Comedian who mocked disabled child singer did not breach limits of free speech: Supreme Court

A comedian who mocked a disabled child singer for years did not breach the limits of free speech guaranteed under Quebec's Charter of Human Rights and Freedoms, the Supreme Court of Canada has ruled.

In a 5-4 split decision, the top court ruled Friday that while comedian Mike Ward's act ridiculed Jrmy Gabriel, a young man with Treacher Collins Syndrome, he was chosen as a target notbecause of his disabilitybutbecause of his fame.

In its ruling, the court found that Ward's jokes did not seek to incite others to mock Gabriel and he cannot be blamed for the actions of Gabriel's classmates and others who parroted the jokes.

"The impugned comments 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," the majority judgment said.

The four justices who disagreed with the majority ruling found that Gabriel's right to dignity was violated and said in their dissenting decision that Ward's appeal should be dismissed.

In 2016, Ward was ordered to pay $35,000 in moral and punitive damages for comments he made aboutGabriel, who has a congenital disorder characterized by skull and facial abnormalities.

The ruling is significant because it is the first time the Supreme Court has heard a case where it has had to rule on thebalance between a person's right to live in dignity andthe right to free speech in the context of a comedian's act.

Gabriel choked up Friday as he reacted to the ruling, sayinghe is ready to move on with his life after years of fighting in the courts. He also said thatif he had a chanceto speak to Ward, hewould tell him how the jokeaffected him personally.

"I would like to tell him how I felt when I first heard the jokes. That I tried to end my life," he said. "How it felt at 13 years old ... because a 40-year-old man said you should die, that you thought it was the right thing to do."

The butt of jokes

In 2012, when Gabriel was 15 and still a high school student in Quebec, his family filed acomplaint against Ward with Quebec's Human Rights and Youth Rights Commission, which referred the matter to a human rights tribunal.

The family told the tribunal that Ward, who has been a comedian in Quebec since 1993, violated Gabriel's right to dignityby making a series of demeaning jokes about him.

From September2010 to March 2013, Ward had a live show called"Mike Ward s'eXpose," in which he ridiculed so-called sacred cows peopleWard said are not generally laughed atbecause they are rich, influentialor weak.

According to thehuman rights tribunal'sjudgment, Ward described Gabriel in his live shows as "little Jrmy" and "the kid with the sub-woofer on his head," along with other similar jokes.

The tribunal heard that Gabriel grew despondent, contemplated suicide and sought psychiatric help to cope with the ridicule he experienced from other students.

"I was 12 or 13 when I saw those videos," Gabriel told the tribunal. "I didn't have maturity to be strong in the face of this I lost confidence and hope. It made me think my life is worth less than another's because I'm handicapped."

The tribunal ruled in Gabriel's favour in 2016, awarding him $25,000 for moral damages and another $10,000 for punitive damages. Gabriel'smother was awarded $5,000 for moral damages and another $2,000 for punitive damages.

Ward appealed the decision, and in 2019 the Quebec Court of Appeal ruled in a 2-1 decision that Ward's comments compromised the young performer's right to safeguardof his dignity and could not be justified, even in a society where freedom of expression is valued.

The appeal court did, however, roll back the payments to Gabriel's mother, saying she was not a victim of discrimination.

The majority decision

The five justices whosided with Ward's appeal ruled Friday that because the human rights tribunal initially ruled Gabriel was chosen as the subject of Ward's jokes because of his fame, and not because of his disability, "his dignity was not impaired."

The court ruled that on that basis alone, Ward's appeal should be successful but that it would be "helpful to analyze discrimination in its entirety in light of the particular context of the case."

The judgment said that when balancing the right to the freedom of speech and the right to dignity protected under the Quebec charter, a two-step test has to be undertaken.

The first part of the test is to determine whether Ward's remarks were intended to inciteothers to vilify Gabriel based on his disability. The second test is to determine whether the remarks were likely to lead to discriminatory treatment of Gabriel.

"In our opinion, the comments made by Mr. Ward meet neither of these two requirements," the court ruled.

The majority decision also said that while "it is a likely effect" that people would be inspired by these comments to mock Gabriel, that's not the comedian's fault.

"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," the ruling said.

While the court ruled that Gabriel's right to live in dignity was not breached, it said that does not mean that he was without recourse.

"Mr. Gabriel could have invoked the protection against harassment provided for in ... the charter because of the fact that he had been bullied," said the ruling."He could also have brought an action in defamation."

The court pointed out, however, that the Quebec human rights tribunal has no jurisdiction over matters of defamation.

The minority decision

In their minority decision the four justices said the central issue of the case was whether Gabriel, a child with disabilities, "lost protection from discrimination and the right to be free from public humiliation and bullying just because he is well known."

The dissenting justices said that Canada has spent generations trying to create a society where individuals are free from harm and discrimination over race, religion, disability, colour or sexual orientation.

"We would never tolerate humiliating or dehumanizing conduct towards children with disabilities; there is no principled basis for tolerating words that have the same abusive effect," the dissenting justices said.

"Wrapping such discriminatory conduct in the protective cloak of speech does not make it any less intolerable when that speech amounts to wilful emotional abuse of a disabled child."

The dissenting justices described the impact of the jokes on Gabriel as "severe" and said they caused him to be ostracized from his peer group and experience suicidal thoughts.

"Each time the jokes were repeated, so too was the harm to Mr. Gabriel," they wrote."Mr Ward's comments were so widespread that Jrmy Gabriel could not ignore them."

The justices said they would have dismissed the appeal with costs in order "to deter people like Mr. Ward from profiting from the intentional interference with the Quebec Charter rights of others."