Leonid Sirota: We were a vote away from devastating our free-speech rights

It is frightening that this opinion got any support at the Supreme Court.

By: Leonid Sirota

This is an updated adaptation of an article that first appeared at Double Aspect, the blog of lawyers and public law analysts Leonid Sirota and Mark Mancini.

The Supreme Court’s recent decision in Ward v Quebec (Commission des droits de la personne et des droits de la jeunesse) has attracted considerable public attention, and for good reason. Although no law was in danger of being found unconstitutional, the case did concern the limits of the freedom of expression, which have always been controversial, and are perhaps more controversial now than they had been in decades. In brief, the issue was whether nasty jokes by an “edgelord comedian,” as The Line‘s excellent editorial described Mr. Ward, at the expense of Jérémy Gabriel, a well-known disabled child artist, amounted to discrimination that could be punished by an award of damages.

Much has already been written about the Supreme Court’s narrow decision in favour of Mr. Ward; for my part, I have already  commented on (mostly) the majority opinion on my blog. Here, I focus on the dissent, in which, as The Line put it, “[t]here’s an incredible amount of popular modern discourse seeping into judicial reasoning” that “culled plausible-sounding legalese from Twitter logic.” That sounds about right. 

But let me put it slightly differently. The dissent is, in a word, woke. And I do not mean “woke” as a generic insult. Nor do I mean, incidentally, that Mr. Gabriel is a snowflake. I think he deserves sympathy on a 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 they were just 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 (with whom two others agree) 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.

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. I have criticized the majority decision for disregarding precedent and doctrine. The dissent does the same, only much worse.

Besides, as I once noted elsewhere, 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 with 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 be 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 put 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.” But this isn’t quite true: it is the interviewer who suggested that Mr. Ward’s jokes amounted to bullying. Mr. Ward himself said, “I don’t know. I don’t know. It’s a good point.” 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. 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. 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.

Robert Leckey and Pierre-Gabriel Jobin, respectively Dean and Emeritus Professor at McGill Law (of which, full disclosure, I am an alumnus and where I was Professor Jobin’s student ― not a very good one, I am afraid) have argued that the dissent was right to adopt this view. They say it was foreseeable that Mr. Gabriel’s classmates would react as they did. But if the foreseeable reaction of a definitionally immature ― or, in a different case, of a fanatical ― segment of the audience to a statement can serve as a justification for censoring or punishing it, then no words are immune from censorship or punishment. Not only is someone sure to misunderstand, twist, or be offended by just about anything that one might say; to give the immature and the fanatics a veto power over others’ speech is to invite them to display ever more immaturity or fanaticism.  

Now, Justices Abella and Kasirer wouldn’t agree that Mr. Ward had no power over Mr. Gabriel. A preoccupation with power hierarchies imagined to run neatly along the lines of “privileged” and “oppressed” demographic categories is perhaps the clearest sign of their opinion’s wokeness. They write 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. 

This focus on power imbalance explains, I suspect, the seeming inconsistency between the position of the dissenters in Ward and that of the same four judges in  Toronto (City) v Ontario (Attorney General) highlighted by Christopher Bredt. 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 pointed 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 is 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” 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? Don’t be surprised if the equality bureaucracy comes calling ― and it doesn’t matter that you’re not targeting her for that. (I am grateful to my friend 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 to 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. It is telling that Dean Leckey and Professor Jobin refer to freedom of expression as just an argument Mr. Ward made ― in contrast to the right to dignity, on which Mr. Gabriel’s case rested, to which they do refer as a right. Freedom of expression is a right under both the Canadian Charter and the Québec one. The woke dissenters and their supporters are on the verge of reading it out of the constitution.

Note: The headline on this piece has been updated because your sleep-deprived Line editor isn’t good at math, and said we were four votes away — of course, we were one vote away.

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