Some court cases are about way more than what they are about.
Last week, the Quebec Human Rights Tribunal ordered comedian Mike Ward to pay $35,000 in damages to J茅r茅my Gabriel for making fun of the disfigured teen who suffers from Treacher-Collins syndrome, a genetic condition that can cause underdevelopment of facial bones and tissues and, in J茅r茅my鈥檚 case, deafness.
He is also ordered to pay $7,000 to the boy鈥檚 mother. Even combined, it is not a particularly large sum of money and easily covered by the fundraisers other comedians have held on his behalf, but what makes this case compelling is it is about rights versus rights.
On the one hand is Section 3 of the Quebec Charter of Human Rights and Freedoms, which guarantees Ward鈥檚 right to freedom of expression. On the other hand are Sections 4 and 10, which guarantees Gabriel鈥檚 right to 鈥渄ignity, honour and reputation鈥� and not to be deprived of one鈥檚 rights because of social or physical characteristics such as disability.
The tribunal had to determine first whether Ward鈥檚 jokes about J茅r茅my violated the teenager鈥檚 rights, then if those jokes were protected speech.
The comedy bit in question stemmed from J茅r茅my鈥檚 2006 trip to Rome to sing for the Pope.
Ward said he was happy Petit J茅r茅my was getting so much attention because he had a terminal illness and was going to die.
鈥淏ut now, five years later, and he鈥檚 still not dead!鈥� the routine went. 鈥淢e, I defended him, like an idiot, and he won鈥檛 die!鈥� He went on to say that when he looked up Treacher Collins syndrome he found out it was 鈥渂eing ugly.鈥�
There is little question the jokes met the first test for discrimination, that J茅r茅my (and his mother) were singled out.
Whether they met the second test, whether the young singer was subjected to different treatment because of his disability, is questionable, but the tribunal felt because Ward ridiculed J茅r茅my鈥檚 appearance, which is a result of a genetic condition, his routine violated Section 10 and constituted discrimination. More importantly, though, the discrimination had to have significantly affected J茅r茅my鈥檚 鈥渄ignity, honour and reputation鈥� because insults in and of themselves cannot be deemed a violation unless there is real harm done.
There are, of course, limitations to free speech. You can鈥檛 incite hatred against a person or identifiable group. You can鈥檛 incite violence against a person or identifable group and you can鈥檛 defame (slander/libel).
The bar here is set extremely high, as it should be. Freedom of expression is a foundational principle of a free society.
It is particularly high with respect to public figures, who are always fair game, particularly when it comes to satire and comedy.
It should be noted here that J茅r茅my Gabriel sought to have a career in music and to become a public figure and did so not in spite of his condition, but rather because of it.
He is amazingly accomplished for a deaf kid with Treacher Collins, but鈥攁t the risk of being the subject of a human rights complaint myself鈥攚hen he first came to fame he was a terrible singer, and while much improved over the years, is still not a great singer.
You may argue that I鈥檓 being subjective, but if you listen to J茅r茅my blind, without the context of his condition, he is mediocre at best.
We do not treat these things objectively, however. As I said, it is impressive what this kid has done and I am not just saying that in an attempt to avoid litigation.
And I am not defending what Mike Ward said, but I am defending his right to say it.
Ward and his lawyer have said they are going to appeal and we can only hope the decision will be overturned.
In its seminal decision on free speech (Quebec v. Irwin Toy (1989), the Supreme Court outlined the grounds on which absolute protection of speech was guaranteed:
鈥�1. seeking and attaining the truth is an inherently good activity; 2. participation in social and political decision-making is to be fostered and encouraged; and 3. the diversity in forms of individual self-fulfillment and human flourishing ought to be cultivated in an essentially tolerant, indeed welcoming, environment not only for the sake of those who convey a meaning, but also for the sake of those to whom it is conveyed.鈥�
The tribunal decided Ward鈥檚 jokes did not qualify under any of these grounds, which is kind of disturbing considering just how broad they are.
In condemning the tribunal鈥檚 decision Ward invoked the famous anti-Nazi pastor Martin Niem枚ller who said:
鈥淔irst they came for the socialists, and I did not speak out because I was not a socialist. Then they came for the trade unionists, and I did not speak out because I was not a trade unionist. Then they came for the Jews, and I did not speak out because I was not a Jew. Then they came for me and there was no one left to speak for me.鈥�
I feel bad if a young man was hurt by an insensitive lout, but there is something much bigger at stake here.
