TORONTO — It was Mike Ward’s “Untouchables” bit, in which the Quebec comedian lampooned the “sacred cows” of the French-speaking province — those celebrities that he believed were so uncritically revered that they had been deemed exempt from mockery.
When he realized that “little Jérémy” had not yet died and that his illness wasn’t terminal, Ward said, he “tried to drown him,” but found he was “unkillable.” He went online to check what Gabriel’s illness was. “He’s ugly!” Ward said. The audience roared.
“I didn’t know how far I could go with that joke,” the comedian said in the routine, which he performed before live audiences hundreds of times from 2010 to 2013. “At one point, I said to myself: ‘You’re going too far. They’re going to stop laughing.’ But no, you didn’t.”
On Friday, in a split 5-to-4 decision, the Supreme Court of Canada found that Ward’s comments were “nasty,” “disgraceful” and even “repugnant.” However, the court also concluded that his words did not cross a legal line and did not constitute discrimination.
“The impugned comments … exploited, rightly or wrongly, a feeling of discomfort in order to entertain, but they did little more than that,” the court wrote in its decision. “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.”
The closely watched case touched on whether artistic or political speech that mentions or mocks personal features constitutes discrimination. It also tests how to balance free expression with a Quebec law that ensures safety from discrimination and the right to dignity.
Ward — and the comedians and free speech advocates who backed him in the legal challenge — argued that even the most distasteful and offensive jokes are protected by the right to free expression, and courts and human rights tribunals shouldn’t be policing them.
“We’re concerned a comic has been punished for a joke he made as part of his work,” Walid Hijazi, a lawyer for an association of Quebec comedy professionals that was granted intervener status in the case, said in oral arguments. “That will have a chilling effect.”
But Gabriel, who is now 24, and the human rights and disability advocates in his corner argued that there are limits to freedom of expression. They contended that Ward’s routine was discriminatory and violated Quebec’s human rights code. “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,” Stéphanie Fournier, the lawyer for Quebec’s human rights commission, said during oral arguments. “It’s about discrimination — discrimination against a child with a disability.”
Gabriel was born in 1996 with Treacher Collins syndrome, a rare disorder that causes malformations of the head, ears and palate. He began life deaf. When he was 6 years old, doctors implanted a hearing aid that allowed him hear up to 90 percent of sounds. He learned to sing.
The boy soprano shot to prominence in Quebec after singing the national anthem at a Montreal Canadiens game in 2005. He was invited to sing with Dion in her dressing room in Las Vegas and for Pope Benedict XVI at the Vatican. He eventually wrote an autobiography.
Gabriel was 13 when Ward began performing his routine. When he first saw it, he testified, he was hurt and developed suicidal thoughts. Kids at school repeated the jokes. He and his family were angry about other videos on Ward’s website that had disparaged Gabriel’s physical appearance and suggested that his mother was exploiting him financially.
Gabriel’s family filed a complaint with Quebec’s human rights commission, which brought a case against Ward to the provincial human rights tribunal. In 2016, the tribunal found that Ward’s comments were discriminatory and had violated Gabriel’s right to “dignity, honor and reputation” protected by the human rights law in the province of Quebec.
“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 decision. “The discrimination suffered by Jérémy was unjustified.”
Hughes ordered Ward to pay more than $28,000 in damages to Gabriel and $5,600 to his mother. Ward appealed. In a 2-to-1 decision in 2019, the Quebec Court of Appeal upheld the ruling, saying that artists must realize 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.” It dismissed awarding damages to his mother.
The Supreme Court of Canada found that the lower bodies had erred when applying a three-part test under Quebec law to prove discrimination. It requires plaintiffs to demonstrate a “distinction, exclusion or preference” based on a prohibited ground such as “race, color, sex … a handicap or the use of any means to palliate a handicap” that impairs the full and equal exercise or recognition of a freedom or right under the law.
While Gabriel was subject to a distinction, the court found he was targeted because he was a public personality and not because of his disability, so it was not based on any prohibited ground. It added that the lower bodies incorrectly applied the test for resolving a conflict between the right to freedom of expression and the right to the safeguard of dignity.
“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 said. “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 dissenting justices disagreed with the majority on the Supreme Court finding that Gabriel was singled out because he was a public figure and not 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,” the dissenting justices 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 immunize Mr. Ward’s comments from human rights scrutiny.”
The court said other means of recourse were available to Gabriel, such as a defamation case, but it expressed no view on the odds of success.