Montreal City Weblog

Kate 11:43 on 2021-10-29 Permalink Reply  

• CharlesQ 14:25 on 2021-10-29 Permalink

  What a great victory for bullies and internet trolls everywhere! Ward didn’t just make a joke about Gabriel, he picked on him because of his handicap. He made it part of is act (including jokes about trying to drown him) for three years at every shows, made jokes online and on other shows about him, made a puppet in Gabriel’s image, etc. It was systematic harassement. How heartless do people have be to think this is a great day for free speech, I don’t know.

• Kevin 16:11 on 2021-10-29 Permalink

  The SCOC argument boils down to Gabriel taking the wrong action. It says Gabriel should have sued for defamation — not gone to a Human Rights Tribunal and said he was a victim of discrimination.
  https://www.scc-csc.ca/case-dossier/cb/2021/39041-eng.aspx

• Chris 18:20 on 2021-10-29 Permalink

  CharlesQ, Trump was “bullied” by just about every comedian, should that be allowed in your view?

• Kate 21:04 on 2021-10-29 Permalink

  Both men chose to put themselves into the public eye. If you do that, to whatever degree, you need to expect criticism. But that’s as far as your bizarre equivalence goes, Chris. Punching down is morally not the same as punching up.

• Chris 22:13 on 2021-10-29 Permalink

  Kate, I was/am interested in how people with CharlesQ’s viewpoint would treat the two people differently, and why.

  And even if one grants that “punching down is *morally* not the same as punching up”, I think there’s a good case that they are *legally* the same.

• H. John 23:17 on 2021-10-29 Permalink

  I think it’s going to take a few days for people to sort out what the court has or hasn’t said. Both the majority and minority decisions are well argued. The minority decisions was penned by Rosalie Abella and Nicholas Kasirer (former McGill, Dean of Law).

  I’ve only made it through the majority decision so far. The decision is 136 pages.

  It might be useful to remember that the complaint they had to deal with was for discrimination, not for harassment.

  The majority suggests that had the complaint been for harassment they might have sided with CharlesQ.

  One thing is really clear, the SCC took a direct swing at the at the Commission and Tribunal for a line of decisions, including this one, that have expanded the Commissions jurisdiction in a way that the court thinks was never intended.

  From the decision (the numbers are the paragraphs):

  4. It is important to begin by noting that this question draws attention to a trend by the Commission and the Tribunal, in their decisions, to interpret their home statute, the Quebec Charter, as giving them jurisdiction over cases involving allegedly “discriminatory” comments made by individuals, either in private or in public. With respect, we are of the view that this trend deviates from this Court’s jurisprudence and reflects a misinterpretation of the provisions at issue in this case…

  [5] It must be recognized at the outset that the Quebec Charter, which elevates freedom of expression to a fundamental freedom, was not enacted to encourage censorship. It follows that expression in the nature of rude remarks made by individuals does not in itself constitute discrimination under that statute. But this does not mean that the Quebec Charter can never apply to expression of this kind in very specific circumstances.

  [29] In addition to being based solely on the content of expression and not on its discriminatory effects, that line of decisions, which includes the Tribunal’s judgment, dispenses with any fair balancing of freedom of expression and protection of the right to the safeguard of dignity. It therefore creates a second avenue of recourse for discrimination, parallel to an action in defamation, to compel a person to answer for the harm caused by their words, with a much less onerous burden of proof on the complainant, who is in fact not required to bring their own proceedings if the Commission agrees to act on their behalf.
  [30] In our view, that line of decisions raises serious concerns in light of our precedents on freedom of expression. A discrimination claim is not, and must not become, an action in defamation. The two are governed by different considerations and have different purposes. A discrimination claim must be limited to expression whose effects are truly discriminatory

  The Court then moved on to deal with what is necessary to prove discrimination:

  [44] Where a discrimination claim is based on a freedom or right guaranteed by any of ss. 1 to 9, the plaintiff must therefore prove on a balance of probabilities:
  1. A “distinction, exclusion or preference”; 

  2. based on one of the grounds listed in s. 10; 

  3. that has the effect of nullifying or impairing the equal recognition or exercise of a right whose protection is called for in light of s. 9.1 in the context in which it is invoked.

  Having looked at each of the three, the Court noted:

  [97] The Tribunal’s conclusion on this point is contradictory. First, it found, [TRANSLATION] “[i]n light of the evidence as a whole”, that Mr. Ward “did not choose [Mr. Gabriel as a target] because of his handicap”, but rather “because he was a public personality who attracted public sympathy and seemed to be ‘untouchable’” (para. 86). The distinction identified at first by the Tribunal was therefore not based on a prohibited ground. Its analysis should have ended there.

  The Commission/Tribunal found that

  10. À la lumière de l’ensemble de la preuve, dont le numéro du spectacle « Mike Ward s’eXpose » et le témoignage de monsieur Ward, le Tribunal conclut que, selon la prépondérance des probabilités, c’est parce qu’il est une personnalité publique qui attire la sympathie du public et paraît « intouchable », comme Grégory Charles ou Céline Dion, que Jérémy a été pris pour cible. Il n’a pas choisi Jérémy à cause de son handicap. 


  The majority then went on to say that on the complaint of discrimination the complainant failed on 1,2, and 3.

  In ending the majority said:

  [113] Accordingly, the Commission did not meet the requirements for succeeding under ss. 4 and 10 of the Quebec Charter. But this conclusion does not mean that Mr. Gabriel was without recourse following these events. Other recourses were available. For example, though we express no opinion on the chances of success of these alternative recourses, Mr. Gabriel 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. He could also have brought an action in defamation. However, neither the Commission nor the Tribunal has jurisdiction over defamation. The combination of the norm of equality in the Quebec Charter and the right to the safeguard of dignity cannot confer such jurisdiction on them indirectly.

• Kate 08:55 on 2021-10-30 Permalink

  Thank you, H. John! It’s interesting to see the case as a struggle between the court and the two human rights bodies.

• CharlesQ 13:34 on 2021-10-30 Permalink

  @chris Big differences. Trump chose his points of view and that’s what people made fun of, Gabriel didn’t choose his handicap. Trump is an “adult”, Gabriel wasn’t. Trump chose to run for president of the USofA, Gabriel sang for the pope once. Not sure how can anyone equate those two.

• EmilyG 16:01 on 2021-10-30 Permalink

  Yes, Chris, we already know that you like to dump on marginalized people. It’s getting old.

• Kate 16:39 on 2021-10-30 Permalink

  Alas, it’s Chris’s major argumentative gotcha, to equate two things which are not the same, whether it’s dogs and pigs, or Jérémy and Trump.

• Chris 23:23 on 2021-10-30 Permalink

  Boy, I’m bad at expressing myself apparently. It’s like I need to write a thousand words for anything to be sufficiently clear for people to not read in their worst assumptions. I apparently can’t even ask a question without people thinking I’m making some kind of argument.

  EmilyG, where did I dump on anyone? I asked a fellow commentator to expand on his viewpoint. Please re-read.

  CharlesQ, thanks for your reply. I agree there is a difference between things people choose (like their opinions) vs things they have no control over (like, say, skin colour). I can see how some would argue this should be a dividing line for criticism/comedy. But Trump was not only made fun of for his chosen views, but also for physical characteristics beyond his control, like hand size, penis size/shape, and balding. And this too was done by professional comedians. So if that line should not have been crossed for Gabriel, should it have been for Trump? / Gabriel being a minor is a good point, indeed. / Yes, being POTUS makes one much more of a public figure than singing for the pope once, but it seems impossible to define an ‘amount of fame’ where criticism/comedy becomes legal/illegal.