Funny at the Time
David Simmonds

It gives me no pleasure to report that the Supreme Court of Canada has recently let a comedian off the hook and upheld his right to freedom of speech, but it comes at the expense of a severely disabled young man who has experienced ridicule for most of his life. 

A comedian before the Supreme Court

The case was brought to the Court by Quebec-based comedian, Mike Ward. He had established himself as an edgy performer that took on celebrities and made outrageous comments regarding them. His target in this case was Jeremy Gabriel, a boy born with Teacher Collins syndrome, which presented as a malformed head and deafness.

Gabriel had his deafness alleviated by fitting a bone-anchored hearing aid on his head. This allowed him to learn to talk and sing. He performed publicly beginning at age eight and sang for Celine Dion and Pope Benedict.

He made numerous appearances on television, recorded an album and produced an autobiography. He became a public figure. Does that make him a legitimate target of comedian Ward?

Ward, a graduate of the Ecole nationale de l’humour, also had a television show and made videos in which he mocked well known public figures. One of his frequent targets was Gabriel y. Here are some of the remarks that Ward made, over several years, 

[He] sang for Céline, again with the “He really sucks, he’s off-key, he sings badly”. Christ, he’s dying, let him live out his dream. I defended him . . . Except now . . . five years later . . . he’s still not dead! 

I saw him with his mother at a Club Piscine. I tried to drown him . . . couldn’t do it, couldn’t do it. He’s unkillable. 

I went online to see what his illness was. You know what’s wrong with him? He’s ugly! 

Gabriel, unsurprisingly, was bullied at school and considered suicide. When he was sixteen, his parents brought a complaint to the Quebec Human Rights Commission and the Quebec Human Rights Tribunal regarding remarks by Ward aimed at their son. Enough is enough; jokes by Ward became too much.

The tribunal decided Gabriel had a right to dignity under the Quebec Provincial Charter of Rights and it had been breached. Gabriel was awarded compensation and punitive damages. The decision was upheld at the Quebec Court of Appeal, but Ward appealed to the Supreme Court of Canada.

The decision was a 5-4 split.

The Court ruled in favour of Ward by a vote of 5-4. The same five judges, led by Chief Justice Richard Wagner, who decided in of Rob Ford when he wanted to downsize Toronto city council, came up on the side of protecting freedom of speech, however odious. The four others led by now retired Justice Rosalie Abella, would have upheld the lower decisions based upon the view that Ward’s conduct was something nobody should have to endure.

The Court majority picked their way through the intricacies of the right to dignity in Quebec law, which is a right that doesn’t appear in our federal Charter of Rights and Freedoms. They found the harm addressed by the provision must be “social and not mental, collective and not individual.” The majority opinion stated that the Court must not focus on the emotional harm suffered by the person alleging discrimination, but instead on the likely discriminatory effects of the remarks.

The majority opinion also relied on s tribunal finding that Ward was making fun of Gabriel because he was a public personality and not because he was disabled. As a result, “his comments, considered in their context, cannot be taken at face value. Although Mr. Ward said some nasty and disgraceful things about [Gabriel and his] disability, his comments did not incite the audience to treat Gabriel as subhuman.”

The minority opinion said “the issue is whether the child with disabilities lost protection from discrimination and the right to be free from public humiliation and bullying just because he is well known … This provision serves to protect individuals from discriminatory speech so harmful that a reasonable person in their circumstances would refuse to tolerate …. This is not, therefore, primarily a case about artistic freedom. It is a case of the rights of vulnerable and marginalized individuals, particularly children with disabilities, to be free from public humiliation, cruelty, vilification and bullying that singles them out on the basis of their disability and the devastating harm to their dignity that results.” 

All nine judges are reasonable people, devoting their careers to producing reasoned judgements, yet they split right down the middle or as close to the middle as an odd number of people can get. This was a classic damned-if-you-do, damned-if-you-don’t case. The majority could be accused of insensitivity to Jeremy’s suffering; the minority of bowing to the forces of political correctness. Edgy humour remains a minefield.

Sometimes, context is meaning.

The real villains of this piece are the audiences who lapped up jokes focused on Gabriel made by Ward. I guess the jokes must have seemed funny at the time. Sometimes, context is meaning.