The highest court in the land may have just handed down in Ward v. Quebec (Commission des droits de la personne et des droits de la jeunesse), the most distressing and controversial decision in its history.
Sorry, because the Court did not recognize a disabled child and violated the right to protect his dignity. Controversial, because the five majority justices had diametrically opposed views to those of the four dissenting judges on this issue.
Let us first mention that both camps admitted that the plaintiff, Jérémy Gabriel, was a minor when the facts occurred (from the age of 10 to
13 years old) and that his classmates had laughed at his disability, taking inspiration from the words of comedian Mike Ward. Despite this, the majority judges considered that the child had not been subjected to “prohibited discrimination”,
because he was targeted as a “public figure”.
For their part, the dissenting judges came to the opposite conclusion on the grounds that people do not lose their right to protection against discrimination because they enter the public sphere.
But even more disturbing, the majority judges applied an “objective” and restrictive criterion for the assessment of discrimination, that of a “reasonable person” … However, how to apply such a criterion in the face of vulnerable children? The majority justices did not address this fundamental question, while the dissenting judges chose a contextualized approach which takes into account ” [l’]the extent of the harm that bullying can cause to a young person and the importance of minimizing that harm ”. This contrasts royally with the conclusion of the majority judges, according to which certain comedians “exploit, rightly or wrongly, a discomfort in order to entertain, but they do little more than that”! Some people are already asserting that this judgment will nonetheless be “a good thing for freedom of expression”. Allow me to think quite the opposite: a limit on freedom of expression was imposed in this case, but it was not imposed, which leaves the door wide open to public mockery and intimidation. towards the most vulnerable people in our society.
My only consolation is that the Supreme Court has the power to overturn its decisions. Such is my wish in this case so that one day finally, disabled children do not have to hide for fear that a comedian will ridicule them to entertain his audience.