Canadian court rules in favour of comedian in row over joke about disabled child

Canada’s Supreme Court in Ottawa has ruled in a five to four decision that the Quebec comedian Mike Ward’s routine about a disabled boy singer was “nasty”, “disgraceful” and “repugnant” but that the comments didn’t cross the legal line to become criminal discrimination.

The Friday ruling came after Mr Ward performed the routine hundreds of times between 2010 and 2013, in which he joked about the things you can’t make fun of in Quebec.

The “Untouchables” routine touched on the region’s “sacred cows”, such as singer Celine Dion, talkshow host Guy Lepage, and Jérémy Gabriel – a disabled boy who became famous through his singing. Mr Ward, performing in French, mocked the now-24-year-old Mr Gabriel’s hearing aid, saying that he had a “subwoofer” on his head.

Mr Ward added that he was defending Mr Gabriel against those who said he was a bad singer by claiming that he was dying anyway and didn’t have a dream to live for.

The comedian then added that when he became aware that “little Jérémy” hadn’t died and that his disease wasn’t terminal, he had “tried to drown him,” but that Mr Gabriel was “unkillable”.

When checking Mr Gabriel’s disease online, Mr Ward said he was simply “ugly”.

“I didn’t know how far I could go with that joke,” Mr Ward said during the routine. “At one point, I said to myself: ‘You’re going too far. They’re going to stop laughing.’ But no, you didn’t.”

“The impugned comments … exploited, rightly or wrongly, a feeling of discomfort in order to entertain, but they did little more than that,” the court said in its ruling. “As a result, the comments … considered in their context, were not likely to have a spillover effect that could lead to discriminatory treatment of Mr Gabriel.”

Walid Hijazi, an attorney for a group of people active in Quebec’s comedy scene, said during oral arguments in February that “we’re concerned a comic has been punished for a joke he made as part of his work”.

“That will have a chilling effect,” he added.

Mr Gabriel and human rights activists have argued that free speech has its limits, claiming that the routine was discriminatory and in violation of Quebec’s human rights code.

The attorney representing Quebec’s human rights commission, Stéphanie Fournier, said during oral arguments “it’s not about asking this court or any other court to establish what is in good taste, what is acceptable and what should be censored”.

“It’s about discrimination – discrimination against a child with a disability,” she added, according to The Washington Post.

Mr Gabriel, born in 1996, has Treacher Collins syndrome, which leads to abnormal features around the head. Starting out in life deaf, he was given hearing aids at the age of six that allowed him to hear more than 80 per cent of sounds. He then learned to sing, becoming famous in 2005 after singing the national anthem at an NHL game featuring the Montreal Canadiens.

Mr Gabriel testified that when Mr Ward began performing the routine, he was hurt and started having suicidal thoughts as other kids repeated Mr Ward’s jokes. His family was also upset about other videos on Mr Ward’s website that mocked his looks and jokes about his mother taking financial advantage of his fame.

After the family filed a complaint with Quebec’s human rights commission, they took the case to the human rights tribunal in the province. The tribunal ruled in 2016 that the jokes were discriminatory and violated Mr Gabriel’s rights to “dignity, honour, and reputation”.

“Taking the context into account, the Tribunal concludes that Ward’s jokes exceeded the limits of what a reasonable person must tolerate in the name of freedom of expression,” Judge Scott Hughes wrote in the ruling. “The discrimination suffered by Jérémy was unjustified.”

Mr Ward was ordered to pay $28,000 in damages to Mr Gabriel and $5,600 to his mother. The decision was upheld by the Quebec Court of Appeal, which said that “artistic freedom is not absolute and that they are, like any citizens, responsible for the consequences of their words when they cross certain limits”, but the court dismissed the damages to the mother.

But the Supreme Court went the other way, saying that plaintiffs must show a “distinction, exclusion or preference” on forbidden grounds like “race, colour, sex … a handicap or the use of any means to palliate a handicap” that harms the equal exercise of freedoms and rights.

The court found that Mr Gabriel was a target because of his fame, not because of his disability, which is not a prohibited ground.

“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 prohibited ground of discrimination,” the court remarked. “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.”

The four dissenting judges found that Mr Gabriel was targeted because of his disability.

“This ignores the fundamental truth in this case: Mr Ward targeted aspects of Mr Gabriel’s public personality which were inextricable from his disability,” they wrote. “As such, he stood apart from the other public figures that Mr Ward mocked as ‘sacred cows.’ These realities cannot be artificially severed to immunise Mr Ward’s comments from human rights scrutiny.”