On October 29, 2021, the Supreme Court released its long-awaited decision in Ward v. Quebec (Commission des droits de la personne et des droits de la jeunesse). The case, familiar by now to many, involved a comedian who mocked a disabled celebrity under the age of majority. It was widely reported upon as being a barometer on the limits of free speech in Canadian society.
Whatever social meaning the case took on, however, the Supreme Court considered it very differently. The appeal before them was not about the outermost limits of free speech in our democratic society. That question would have implicated the issue of defamation, and the inherent tension between the legal principles that protect reputation and those that protect expression. Rather, the majority explained from the outset that it was analyzing whether the case fit with the paradigm of discrimination elaborated in the Québec Charter and at the core of the mandate of the Québec human rights commission:
[3] Or, la plainte à l’origine du présent pourvoi ne s’est pas traduite par un recours en diffamation basé sur les propos en cause, mais plutôt par un recours en discrimination basé sur lesdits propos. Le Tribunal pouvait-il conclure au bien‑fondé de la plainte pour discrimination? Nous sommes d’avis qu’il faut répondre par la négative, les éléments constitutifs d’un recours en discrimination fondé sur la Charte québécoise n’ayant pas été établis.
The choice to litigate Ward as a case on discrimination rather than a case on defamation speaks to the importance of framing for litigation attorneys. More fundamentally, it highlights the role that attorneys play in the justice system in avoiding indeterminacy.
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Underlying our justice system is a neat little trick. Moral concepts of right and wrong in the real world are often either complex, indeterminate, or both. Full evaluation of real-life situations may call for information that is inaccessible. Sometimes, the more data you accumulate, the less the ideas of “right” and “wrong” even seem to apply.
Take, for example, the entrepreneur who falsified income numbers to shortchange her business partner. Then add into the equation that the only reason she did this was because the business partner had previously stolen a larger amount of money from her, and the entrepreneur needed the money now to pay for a lifesaving, experimental surgery for a family member. But then consider that because of the falsified numbers, the business partner missed an investment opportunity, not having enough liquidity to invest in a project that inspired her. And finally, consider that this investment opportunity would have developed a water purification system for poor communities—but it never got off the ground because of a lack of initial investment.
There is a lot to unpack here morally. But legally, there are established, defined questions to ask and issues to analyze. Some actions are faults (falsifying revenue numbers) while others are not (not paying for a third party’s surgery). Some consequences are direct (depriving a business partner of money) while others are not (depriving a community of potable water). Using these concepts, we can translate a moral complexity – perhaps even an indeterminacy – into a legal outcome.
Moral indeterminacy cannot lead to legal indeterminacy. For our justice system to be fully functional, it must reliably produce outcomes.
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So what does this have to do with a comedian at the Supreme Court?
When presented with a case, there is usually, rightly, significant overlap between what we see as the “right” outcome and the outcome the justice system produces. Such outcomes leave the outsider thinking: it couldn’t have gone any other way. But if that were true – if legal outcomes were preordained based on nothing more than the facts – then where does that leave lawyers? What do we contribute to the system?
Allow me to suggest that one major and significant answer to that question is framing. Or perhaps a better term is “boxing”.
Our justice system has boxes that correspond to different types of actions. Each box comes with established rules, precedents, standards to meet, etc. Once you get your box, you use the tools that come inside to produce an outcome.
The box is crucial to the legal process. It allows for clarity and consistency. It also helps avoid indeterminacy by providing you with specific tools (guidance) to be relied upon. Moral quandaries don’t come with boxes, or at least clear ones. But when you open the box for defamation, you see tools labelled “fault”, “injury” and “causation”. When you open the box for discrimination, you see tools labelled “distinction”, “prohibited ground” and “impairing the right to full and equal recognition and exercise of a human right”.
By looking at what’s in the discrimination box, and putting aside what’s in the defamation box, the Supreme Court reminds us that the box is a choice that has the potential to drastically affect legal outcomes.
The operation of “boxing” is easily forgotten. It is often accomplished implicitly without much conscious thought. But when reports of the Ward decision are contrasted with the Supreme Court’s actual decision, the role of “boxing” becomes clear. While many commenters assumed that the case fit into one box, the Supreme Court was actually dealing with another.
The Supreme Court does not tell us that Mike Ward was right to make the comments he did, or even that he did not commit a fault in making the comments that he did. All it said was: when you pick up the “discrimination” box, the tools inside do not produce liability for the defendant on these facts. Pick up another box and the outcome might well be different.
In the Ward case, many factors likely contributed to the choice of the “discrimination” box. Indeed, the Québec human rights commission, who was the respondent in the case, derived its jurisdiction from the choice of this box. All things considered, the “discrimination” box may have been the best one available for the purposes of this litigation. It’s not so much which choice was made that is worth highlighting here, but rather that the choice of box mattered. Because of the choice of box, the Supreme Court was not tasked with determining how far comedic speech could go without attracting liability; it was only tasked with determining if Mike Ward’s speech was discriminatory.
The box is a core part of our justice system in producing outcomes and avoiding indeterminacy. Analyzing what’s in each possible box, and then choosing one, is part of a lawyer’s first contributions to a litigation file. Ward reminds us that this is a choice that needs to be taken seriously.
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