Humour, Hate and Harm: Rethinking dignity, equality and freedom of expression after the SCC’s decision in Ward v Quebec

Humour, Hate and Harm

Rethinking dignity, equality and freedom of expression after the Supreme Court’s decision in Ward v Quebec 

November 25, 2022, 9 a.m - 2 p.m (Luncheon provided)

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 Ward v Quebec, 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 McGill University's Max Bell School of Public Policy and McGill’s Centre for Human Rights and Legal Pluralism of the Faculty of Law We are delighted that the Literary Review of Canada, Canada‘s journal of ideas, is with us as the event media sponsor.

The event is free but advance registration is required.

Continuing Education for Members of the Quebec Bar Association:

This event has been accredited as an eligible educational activity for the purposes of mandatory continuing education for the duration of 3 hours for participants.

Formation dont l'admissibilité a été confirmée par le Barreau du Québec aux fins de la formation continue obligatoire, pour une durée de 3 heures.

SPEAKERS

Pearl Eliadis

Event Chair, Associate Professor (Professional), Max Bell School of Public Policy

Stéphanie Fournier

Legal Counsel, Quebec Commission for human rights and youth rights

Pablo Gilabert

Professor, Philosophy, Concordia University

Julius Grey

Constitutional lawyer, Senior Partner, Grey, Casgrain

Mohammed Hashim

Executive Director of Canadian Race Relations Foundation

Marie-Claude Landry

Chief Commissioner, Canadian Human rights Commission

Fo Niemi

Executive Director of the Center for Research-Action on Race Relations

Philippe-André Tessier

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.

REGISTER HERE


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

  • British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62 (CanLII), [2017] 2 SCR 795. 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.
  • Bou Malhab v. Diffusion Métromédia CMR inc., 2011 SCC 9, [2011] 1 S.C.R. 214. 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.
  • Calego International inc. c. Commission des droits de la personne et des droits de la jeunesse, 2013 QCCA 924 (CanLII). 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.
  • Saskatchewan (Human Rights Commission) v. Whatcott 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.
  • Ward v. Quebec (Commission des droits de la personne et des droits de la jeunesse) 2021 SCC 43. 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

  • R. v Coban, 2022 BCSC 14 (CanLII).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

Understanding Discrimination Post-Ward

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.

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.

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.

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.

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.


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 McGill'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, Speaking Out on Human Rights: Debating Canada's Human Rights System. 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 McGill 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 McGill University 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 Rights Commission

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.

 

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