, s. 3(1)). As in Quebec, the Alberta Human Rights Tribunal will also necessarily engage in a balancing exercise between the defendant’s right to freedom of speech, and the claimant’s rights. The Supreme Court’s decision in Ward will be applicable to that exercise.

The Ward decision reinforces the importance of freedom of expression when balancing expressive rights against others. Expression that is hurtful or distasteful cannot be challenged as being “discriminatory” unless it would reasonably lead third parties to treat the target of the speech in a discriminatory fashion. This is a high bar intended to strike a balance between protecting freedom of expression, while limiting speech that is truly discriminatory.

This post is meant to provide information only and is not intended to provide legal advice. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this post to be outdated.