The legal dispute between comedian Mike Ward and Jérémy Gabriel is over, but the debate it sparks on the limits of the right to free speech in this era of keen political correctness will remain alive and well.
In a decision split 5 to 4, the Supreme Court of Canada ruled on Friday that Mike Ward’s sinister jokes against Jeremy Gabriel did not constitute discrimination based on his disability. “The action for discrimination is not, and should not become, an action for defamation”, decides the majority.
The young Gabriel, 13 years old at the time of the facts, suffers from Treacher-Collins syndrome, which causes deformities of the head and deafness. This handicap did not prevent him from pursuing a courageous singing career during his adolescence. Between 2010 and 2013, in a segment of his show where he made fun of so-called untouchable public figures, Mr. Ward launched, about Mr. Gabriel: he is a “milk” who sings badly, with a ” subwoofer ” on the head. He even quipped about his imaginary attempts to drown him, to understand that he was not killable. Rather than opting for a defamation suit, Jérémy Gabriel’s parents had opted for a complaint of discrimination based on disability before the Commission des droits de la personne et des droits de la jeunesse du Québec (CDPDJQ). The Court of Rights and the Court of Appeal successively condemned Mike Ward to pay damages of $ 35,000 to Jérémy Gabriel.
The form of humor favored by Mike Ward is loathsome. He made a name for himself by slapping a fragile and vulnerable teenager on the head. In the pantheon of Quebec humor, we have seen bigger and more dignified.
But the Supreme Court ruling is a relief. True to its long tradition, the country’s highest court refuses to be the arbiter of good taste in matters of freedom of expression, and that’s good. Without granting artists a higher degree of protection, the majority took into account the context of the show and Mike Ward’s type of humor, a thick and bold genre (the humor, not the guy). And above all, the Court observed that it was the public figure of whom Mike Ward was making fun of by ridiculing Mr. Gabriel. He was not calling for one to hate or despise the adolescent’s basic humanity because of his disability. These nuances are both subtle and important.
The main merit of Mike Ward is to have given a real flavor to the right to freedom of expression, unloved and misunderstood, a right that must necessarily include “unpopular, derogatory or repulsive expressions” to retain its full vitality. It is rather the critical judgment of the public that must be appealed to put the Wards of this world in their place.
The most interesting passage of the majority opinion lies in the warning shot with regard to the CDPDJQ and the Human Rights Tribunal. These two authorities interpret their constitutive law, the Quebec Charter of Rights and Freedoms, in such a way that they grant each other jurisdiction over supposedly “discriminatory” remarks made by citizens in private or in public.
The Tribunal condemns individuals to pay considerable compensation even when the harm suffered is “relative” and the social effects of discrimination (perpetuation of prejudices or disadvantages) are “absent”. However, this approach departs from the teachings of the Supreme Court, the majority judges decide. The Charter was not enacted to encourage censorship or transform the slightest expressions of incivility into acts of discrimination.
There is something to reflect on the CDPDJQ and the Tribunal des droits since this current of thought ignores the weighting between the right to freedom of expression and the right to the safeguard of dignity. But do not count on the CDPDJQ to carry out this necessary examination of conscience. The president of the CDPDJQ, Philippe-André Tessier, accompanied Jérémy Gabriel on Friday to react to the judgment of the Supreme Court. Mr Tessier added to the Commission’s intention to support the right to dignity. As well say that he throws in the trash the majority decision to cling to the dissenting opinion. It is a direct and distressing inducement for the Tribunal of Rights to continue stretching the rubber band of discrimination.
The sharp opinion of the four dissenting judges suggests that the debate will still rage. They found nothing funny in a humor that presented a disabled child as “an object of ridicule rather than a person worthy of respect”. Their full load in favor of the protection of people oppressed because of their difference, their handicap or their marginality will inspire new challenges. The Ward judgment thus opens a new chapter, but certainly not the last, in the defense of freedom of expression.