The ease of dissemination within everyone’s reach makes an effective legal framework for punishing abusive language more essential than ever.
In addition to its immediate consequences for the individuals involved, the Supreme Court’s decision in the litigation involving comedian Mike Ward has forced a change in approach to the law’s treatment of insults hurled at an individual about his or her race, colour, sex, gender identity or expression, pregnancy, sexual orientation, marital status, age, religion, political beliefs, language, ethnic or national origin, social condition or disability — the grounds listed in section 10 of the Canadian Charter of Rights and Freedoms.
Following this change, two leaders of the Human Rights Commission called, in The duty of May 21, to find ways to respond to what they believe to be a major breach in the edifice of rights and freedoms. Here are some thoughts to find solutions to this issue.
In the Ward decision, the Supreme Court of Canada invalidated the approach followed until then by the Quebec Human Rights Tribunal. This approach made it possible to penalize remarks evoking one or other of the characteristics with regard to which it is prohibited to discriminate. Over time, to ensure that remedies remained accessible to victims, the Tribunal’s authority had been extended to the point that it gave itself the ability to judge more than just statements that were part of situations of harassment or discriminatory advertising.
As a result, comments felt to be hurtful, when they alluded to a ground enumerated in the Charter, were assimilated to wrongful discrimination, even if the harm suffered was relative and the social effects of the comments (such as the perpetuation of prejudice or disadvantage) were absent. The Tribunal, for example, condemned a woman to pay compensation of $13,000 to her former neighbors to whom she had launched insulting remarks referring to their ethnic origin.
For the Supreme Court, this way of doing “puts aside the fair balance between freedom of expression and the protection of the right to the safeguard of dignity”, because the person who made these comments is then forced to answer in a regime of proof different from that which normally prevails for actions for defamation and insults.
The majority of the Supreme Court affirms that such a situation raises serious concerns regarding the protection of freedom of expression. The recourse for discrimination must be limited to remarks whose effects are truly discriminatory, that is to say those which lead to the denial or loss of a right — a merchant who shouts his refusal to serve a person because of his race, for example — write the majority judges.
Discrimination is more than insult
The discrimination prohibited by the Charter of Rights and Freedoms is that which puts a right in jeopardy. In other words, it takes more than insults to suggest that such an act has been committed.
The fight against discrimination must also be distinguished from the objective of combating insults aimed at individuals on the basis of their race, sex, origin or other grounds on which discrimination is prohibited. Because to judge whether a statement is faulty, it is necessary to analyze its context of enunciation; it is insufficient to stick to the “felt” of the person concerned.
In a world where free speech is protected, punishable speech is speech that results from a wrongful act. A simple allusion to a characteristic of an individual is not enough to constitute a fault within the meaning of the law; harassing comments based on race, sexual orientation or disability may be, however. The Ward decision came as a reminder that it is not by equating all unpleasant remarks with discrimination that we obtain a legal framework that strikes the necessary balance between everyone’s right to equality and freedom of expression.
Quebec law has long recognized that insults aimed at a person can constitute misconduct, and current information environments increase the possibilities of seeing these insults disseminated. They must, however, be penalized according to a different approach from that used with regard to discriminatory acts of exclusion. To achieve this, the judicial system must be given the means to quickly judge statements in order to determine whether they are at fault. The procedure to be implemented must take into account both freedom of expression and the right of everyone not to be insulted.
What prevents victims from asserting their right to respect is the prohibitive cost of recourse to the civil courts authorized to hear such cases. We must adapt the processes by which a judge will be able to assess, in a timely and accessible manner, the wrongful nature of a statement. This is how we will protect the victims of racist or other insults, and not by stretching the notion of discrimination to the point of including any statement that alludes to a difference.