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Funny at the time
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 —because it comes at the expense of a severely disabled young man who has experienced ridicule for most of his life.
The case was brought to the Court by a Quebec comic by the name of Mike Ward. Ward had established himself as an ‘edgy’ performer, who took on celebrities and made outrageous comments about them. His target in this case was Jeremy Gabriel, a boy born with Teacher Collins syndrome, which presented as a malformed head and deafness. The deafness was alleviated by fitting a bone-anchored hearing aid on his head, which permitted 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.
Mr. Ward, a graduate of the École 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 Jeremy. Here are some of the remarks that Mr. Ward made, over a number of years:
[He] sang for Celine, 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!
Jeremy, unsurprisingly, was bullied at school and entertained suicidal thoughts. When he was 16, his parents brought a complaint to Quebec’s human rights commission and the Quebec human rights tribunal about Mr. Ward’s remarks aimed at their son.
The tribunal found that Jeremy’s right to dignity under the Quebec provincial charter of rights had been breached, and awarded them compensation and punitive damages. The decision was upheld at the Quebec Court of Appeal, but Mr. Ward appealed to the Supreme Court of Canada.
The Court ruled in Mr. Ward’s favour by a vote of 5-4. The same five judges, led by Chief Justice Richard Wagner, who decided in Rob Ford’s favour in his bid 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 Mr. Ward’s conduct was something nobody should have to put up with.
The 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 that the harm addressed by the provision must be “social and not mental, collective and not individual.” They 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.
They also relied on the tribunal’s finding that Mr. Ward was making fun of Mr. 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 Mr. Gabriel’s disability, his comments did not incite the audience to treat Mr. Gabriel as subhuman.”
The minority 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 about 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.
The real villains of this piece are the audiences who lapped up Mr. Ward’s ‘jokes.’ I guess they must have seemed funny at the time.
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