Some court cases are about way more than what they are about.
Last week, the Quebec Human Rights Tribunal ordered comedian Mike Ward to pay $35,000 in damages to Jérémy Gabriel for making fun of the disfigured teen who suffers from Treacher-Collins syndrome, a genetic condition that can cause underdevelopment of facial bones and tissues and, in Jérémy’s case, deafness.
He is also ordered to pay $7,000 to the boy’s mother. Even combined, it is not a particularly large sum of money and easily covered by the fundraisers other comedians have held on his behalf, but what makes this case compelling is it is about rights versus rights.
On the one hand is Section 3 of the Quebec Charter of Human Rights and Freedoms, which guarantees Ward’s right to freedom of expression. On the other hand are Sections 4 and 10, which guarantees Gabriel’s right to “dignity, honour and reputation” and not to be deprived of one’s rights because of social or physical characteristics such as disability.
The tribunal had to determine first whether Ward’s jokes about Jérémy violated the teenager’s rights, then if those jokes were protected speech.
The comedy bit in question stemmed from Jérémy’s 2006 trip to Rome to sing for the Pope.
Ward said he was happy Petit Jérémy was getting so much attention because he had a terminal illness and was going to die.
“But now, five years later, and he’s still not dead!” the routine went. “Me, I defended him, like an idiot, and he won’t die!” He went on to say that when he looked up Treacher Collins syndrome he found out it was “being ugly.”
There is little question the jokes met the first test for discrimination, that Jérémy (and his mother) were singled out.
Whether they met the second test, whether the young singer was subjected to different treatment because of his disability, is questionable, but the tribunal felt because Ward ridiculed Jérémy’s appearance, which is a result of a genetic condition, his routine violated Section 10 and constituted discrimination. More importantly, though, the discrimination had to have significantly affected Jérémy’s “dignity, honour and reputation” because insults in and of themselves cannot be deemed a violation unless there is real harm done.
There are, of course, limitations to free speech. You can’t incite hatred against a person or identifiable group. You can’t incite violence against a person or identifable group and you can’t defame (slander/libel).
The bar here is set extremely high, as it should be. Freedom of expression is a foundational principle of a free society.
It is particularly high with respect to public figures, who are always fair game, particularly when it comes to satire and comedy.
It should be noted here that Jérémy Gabriel sought to have a career in music and to become a public figure and did so not in spite of his condition, but rather because of it.
He is amazingly accomplished for a deaf kid with Treacher Collins, but—at the risk of being the subject of a human rights complaint myself—when he first came to fame he was a terrible singer, and while much improved over the years, is still not a great singer.
You may argue that I’m being subjective, but if you listen to Jérémy blind, without the context of his condition, he is mediocre at best.
We do not treat these things objectively, however. As I said, it is impressive what this kid has done and I am not just saying that in an attempt to avoid litigation.
And I am not defending what Mike Ward said, but I am defending his right to say it.
Ward and his lawyer have said they are going to appeal and we can only hope the decision will be overturned.
In its seminal decision on free speech (Quebec v. Irwin Toy (1989), the Supreme Court outlined the grounds on which absolute protection of speech was guaranteed:
“1. seeking and attaining the truth is an inherently good activity; 2. participation in social and political decision-making is to be fostered and encouraged; and 3. the diversity in forms of individual self-fulfillment and human flourishing ought to be cultivated in an essentially tolerant, indeed welcoming, environment not only for the sake of those who convey a meaning, but also for the sake of those to whom it is conveyed.”
The tribunal decided Ward’s jokes did not qualify under any of these grounds, which is kind of disturbing considering just how broad they are.
In condemning the tribunal’s decision Ward invoked the famous anti-Nazi pastor Martin Niemöller who said:
“First they came for the socialists, and I did not speak out because I was not a socialist. Then they came for the trade unionists, and I did not speak out because I was not a trade unionist. Then they came for the Jews, and I did not speak out because I was not a Jew. Then they came for me and there was no one left to speak for me.”
I feel bad if a young man was hurt by an insensitive lout, but there is something much bigger at stake here.
