MONTREAL -- In a 5-4 split decision Friday morning, the Supreme Court of Canada ruled Quebec comedian Mike Ward had the right to make fun of Jeremy Gabriel.
The case pitted the comedian against the Commission des droits de la personne et des droits de la jeunesse, which had succeeded in obtaining $35,000 in damages for Gabriel from the Quebec Court of Appeal.
The Supreme Court allowed Ward's appeal and overturned the lower court's decision. Justice Rosalie Abella, now retired, and her colleagues Nicolas Kasirer, Sheilah Martin and Andromache Karakatsanis were the dissenting judges.
The majority decision was written by two Quebec judges of the country's highest court: Chief Justice Richard Wagner and Justice Suzanne Côté.
They point out that the issue here was whether there was discrimination under the Quebec Charter, not whether there was defamation.
"The question is whether a reasonable person, informed of the relevant circumstances and context, would consider that the remarks about Mr. Gabriel incite contempt for him or his humanity on a prohibited ground of discrimination. The next question is whether such a reasonable person would consider that, in context, the words could reasonably be expected to lead to the discriminatory treatment of Mr. Gabriel. In our view, the remarks made by Mr. Ward do not meet either of these requirements," said the decision, which was also endorsed by Justices Michael Moldaver, Russell Brown and Malcolm Rowe.
"The only question at issue is the legal framework applicable to a remedy for discrimination under the Quebec Charter, in a context of freedom of expression, in order to determine whether, in this case, Mr. Ward violated Mr. Gabriel's right to the preservation of his dignity," the judges said.
"A discrimination claim must be limited to speech that has a truly discriminatory effect," they said. They do not want defamation suits to use the back door of discrimination to achieve their ends.
IS THE CASE REASSURING TO COMEDIANS?
Justices Wagner and Côté point out that their court has already refused to place artistic freedom in a separate category from freedom of expression in general.
"Limitations on freedom of expression are justified if there are, in a given context, serious reasons to fear a sufficiently specific harm that the discernment and critical judgment of the audience cannot prevent," said their majority decision.
"Freedom of expression cannot confer on the artist a higher degree of protection than that of his fellow citizens," the judges warn. However, they do elaborate on the humorous context.
"The audience knows how to identify these processes (exaggeration, generalization, provocation), when they are clear, and it is necessary to recognize enough discernment not to take everything that is said at face value," they note.
"This is especially true when the comments are made by a person known to the public for his or her particular sense of humour or when they target a public figure," they say.
"It would be surprising if comments made in such circumstances were sufficiently mobilizing to elicit discriminatory treatment," in their view.
CLARIFICATION FOR THE QUEBEC COURT OF APPEAL
As is customary, the Supreme Court justices were careful not to blame their colleagues on the Court of Appeal who, by a two-to-one margin had decided the case differently.
They recall that a few weeks after the 2019 decision, the Supreme Court in another case changed the standard of review applicable to an administrative decision, such as that of the Human Rights Tribunal.
Where the law provides for an appeal mechanism, 'the general standards of appeal apply rather than the standard of reasonableness,' the Friday decision argues.
-- This report by The Canadian Press was first published in French on Oct. 29, 2021.
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