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The true story of how human rights tribunals descended into complete madness

Jamie Sarkonak: They've expanded to threaten the rights and freedoms Canadians hold dear

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The joke that initially cost comedian Mike Ward $42,000 had to do with a boy known to Quebec as “Le Petit Jérémy” — Jérémy Gabriel — a regional celebrity who sang for the Pope when he was little. Gabriel has Treacher-Collins syndrome.

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“He was kind of like a Make-a-Wish Foundation type kid, right?” Ward told Joe Rogan when he went on the podcast in 2018.

The true story of how human rights tribunals descended into complete madness Back to video

“The joke was: I was super happy for him at first, this little deaf boy, he’s dying. His dream was to sing for the Pope. He became like front-page news everywhere in Montreal, and then he got a record deal, then he sang for the Canadiens, then he came out with a book. And then at the end I was like, why isn’t he dead yet? Like wasn’t he supposed to die?”

Gabriel was not actually dying; people with Treacher-Collins have about the same life expectancy as those without it. The condition causes facial deformities and sometimes hearing loss. Nevertheless, in the mind of the public, Make-a-Wish is typically thought to be reserved for terminal cases, and, well this one was not. Gabriel had a Terry Fox-esque rise to prominence without the sacrifice and tragedy. 

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During the bit, Ward made fun of Gabriel’s appearance, referring to him as “ugly,” as the kid who “sang badly” with “the sub-woofer” on his head (referring to the boy’s hearing aids), among other things. Later on, in a separate video, Ward made a joke about Gabriel, the Pope, and pedophilia.

It was true that the child sang out of tune, but this didn’t hold his career back: in 2018 he was performing covers of “Eye of the Tiger” and Daft Punk’s “Get Lucky” live without issue.

Gabriel testified that the jokes caused him profound pain: he withdrew and felt “lost, fragile and isolated”; the kids in his school repeated the stand-up jokes back to him. 

It was dark and mean, but was it illegal? The Quebec Human Rights Tribunal gave its answer in 2016: yes. So illegal that it warrants a penalty equivalent in value to a mid-sized SUV: $42,000 in damages to Gabriel and his mother.

“The effect of Ward’s comments is to differentiate Jérémy from other persons who do not have a handicap,” reasoned the tribunal. “His comments are discriminatory and infringed on the respect of Jérémy’s dignity and honour. This type of behaviour is clearly prohibited by the (Quebec) Charter. What is more, the Tribunal believes Jérémy when he says that he was humiliated by these comments. His testimony clearly indicates that he felt belittled in comparison to others.”

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It went on to rule that Ward’s jokes didn’t adequately take human rights into account, and were unjustifiable even in a place where freedom of expression is notionally a core value.

“Having a platform imposes certain responsibilities,” wrote the tribunal. “Comedians may not base their actions solely on the laughter of their audience; they must also take into account the fundamental rights of the victims of their jokes.”

This was ultimately shut down by the Supreme Court after it was appealed all the way up — but only by a hair. Of the nine judges, only five ruled in favour of Ward. Human rights tribunals could punish discriminatory speech, they said, but only if the speech incites hatred on a prohibited ground of discrimination, and only if a reasonable person, informed of the context, would think that the comments were likely to lead to discriminatory treatment. 

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The other four ruled against:

“We would never tolerate humiliating or dehumanizing conduct toward children with disabilities; therefore, there is no principled justification for tolerating speech that has the same offensive effect,” wrote Justice Rosalie Abella in her dissent, which, if she only had one more colleague in agreement, would have outlawed controversial comedy in Canada. 

“Attempting to justify such discriminatory conduct by cloaking it in the principle of freedom of expression does not make it any less intolerable when that speech constitutes deliberate psychological abuse of a child with a disability.”

The original point of human rights legislation was to guard people from undignifying, unfair treatment in public life, whether that be at work, at school, at a business, in landlord dealings, and so on. Equal treatment was the new standard that society, starting in the 1960s and 1970s, was to guarantee. 

It was indeed a change: differential treatment between the sexes had been the norm in the first half of the 20th century; while most men worked, most women did not, and the jobs that did exist were much more sex-stratified than they are now. Where minimum wages existed, they were generally lower for women than they were for men. Other limits existed when it came to property, democratic participation and legal rights. 

There was also racial differentiation: Canada taxed Chinese immigrants in the early 20th century and even halted Chinese immigration completely in 1923. A proportion of the country’s Ukrainians were interned during the First World War, and some Japanese and Italians got the same in the Second World War. Restrictive covenants existed on some properties prohibiting Black ownership. And of course, the maltreatment of the Indigenous.

The civil rights movements of the 1960s brought a new interest in equality and hence, the human rights codes were born. The Canadian Human Rights Act became law in 1977, following the lead of Ontario in 1962; Nova Scotia in 1963; Alberta in 1966; New Brunswick in 1967; P.E.I. in 1968;B.C. and Newfoundland in 1969;Saskatchewan and Manitoba in 1972; and Quebec in 1975. Each established a commission whose job was to adjudicate claims, their decisions reviewable by courts above.

Ontario’s code banned the publication and display of “any notice, sign, symbol, emblem or other representation indicating discrimination” on the basis of “race, creed, colour, nationality, ancestry or place of origin of such person or class of persons.” On these bases it protected anyone seeking services offered to the public, as well as tenants, employees (excepting domestic workers, religious and ethnic non-profits, and employers with fewer than five staff members), and union members. A pay equity provision also required that female and male employees be paid the same for the same work.

The rest of the provinces followed Ontario’s template. There were variations — Alberta didn’t ban the publication of discriminatory signs; not all provinces exempted employers with fewer than five employees. There were also additions. In 1974, B.C. added to its human rights code the promise of protection from any unlisted form of discrimination — unless the entity being accused of discrimination could show they had “reasonable cause.” In 1977, Quebec became the first jurisdiction to protect sexual orientation.

What followed were decades of expanding the scope of human rights through the courts. 

One Theresa O’Malley, a full-time saleswoman at Simpsons-Sears, was made part-time after her Seventh Day Adventist conversion rendered Saturday working incompatible with her life. Work rules stated that the Saturday shift was essential for the full-timers. Her human rights challenge went all the way to the Supreme Court, which in 1985 said this rule was discriminatory and that the employer had a duty to accommodate. A win for religious freedom, yes, and today that would generally be considered a good thing — but it did mark a point of erosion in the common culture of Canada, and interfered with an employer’s ability to manage its staff, based on the needs of the business.

Pregnancy protections, once rare, also became the norm: in 1989, an employer’s policy of excluding pregnant women from its group insurance plan between week 10 and delivery — including for unrelated ailments — counted as sex-based discrimination. Indeed, the Supreme Court said that any discrimination relating to pregnancy counted as sex-based discrimination, extending the reach of human rights protections to expecting women. Reasonable.

Then came the quotas. In 1987, the Supreme Court gave the Canadian Human Rights Commission the go-ahead to impose an affirmative action program upon the Canadian National Railway Company — whose workforce was only four per cent female at a time when women made up a third of the workforce — to achieve gender justice. A federally created organization called Action Travail des Femmes had made the case that woman quotas were necessary in light of the company’s overwhelmingly male workforce and the lack of progress on its existing diversity plan. 

Action Travail des Femmes had the brain trust on its side: in its arsenal of evidence were the results of the 1984 Royal Commission on affirmative action, headed by Judge Rosalie Abella, who would go on to join the Supreme Court two decades later. Abella, the Canadian Human Rights Commission, and the Action Travail des Femmes, all pushed the idea of “systemic discrimination” — the notion that attitudes, practices and policies can amount to discrimination, even if indirect or unintentional. The Supreme Court bought it, agreeing that it was appropriate to help “break a continuing cycle” by forcing managers to have women in their units, by giving women a chance to prove themselves, and by ensuring a “critical mass” of women find work at CN.

With that, any force field that previously held Canadian legislators back from embracing affirmative action was over. The Employment Equity Act, the federal affirmative action law, was passed by the Mulroney government in 1986, condemning the federal government to a future of identity-based hiring that, today, locks Canadian youth out of jobs. 

The 1990s saw more advancements in religious accommodation: the human rights process determined that mandatory retirement policies were justifiable, but that employers could not fire Catholics for observing Easter Monday if no effort was made to accommodate it. But limits were often found: a very new hire, still in the probationary period, could be fired for missing work due to an allergic reaction; an employee whose job involved lifting heavy items could be terminated if an injury prevented him from doing so, and if no alternate work existed.

Women continued to get wins: 1999, a human rights complaint on firefighter criteria made it all the way up to the Supreme Court of Canada, which ruled that B.C.’s minimum physical fitness standards were discriminatory against female candidates. The firefighter who brought the complaint had been hired three years earlier and was said to have “performed her work well, without apparent risk to herself, her colleagues or the public” — but was fired when the province bumped up its aerobic standards. Firefighters had to be able to run 2.5 kilometres in 11 minutes, and she took nearly 12. The government had argued that the standard was necessary for safety, but the court was unimpressed by the lack of scientific evidence for this particular minimum standard.

Did this constitute discrimination against men, now that men would have to meet a higher bar than their female colleagues? No, said the court:

“A different aerobic standard capable of identifying women who could perform the job safely and efficiently therefore does not necessarily imply discrimination against men. ‘Reverse’ discrimination would only result if, for example, an aerobic standard representing a minimum threshold for all forest firefighters was held to be inapplicable to men simply because they were men.” 

And even though some human rights codes didn’t name homosexuality as a protected ground, the Supreme Court annotated it into every provincial statute in 1998. Delwin Vriend had been fired by a Christian college in Edmonton after his sexuality was discovered, and even though Alberta’s human rights code didn’t explicitly provide for this situation, the court read it in.

These were the seeds that sowed the developments of the 21st century.

Progress on gay rights made for a new front line: transgender rights. In 2001, Synthia Kavanaugh, a trans prison inmate who second-degree murdered another trans individual in 1987, succeeded in getting the Canadian Human Rights Tribunal to order federal correctional services to allow inmates to get sex reassignment surgery. The tribunal was convinced that this kind of surgery could be essential for health in some patients, rather than what it actually is: an elective cosmetic procedure. 

The next year, the Vancouver Rape Relief Society, a “feminist, anti-racist, pro-choice and pro-lesbian organization” according to the B.C. Human Rights Tribunal, was ordered to pay $7,500 to a transwoman who had attempted to volunteer there. The organization wanted only female volunteers given its mostly female clientele, and the individual in question was male. Alas, the tribunal found this requirement to be unnecessary.

Meanwhile, the quotas clamped down even harder. A handful of female academics in the early 2000s launched a human rights complaint against the federal government for the Canada Research Chairs Program, which provided prestigious, multi-year grants to professors. These women were concerned the program wasn’t diverse enough, and the federal government eventually reached a settlement that involved a commitment to improving diversity. Years later, unsatisfied with a lack of progress, they returned to the government, demanding hard quotas. They succeeded, and white, able-bodied male applicants were thus excluded from many of these professorships.

Of course, this never goes both ways. Ontario’s human rights tribunal in 2021 found no issue with the case of a white high schooler who was barred from a government-sponsored Black-only summer camp, arriving at the ultimate conclusion that white people cannot claim discrimination when programs exclude them. “An allegation of racial discrimination or discrimination on the grounds of colour is not one that can be or has been successfully claimed by persons who are white and non-racialized,” it wrote.

On many fronts, human rights have spun out of control. The Quebec Human Rights Tribunal ruled in favour of a complainant against a hair salon for not offering a non-binary option when booking an appointment, for example. The complainant was also bald. But the most far-gone domain of all is that of discriminatory hate speech.

In 2006, Mark Steyn and Maclean’s ran an excerpt from Steyn’s Islam-critical book America Alone. The passage remarked on the demographic decline of heritage westerners and the demographic rise of Muslims, and predicted that domestic and geopolitical problems would ensue: an increasingly “Islamified” Europe, a United Nations that often opposes the United States, a demoralized West that submits to terrorism, and a rise of crime and public disorder caused by migrant youth who are less likely to be punished. And, well, he was right: just look at how things have been going in Europe and North America today. 

“Of course, not all Muslims support terrorists — though enough of them share their basic objectives (the wish to live under Islamic law in Europe and North America) to function wittingly or otherwise as the ‘good cop’ end of an Islamic good cop/bad cop routine,” he wrote at one point.

It offended some Canadian Muslims, and a few even took to their local human rights tribunals in an attempt to get the censorship they wanted. Ultimately, they failed.

“The Article expresses strong, polemical, and, at times, glib opinions about Muslims, as well as world demographics and democracies,” wrote the B.C. Human Rights Tribunal in a 2008 decision on the matter. “However, read in its context, the Article is essentially an expression of opinion on political issues which, in light of recent historical events involving extremist Muslims and the problems facing the vast majority of the Muslim community that does not support extremism, are legitimate subjects for public discussion.” 

However, the fact that the case was taken as seriously as it was foreshadowed what was to come.

So, what does count as something that is likely to incite hatred? 

In 2013, judging the case of a Saskatchewan man who circulated a series of anti-LGBT flyers, the Supreme Court indicated the mental exercise that should be used to draw the line in any individual case: the “hallmarks of hate.”

There are 10 hallmarks of hate. Initially devised by the Canadian Human Rights Tribunal, they became the across-the-board rule when the anti-gay flyer case was decided by the Supreme Court in 2013. 

The first is the “powerful menace” hallmark, which frames a targeted group as though it’s “taking control of the major institutions in society and depriving others of their livelihoods, safety, freedom of speech and general well-being.” This has come up in hate speech cases concerning Jews and to a lesser extent, Indigenous people — but interestingly, not white men, who were often treated in the corporate and government worlds as avatars of white supremacy during the COVID years.

There is also the “true stories” hallmark, which uses “allegedly true stories, news reports, pictures” to make negative generalizations about a group — including actual crime statistics and news reports. Which is kind of like using stories of Catholic residential schools to throw the entire religion under the bus.

Other tropes: the “predator” hallmark, which characterizes a targeted group as preying upon children and vulnerable people; the “cause of society’s problems” hallmark, which blames an issue on a certain group; the “dangerous or violent by nature,” “no redeeming qualities,” and  “sub-human” hallmarks, which make those generalizations about a group; the “tone of extreme hatred” hallmark, typically met through the use of slurs; the “trivializing” hallmark, marked by celebrations of tragedy involving members of a group; and finally, the “call to action” hallmark, urging the audience to take violent action against a group.

When the courts refer to these, they point to specific examples, like discussions on the neo-Nazi forum Stormfront. But even that clashes with freedom of expression, and from there it gets easier for courts to stretch the line of forbidden speech to encompass other sensitive points of history and prejudice. By the same reasoning, the state could assert a monopoly on the story of British colonialism, Indigenous slavery and torture, Islamic expansion, Chinese civil wars, African genocides and so on. 

There is also an element of asymmetrical enforcement: while these rules have been used to punish anti-gay, antisemitic, anti-Black and anti-Indigenous rhetoric, they don’t so much as scratch rhetoric that uses these softly prohibited tropes against people who are considered the majority. Ibram X. Kendi’s How to be an Antiracist is a prime example — and that book has been promoted by Canadian libraries, schools and even police.

By 2026, these hallmarks of hate have broadened in scope. 

On Feb. 18, former Chilliwack school trustee Barry Neufeld learned that he would have to pay a $750,000 fine for publicly criticizing political training materials in B.C. schools that relate to sexuality and gender. No crime had been committed; this was the decision of a panel of three she/her-identifying lawyers on the province’s human rights tribunal. Neufeld didn’t believe in gender ideology like they did, and thus, he had to pay up.

Neufeld had criticized remarks about B.C.’s gender curriculum, SOGI 123, which teaches that gender ideology and transgender identity are facts of life — rather than subjective positions that some people hold. He called out the program’s “absurd theory” that “gender is not biologically determined, but a social construct” and asserted that sexually transitioning children is child abuse.

The tribunal went over his public comments with a fine-toothed comb and discovered that it was teeming with “hallmarks of hate.” It found that use of the term “gender ideology” — a term that I often use, because we need a phrase to describe the belief in the notion that gender identity is on a spectrum, detached from sex — was a form of erasure that “allows anti-trans activists to hide behind a veneer of reasonableness” while making “the proposition that transness is not real.”

Among other things, Neufeld had also criticized what the tribunal referred to as “gender-affirming care,” more accurately described as cosmetic cross-sex surgeries and hormone treatments. He called for teachers to stop affirming trans identities in class, likening that act to “child abuse.” He said that trans was a fad among children — indeed, trans identification is going down — and advocated for teaching that gender is “rooted in biology.”

This, the tribunal members said, met the hallmarks of hate and was likely to “inspire discrimination against his targeted group,” and that they indeed caused harm. They added that it was possible to publish comments criticizing SOGI 123 and gender without violating the human rights code — just not if they “are replete with negative stereotypes and pejorative assumptions about LGBTQ people, which undermine their inherent dignity and discriminate against them.” In other words, goodbye free speech — to the tribunal, merely advocating for teachers to stick to teaching biological sex went too far. 

This bodes very poorly for the free press. Remember Mark Steyn, and his book excerpt in Maclean’s that was subject to years of human rights litigation? The book excerpt that made a fair number of predictions about the West when viewed from 2026? Well, the B.C. Human Rights Tribunal isn’t so sure it should have let that article go unpunished.

The decision absolving Maclean’s for publishing the Steyn piece “was released before the Supreme Court of Canada endorsed the hallmarks of hate,” remarked the tribunal. Had this sequence been flipped, “perhaps it would have reached a different conclusion.”

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