A legal win for free speech in Canada

Victory for free expression and comedy at the Supreme Court of Canada

The Canadian Constitution Foundation applauds today’s Supreme Court of Canada decision in Ward v. Quebec Human Rights Tribunal as an important clarification of the scope and importance of free speech.

The case involved a Quebec comedian, Mike Ward, who was fined by the Quebec Human Rights Commission. The Commission concluded that jokes made by Mike Ward about Jeremy Gabriel, a boy who lives with a disability, were discriminatory and violated the dignity of Mr. Gabriel. Mike Ward was ordered to pay $42,000 to Mr. Gabriel and his mother.

“The decision is an excellent result which clarifies the test for discrimination in the context of a conflict between the right to the safeguard of dignity and freedom of expression. In particular, the decision underscores the fact that free speech has inherent social value and should be protected from unjustified state intrusion”, said Joanna Baron, CCF’s Executive Director. “Merely causing offence does not amount to discrimination and should not attract state-imposed fines.”

At the Court, the CCF argued that the test for discrimination should be modified to reflect the important role that freedom of expression plays in an open society.

The SCC adopted the CCF’s proposed test, finding that where there are competing rights under the Quebec Charter, these rights must be balanced with a proper regard for democratic values, especially the societal value of free expression.

The Court affirmed the CCF’s position that freedom of expression is not merely a defense, but also an internal limit to the scope of rights protected in the Quebec Charter. “It is not the role of the government to censor comedy through punitive fines or to decide what jokes comedians are allowed to tell.

This case isn’t about whether the jokes Mr. Ward told were funny or if they were in bad taste. It is about the notion that it is not for the government to decide”, said Christine van Geyn, the CCF’s Litigation Director. The full text of the decision may be viewed here.

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"Enlightenment is man's emergence from his self-imposed immaturity ... the inability to use one's own understanding without another's guidance. This immaturity is self-imposed if its cause lies not in lack of understanding but in indecision and lack of courage to use one's own mind without another's guidance. Dare to know! (Sapere aude.) "Have the courage to use your own understanding," is therefore the motto of the [European] Enlightenment. "Laziness and cowardice are the reasons why such a large part of mankind gladly remain minors all their lives, long after nature has freed them from external guidance. They are the reasons why it is so easy for others to set themselves up as guardians. It is so comfortable to be a minor. If I have a book that thinks for me, a pastor who acts as my conscience, a physician who prescribes my diet [or vaccine], and so on--then I have no need to exert myself. I have no need to think, if only I can pay; others will take care of that disagreeable business for me. Those guardians who have kindly taken supervision upon themselves see to it that the overwhelming majority of mankind ... should consider the step to maturity, not only as hard, but as extremely dangerous. First, these guardians make their domestic cattle stupid and carefully prevent the docile creatures from taking a single step without the leading-strings to which they have fastened them. Then they show them the danger that would threaten them if they should try to walk by themselves. Now this danger is really not very great; after stumbling a few times they would, at last, learn to walk. However, examples of such failures intimidate and generally discourage all further attempts. "Thus it is very difficult for the individual to work himself out of the immaturity which has become almost second nature to him. He has even grown to like it, and is at first really incapable of using his own understanding because he has never been permitted to try it. Dogmas and formulas [e.g., Leftist ideology, identity politics] these mechanical tools designed for reasonable use--or rather abuse--of his natural gifts, are the fetters of an everlasting immaturity. The man who casts them off would make an uncertain leap over the narrowest ditch, because he is not used to such free movement. That is why there are only a few men who walk firmly, and who have emerged from immaturity by cultivating their own minds." - Kant, "An Answer to the Question: What is Enlightenment"

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