Peter McKnight: Discrimination gets an important definition from Canada’s Supreme Court

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In our highly polarized climate, there’s one thing on which people from across the political spectrum can agree: Freedom of expression is a no-no, an unaffordable luxury, as people must not be allowed to say, write or do anything that might hurt someone’s feelings.

Sure, those from left to right claim to support free speech — except of course when it’s speech they don’t like. So those on the left are currently condemning comedian Dave Chappelle for his comments about transgendered people, and those on right are clamouring to ban words and books — including some 850 books in Texas — because they might cause students “discomfort.”

Into this minefield stepped the Supreme Court of Canada last week, and it came down firmly on the side of, well, taking sides. In a 5-4 decision, the court overturned a decision of the Quebec Human Rights Tribunal which had found that comedian Mike Ward violated the discrimination provision of the Quebec Charter of Human Rights and Freedoms with comments he made about singer Jeremy Gabriel.

In his comedy routine, “Les intouchables,” Ward mocked Quebec public figures he described as sacred cows — those he considered untouchable — including Gabriel, a then-teenage singer with a condition that causes facial deformities and hearing impairment.

Ward described Gabriel as, among other things, the “ugly singing kid,” with “a subwoofer on his head.” And while his scurrilous comments were about as low as you can go, that, according to the court, didn’t amount to a violation of the Quebec Charter.

Writing for the majority, Justice Suzanne Cote noted that in Canadian jurisprudence, discrimination is prohibited only if it is based on a protected ground such as sex, race or disability, and only if it is likely to result in differential treatment.

In this case, while Ward did mock Gabriel’s disability, he didn’t target Gabriel because of it. Rather, as the tribunal itself had found, Ward skewered Gabriel and (other Quebec public figures) because of their celebrity. And while disability is a protected ground in the Quebec Charter, celebrity status is not.

This alone was enough to decide the case in favour of Ward.

But Cote further noted that given the context in which Ward’s “repugnant” comments were made — during a “dark” comedy routine by a comedian widely known for insult comedy — “a reasonable person could not view the comments … as likely to lead to discrimination.”

The decision was met with predictable responses: Cheers from those who fear that our polarized climate is threatening freedom of speech, and jeers from those who fear that that environment is similarly threatening vulnerable people.

Yet both reactions are overwrought, since the majority judgment didn’t say what either side evidently thinks it said. Yes, it affirmed protections for free expression (and for people with disabilities), but no, it didn’t offer absolute impunity for any comments made about anyone anywhere.

On the contrary, Cote suggested at least two ways in which Gabriel might have succeeded in an action against Ward. Gabriel, wrote Cote, could have brought an action in defamation, or “could have invoked the protection against harassment provided for in s. 10.1 of the Charter because of the fact that he had been bullied.”

In effect, then, the majority suggested that Gabriel might simply have filed his complaint under the wrong section of the Charter, and that if he had claimed harassment rather than discrimination, he might be have been successful.

Consequently, and despite what supporters or detractors of the decision might tell you, Cote’s comments make it clear that the court did not offer absolute protections for speech. Rather, the court’s primary concern seemed to be with the tribunal expanding the definition of “discrimination,” thereby granting itself “jurisdiction over cases involving allegedly “discriminatory” comments made by individuals.”

Indeed, discrimination traditionally concerned differential treatment in the provision of employment, housing or goods and services. But by broadening the definition to include offensive comments, the tribunal in fact weakened it. After all, concepts gain their strength through their exclusivity: If everything is discrimination, then the word loses all meaning.

That seems to be the primary lesson from the judgment, and it’s a lesson, not just for the Quebec tribunal, but for human rights commissions, and for everyone, across the country.

Peter McKnight’s column appears weekly in the Sun. He can be reached at mcknightvansun@shaw.ca

Letters to the editor should be sent to sunletters@vancouversun.com. The editorial pages editor is Hardip Johal, who can be reached at hjohal@postmedia.com.

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