The Supreme Court ruling in the Ward case, handed down by 5 judges to 4 in favor of the comedian, reflects a deep division over the ways of understanding the rights and freedoms involved in expressive activity. The Court did not have to rule on the quality of the comments of the comedian. Beyond the individuals involved, the majority decision – the one that will set a precedent – sets out the method to be followed in order to decide between what can be said and what can be punished in the name of the fight against discrimination.
In recent years, the Human Rights Tribunal has mobilized the anti-discrimination provisions of the Charter of Human Rights and Freedoms to punish comments relating to one or other of the characteristics in respect of which it is prohibited to discriminate, namely: “race, color, sex, gender identity or expression, pregnancy, sexual orientation, marital status, age except to the extent provided by law, religion, political convictions, language, ethnic or national origin, social condition, handicap or the use of a means to overcome this handicap ”. The Supreme Court operates a refocusing which outlines the risks to which those who undertake to criticize public figures are exposed. The decision of the Supreme Court operates a reframing. Not all words that evoke a characteristic against which it is forbidden to discriminate are punishable.
No right to “not be offended”
The judgment warns against an approach that would lead to a shift towards the protection of a right not to be offended, a right which, according to the majority, has no place in a democratic society. Likewise, the question is not whether the comedian’s words are in good taste, but rather whether they are discriminatory.
To assess the discriminatory nature of the comments, it is first necessary to determine whether a reasonable person, informed of the relevant circumstances and context, would consider that the comments aimed at an individual or a group incite to despise him or to detest his humanity for the sake of it. a prohibited ground of discrimination. Secondly, it must be shown that a reasonable person would consider that, placed in context, the comments made can likely have the effect of leading to discriminatory treatment of the person concerned.
Discrimination prohibited by law is that which generates a difference in treatment which affects the social acceptance of an individual. Thus are only illegal statements which, placed in their context, can in all likelihood jeopardize the social acceptance of that individual or group. The analysis does not focus on the content of the remarks as such or the discomfort they may cause in some, but on their probable effects with regard to third parties, that is to say on discriminatory treatment likely to result.
Admittedly, a form of expression which abuses or ridicules people may inspire them with feelings of disdain, but the Court considers that this does not generally invite them to deny their humanity or to marginalize them in the eyes of the majority. . On the other hand, pushed to the limit, in extreme and unusual circumstances, the ridiculous could cross this line.
The humorous context
Majority judgment requires taking into account the context in which the statements are made. The comedian, like any other citizen, enjoys a large margin of freedom of creation and expression, but not of impunity. Anti-discrimination provisions in laws serve to protect people from exclusion. The protection that the law grants to public figures applies only when the words present a risk of leading to discrimination. The Court considers that such a risk is less when it comes to remarks that take place in the context of a show in which public figures are caricatured. For the majority judges, “ […] humor, whether in good or bad taste, seldom has the “ripple effect required to instill in others an attitude of hatred and discrimination” […]. It is characterized by well-known processes such as “exaggeration, abusive generalization, provocation and distortion of reality” […]. The audience knows how to identify these processes, when they are clear, and we must recognize him enough discernment not to take everything that is said at face value. […]. “
In short, we cannot a priori impute to a comedian the responsibility for the gestures that others could take towards a public figure by brandishing, for example, the portions of monologues pronounced towards him during a show. It is true that the context of online media makes all kinds of means available to many people to harass or insult well-known personalities. But to punish the comedian who makes a point that is part of an artistic process on the sole ground that some might use extracts from it to harass or intimidate, that would be to inhibit a whole section of the creative activity inherent in the film. ‘humor. It is this possibility that the majority judgment has rightly ruled out.
This decision signals that the fight against harassment and discrimination does not have to go through censorship of creators. Rather, we should target those who seize bits of texts or images gleaned from shows to fuel their exclusion and harassment activities, and decontextualize them. Tackling harassment and bullying requires differentiating between the cook and the one who pours poison into the soup.