Ward v. Quebec (Commission des droits de la personne et des droits de la jeunesse)

Ward v. Quebec (Commission des droits de la personne et des droits de la jeunesse)
Collection
Supreme Court Judgments
Date
2021-10-29
Neutral citation
2021 SCC 43
Report
[2021] 3 SCR 176
Case number
39041
Judges
Wagner, Richard; Abella, Rosalie Silberman; Moldaver, Michael J.; Karakatsanis, Andromache; Côté, Suzanne; Brown, Russell; Rowe, Malcolm; Martin, Sheilah; Kasirer, Nicholas
On appeal from
Quebec
Notes
Case in Brief SCC Case Information
Decision Content
SUPREME COURT OF CANADA
Citation: Ward v. Quebec (Commission des droits de la personne et des droits de la jeunesse), 2021 SCC 43, [2021] 3 S.C.R. 176
Appeal Heard: February 15, 2021 Judgment Rendered: October 29, 2021 Docket: 39041
Between: Mike Ward Appellant
and
Commission des droits de la personne et des droits de la jeunesse Respondent
- and -
Sylvie Gabriel, Jérémy Gabriel, Association des professionnels de l’industrie de l’humour, International Commission of Jurists (Canada), Canadian Civil Liberties Association, Canadian Constitutional Foundation and League for Human Rights of B’Nai Brith Canada Interveners
Official English Translation: Reasons of Wagner C.J. and Côté J.
Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ.
Joint Reasons for Judgment:
Wagner C.J. and Côté J. (Moldaver, Brown and Rowe JJ. concurring)
(paras. 1 to 114)
Joint Dissenting Reasons:
Abella and Kasirer JJ. (Karakatsanis and Martin JJ. concurring)
(paras. 115 to 224)
Mike Ward Appellant
v.
Commission des droits de la personne et des droits de la jeunesse Respondent
and
Sylvie Gabriel,
Jérémy Gabriel,
Association des professionnels de l’industrie de l’humour,
International Commission of Jurists (Canada),
Canadian Civil Liberties Association,
Canadian Constitutional Foundation and
League for Human Rights of B’nai Brith Canada Interveners
Indexed as: Ward v. Quebec (Commission des droits de la personne et des droits de la jeunesse)
2021 SCC 43
File No.: 39041.
2021: February 15; 2021: October 29.
Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ.
on appeal from the court of appeal for quebec
Human rights — Right to safeguard of dignity — Right to equal recognition and exercise of human rights and freedoms — Freedom of expression — Discrimination claim brought on behalf of public figure with disability against professional comedian who mocked some of his physical characteristics — Scope of jurisdiction of Commission des droits de la personne et des droits de la jeunesse and Human Rights Tribunal with respect to discrimination — Legal framework that applies to discrimination claim based on expression where there is conflict between right to safeguard of dignity and freedom of expression –– Charter of human rights and freedoms, CQLR, c. C‑12, ss. 3, 4, 9.1, 10.
From September 2010 to March 2013, W, a professional comedian, gave a show that included a routine in which he mocked certain figures in Quebec’s artistic community, including G, a public figure with a disability. W also made a video, posted on his website, in which he made disparaging comments about G. In both his video and his show, W mocked some of G’s physical characteristics. At the time of the events alleged against W, G was a minor and a student in secondary school, and he had an artistic career as a singer.
G’s parents filed a complaint with the Commission des droits de la personne et des droits de la jeunesse, which then asked the Human Rights Tribunal to find that W had interfered with G’s right to full and equal recognition of his right to the safeguard of his dignity, contrary to ss. 4 and 10 of the Quebec Charter. The Tribunal found that all the elements of discrimination under the Quebec Charter had been established. In particular, W had made comments concerning G’s disability, although he had not chosen G because of his disability, but rather because he was a public figure. The Tribunal rejected W’s defence based on freedom of expression, protected by s. 3 of the Quebec Charter, and found that his comments exceeded the limits of what a reasonable person can tolerate in the name of freedom of expression. The Tribunal therefore held that the discrimination suffered by G was not justified. W was ordered to pay moral and punitive damages to G. A majority of the Court of Appeal dismissed W’s appeal. In the majority’s view, the Tribunal could conclude that there was discrimination and that W’s comments were not justified by freedom of expression. The dissenting judge concluded instead that W’s comments did not constitute discriminatory speech.
Held (Abella, Karakatsanis, Martin and Kasirer JJ. dissenting): The appeal should be allowed.
Per Wagner C.J. and Moldaver, Côté, Brown and Rowe JJ.: The elements of a discrimination claim under the Quebec Charter have not been established. 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 Tribunal has no power to decide actions in defamation or other civil liability actions, since its jurisdiction is limited to complaints of discrimination or exploitation based on ss. 10 to 19 and 48 of the Quebec Charter. In this case, G was made subject to a distinction by being targeted by W’s comments. However, in light of the Tribunal’s finding that W did not choose G because of his disability but rather because he was a public figure, the distinction was not based on a prohibited ground. Moreover, even if there had been differential treatment based on a prohibited ground, G’s right to full and equal recognition of his right to the safeguard of his dignity was not impaired.
A plaintiff claiming the protection of s. 10 of the Quebec Charter, which provides for a right to equality in the recognition and exercise of the other rights and freedoms guaranteed by the Quebec Charter, must satisfy a burden of proof that has three elements. First, the plaintiff must prove a distinction, exclusion or preference, that is, a decision, a measure or conduct that affects them differently from others to whom it may apply. Second, the plaintiff must establish that one of the characteristics expressly protected in s. 10 was a factor in the differential treatment complained of. Third, the plaintiff must show that the differential treatment impairs the full and equal exercise or recognition of a freedom or right guaranteed by the Quebec Charter. It is only where these three elements are established that the burden of justifying the discrimination then falls on the defendant. Hurtful expression relating to a ground listed in s. 10 of the Quebec Charter and harm suffered are insufficient to constitute discrimination and thus to be within the Tribunal’s jurisdiction where the social effects of discrimination, such as the perpetuation of prejudice or disadvantage, are absent.
In addition, s. 9.1 of the Quebec Charter determines the scope of the fundamental right on which the alleged infringement of s. 10 is based. In a context where a discrimination claim is based on a right guaranteed by any of ss. 1 to 9 and where the defendant also asserts a right set out in those provisions, the respective scope of the rights being asserted must be determined in light of s. 9.1. Because s. 9.1 does not apply to s. 10, this balancing exercise must be undertaken in analyzing the third element of discrimination. The right relied on by the defendant is not a defence, but a limit to the scope of the right invoked by the plaintiff. Before it can be found that there has been discrimination in the recognition or exercise of a right provided for in any of ss. 1 to 9, the protection of that right must be called for in light of the democratic values, public order and general well-being of the citizens of Quebec referred to in s. 9.1. There is no discrimination if, in a particular context, s. 9.1 gives the right exercised by the defendant precedence over the right invoked by the plaintiff in combination with s. 10.
Where the claim brought requires a determination, in light of s. 9.1, of the respective scope of the right to the safeguard of dignity guaranteed by s. 4 and the freedom of expression protected by s. 3, the analysis of the third element of discrimination involves interpreting these rights so that both are exercised with a proper regard for democratic values, public order and the general well‑being of the citizens of Quebec.
The right to the safeguard of dignity set out in s. 4 of the Quebec Charter permits a person to claim protection from the denial of their worth as a human being. It protects the humanity of every person in its most fundamental attributes. To be contrary to s. 4 of the Quebec Charter, conduct must therefore reach a high level of gravity that does not trivialize the concept of dignity. Such conduct cannot be assessed in a purely subjective manner; an objective analysis is required instead, because dignity is aimed at protecting not a particular person or even a class of persons, but humanity in general. Where a person is stripped of their humanity by being subjected to treatment that debases, subjugates, objectifies, humiliates or degrades them, there is no question that their dignity is violated. In this sense, the right to the safeguard of dignity is a shield against this type of interference that does no less than outrage the conscience of society.
The exercise of freedom of expression, for its part, presupposes, at the same time that it fosters, society’s tolerance of expression that is unpopular, offensive or repugnant. Limits on freedom of expression are justified where, in a given context, there are serious reasons to fear harm that is sufficiently specific and cannot be prevented by the discernment and critical judgment of the audience, or where freedom of expression is used to disseminate expression that forces certain persons to argue for their basic humanity or social standing as a precondition to participating in the deliberative aspects of democracy. These limits also apply in an artistic context. Freedom of expression cannot give an artist a level of protection higher than that of other persons.
The principles arising from Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11, [2013] 1 S.C.R. 467, are indispensable to the required analysis of the legal framework that applies to a discrimination claim under the Quebec Charter in a context involving freedom of expression. In that case, the Court considered whether the prohibition against hate speech in s. 14(1)(b) of The Saskatchewan Human Rights Code was constitutional under s. 2(b) of the Canadian Charter of Rights and Freedoms. The Court limited the prohibition created by the provision in question to expression that could inspire extreme feelings of detestation likely to affect the vulnerable group’s acceptance within society and that also had enough motivating force to lead to the type of discriminatory treatment the legislature was seeking to address. The Court declined to limit freedom of expression in order to confer protection from emotional harm.
The test for resolving a conflict between the right to freedom of expression and the right to the safeguard of dignity, in the context of the Quebec Charter, requires that it be determined, first, whether a reasonable person, aware of the relevant context and circumstances, would view the expression targeting an individual or group as inciting others to vilify them or to detest their humanity on the basis of a prohibited ground of discrimination. Hate speech within the meaning of Whatcott is therefore prohibited, as is expression that has the same effects on personal dignity without meeting the definition of hatred given in that case. Second, it must be shown that a reasonable person would view the expression, considered in its context, as likely to lead to discriminatory treatment of the person targeted, that is, to jeopardize the social acceptance of the individual or group. The analysis is focused on the likely effects of the expression on third parties, that is, the discriminatory treatment likely to result from it, and not on the emotional harm suffered by the person alleging discrimination. The mode of expression and the effect of the mode of expression are determinative.
In this case, G was made subject to a distinction by being exposed to mockery in W’s comedy show and videos. However, in light of the Tribunal’s finding that W did not choose G because of his disability but rather because he was a public figure, the distinction was not based on a prohibited ground. Moreover, the comments made by W meet neither of the two requirements of the test established to resolve the conflict between the fundamental rights invoked by the parties. The first requirement of the test is not met: a reasonable person aware of the relevant circumstances would not view W’s comments about G as inciting others to vilify him or to detest his humanity on the basis of a prohibited ground of discrimination. His comments, considered in their context, cannot be taken at face value. The second requirement of the test is also not met: a reasonable person could not view the comments made by W, considered in their context, as likely to lead to discriminatory treatment of G. The impugned comments exploited, rightly or wrongly, a feeling of discomfort in order to entertain, but they did little more than that. The Commission therefore does not meet the requirements for succeeding under ss. 4 and 10 of the Quebec Charter.
Per Abella, Karakatsanis, Martin and Kasirer JJ. (dissenting): The appeal should be dismissed. This case is about the rights of vulnerable and marginalized individuals, particularly children with disabilities, to be free from public humiliation, cruelty, vilification and bullying that singles them out on the basis of their disability and the devastating harm to their dignity that results. The issue is whether the child with disabilities lost protection from discrimination and the right to be free from public humiliation and bullying just because he is well known.
W’s jokes about G, who was between 10 and 13 years old, were pejorative slurs based on his disability. W referred to G as the “ugly singing kid” and he mocked him as unable to close his mouth and as having a “sub‑woofer” on his head in describing a hearing aid device. His jokes about drowning G drew on pernicious stereotypes about persons with disabilities as objects of pity and as burdens on society who are disposable. W performed his stand‑up routine 230 times to a combined audience of over 100,000 people, and sold over 7,500 DVD copies of it. His video clips remained accessible to all on his website for a year, and were made available on other platforms without W’s authorization. Each time the jokes were repeated, so too was the harm to G. W’s comments were so widespread that G could not ignore them. Neither could his classmates. W’s jokes followed him to school where other children repeated the insults and magnified the mockery. This was a direct consequence of W, a well‑known figure in Quebec, distributing his routines about G widely. This must be considered as a factor in the determination of whether W’s comments were likely to cause serious harm to a reasonable person in his circumstances. W’s comments caused G anguish and prompted him to isolate himself from his peer group and even to contemplate suicide. The language used by W about G’s disability, both in live performances and on the internet, constituted a discriminatory interference with his right to dignity, honour and reputation.
At issue in this case is s. 10 of the Quebec Charter, which protects the equal exercise of other individual rights and freedoms, including the right to the safeguard of one’s dignity. This provision serves to protect individuals from discriminatory speech so harmful that a reasonable person in their circumstances would refuse to tolerate it. To determine whether speech constitutes discrimination, the same framework as the one used for other claims of discrimination under s. 10 of the Quebec Charter applies. In this case, the impairment of the equal exercise of the right to dignity meets the threshold of sufficient seriousness through the widely disseminated taunting of a child with a disability that plays on dehumanizing notions associated with his disability. This impairment to the equal exercise of the right to dignity is not justified by W’s freedom of expression. W’s remarks result in a violation of the equal exercise of the right to the safeguard of dignity enshrined in the Quebec Charter.
The framework or test for claims of discrimination under s. 10 of the Quebec Charter was confirmed by the Court in Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39, [2015] 2 S.C.R. 789. The approach to discrimination under the Quebec Charter, which is in keeping with the Court’s application of the test for discrimination across the country, is to consider, at the first step, whether a case of prima facie discrimination is made out, and, at the second step, to determine if the conduct is justified.
At the first step, the complainant must show that the exercise of one of the rights and freedoms guaranteed by the Quebec Charter, other than equality, was affected in a discriminatory way. The complainant’s burden is limited to showing prejudice and its connection to a prohibited ground of discrimination. The complainant does not have to show that that right or freedom was independently violated. There will be a distinction based on a prohibited ground whenever a complainant carries a burden that others do not, by reason of an enumerated personal characteristic. The use of an overtly discriminatory slur constitutes a distinction, exclusion, or preference based on an enumerated ground, while comments which are not overt slurs may constitute discrimination depending on how a person in the marginalized group at issue would understand them. Uniform treatment which fails to accommodate differences may also constitute a prohibited distinction. Whether there is a distinction on a ground listed in s. 10 in a particular case is a question of mixed fact and law that is owed deference on appeal.
If the complainant can show prima facie discrimination on a balance of probabilities, the defendant is entitled to present a defence or a justification. At this second step, the burden of proof shifts to the defendant to justify his or her decision or conduct on the basis of the exemptions provided for in the applicable human rights legislation or those developed by the courts.
As neither the Canadian Charter nor the Quebec Charter make hate speech the threshold at which discriminatory comments can be actionable, there is no constitutional bar to legal recourse in circumstances involving speech that can cause individual harm without being hateful. This is the case, for example, with harassment, defamation, and the Quebec Charter’s s. 4 right to the safeguard of one’s dignity, honour and reputation. Section 10 of the Quebec Charter also places a prima facie limit on s. 2(b) of the Canadian Charter by prohibiting speech that prevents the equal exercise of the right to the safeguard of dignity, honour and reputation.
The legislative purpose underlying s. 10 is inherently tied to the other individual human rights and freedoms guaranteed by the Quebec Charter. It goes beyond preventing harm on a group scale and the perpetuation of discriminatory attitudes in the public at large. Its proper interpretation cannot be understood in reference to principles governing the constitutionality of a different provision with a different objective, such as the provision at issue in Whatcott, a case that concerns hate speech. Whatcott is not the proper standard to decide the present appeal. It is well recognized that speech can cause individual harm without being hateful. Nor does freedom of expression limit the ability of administrative decision‑makers to address harmful speech that is not hate speech.
Section 10 should continue to be interpreted in a way that allows for this individual harm to be addressed, in keeping with the standard set out by the Quebec Court of Appeal in Calego International inc. v. Commission des droits de la personne et des droits de la jeunesse, 2013 QCCA 924, [2013] R.J.D.T. 517. The appropriate threshold for discriminatory speech under the Quebec Charter was set out in Calego. The determination of whether speech undermines the equal exercise of the right to dignity is an objective one, not subjectively determined, but it is one that takes into account the circumstances of the complainant. Only comments which are a particularly contemptuous affront to their racial, ethnic or other identity and one that has grave consequences will constitute discrimination. This is a fact specific and highly contextual inquiry. Based on Calego, speech based on an enumerated ground will violate the s. 10 guarantee of equality in the exercise of the s. 4 right to the safeguard of one’s dignity when it constitutes such a contemptuous affront to the individual’s identity that it would have serious consequences for the reasonable person in that individual’s circumstances. The reasonable person would be aware of the importance of freedom of expression in a democratic society, and would therefore be expected to tolerate hurtful speech, even related to protected grounds, that does not rise to a high level of gravity. While the assessment of whether speech impairs dignity is objective, it must account for the particular characteristics of the plaintiff and it must consider all of the context in which the remarks are made.
When a claim involves a discriminatory interference with the exercise of the rights and freedoms outlined in the Quebec Charter, s. 10 is engaged and the Human Rights Tribunal has jurisdiction to hear the claim. While there is resemblance between a s. 10 claim based on equal exercise of dignity and a claim of defamation, because s. 4 of the Quebec Charter is implicated in both, a claim for defamation does not necessarily engage the distinct right to dignity and it is not based on the plaintiff’s membership in a particular group. The grounds of defamation and discrimination each address related but distinct violations.
The rights set out in ss. 1 to 9 of the Quebec Charter may be recognized as justifications to prima facie discrimination. Generally, conflicts between individual Quebec Charter rights are resolved under s. 9.1, which requires consideration of democratic values, public order and the general well‑being of the citizens of Quebec in balancing rights. Ensuring a proportionate balance between the rights of individuals under the Quebec Charter involves a consideration of the specific rights at issue, the values that underpin them and the circumstances of the particular case. Because of s. 9.1, the right to freedom of expression protected by s. 3, like the s. 4 right, may not be exercised in a way that is disproportionately harmful or abusive. Only by properly balancing the complainant’s right to the safeguard of his dignity and the defendant’s freedom of expression can the scope of the s. 10 right to the equal exercise of the right to the safeguard of dignity be appreciated. The s. 9.1 balancing thereby ties back to the standard expressed in Calego, which is attuned to the value of free expression in society.
In determining whether there is a proportionate public interest justifying an exercise of freedom of expression which violates another person’s Quebec Charter rights, courts must consider all of the values concerned. With well‑known personalities, as with anyone else, courts must consider all the competing interests at stake, the harm caused and whether there is an actual identifiable public interest permitting the impugned expression. Artistic expression, like any other expression, may cross a boundary when its effect is to disproportionately harm others.
There is disagreement with the majority that the Tribunal was wrong to find a distinction on an enumerated ground, or that it committed a palpable and overriding error in doing so. The Tribunal concluded, rightly, that both W’s widely disseminated video clips and his stand‑up special subjected G to a distinction based on his disability. W targeted aspects of G’s public personality which were inextricable from his disability, which made him stand apart from the other public figures that W mocked as “sacred cows”.
The existence of prima facie discrimination depends on whether this distinction had the effect of impairing G’s right to free and equal recognition of the s. 4 right to the safeguard of his dignity, as a fundamental right under s. 10 of the Quebec Charter. The applicable standard that W’s speech had to meet to constitute an actionable violation of this prohibition on discrimination is whether W’s comments were likely to cause serious harm to a reasonable person in G’s circumstances. On the modified objective standard that the Tribunal should have applied, there are unique aspects of this case that constitute facts sufficient to conclude that the Commission met its burden and that prima facie discrimination was made out. When W began performing his show in which he joked about drowning him, G was 13. In his stand‑up routine, W remarked that he defended G from criticism only until he found out that he was not dying, at which point he took it upon himself to drown him. W’s jokes implied that society would be better off if G were dead and invoked archaic attitudes advocating for the exclusion and segregation of children with disabilities. W preyed on G’s disability and the way it manifests itself in order to make his audience laugh, portraying the child as a subject of ridicule rather than as an individual deserving of respect. These are clearly the types of comments which lead a disabled child to question his self‑respect and self‑worth, violating s. 10 of the Quebec Charter and causing severe dignitary harm.
This conclusion shifts the onus to W to justify his prima facie discriminatory speech. He attempts to do so by invoking his right to freedom of expression under s. 3 of the Quebec Charter and s. 2(b) of the Canadian Charter as a defence. However, W’s justifications that he did not intend to discriminate, that he was treating G like any other celebrity, and that his artistic licence as a comedian gave him a right to mock a disabled child have no basis in law. The Court’s jurisprudence confirms that it is the impact of the conduct that matters, not the intention: it is immaterial whether W intended to mock G because he has a disability, whether W was joking or being serious, or whether G was skewered in the same way as other celebrities. The Court’s jurisprudence also rejects the proposition that it is acceptable to discriminate if it results from treating likes alike. It also rejects the proposition that freedom of expression includes the right to discriminate. The jurisprudence also confirms the principle that the dignity of public figures is not necessarily subservient to the right to express harmful remarks. There is no reason to depart from that jurisprudence.
W’s remarks cannot be justified in the circumstances and they result in a violation of the equal exercise of the right to the safeguard of dignity enshrined in the Quebec Charter. W’s exercise of his expressive rights under s. 3 of the Quebec Charter are completely disproportionate when compared to the s. 4 harm suffered by G. A reasonable person in G’s circumstances, even one attuned to the importance placed on freedom of expression, including artistic expression and satire, would not be expected to bear the speech at issue in this case. The Tribunal was entitled to grant punitive damages and there is no reason to overturn or modify them. Punitive damages here serve not only a denunciatory purpose, but serve to deter people like W from profiting from the intentional interference with the Charter rights of others and treating compensation for this harm as merely the cost of doing business.
Cases Cited
By Wagner C.J. and Côté J.
Applied: Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39, [2015] 2 S.C.R. 789; Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65; followed: Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11, [2013] 1 S.C.R. 467; Devine v. Quebec (Attorney General), [1988] 2 S.C.R. 790; considered: Calego International inc. v. Commission des droits de la personne et des droits de la jeunesse, 2013 QCCA 924, [2013] R.J.D.T. 517; referred to: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; Aubry v. Éditions Vice‑Versa inc., [1998] 1 S.C.R. 591; Béliveau St‑Jacques v. Fédération des employées et employés de services publics inc., [1996] 2 S.C.R. 345; Prud’homme v. Prud’homme, 2002 SCC 85, [2002] 4 S.C.R. 663; Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16, [2015] 2 S.C.R. 3; Commission des droits de la personne et des droits de la jeunesse v. Filion, 2004 CanLII 468; Tchanderli‑Braham v. Bériault, 2018 QCTDP 4; Jied v. Éthier, 2019 QCTDP 26; Mirouh v. Gaudreault, 2021 QCTDP 10; Ayotte v. Tremblay, 2021 QCTDP 13; Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City), 2000 SCC 27, [2000] 1 S.C.R. 665; Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Maksteel Québec Inc., 2003 SCC 68, [2003] 3 S.C.R. 228; Ontario Human Rights Commission v. Simpsons‑Sears Ltd., [1985] 2 S.C.R. 536; Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712; Bruker v. Marcovitz, 2007 SCC 54, [2007] 3 S.C.R. 607; Health Services and Support — Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, [2007] 2 S.C.R. 391; Quebec (Public Curator) v. Syndicat national des employés de l’hôpital St‑Ferdinand, [1996] 3 S.C.R. 211; R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483; Cinar Corporation v. Robinson, 2013 SCC 73, [2013] 3 S.C.R. 1168; Gauthier v. Beaumont, [1998] 2 S.C.R. 3; Fortier v. Québec (Procureure générale), 2015 QCCA 1426; Commission des droits de la personne et des droits de la jeunesse v. 9185‑2152 Québec inc. (Radio Lounge Brossard), 2015 QCCA 577; Genex Communications inc. v. Association québécoise de l’industrie du disque, du spectacle et de la vidéo, 2009 QCCA 2201, [2009] R.J.Q. 2743; Solomon v. Québec (Procureur général), 2008 QCCA 1832, [2008] R.J.Q. 2127; Procureur général du Canada v. Manoukian, 2020 QCCA 1486, 70 C.C.L.T. (4th) 182; J.L. v. S.B., [2000] R.R.A. 665; Bourdeau v. Hamel, 2013 QCCS 752; Hébert v. Giguère, [2003] R.J.Q. 89; Commission des droits de la personne et des droits de la jeunesse v. 9113‑0831 Québec inc. (Bronzage Évasion au soleil du monde), 2007 QCTDP 18, [2007] R.J.D.T. 1289; Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; R. v. Zundel, [1992] 2 S.C.R. 731; Montréal (Ville de) v. Cabaret Sex Appeal inc., [1994] R.J.Q. 2133; Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130; Bou Malhab v. Diffusion Métromédia CMR inc., 2011 SCC 9, [2011] 1 S.C.R. 214; R. v. Keegstra, [1990] 3 S.C.R. 697; Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892; R. v. Butler, [1992] 1 S.C.R. 452; Little Sisters Book and Art Emporium v. Canada (Minister of Justice), 2000 SCC 69, [2000] 2 S.C.R. 1120; R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45; Brodie, Dansky and Rubin v. The Queen, [1962] S.C.R. 681; WIC Radio Ltd. v. Simpson, 2008 SCC 40, [2008] 2 S.C.R. 420; Trudeau v. AD4 Distribution Canada inc., 2014 QCCA 1740; Hydro‑Québec v. Matta, 2020 SCC 37, [2020] 3 S.C.R 595.
By Abella and Kasirer JJ. (dissenting)
Calego International inc. v. Commission des droits de la personne et des droits de la jeunesse, 2013 QCCA 924, [2013] R.J.D.T. 517; Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39, [2015] 2 S.C.R. 789; Velk v. McGill University, 2011 QCCA 578, 89 C.C.P.B. 175; Quebec (Commission des droits de la personne) v. St‑Jean‑Sur‑Richelieu, Commission scolaire (1994), 117 D.L.R. (4th) 67; British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3; McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l’Hôpital général de Montréal, 2007 SCC 4, [2007] 1 S.C.R. 161; Moore v. British Columbia (Education), 2012 SCC 61, [2012] 3 S.C.R. 360; British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868; Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City), 2000 SCC 27, [2000] 1 S.C.R. 665; Janzen v. Platy Enterprises Ltd., [1989] 1 S.C.R. 1252; Desroches v. Commission des droits de la personne, [1997] R.J.Q. 1540; Commission des droits de la personne et des droits de la jeunesse v. Remorquage Sud‑Ouest (9148‑7314 Québec inc.), 2010 QCTDP 12; St‑Éloi v. Rivard, 2018 QCTDP 2; Commission des droits de la personne et des droits de la jeunesse v. Camirand, 2008 QCTDP 11; Commission des droits de la personne et des droits de la jeunesse v. Paradis, 2016 QCTDP 17; Commission des droits de la personne et des droits de la jeunesse v. Quenneville, 2019 QCTDP 18; De Gaston v. Wojcik, 2012 QCTDP 20; Commission des droits de la personne et des droits de la jeunesse v. Brisson, 2009 QCTDP 3; Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624; Commission scolaire régionale de Chambly v. Bergevin, [1994] 2 S.C.R. 525; Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; Dennis v. 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Statutes and Regulations Cited
Accepting Schools Act, 2012, S.O. 2012, c. 5.
Act to Amend the Alberta Bill of Rights to Protect Our Children, S.A. 2015, c. 1.
Act to Amend the Education Act, S.N.B. 2012, c. 21.
Act to prevent and stop bullying and violence in schools, S.Q. 2012, c. 19, s. 2.
Canadian Charter of Rights and Freedoms, ss. 1, 2(b).
Charter of human rights and freedoms, CQLR, c. C‑12, preamble, ss. 1 to 9.1, 10 to 19, 21, 22, 23 to 38, 39 to 48, 49, 54, 55, 71, 80, 111, 132, 133, 134(1).
Civil Code of Québec, preliminary provision, art. 1457.
Décret 1676‑91, (1992) 124 G.O. II, 51.
Décret 179‑2010, (2010) 142 G.O. II, 1196.
Education Act, R.S.Q., c. I‑13.3, s. 13.
Intimate Images and Cyber‑protection Act, S.N.S. 2017, c. 7.
Public Schools Amendment Act (Reporting Bullying and Other Harm), S.M. 2011, c. 18.
Treaties and Other International Instruments
Convention on the Rights of Persons with Disabilities, Can. T.S. 2010 No. 8, arts. 5, 7, 16.
Convention on the Rights of the Child, Can. T.S. 1992 No. 3, arts. 2, 19, 23.
Universal Declaration of Human Rights, G.A. Res. 217 A (III), U.N. Doc. A/810, at 71 (1948).
Authors Cited
Bailey, Jane. “‘Sexualized Online Bullying’ Through an Equality Lens: Missed Opportunity in AB v. Bragg?” (2014), 59 McGill L.J. 709.
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Besson, Samantha, and Eleonor Kleber. “Article 2. The Right to Non‑Discrimination”, in John Tobin, ed., The UN Convention on the Rights of the Child: A Commentary. New York: Oxford University Press, 2019, 41.
Bollinger, Lee C. The Tolerant Society. New York: Oxford University Press, 1986 (1988 reprint).
Brunelle, Christian. “La dignité dans la Charte des droits et libertés de la personne: de l’ubiquité à l’ambiguïté d’une notion fondamentale”, dans La Charte québécoise: origines, enjeux et perspectives, [2006] R. du B. (numéro thématique) 143.
Brunelle, Christian. “Pour une restructuration de la Charte québécoise?”, dans Mélanges en l’honneur de Jacques‑Yvan