Why the Supreme Court ruled comedian Mike Ward is free to mock disabled teen: Excerpt

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The Supreme Court ruled 5-4 Friday that Quebec comedian Mike Ward’s jokes about disabled teen Jeremy Gabriel did not count as discrimination. Gabriel is well known by the Quebec public for singing to celebrities. Gabriel’s parents made a complaint to the Quebec human rights commission in 2013, which referred the case to the Quebec Human Rights Tribunal. The Tribunal awarded Gabriel $35,000, an amount which was upheld by the Quebec Court of Appeal. 

Below is a lightly edited excerpt of the Supreme Court ruling overturning the earlier decisions.

The context here is that of a dark comedy show meant for an audience that had paid to hear this kind of talk. In his show, Mr. Ward said that it had become impossible in Quebec to mock people without risking legal proceedings. He said that he wanted to take risks and poke fun at the “untouchables,” that is, people whom Quebecers like and who are successful and powerful. After mocking the physical appearance of many public figures, Mr. Ward came to Mr. Gabriel, whom he described to his audience as a young person with a loudspeaker on his head. Alluding to the complaints of those who did not really appreciate Mr. Gabriel’s artistic talent, he said that he had defended Mr. Gabriel’s right to live out his dream, believing that he was about to die. Mr. Ward added that, because Mr. Gabriel had not died, he had tried to drown him but had not succeeded. In ending the routine, he said that he had discovered from searches that Mr. Gabriel’s illness was being ugly.

As for the video, it was made in connection with the release of Mr. Gabriel’s autobiography in 2008, two years after the launch of the show in issue. The comedian made the video available on his professional website for about a year. It consisted of a photograph of the young Mr. Gabriel in which only the eyes and mouth moved. Using a disguised voice, Mr. Ward made his target speak in the first person. In the video, Mr. Gabriel was presented as a young person with a loudspeaker on his head and a mouth that did not close all the way.

Mr. Gabriel’s testimony spoke volumes about the pain caused to him by those hurtful words, which date back to a time when he was still a young teenager. There is certainly nothing uplifting in the fact that a popular, well‑known comedian used his platform to make fun of a young man with a disability. Be that as it may, the question here is not whether Mr. Ward’s comments were in good or in bad taste; rather, a legal framework must be applied to comments that were made in a specific context. That legal framework is focused on the likely discriminatory effects of the comments, not on the emotional harm suffered by the person targeted.

In our view, a reasonable person aware of the relevant circumstances would not view Mr. Ward’s comments about Mr. Gabriel as inciting others to vilify him or to detest his humanity on the basis of a prohibited ground of discrimination. 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.

In both his video and his show, Mr. Ward mocked some of Mr. Gabriel’s physical characteristics. Making fun of a person’s physical characteristics may be repugnant; it most certainly is when the person in question is a young person with a disability who contributes with determination to society. But expression of this kind does not, simply by being repugnant, incite others to detest or vilify the humanity of the person targeted.

That being said, even if we had found that the comments incited others to vilify Mr. Gabriel or to detest his humanity on the basis of a prohibited ground, a reasonable person could not view the comments made by Mr. Ward, considered in their context, as likely to lead to discriminatory treatment of Mr. Gabriel.

At first instance, the Tribunal found that Mr. Gabriel’s classmates (translation) “were inspired by (Mr.) Ward’s comments” to make fun of him. That evidence is relevant only insofar as it tells us something about the likely effect of the comments. It should be kept in mind that something that occurs following a person’s conduct is not necessarily a result of that conduct. Thus, the fact that people are inspired by certain comments does not mean that this is a likely effect of those comments. Of course, it is foreseeable that comments made by a well‑known comedian will have repercussions outside their initial context, but this does not mean that those repercussions can necessarily be attributed to the comedian. It must still be determined whether, viewed objectively, the comments encouraged such repercussions. In our view, this is not the case here.

The impugned comments involved open provocation and systematic exaggeration — methods that increased their derisory effect. They were made by a career comedian known for this type of humour. They exploited, rightly or wrongly, a feeling of discomfort in order to entertain, but they did little more than that. As a result, the comments made in the video and the show, considered in their context, were not likely to have a spillover effect that could lead to discriminatory treatment of Mr. Gabriel.

This conclusion does not mean that Mr. Gabriel was without recourse following these events. Other recourses were available. For example, though we express no opinion on the chances of success of these alternative recourses, Mr. Gabriel could have invoked the protection against harassment provided for in s. 10.1 of the Quebec Charter because of the fact that he had been bullied. He could also have brought an action in defamation. However, neither the Commission nor the Tribunal has jurisdiction over defamation. The combination of the norm of equality in the Quebec Charter and the right to the safeguard of dignity cannot confer such jurisdiction on them indirectly.