![](/maxbellschool/files/maxbellschool/styles/fullwidth_breakpoints_theme_moriarty_small_1x/public/hero/1900x732_website_hero_banner_humour_hate_harms.png?itok=22Up19cD×tamp=1664549372)
Humour, Hate and Harm
Rethinking dignity, equality and freedom of expression after the Supreme Court’s decision in Ward v Quebec
In November 2023, Queen’s University’s PKI Global Justice Journal published a special edition on the the Max Bell School of Public Policy conference, Hate, Humour and Harm to explore the legal and policy dimensions of what constitutes hate speech and speech that offends human dignity. Freedom of expression and the right to receive opinions and information are fundamental parts of the international human rights framework and are reflected in the constitutions of nation states. The Journal invites readers to consider the decision of the Supreme Court of Canada in the decision in Ward v Quebec (Commission de droit de la personne et des droits de la jeunesse) ) (“²”) and its implications for how we use law to craft a public commons that is capable of negotiating the shape of public discourse at the intersection of liberty, equality and human dignity.
The governance of freedom of expression remains one of the most difficult topics today. While freedoms are foundational to democracy, forms of expression that mislead and deceive, that damage reputations, incite hatred, or foment violence and discrimination, all pose direct dangers to people and the democracies that they live in. That is why Canadian and international models of human rights emphasize the interdependence of human rights with no single right or freedom occupying the apex of a hierarchy of rights.
This half-day conference (in person and online) will explore the legal and policy dimensions of these tensions following the Supreme Court of Canada’s latest decision on the interactions among freedom of expression, human dignity, and equality law. The Court’s 2021 decision in , which involved allegations of discrimination against Montreal comedian Mike Ward, reset the boundaries among these values, circumscribing the rights of minorities and of peoples with disabilities, among others.
Resolving the tensions among rights also has implications for the forthcoming federal legislation on regulating of online content and safety based on the development of the Court’s understanding of “social harm.”
‘Humour, Hate and Harm’ offers a unique opportunity in an intimate setting for students, scholars and the community to discuss these pressing issues of social justice with leaders of Canada’s human rights institutions, as well as prominent constitutional and human rights litigators, academics and anti-racism organizations. Seating is limited to facilitate discussion and virtual attendance is also possible.
During the Luncheon remarks, we will have the honour of hearing from Chief Commissioner Marie-Claude Landry whose successful tenure is ending in 2022 and will reflect on the role of human rights commissions and national human rights institutions around the world in creating a culture of human rights and respect for all.
The event is hosted by ƻԺ's Max Bell School of Public Policy and ƻԺ’s Centre for Human Rights and Legal Pluralism of the Faculty of Law. We are delighted that the , Canada‘s journal of ideas, is with us as the event media sponsor.
SPEAKERS
Event Chair, Associate Professor (Professional), Max Bell School of Public Policy |
Legal Counsel, Quebec Commission for human rights and youth rights |
Professor, Philosophy, Concordia University |
Constitutional lawyer,Senior Partner, Grey, Casgrain |
Executive Director ofCanadian Race Relations Foundation |
Chief Commissioner, Canadian Human rights Commission |
Executive Director of the Center for Research-Action on Race Relations |
President of the Quebec Human Rights & Youth Rights Commission |
REGISTRATION AND ACCESSIBILITY
The Max Bell School is committed to providing universal access to our events. This hybrid event is free and open to the general public. Online access will feature auto-live captioning. Please contact the School at maxbell.media [at] mcgill.ca to request accommodations. All inquiries will be treated confidentially. Advance notice might be necessary to arrange for some accessibility needs.
AGENDA
9:00 am–9:10 am: Welcome, Land Acknowledgement and Introductions Chris Ragan, Director, Max Bell School of Public Policy |
|
9:15 am-10:30 am: Session 1: The Intersection of Freedom and Equality Speakers: Me Pearl Eliadis, Me Stéphanie Fournier & Me Julius Grey |
The session will introduce the Supreme Court of Canada’s decision in the Ward case, starting with a review of the legal and policy framework in Canada at the intersection of equality, freedom of expression, and anti-discrimination legislation. Mes Grey and Fournier represented Mike Ward and the Quebec Human Rights Commission, respectively, before the Supreme Court of Canada and will offer their insights on the legal and policy implications under the Canadian Charter of Human Rights and Quebec’s Charter of Human Rights and Freedoms. |
10:30-10:40 am: Break | |
10:45 am-11:30 am: Session 2: Human Rights and Human Impacts Speakers: Pablo Gilabert, Mohammed Hashim, and Fo Niemi |
This session will examine the lived experiences of racialized and marginalized people and communities who have encountered hate and discriminatory speech in the wake of theWard case in Quebec. Academic, policy and community perspectives will be discussed, including the Canadian Race Relations Foundations’ recent international analysis and report on services available to victims of hate, and reflections on the role of dignity as a central concept in human rights and social justice. |
11:35-12:25: Human rights and social harm: Impacts on the future regulation of speech and online safety In conversation with Me Marie-Claude Landry and Me Philippe-André Tessier Moderator: Vincent Rigby, McConnell Professor of Practice |
The Supreme Court’s decision in Ward has affects the balance between equality right, the right to reputation, and freedom of expression in Canadian and international law. It has further developed the Court’s emerging formulation of the concept of “social harm” and its implications for the regulation of freedom of expression The discussion also has implications the federal government’s current efforts to provide a regulatory framework that is sensitive to national security concerns and online safety. This session will explore these issues in conversation with the leaders of two of Canada’s prominent human rights commissions. |
12:30- 2 pm: Luncheon Speaker: The Role of Human Rights Institutions | Me Marie-Claude Landry has led the Canadian Human Rights Commission through a critical time in its development and has been an outspoken voice in challenging racism, hate and intolerance across Canada. Chief Commissioner Landry will offer her reflections on where we are in Canada today, and the role of national human rights institutions in Canada and internationally. |
Closing Remarks and Thanks |
SELECTED REFERENCES FOR FURTHER READING
Caselaw
General
- The Supreme Court of Canada decided that British Columbia’s Human Rights Code can apply to situations of discrimination and harassment in the employment context, even if the individual committing the discriminatory act in question is not a direct employer.
- . A large group of 1000+ Montréal taxi drivers brought a defamation suit following commentary made by radio host André Arthur who accused Montreal taxi drivers whose mother tongue was Creole or Arabic or uncleanliness, arrogance, incompetence, corruption and ignorance of official languages. The Supreme Court of Canada said the group of was too large and heterogenous to support a showing of individual or personal damage.
- The Quebec Court of Appeal’s leading decision on how racist remarks can constitute a violation of the right to safeguard dignity. The case involved statements by an employer against Chinese workers about their alleged lack of cleanliness in the workplace which the Tribunal decided was discrimination by virtue of the right to safeguard dignity in the Quebec Charter of human rights and freedoms.
- Pardy v. Earle and others (No 4), 2011 BCHRT 101, The British Columbia Human Rights Tribunal ruled that comedian Guy Earle’s homophobic remarks directed as a lesbian couple delivered during his comedy routine constituted discrimination of the grounds of sexual orientation because the performance took place in a restaurant and thus constituted a service within the meaning of BC’s human rights law.
- 2013 SCC 11. A landmark unanimous decision of the Supreme Court of Canada. Mr Whatcott had published virulent, homophobic materials, arguing, in part, that his freedom of religion and of expression protected his views. The Court held that the prohibition in Saskatchewan’s provincial human rights law against publications exposing people to hate are constitutional because although the prohibition infringed the rights to freedom of expression and religion, they were nonetheless reasonable limits on those rights under the Canadian Charter of Rights and Freedoms.
- . By a narrow 5-4 majority, the Supreme Court of Canada decided that Mike Ward’s comedy routine about Jérémy Gabriel, who was a child with a disability at the time, did not meet the tests set out for discrimination under Quebec’s Charter. The performance fell outside the usual contexts of employment, housing, services etc. and did not amount to hate speech. The Court indicated that the appropriate remedy for the protection of the right safeguard dignity in such cases is defamation and not human rights complaints.
Free Speech Post-Ward
- This case questions a publication ban which media organisations argued restricts freedom of expression in relation to s 486.4(3) of the Criminal Code which prohibits publication of minors and materials that may constitute child pornography. The discussion of s 2(b) of the Canadian Charter of Rights and Freedoms, which protects free speech, is addressed briefly in relation to Ward.
Interpreting Dignity Post-Ward
- Case alleging wrongful dismissal based on racial discrimination. Applies Ward reasoning to dismiss the aspect of the case based on s 4 Quebec Charter (dignity rights) violation.
- Defamation before the Quebec Superior Court that addressed s 4 of the Quebec Charter and the concept of dignity in defamation proceedings. The subject of the case is in relation to an alleged false claim of sexual assault.
- The Supreme Court of Canada’s decision on the Québec mosque shooting sentencing decision. The Court accepted arguments that a mandatory minimum sentence imposed by s 745.51 of the Criminal Code, with 25 years of parole ineligibility, violates ss 7 (the right life, liberty and security of the person) and s 12 of the Canadian Charter (cruel and unusual treatment or punishment . The decision briefly alludes to Ward to address dignity in the discussion of the right not to be subject to cruel and unusual punishment.
- . Discrimination complaint based on race involving an Airbnb host and a client. The Quebec Human Rights Tribunal dismisses the case based on the interpretation of s 4 dignity rights in the Quebec Charter of Human Rights and Freedoms relating to the right to dignity is contravened and how that is assessed post-Ward.
- The complainant is a member of an employer’s pension plan and he alleges the manager of human resources made defamatory remarks about him that violated his dignity. The Quebec arbitration tribunal draws on Ward to find that the remarks do not rise to the level of seriousness in terms of dignity (privacy, reputation etc) which is not found here.
- Issue of whether an employee was wrongfully dismissed (at issue was whether her patient interaction was culturally sensitive or racist). The Quebec arbitration tribunal uses Ward reasoning to assess the degree of seriousness required to conclude whether the right to dignity has been violated.
Understanding Discrimination Post-Ward
- This based on racial discrimination is the Quebec Human Rights Tribunal’s response to the Supreme Court’s decision in Ward, addressing the law of discrimination under Art 10 of the Quebec Charter and the Tribunal’s approach to interpreting and adjudicating discrimination cases.
- Explores whether a discrimination allegation could actually be adjudicated by the Quebec Human Rights Tribunal post-Ward. The case relates to employment discrimination.
Secondary Sources
Introductory Texts
Establishing the themes of the conference with introductory readings on the topics related to the role of human rights commissions, equality rights, freedom of expression and its relation to democratic institutions.
- E.M. Barendt, Freedom of Speech, 2nd ed. (OUP 2007) Ch 1 “Why Protect Free Speech?
- Canadian Human Rights Commission, This annual progress report looks at the CHRC’s commitment to anti-racist action, both within and outside of the organization, and includes its role as a human rights advocate to participate in public dialogue on anti-racism in Canada; and amplify issues of importance as identified by Racialized stakeholders.
- Gilabert, Pablo (2019). Human Dignity and Human Rights (Oxford University Press). A systematic, and first book-length philosophical account of the content and significance of human dignity as a central idea for human rights available, providing a comprehensive and sophisticated discussion and elaboration of the idea of human dignity.
- This report reviews hate speech in the international and Canadian contexts and proposes mutually supporting policy recommendations for the Canadian context . See Section 2: Current policies and their limitations; Section 4: Policy recommendations for Canada
Theorizing freedom of expression in Whatcott and Ward
Readings and commentaries on the Whatcott and Ward decisions regarding freedom of expression, and the role of the judiciary in problematizing these questions.
- Eliadis, Pearl. 2014. (Montreal, Kingston: ƻԺ-Queen’s University Press). The role of human rights commissions in Canada and the beginning of the ‘culture wars’ on freedom of expression, including online expression, leading to the SCC decision in Whatcott.
- NB: This source is about original decicion of the Human Rights Tribunal and not the Supreme Court of Canada.
- .
Human Dignity and Human Rights
Core to the interpretation of the Ward case was the discourse surrounding the idea of ‘dignity’ and how it can be interpreted. The following articles examine the granularity of conceptualizing human dignity and its underpinnings in shaping human rights perspectives and hate speech laws.
Platform Ecosystem as spaces for democratic participation
Understanding the role of technological platforms and social media spaces as simultaneous spaces for modern democratic participation as well as ecosystems of harmful rhetoric, hate speech and unregulated offensive content.
- This article looks at online content providers and examines the online information landscape and the ways that platform companies like Youtube seek limited liability for dangerous or destructive speech posted on their sites. Gillespie notes the degree to which information intermediaries can reject responsibility and the reality of political mobilisation and power that their platforms can foster. See ‘Policy’ (pp. 354-358); Subtitle ‘Edges’ (pp. 358-359)
- This article investigates the way that online platforms have grown in the US and the tensions resulting from unregulated spaces for speech and democracy, especially in reference to responsibility of published speech on social media. See Section II Part A: Platforms’ Baseline in Free Speech (pp. 1618-1622); Part B: Why Moderate at All? (pp. 1625-1627)
- This article discusses international relations, digital governance and technology with a focus on policy responses from the European Commission and the UK on platform governance. It argues that democracies cannot continue to fail to regulate online platforms: ‘Costs of the Platform Economy’ (pp. 3-8); ‘Toward a New Policy Agenda’ (pp. 8-15)
Mis/Disinformation as Online Harm
Following the previous section, these readings elaborate on attempts by different countries (Canada and the UK) to tackle the issue of mis/disinformation through legislation while balancing perspectives from vulnerable and marginalised communities.
- This article takes a look at the government response to consultations with civil society groups and the implications of forcing tech companies to take down hate speech or offensive content within 24 hours. The article notes the complexity of policy against hate speech on online platforms as certain groups are inherently more vulnerable than others and may be criminalised, despite intentions to equally protect all citizens.
- This UK white paper discusses online harms while setting out the vision for a ‘free, open and secure internet’ and ‘freedom of expression online’ in a regulatory framework. The paper aims to increase technological safety through innovative regulation and distributing responsibility among relevant actors in the digital space. A priority includes that users can participate online with transparency, trust and accountability.
- Marginalised communities such as members of the LGBTQ+, Indigenous peoples, sex workers, and racialised communities fear that the update to Bill C-36 in Canada actually impact these communities negatively, further isolating target groups whose speech and protests online fall under harmful content and hate speech.
- This article looks at the tension of online harm and its dual impact of democratising access to information while simultaneously being a conduit for mis/disinformation. This article treads the fine line between regulation and censorship and how the concept of free speech differs across different historical and political contexts.
Different conceptions of free speech: The German Model
This section examines varying perspectives of the German model and their conception of free speech as it one of the stricter regulators of online content and boundaries of free speech, especially relating to hate speech being criminalised.
- Glaun reflects on Germany’s regulation of hate speech rules and its origins from incendiary propaganda in Nazi Germany. The stance taken by Germany's minister of justice is particularly pertinent as it highlights that democracy is threatened when individuals are free to attack one another on the basis of name, appearance, and political affiliations.
- The Digital Services Act in Europe is one of the strictest legal frameworks clarifying how best to moderate hate speech; this has sparked debate due to the concerns over suppression of free speech. Specifically in Germany, under the upgrade to the law NetzDG (Network Enforcement Act), platforms are required to proactively and identify users using hate speech to the appropriate law enforcement officials.
- Human Rights Watch argues that Germany’s social media law sets a precedent for more authoritarian states to justify surveillance on citizen’s online activity. This article also includes the reaction from social media companies and how they have responded through internal review mechanisms to avoid external government regulation inhibiting their business activity.
Canadian Human Rights and Free Speech Discourse
These readings look at the Canadian context and previous instances of attempting to legislate against issues surrounding hate speech and the tensions between free expression and equality in the Canadian charter of human rights.
- .
- Macfarlane, Emmett (ed). 2021, Dilemmas of Free Expression (University of Toronto Press).
FULL SPEAKER BIOGRAPHIES
Pearl Eliadis
Associate Professor (Professional), Max Bell School of Public Policy
Pearl Eliadis is an award-winning lawyer, educator, and author. She serves as Associate Professor (professional) at the Max Bell School of Public Policy and has taught civil liberties at the Faculty of Law for more than a decade. A full member of ƻԺ's Centre for Human Rights and Legal Pluralism, she also teaches law for policy makers. Pearl has a longstanding interest in the role of human rights institutions and the relationship between equality rights and freedom of speech. She has published extensively on these issues, including in her monograph, . Deeply engaged with civil society organizations, Pearl has received awards for community engagement and social justice including the Queen Elizabeth II Diamond Jubilee Medal, the Canada 125 Commemorative Medal, and the Equitas Human Rights Change Maker in 2017. Pearl has been appointed three times as president of the Quebec Bar Association's human rights committee and continues to serve on its specialized working group on human rights and diversity.
Stéphanie Fournier
Legal Counsel, Research Division, Quebec human rights and youth rights commission
Maître Stéphanie Fournier is lawyer at Quebec’s human rights commission, the Commission des droits de la personne et des droits de la jeunesse. She has had the opportunity to represent the Commission before the courts, including the Court of Appeal and the Supreme Court of Canada, where she represented the Commisison in the Ward v Quebec case. Maître Fournier lectures regularly on equality law and has published articles on various aspects of protection against discrimination. She teaches human rights law at the École du Barreau (Quebec’ Bar Association School). Previously, she practiced law with the Aboriginal and Constitutional Law Directorate of the Quebec Department of Justice. Maître Fournier clerked at the Quebec Court of Appeal for the Honourable Justice André Forget and the Honourable Justice Pierre J. Dalphond.
Pablo Gilabert
Professor, Philosophy, Concordia University
Pablo Gilabert is a Professor in the Department of Philosophy at Concordia University (Montreal, Canada). He is a native of Argentina, and has held visiting fellowships at the University of Oxford, the University of Frankfurt, the Australian National University, Princeton University, UC Berkeley, and the University of Montreal. He is the author of From Global Poverty to Global Equality. A Philosophical Exploration and Human Dignity and Human Rights (both published by Oxford University Press). He is currently writing a book entitled Human Dignity and Social Justice (under contract with Oxford University Press).
Julius Grey
Constitutional lawyer, Senior Partner, Grey, Casgrain
Julius H. Grey, Ad.E. is one of Canada's leading constitutional lawyers and public intellectuals. A member of the Quebec Bar and a recipient of its highest honour, the Ad.E., Me Gray obtained his law degrees from ƻԺ and Oxford, and is a senior partner at the Montreal-based law firm Grey, Casgrain. He has pleaded numerous influential cases before all levels of court, including the Supreme Court of Canada and was previously an instructor at the Faculty of Law at ƻԺ and Université de Montréal. Me Grey is a frequent commentator in the media, and a strong defender of freedom of speech and academic freedom, Me Grey represented Mike Ward before the Supreme Court of Canada.
Mohammed Hashim
Executive Director, Canadian Race Relations Foundation
Mohammed Hashim has worked as a labour organizer and human rights advocate for over a decade. He has dedicated his career to supporting equity, inclusion, and community empowerment. He is currently the Executive Director of the Canadian Race Relations Foundation and a member of the Board of Trustees of the United Way of Greater Toronto. Mr. Hashim is also a founding advisor of the Canadian Anti-Hate Network.
Marie-Claude Landry
Chief Commissioner, Canadian Human Rights Commission
Marie-Claude Landry, Ad. E., is Chief Commissioner and Chief Executive Officer of the Canadian Human Rights Commission. She was appointed in 2015, and under her leadership, the Commission was given new and important roles, notably under the Accessible Canada Act,the Pay Equity Act, and the National Housing Strategy Act. Her lifelong advocacy for human rights, including the rights of women, people with disabilities, Indigenous peoples, 2SLGBTQIA+ people, Black and other racialized people, people living in poverty, prisoners and many more, have earned her numerous distinctions, including a Special Recognition from Business & Professional Women Canada, the creation of the Marie-Claude Landry Prize for Access to Justice by Pro Bono Students Sherbrooke, and the title of Person of the Year for 2015 from the Cowansville and Region Chamber of Commerce. Always conscious of placing people at the heart of her actions, Chief Commissioner Landry will offer her reflections on human rights in Canada, and the role of national human rights institutions as leaders at the domestic and international levels.
Fo Niemi
Executive Director of the Center for Research-Action on Race Relations
Fo Niemi is Executive Director of the Center for Research-Action on Race Relations, a Montréal-based non-profit that actively engages, since 1983, in public education, training and assistance for victims of racial and other forms of discrimination. His extensive experience includes policy review, design and development; employment system review and equity policy development; critical race, gender, class and sexual orientation analysis; community development; training on systemic discrimination, racial bias, and racial profiling; assistance and support to victims of discrimination; and civil rights litigation and mediation, resulting in major court decisions/settlements including policy and other systemic remedies in employment, education, justice and public and commercial services. He previously served as Commissioner with the Quebec Human Rights Commission (1991-2003) and he chaired the Commission’s historic public hearings in 1993 on discrimination and violence against gays and lesbians that led to major changes on access to health and social services; justice; hate crimes, and civil unions in the province of Quebec. He has also written articles in policy journals and newspapers on race relations and equity issues in Canadian media.
Philippe-André Tessier
President of the Quebec Human Rights & Youth RightsCommission
Mr. Philippe-André Tessier was appointed President by the National Assembly on February 28, 2019. Vice-President in charge of the Charter mandate since December 2017, Mr. Tessier had been acting as Interim President since March 15, 2018. Prior to his appointment, Mr.Tessier was Practice Group Leader of Robinson Sheppard Shapiro’s Labour Law Group, acting both as a lawyer and as a Certified Industrial Relations Counsellor. A graduate of Université de Montréal, he is a member of the Québec Bar and a member of Ordre des conseillers en ressources humaines et relations industrielles agréés du Québec (Quebec order of chartered human resources and industrial relations advisors). He is also a certified director of the Collège des administrateurs de société. Listed as a leading transportation law practitioner by Best Lawyers in Canada from 2012 until his appointment, his practice focused on labour and employment law under both federal and provincial jurisdictions.