In Ward v. Quebec, five of the nine justices said Mike Ward was not discriminating against Jérémy Gabriel. I think they took a wrong turn? What do you think?
'They’re certainly entitled to think that, and they’re entitled to full respect for their opinions,' said Atticus, 'but before I can live with other folks I’ve got to live with myself. The one thing that doesn’t abide by majority rule is a person’s conscience.'”
Was Mike Ward Discriminating Against Jérémy Gabriel?
Most of you will never be party to a discrimination case in a court of law, but you are both judge and jury every day. Your court is the court of public opinion, where often, in the spur of the moment, you must decide whether free speech is fair speech, or if a system really is discriminating toward those who march against it. And only you must decide what, if anything, you can and will do to make a difference.
A court might make the laws, but, in most situations, only your conscience can make you speak up or act. Laws set a minimum standard, not always an ideal standard. Look no further than Jérémy Gabriel’s complaint to the Quebec Human Rights Commission for evidence: If Mike Ward had told his jokes in any other Canadian province or territory, it would not have been discriminating under the law, and the Commission would never have passed the case on to the Tribunal.
Why the difference? To determine if seemingly discriminatory behaviour violates the law, we must first know a little about the legal system. So before going forward, we will take a step back.
Canadian Law
Canadian law includes court decisions, federal and provincial government legislation, and the Constitution. It can be broadly divided into criminal law and civil law. Let’s start with the courts.
The Courts
Criminal Law
The Criminal Code is the responsibility of the federal government, and applies equally to every province and territory in Canada. If someone is accused of a crime, charges are brought against them, not by another person, but by a federal prosecutor—a lawyer who represents the government of Canada. Whether the decision is made by a judge or a jury, the evidence must show, beyond a reasonable doubt, that the accused person committed the crime. If they did, they are found guilty, and are sentenced by the judge. Sentences can include anything from probation, to community service, to time in prison.
Civil Law
Our focus is on the civil system. Disputes between people, or with an institution or company, fall under civil law. A car manufacturer who sells cars with failing brakes; a municipality who fails to provide safe drinking water; an employer who fires you without cause; an argument with your neighbour over where the fence can be built; and, most relevant to our discussion, defamation and discrimination cases: these are the responsibility of civil courts.
In addition to the courts themselves, “quasi-judicial” administrative tribunals hear disputes within their specific area of focus (unlike the courts, who hear all disputes). A few examples include rent review boards, worker’s compensation tribunals, and human rights tribunals. Meant to make justice accessible and less costly, tribunals hold hearings, listen to evidence, and make decisions. The decision-maker is an expert, but is not a judge.
Watch Your Language!
The differences in language between criminal and civil law are important: In civil law, a plaintiff sues a defendant; in criminal law, the Crown lays charges against an accused. The losing party in a civil suit may be found to have been negligent in their actions, or to have broken a contract, but they are neither guilty of a crime nor ever going to be convicted: this is the language of the criminal system.
How To Make Things Right
Plaintiffs are typically compensated with an amount of money relevant to the damage caused, but as in the Ward tribunal, the defendant can be ordered to pay additional punitive damages when their behaviour has been deemed malicious. Compensation could also include: an apology; making the necessary changes to correct the problem; a cease and desist order to stop further wrong behaviour; a restraining order to stay away from the harmed person; honouring the broken contract, and so forth. The losing side may also be ordered to pay some or all of the winning side’s legal fees.
Common Law Isn't Common In Quebec
Civil law courts in every province and territory except Quebec are based on the common law system: To make a decision on a current case, judges must review similar decisions from past cases (courts call this jurisprudence). Quebec, because of its French heritage, has maintained the European-based Civil Code, where a judge may—but does not have to—reference past cases. Instead, the court “establishes the principles to be applied, on a case-by-case basis” (link is a pdf download).
With respect to the Quebec-based discrimination case of Ward v. Quebec, the differences between common law and civil law played no role, so we won’t discuss them further. What did take centre stage, as you will soon see, is the Quebec Charter of Human Rights and Freedoms.
The Court Hierarchy
In the court hierarchy, trial courts, called superior courts for federal cases and inferior courts for more minor provincial issues (traffic fines, for example), are the common entry point, although you may first enter the system via a tribunal. Decisions at the tribunal and trial level do not set precedents, and are not binding on anyone else.
If, for example, Mike Ward had not appealed the tribunal’s decision, he could have continued to tell similar jokes about other people—at least until someone else filed a complaint—and the decision against him would have held no authority over any other comedian. While he chose to fight the decision under the banner of free speech, the Human Rights Commission saw the situation as nothing more, and nothing less, than “a specific person who suffered specific harms.”
In almost all cases, the losing side can take the argument higher to the provincial court of appeal (or first to a trial court in the case of some provincial tribunals). Appeal court judges do not re-open the case; rather, they look to whether the law was properly applied, or the facts misinterpreted. Their decisions are based on reading the written record of the tribunal or trial court. Court of appeal rulings set precedent for lower courts within the same province, but to complicate things, one appellate court is not required to follow the decision of another.
This diversity of opinions can only be resolved at the Supreme Court, the highest court in Canada. Not all cases can get this far, however, as the SCC only accepts those that raise an important legal issue, or are of national significance. Supreme Court decisions must be followed by all lower courts.
Lower Stakes, Lower Standard
As mentioned, in criminal cases, the prosecutor must prove their case beyond a reasonable doubt, because the guilty party is likely to spend time in jail. As the stakes are not so high in civil trials, the evidence must show that, on a balance of probabilities, it is more likely than not that the defendant caused an injury. But don’t be fooled: this standard is still quite high.
