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Joanna Baron: The Supreme Court rules there’s still no right not to be offended

Commentary

Are distasteful jokes “punching down” at a disabled child a violation of constitutional or human rights laws? In the case of Mike Ward, today a slim majority of the Supreme Court of Canada has answered no, and held a line, for now, against the right not to be offended.

The Montreal comedian Ward’s “Les Intouchables” routine roasted Quebec’s ‘sacred cows’: the province’s universally beloved celebrities, such as Céline Dion and 10-year old Jérémy Gabriel, a well-known child singer with Treacher Collins syndrome.

The comments are difficult to hear, much less defend: Ward mocked Gabriel’s hearing device as a “subwoofer on his head” and called him the “ugly singing kid.” Gabriel gave evidence that the jokes caused him to be mocked at his school and even drove him to suicidal thoughts.

In 2016, the Quebec Human Rights Tribunal ordered Ward to pay $37,000 in damages for violating Gabriel’s right to dignity, finding that this right, which is protected by the Quebec Charter, outweighed Ward’s right to free expression. It arrived easily at this conclusion by asserting that the values underpinning the right to free expression, namely the search for the truth, participation to the democratic process and personal development, were not furthered by Ward’s repugnant comments, and thus his jokes carried minimal value.

In today’s decision, the Supreme Court split 5-4 over what a “reasonable person in the circumstances” would understand to be the impact of Ward’s jokes. In particular, the Court assessed whether Ward’s remarks went further than mocking Gabriel personally and instead degraded disabled people as a group, presenting a risk of inflaming discriminatory sentiments against disabled people in society.

Given the context of the barbs against Gabriel, was he being singled out because of his disability or rather, in a way, being allotted equal treatment based on his celebrity status (as Ward’s lawyer, renowned human rights litigator Julius Grey, argued)? The majority found that since Ward chose to target Gabriel because he was a public figure and not because he was disabled, the jokes did not amount to discrimination.

It’s important to recall that public anti-discrimination laws have the unique goal of preventing the perpetuation of prejudice or stereotyping based on immutable characteristics for society as a whole. It does not adjudicate private disputes between individuals. The question is whether the state failing to sanction the speech or conduct in question might risk creating a social atmosphere of hostility against a protected group.

Conversely, the Court suggested that if Gabriel had sought damages in the form of a private law claim—for example, in defamation, which protects the right to reputation, or the newly-created tort of online harassment—he might have been successful against Ward.

Justices Abella and Kasirer, writing on behalf of themselves and two other judges, dissented and would have maintained the fine against Ward. They would shift the burden to Ward to answer as to why the jokes should not be construed as discrimination. This represents a significant departure from Whatcott, a 2013 Supreme Court case which held that speech, however repugnant and offensive, is generally protected unless it meets the threshold of hate speech.

It is hard not to consider today’s decision in light of the recent outrage concerning Dave Chappelle’s recent Netflix special, The Closer. In The Closer, Chappelle expresses disgust at being “tricked” into calling a trans woman beautiful and compares trans women to white people wearing blackface.

At first, Netflix’s corporate bosses defended artistic freedom in principle. “We have a strong belief that content on screen doesn’t directly translate to real-world harm,” Ted Sarandos wrote in a company-wide email. But after a few dozen Netflix employees staged a walkout, alleging Chappelle’s comments risked inciting further violence against trans people, Sarandos seemed to fold, saying he had “screwed up” in not acknowledging the harm towards the trans community. One is left to wonder what the impact of l’affaire Chappelle will be on comedians less successful—that is to say, nearly all—than Chappelle.

The Ward decision was one judge away from rendering the spectre of government fines for offensive jokes a constitutional requirement, an outcome that would be the death knell of comedy. If comedians must imagine their jokes later transcribed into courtroom evidence and dissected by judges, they will inevitably stay away from the edgy, the subversive, and the dark—in other words, what makes comedy so satisfying and important in a free society.

Comedy relies on crossing boundaries and exposing truisms: employing the state in the messy exercise of determining when an invisible line has been crossed undoubtedly would lead to a chilling effect and a world of milquetoast humour.

Christine Van Geyn: Canada’s new heritage minister has a chance to undo some damage

Commentary

Canada has a new minister of Canadian Heritage and an opportunity to go back to the drawing board on controversial and likely unconstitutional proposals to regulate the internet.

Earlier this week, Pablo Rodriguez was sworn in as Canada’s minister of Canadian Heritage. Rodriguez is a veteran Member of Parliament with past experience in the portfolio, in contrast to his predecessor, Steven Guilbeault, a relative political neophyte who came to politics as an ideological activist and struggled with three high profile initiatives in his department.

Guilbeault took what struck many observers as extreme and ideological positions on internet regulation, as well as a restrictive view of freedom of expression. Rodriguez now has an opportunity to undo some of that damage.

Let’s start with some level setting. The Trudeau government has inherited a set of issues around broadcasting, communications, Canadian content, and the growing role of internet-based content (including the rise of social media) that requires serious policy thinking. The asymmetrical treatment between traditional broadcasters and over-the-top streaming services is merely one example of where Canada’s laws and policies arguably ought to be modernized.

The problem, though, is that, under Minister Guilbeault’s tenure, the government’s approach tended towards new and more government regulations, less choice and dynamism in the marketplace, and greater control over Canadians’ individual internet usage. It’s no surprise that this top-down agenda galvanized Canadians and produced a massive backlash.

The recent federal election halted some key pieces of legislation. The combination of time, perspective, and a change in minister ought to permit the government to revisit its controversial proposals. In particular, incoming Minister Rodriguez should deviate from his predecessor in three specific ways.

First, he should halt any government plans to reintroduce what was formerly Bill C-10, a proposal to amend the Broadcasting Act. This law would, among other things, mandate online streaming services (think Netflix for instance) to fund and promote Canadian content, in the way the CRTC has required legacy media to do for decades.

This law, most controversially, though, would have even applied to user generated content like YouTube videos or TikToks. Minister Guilbeault had stated that users with a large social media presence could even be considered “broadcasters” and thus subject to government oversight and regulation.

This is seriously wrong-headed. Few policy goals can be served by ranking Canadian cat videos higher than American cat videos. If C-10 is reintroduced, at minimum, it must be made clear that the new law will not apply to user-generated content.

Second, Rodriguez should reformulate the joint Canadian Heritage/Justice legislation related to hate speech, formerly called Bill C-36.

Although hate speech is already prohibited by the Criminal Code, Bill C-36 as drafted would have further expanded how speech is regulated. As an example: Bill C-36 proposed the creation of a statutory definition of “hate speech.” The new, proposed definition included speech that would be “likely to foment vilification or detestation.” This is hardly a clarification.

The definition remains broad and subjective, and would impact the ability of Canadians to engage in debate on subjects that are unsettled. As the Canadian Constitutional Foundation’s Executive Director, Joanna Baron, laid out in a previous article for The Hub, public conversation around transgender rights and the criticism of religion show the dangers of “concept creep,” whereby the line between healthy criticism and encouraging violence seems to have become increasingly blurred.

And equally troubling was Bill C-36’s proposed creation of a new civil remedy for hate speech. The civil remedy would allow people to bring anonymous complaints to the country’s human rights commissions at no cost to the complainant, complete with monetary penalties up to $50,000.

Giving government and unelected tribunal bureaucrats even greater control over Canadians’ expression would erode our fundamental rights. While hate speech is abhorrent and must be condemned, Bill C-36 would cause a whole new set of harms. The balance is all wrong, and this legislation should be rethought entirely.

Few policy goals can be served by ranking Canadian cat videos higher than American cat videos.

The third priority for Minister Rodriguez should be to take his predecessor’s proposal to regulate “online harms” back to the drawing table completely. The new proposal is not yet a law, or even a bill. It was released just prior to the election in the form of a technical paper and discussion guide, and the public was asked to submit comments to the government.

The government has not disclosed any of the comments that it has received to date, and does not appear to have plans to do so, which itself is a major transparency problem that the new minister should rectify.

The “online harm” proposal is intended to regulate content of online media platforms, like Facebook Instagram, Twitter, YouTube, TikTok and PornHub for five specific types of content: (1) terrorism content; (2) incitement of violence; (3) hate speech; (4) non-consensual intimate images (sometimes called “revenge porn”); and (5) childhood sexual exploitation imagery (sometimes called “child porn”).

This content is all clearly repugnant, and it is also already illegal. But the Guilbeault proposal, which, among other things, imposes new rules, obligations, and fines on these companies would not only fail to solve the problems caused by these types of abhorrent content but would also have serious effects on individual rights.

It makes little sense to regulate these types of content the same way. Hate speech, as outlined above, has a much more subjective definition than childhood sexual abuse or terrorism. Regulations to deal with these types of harm should be properly tailored, and the government’s proposal was not.

It also included a requirement that platforms identify and respond to content flagged by users within 24 hours. For many platforms, however, much of the most concerning type of content, like childhood sexual abuse imagery, is already removed automatically through artificial intelligence which uses a technology called “hashing” that identifies these types of images and blocks them before they can even be posted.

But for more subjective content, like hate speech, it’s easily foreseeable that users of these platforms will over-report content they don’t like as “hate speech.” Even if it does not rise to the level of hate speech, this reporting will trigger the 24-hour requirement for the platform to address the content.

If a platform fails to block or remove content they can be subject to penalties, which run as high as three percent of global revenue or $10 million dollars. In some situations, penalties can run as high as $25 million.

Given the severity of the penalties, platforms are likely to err on the side of just taking down content when there has been a complaint. This will result in a lot of non-criminal content being taken down, and this ostensibly has freedom of expression implications.

Germany has a 24-hour takedown requirement called the Network Enforcement Law. YouTube has published a transparency report outlining how they comply with the German law. The vast majority of complaints relate to hate speech, not other types of harmful content. And of the reported content, 85 per cent did not violate either the German law or YouTube’s community guidelines.

The German law is now subject to a legal challenge by Google for violating rights related to data protection as well as the German constitution and European law. The Guilbeault proposal is similar, and is also likely unconstitutional. Now is an opportunity for incoming Minister Rodriguez to walk it back.

Minister Guilbeault’s major initiatives consistently erred on the side of new and greater government control over internet content and Canadian’s individual expression. Canadians should expect and demand better of his replacement.