The Supreme Court of Canada has ruled that a comedian had the right to mock a disabled child – calling him ugly and saying he wished to drown him – without being punished by a human-rights body.
The 5-4 ruling on Friday limits the reach of human-rights legislation at a time when the bounds of freedom of speech are being questioned, as in a current controversy involving the U.S. comedian Dave Chappelle, whose jokes about transgender individuals on Netflix sparked protests and walkouts.
Jérémy Gabriel has Treacher Collins syndrome, which causes disfigurement of the face and head. As a child, he gained renown as a singer and published an autobiography. He was 10 when first mocked by Mike Ward, an award-winning Quebec comedian. Mr. Ward eventually performed his show 230 times, before live audiences of 135,000 people. It was widely seen on the internet. And Mr. Gabriel said he was bullied at school by students who re-enacted Mr. Ward’s routines. As a result, he said, he felt dehumanized as a disabled person and did not wish to live.
His family filed a human-rights complaint in 2012. Under Quebec’s Charter of Human Rights and Freedoms, everyone has a right to freedom of speech, but also to equality in all rights – including the safeguarding of “dignity, honour and reputation.” Quebec’s Human Rights Tribunal awarded Mr. Gabriel $35,000 in damages, and Quebec’s Court of Appeal upheld the award 2-1.
Comedian Mike Ward speaks to the media at the Quebec Appeal Court on January 16, 2019, in Montreal.Ryan Remiorz/The Canadian Press
Mr. Ward’s lawyer, Julius Grey, stressed to the Supreme Court that Mr. Gabriel was a public figure. He said Mr. Ward’s right to “deflate sacred cows” is protected by the Quebec Charter and the Canadian Charter of Rights and Freedoms.
The case split the court, as in earlier decisions on the criminalizing of hate promotion (upheld 4-3 in 1990) and Holocaust denial (a law on “false news” was struck down 4-3 in 1992) that brought freedom of speech into a collision with the protection of minorities.
Five judges stressed the right to offend, and said that ever since 1962, when the court ruled 5-4 that Lady Chatterley’s Lover, by novelist D.H. Lawrence, was not obscene, “this court has been very reluctant to hinder the development of arts and literature.”
Discrimination, they said, is not to be measured by repugnance or offensiveness, or the emotional harm caused. It is whether a reasonable person would view the expression as inciting others to “vilify them or to detest their humanity,” and likely to lead to discriminatory treatment.
Audiences can be expected to understand a comedian’s well-known methods of exaggeration, provocation and distortion of reality, the five said.
“Expression that attacks or ridicules people may inspire feelings of disdain or superiority in relation to them, but it generally does not encourage the denial of their humanity or their marginalization in the eyes of the majority.” In exceptional cases, it might, they added, but this was not such a case.
Two Quebec judges, Chief Justice Richard Wagner and Justice Suzanne Côté, co-wrote the majority ruling, which was endorsed by Justice Russell Brown, Justice Malcolm Rowe and Justice Michael Moldaver.
They also said that, as the Quebec tribunal had found Mr. Ward targeted Mr. Gabriel because he was a public figure, not because he was disabled, his comedy routine could not have been discriminatory in any event.
The dissenters focused on the right of vulnerable individuals, especially children with disabilities, to protect themselves from humiliation. It said that for Mr. Gabriel, there was “no escape” from the effects of Mr. Ward’s routines, as they were widely disseminated and followed him to school.
“Wrapping such discriminatory conduct in the protective cloak of speech does not make it any less intolerable when that speech amounts to willful emotional abuse of a disabled child,” they wrote.
The minority ruling was co-written by Justice Rosalie Abella, who retired in July but has six months to complete her judgments, and the court’s third Quebec judge, Justice Nicholas Kasirer. The other two in the minority were Justice Andromache Karakatsanis and Justice Sheilah Martin.
They also said that while Mr. Ward targeted aspects of Mr. Gabriel’s public personality, those were “inextricably” connected to his disability.
Mr. Grey called the majority ruling “a great victory for liberty across Canada,” adding that, had the decision gone the other way, “artists, professors, journalists, writers, caricaturists would all have had to ask themselves a question: How far can I go? Can I write this? Can I say this?”
Stéphane Harvey, who represented Mr. Gabriel and his mother, Sylvie Gabriel, said his clients respect the ruling, and Mr. Gabriel has no regrets, “because at least we have had a real debate.” Mr. Harvey said he worries about the risks of “expression without limits,” and that the division on the Supreme Court is “proof the debate is not finished” in society.
Walid Hijazi, who represented an association of Quebec comedians that intervened, said reasonable people recognize in comedy “that it’s nothing more than a joke” with no intent to deprive an individual of their civil rights.
Christopher Bredt, who represented the Canadian Civil Liberties Association, said that if the ruling had gone the other way, anyone mocking the way former prime minister Jean Chrétien speaks could have been subject to a fine.
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