Baranyai: Discrimination ruling wrong answer to comic's 'repugnant' act

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Lately, Dave Chappelle has been sucking up all the air on the subject of comedy, and when it goes too far. Under pressure for airing The Closer, Netflix finds itself exploring the murky waters where the right to offend laps up against the beachhead of protecting vulnerable minorities from hatred.

Here in Canada, the debate has been playing out in our highest court. Last week, the Supreme Court ruled in favour of a comedian who has repeatedly mocked a boy with a disfiguring disability.

Jérémy Gabriel has Treacher Collins syndrome, which caused underdeveloped facial bones and left him profoundly deaf. With an implant, Gabriel developed a passion for singing. At age eight, he sang the national anthem at a Habs game; the following year, he performed for Pope Benedict XVI in Rome.

Between 2010 and 2013, comedian Mike Ward performed an act taking aim at Gabriel and other “sacred cows” of Quebec celebrity. He explicitly mocked his appearance and disability. He joked about trying to drown the boy, characterized his illness as “ugly” – then chided the audience for laughing.

Ward’s routine was broadcast online. Gabriel testified he was bullied at school, and thought about ending his life.

Gabriel stood up to his bully by complaining to Quebec’s human rights commission. In 2016, Quebec’s Human Rights Tribunal ordered Ward to pay $35,000 for moral and punitive damages, finding his routine had the effect of infringing on Gabriel’s right to dignity and honour.

When Ward appealed, the Quebec Court of Appeal upheld the ruling. The courts acknowledged Ward had targeted Gabriel as a celebrity, rather than a person with a disability; however, it was the effect of his comments, not his intent, that mattered.

Ward took the issue to the Supreme Court. One might expect contrition in the face of such obviously abhorrent behaviour. Instead, the comedian cast himself as a defender of freedom of artistic expression. A number of interveners, including the Canadian Civil Liberties Association, took the same view.

What are the limits of an art form that is fundamentally provocative? Comedy is a form of creative expression that often sets its sights on the powerful. Without broad artistic licence to provoke, we might not have Chris Rock riffing on how to survive a police traffic stop, or Hannah Gadsby brilliantly skewering a culture that venerates genius while excusing and enabling abuse.

Even Chappelle’s special, widely criticized for his comments about the trans community, brought us the lucid observation that white members of the LGBTQ community can toggle freely between demanding protection and invoking white privilege.

These are culturally important insights. Comedy isn’t crafted to be comfortable. In fact, it’s in discomfiting the audience that humour is often achieved.

Market forces also have a role to play in resolving the tension between freedom of expression and human dignity. When comedians go too far, they often go through an untouchable period: Eddie Murphy after Raw, or Louis C.K. after #MeToo. Comedy, by its nature, is about taking risks, and risks have consequences.

Ward’s victory is no stamp of approval for his words or actions, which the court called “repugnant” in no uncertain terms. However, it is not the court’s role to lock up people for being smart-mouthed, empathy-deficient bottom-dwellers. Limits on freedom of expression should be narrow and specific.

In the 5-4 majority ruling, the court noted Gabriel had other kinds of recourse against the bullying he experienced, including protection against harassment, or suing for defamation. A finding of discrimination on the basis of disability was simply the wrong remedy.

write.robin@baranyai.ca