As promised, in this post, I come back to the dissenting opinion in Ward v Quebec (Commission des droits de la personne et des droits de la jeunesse), 2021 SCC 43. I commented (mostly) on the majority opinion in my last post. In that post, I referred to The Line‘s editorial by Jen Gerson and Matt Gurney (possibly paywalled, but you should subscribe!), which addressed the case, and especially the dissent, in some detail. Ms. Gerson and Mr. Gurney write that “[t]here’s an incredible amount of popular modern discourse seeping into judicial reasoning” in the dissent ― that “culled plausible-sounding legalese from Twitter logic”. That’s not a bad way of putting it.
I will put it slightly differently. The dissent is, in a word, woke. And I don’t mean “woke” as a generic insult. Nor do I mean, incidentally, that Mr. Gabriel is a snowflake. As noted in my last post, I think he deserves sympathy on human level, though not the protection of the law for his claim. Rather, what I mean by calling the dissent woke is that it embraces a number of specific tenets of contemporary social-justice ideology, which, if they become law ― and remember that they were one vote away from becoming law ― would be utterly corrosive to the freedom of expression.
For one thing, the dissent erases the line between words and actions, so that disfavoured words are treated as deeds and therefore subjected to vastly expanded regulation. Justices Abella and Kasirer write:
We would never tolerate humiliating or dehumanizing conduct towards children with disabilities; there is no principled basis for tolerating words that have the same abusive effect. Wrapping such discriminatory conduct in the protective cloak of speech does not make it any less intolerable when that speech amounts to wilful emotional abuse of a disabled child. [116]
In what is going to be a theme of my comment, this twists the meaning of words beyond recognition; conduct is conduct and speech is speech. Using words instead the proverbial sticks and stones is not just a disguise. It’s the better part of civilization. The law relies on a distinction between words and actions all the time. This is a principle, and a general one, but it has also been a cornerstone of the law of the freedom of expression in Canada since the early days of the Charter. In my last post, I gave the majority grief for disregarding precedent and doctrine. The dissent does the same, only much worse.
Besides, as I once noted here, the negation of the distinction between speech and conduct often combines with a belief that violence against some politically heretical group or other is permissible into the toxic belief that “[w]hat one says, or does, is expression; what one’s opponents say, or do, is violence”. This, in turn, means that law dissolves into a raw competition for political power, with the ability to decide whose expression will stripped of its “protective cloak” and proscribed as the prize.
Another way in which the dissent is woke is its wilful blindness to the context in which words appear. Like critics dragging a writer for the words of an unsavoury character, Justices Abella and Kariser claim that
Mr. Ward remarked that he defended Mr. Gabriel from criticism only until he found out that he was not dying, at which point he took it upon himself to drown him. This implies that it would be too burdensome for society to accept Jérémy Gabriel in the mainstream permanently and that ultimately society would be better off if he were dead.
No, it really doesn’t. Mr. Ward’s persona is, as The Line‘s editorial puts it, that of That Asshole. He is making an obviously hyperbolic statement, a joke ― not remarks at a political meeting. The joke was in poor taste, to be sure, but in no non-woke person’s mind is it a statement about what is best for society. Insofar as Mr. Ward’s comedy was meant as a social commentary, it targeted taboos around joking about certain people or subjects ― not the supposed burdens, or otherwise, of disabled persons for society.
A further symptom of coddling wokeness in the dissenting opinion is its bizarre insistence that Mr. Ward bullied Mr. Gabriel. Justices Abella and Kasirer claim that “[i]n a 2012 interview, Mr. Ward himself acknowledged the view that his comments constituted bullying”. [196] But this isn’t quite true. They quote the relevant interview passage early on in their opinion: it is the interviewer who suggests that Mr. Ward’s jokes amounted to bullying. Mr. Ward himself says “I don’t know. I don’t know. It’s a good point.” [126] Not quite an admission, by my lights. But, in any case, the idea that comments about a person whom one has never met and will likely never meet, over whom one has no actual power, with whom, indeed, one shares nothing at all can amount to bullying are just twisting the meaning of this emotionally charged word. Nobody can defend bullying of course, just as nobody can, say, defend racism, and Justices Abella and Kasirer again take a leaf out of the woke playbook to redefine words in a way that makes their decision seem beyond debate.
Now, Mr. Gabriel’s classmates seem to have bullied him, and to have used Mr. Ward’s jokes in doing so. But it is only on a woke view that Mr. Ward can be liable for their behaviour. He did not commission or instigate their actions. He doesn’t even know about their existence. Again this is reminiscent of calls for the “cancellation” of a work of fiction or some scientific article on the basis that, regardless of its author’s intentions, it will contribute to discrimination by others.
Then again, Justices Abella and Kasirer wouldn’t agree that Mr. Ward had no power over Mr. Gabriel. A preoccupation with power hierarchies imagined to run entirely along the lines of “privileged” and “oppressed” demographic categories is perhaps the clearest sign of their opinion’s wokeness. They write that
that there is value in the performance of comedy and in criticizing those in power in society. But in the circumstances of this case, condoning the humiliation and dehumanization of a child, let alone one with a disability, would fly in the face of the very idea of the public interest. … Mr. Ward’s message about Mr. Gabriel, albeit one said in jest, was that he was disposable and that society would be better off without him. Unlike other “sacred cows” targeted by Mr. Ward, Jérémy Gabriel fell victim to a stark power imbalance here. [215-16; paragraph break removed]
This focus on power imbalance explains, I suspect, the seeming inconsistency between the position of the dissenters in Ward and in Toronto (City) v Ontario (Attorney General), 2021 SCC 34 highlighted by Christopher Bredt. (Recall that the the same four judges dissented in both cases.) The Lawyer’s Daily reports that Mr. Bredt, who was part of the legal team that
represented the intervener Canadian Civil Liberties Association, said he finds it incongruous that the minority in the Ward appeal comprises the same four judges who earlier this month vigorously defended freedom of expression to the extent that they would have struck down the Ontario government’s downsizing of wards during Toronto’s municipal election.
The incongruity resolves itself once you account for the fact that in City of Toronto the “stark power imbalance” ran the other way ― the free speech claimants were the less powerful side, and hence the good side in the moral framework that decides worth according to where a person or group stands in an a priori power hierarchy.
In the real world, power hierarchies are not so neat ― which is one of many reasons why they should not be given nearly as much importance as the woke worldview attaches to them. As The Line editors point out,
this is a kid who became famous in all of Quebec, sang, and was enthusiastically cheered by entire hockey stadiums. He performed in front of some of the most famous people in the world. And we’re to believe that the ugly jokes of one stand-up comedian was enough to undo all of this honour and fame? That Mike Ward is uniquely responsible for a disabled child’s ostracization from his peer group and suicidal thoughts?
Justices Abella and Kasirer insist that a celebrity must be treated like everyone else, and does not lose his rights. That’s true ― in a liberal legal system where everyone has equal rights to begin with. In a system whose starting point is not equality, but people’s relative positions in power hierarchies, insistence that cultural prestige, sympathy, and (in other cases) even wealth are to be disregarded are absurd. But it too is characteristic of the specifically woke take on power and inequality.
Like some others who have written about Ward, I find it frightening that this opinion got four votes at the Supreme Court. Had the dissenters found another colleague to agree with them, it’s not only “edgelord comedians”, in The Line‘s words, that would have come under the potential fire of human rights tribunals. Make a disparaging remark about a member of any of the protected groups that references that membership? There, you’re a law-breaker. Make fun of Greta Thunberg in a way that touches on her Asperger’s and selective mutism ― remember, it doesn’t matter that you’re not targeting her for that? Don’t be surprised if the equality bureaucracy comes calling. (I am grateful to my friend and sometime co-author Akshaya Kamalnath for this example.)
And remember, too, that under Québec’s Charter of Human Rights and Freedoms “political convictions” are a prohibited ground of discrimination as well. Of course, for the foreseeable future, mockery of literal Nazis is undoubtedly safe. You wouldn’t expect human rights tribunals condemn right-thinking members of society! But that’s only good until the day “common good” conservatives get their chance to appoint these tribunals’ members. Then, I’m afraid, the boundaries of permissible discourse will shift.
But abuse of anti-discrimination law as an instrument of censorship would be only the beginning. If speech can be conduct; if the intent of a speaker doesn’t matter for attributing liability for words; if public criticism or mockery can be bullying; if speech can be censored based on how people over whom the speaker has no control might respond to it, or if the right to be free from censorship depends on one’s place in a dogmatic hierarchy of oppression; then hardly any restriction on freedom of speech cannot be justified. It will all be done in the name of safety and equality of course. But it will be no less the end of the freedom of speech, and of democracy, for all that.
Double Aspect 
Who are these despots? What makes them think they have the right to restrict freedom of expression in this way? Only people who have spent their whole lives in the unreal, Job, salary and pension guaranteed world of the civil service and academia could hold such a view. Of course, all four of these people have that background.
Where are the fair-minded people in this country who care about democracy? Interesting how those with strong liberal views on twitter are so quiet about this decision. They have no courage to speak out. They should all hang their heads in shame.
I think I disagreed with every one of your implicit propositions in the peroration. There is nothing woke about recognizing that distinguishing speech from conduct is complicated. Colin Thatcher was convicted of speaking to a hit man and I don’t think Irwin Toy was particularly woke in seeing expression as just conduct intended to convey a meaning (which, on analysis, is most human conduct). It is also not woke to say the intent of a speaker is not determinative of liability: that was the classic position of the law of defamation, negligent misrepresentation, contractual breach (which, after all, is about attaching legal liability to what was offered or accepted) and many other examples. Moreover, I do not think it is the case that intent is literally irrelevant to discrimination cases. The reaction of the audience to speech has also always been determinative of liability. Where you sit in a hierarchy of oppression (albeit not rigid) has to be important to the distinction between “No Irish may apply” and “Indigenous applicants are encouraged”- which is to say to basic, if perhaps controversial, distinctions in discrimination law expressly supported by section 15(2) of the Charter.
Freedom of speech, in any actually existing community, has limits. You certainly couldn’t have any anti-discrimination law without some limit on employers or landlords being able to express sentiments about whether a particular person can apply for a job or tenancy. To be sure, limits have to be carefully considered, but the only way to pretend you are not imposing limits is to make questionable conceptual distinctions between speech and conduct. These are not consistently adhered to by any side of the political spectrum, as seen by the SCOTUS decision that agency shop arrangements for union dues are speech. Of course, everyone agrees that a mob boss giving an order to beat up someone who hasn’t repaid their loan shark is subject to criminal liability and that the promoters of Bre-X should have bene liable for false claims about findings of gold. (Note that John Stuart Mill did *not* divide the world between speech and conduct, but between other-regarding and self-regarding reasons for regulation.)
Where perhaps I am “woke” is that I guess I don’t understand why the context of humor and mocking makes this better than saying it at a political meeting. In fact, my intuitions go in exactly the opposite direction – we should be very cautious about human rights commissions deciding what gets said at political meetings, even if it is unequivocally discriminatory. Lots of discrimination takes the form of mocking people. Further, while we rightly think that adult politicians and celebrities just have to accept a certain amount of mockery, I think we would normally draw the line at an adult bullying a disabled child. That definitely sends the message that if you have a disability, you had better not become famous because you will be punished for it – precisely the harms the anti-discrimination laws were designed to address.
If you want declinist metaphors, it seems to me that the valorization of cruel humour as the ultimate human good has something in common with the Roman Empire.
I think I disagreed with every one of your implicit propositions in the peroration. There is nothing woke about recognizing that distinguishing speech from conduct is complicated. Colin Thatcher was convicted of speaking to a hit man and I don’t think Irwin Toy was particularly woke in seeing expression as just conduct intended to convey a meaning (which, on analysis, is most human conduct). It is also not woke to say the intent of a speaker is not determinative of liability: that was the classic position of the law of defamation, negligent misrepresentation, contractual breach (which, after all, is about attaching legal liability to what was offered or accepted) and many other examples. Moreover, I do not think it is the case that intent is literally irrelevant to discrimination cases. The reaction of the audience to speech has also always been determinative of liability. Where you sit in a hierarchy of oppression (albeit not rigid) has to be important to the distinction between “No Irish may apply” and “Indigenous applicants are encouraged”- which is to say to basic, if perhaps controversial, distinctions in discrimination law expressly supported by section 15(2) of the Charter.
Freedom of speech, in any actually existing community, has limits. You certainly couldn’t have any anti-discrimination law without some limit on employers or landlords being able to express sentiments about whether a particular person can apply for a job or tenancy. To be sure, limits have to be carefully considered, but the only way to pretend you are not imposing limits is to make questionable conceptual distinctions between speech and conduct. These are not consistently adhered to by any side of the political spectrum, as seen by the SCOTUS decision that agency shop arrangements for union dues are speech. Of course, everyone agrees that a mob boss giving an order to beat up someone who hasn’t repaid their loan shark is subject to criminal liability and that the promoters of Bre-X should have bene liable for false claims about findings of gold. (Note that John Stuart Mill did *not* divide the world between speech and conduct, but between other-regarding and self-regarding reasons for regulation.)
Where perhaps I am “woke” is that I guess I don’t understand why the context of humor and mocking makes this better than saying it at a political meeting. In fact, my intuitions go in exactly the opposite direction – we should be very cautious about human rights commissions deciding what gets said at political meetings, even if it is unequivocally discriminatory. Lots of discrimination takes the form of mocking people. Further, while we rightly think that adult politicians and celebrities just have to accept a certain amount of mockery, I think we would normally draw the line at an adult bullying a disabled child. That definitely sends the message that if you have a disability, you had better not become famous because you will be punished for it – precisely the harms the anti-discrimination laws were designed to address.
If you want declinist metaphors, it seems to me that the valorization of cruel humour as the ultimate human good has something in common with the Roman Empire.
None of this means I would necessarily have signed on to the majority decision, since there are real questions of freedom of expression in the context of shock comedy that pull the other direction. But many defences of Warren Court-style free speech jurisprudence is full of lazy thinking and unmerited self-congratulation – and, for better of for worse, it is that kind of free speech absolutism that is genuinely new in Anglo-Canadian law, not the idea that comedians could sometimes be subject to civil and criminal liability.