A Quebec comedian should be forced to pay $35,000 in damages to a disabled singer that he mocked for years in his stand-up comedy shows, the provincial appeals court ruled Thursday.
In a 2-1 decision, the court dismissed an appeal brought by Mike Ward against a 2016 ruling by the Quebec Human Rights Tribunal.
The Human Rights Tribunal had found Ward discriminated against singer Jérémy Gabriel’s right to equality by making fun of his disabilities.
Gabriel has Treacher Collins syndrome, a congenital disorder characterized by craniofacial deformities. He had a singing career as a child, and sang for Pope Benedict XVI in May 2006.
In Ward’s performances between 2010 and 2013, he called Gabriel ugly and wondered why he hadn’t died five years after getting his wish to sing in front of the pope.
The Human Rights Tribunal ordered Ward to pay $35,000 to Gabriel and a further $7,000 to Gabriel’s mother.
In its decision Thursday, the Court of Appeal said Ward should not have to compensate the singer’s mother.
But the appeals court judgment also said “[The age] when people’s disabilities were exploited to entertain the population is over.”
Ward went too far in his jokes about the young man, the court ruled. It agreed with the human rights body in finding that his remarks were discriminatory, undermining Gabriel’s honour and dignity.
‘Right to caricature has limits’
“The importance of freedom of expression is well established,” the decision states, describing the open exchange of ideas and political discourse as fundamental for democracy.
But the majority decision also notes that comedians, like artists, do not have a special status when it comes to the freedom of expression.
“Far be it from us to restrict creativity or to censor the opinion of artists,” the decision reads.
“Comedians must realize, however, that artistic freedom is not absolute and that they, like all citizens, are responsible for the consequences of their words when they cross certain limits.”
There is a thin line between censorship and limiting freedom of expression in the name of dignity, the court said, pointing out that other court decisions have set limits on caricatures.
On Twitter, Ward said he refuses to pay the damages awarded to Gabriel. He said he would rather go to prison than pay “one-tenth of this stupid fine.”
“Comedy is not a crime,” he tweeted. “In a ‘free’ country, it shouldn’t be up to a judge to decide what constitutes a joke on stage.”
Finding a balance between rights
Gabriel, now 22, declined Thursday to comment on the decision. His lawyer, Stéphanie Fournier, said humour can’t “serve as a screen for discriminatory behaviour.”
It’s not a question of one right taking precedence over another, Fournier explained. He said it’s about finding a balance between Ward’s freedom of expression and Gabriel’s right to honour, dignity and equality — both of which are protected by Quebec’s Charter of Human Rights and Freedoms.
Julius Grey, the noted civil-rights lawyer representing Ward, told Radio-Canada the comedian intends to appeal Thursday’s decision to the Supreme Court of Canada.
“Today, with political correctness and trends in Canada, we have given too much weight to a full version of equality and not enough to freedom of expression,” Grey said.
“I don’t think comedy violates someone’s right to equality.”
Citing the one dissenting judge, Grey said the appeals court’s decision is “not a total failure. It’s not a victory either. We will continue the battle.”
The balance between freedom of expression and equality has never been discussed in Canada’s highest court and now it’s time, he said.
On that point, Gabriel’s lawyer agreed.
“If it ever goes before the Supreme Court, we can hope to have markers to more easily find the balance between these rights,” Fourner said.