It would probably be prudent as a former lawyer turned comedian to offer a disclaimer up top: the only thing I’ve kept up to date on legally speaking is paying my Bar fee, because you know, just in case.
That said, in today’s world of social media punditry and Trumpitry, what’s to stop a comedian who hasn’t read case law in 7 years from explaining why the Quebec Human Rights Tribunal was wrong on the law in the case of Mike Ward vs. Jérémy Gabriel? Hopefully not this Tribunal! They’re very edgy. But I digress.
For those unfamiliar, Mike Ward, a popular Canadian comedian, has been ordered to pay Jérémy and his parents a total of 42,000$ in moral and punitive damages for a joke he made at Jérémy’s expense during a 2010-2013 tour which was also recorded as comedy special. Jérémy has Treacher Collins syndrome (TCS), a genetic condition that causes disfigurement. In his case it also caused a hearing impairment. Jérémy rose to fame in Quebec as a young kid, known as “Le Petit Jérémy,” when he sang the national anthem at a Montreal Canadiens game in 2005. Shortly thereafter he sang with Céline Dion in Las Vegas and in 2006 he performed for Pope Benedict XVI at the Vatican. In case it needed to be pointed out, he didn’t become famous for the quality of his voice.
In his bit about Jérémy, Ward explains how he defended him when people made fun of his voice. Ward assumed that singing for the Pope was a Make-A-Wish Foundation type of thing and that people should cut a dying kid some slack. Let him live his dream, man. But then five years on Ward realizes he’s still alive.
The bit then ends with this punchline (English translation provided by Mike Ward to Splitsider):
The little fucker won’t die; I was defending him like an asshole! And he won’t die! If I defend you, you die, that’s the deal we had! That heartless little fucker is un-killable, I saw him at a waterpark last summer, I tried to drown him… nothing. I went on the Internet to find out more about him, what he’s suffering from. You know what he has? He’s ugly!
This joke formed part of a larger bit in which Mike goes after a series of Quebec celebrities that are regarded as “untouchable” including Celine Dion. It’s a joke about fame and sacred cows. It’s a dark and cruel bit that is 100% not for everyone, obviously. It also includes, in my view, gratuitous (but not illegal) shots at Jérémy’s physical appearance. Those are the jokes the Tribunal took issue with because those jokes were tied specifically to his disability and disability is a protected ground in Quebec (and Canadian) human rights legislation. Ward also made jokes about the physical appearance of the other celebrities but those celebrities are not disabled so it’s fine, legally speaking.
Much has been written about whether the human rights commissions and tribunals in Canada have overstepped the bounds of, if not their jurisdiction, then their intended purpose. Originally conceived as a forum for adjudicating claims of discrimination in regards to housing, employment, and the provision of goods and services, they served an important purpose in protecting vulnerable groups from discriminatory deeds, not words. That is, other than the kind of words on a sign saying “No blacks, or Jews or Muslims allowed”.
Alan Borovoy, former general counsel for the Canadian Civil Liberties Association, noted in relation to a case concerning the publication of cartoons depicting the Prophet Muhammad in Alberta said that:
During the years when my colleagues and I were labouring to create such commissions, we never imagined that they might ultimately be used against freedom of speech.
But this is precisely what the Quebec Human Rights Tribunal has done in this case. The Tribunal frames the case as a contest between the right to free expression and the right to be protected from discriminatory words. It chooses the latter. Except the latter right is not a constitutionally recognized right. And given that Quebec is still a part of Canada, its judicial pronouncements, even those of a quasi-judicial mechanism like this Tribunal, must be consistent with the Constitution. There is a right to be protected from defamatory speech. There is also a right to be protected from hate speech. There was no question that Ward’s jokes qualified as either. And so far, those are the only recognized limits on free expression in Canada.
Let’s say though for the sake of argument, there is a right to be protected from discriminatory speech. The Tribunal also fails to logically explain how Mike’s words are discriminatory. Discrimination implies not just the existence of a protected ground, such as disability, but unequal treatment in the exercise of a recognized right, in this case the right to dignity, honour and reputation (Article 4). Unequal treatment is a pre-requisite for the Tribunal’s jurisdiction in any matter.
Article 10 of the Quebec Charter of Human Rights requires three steps to be met for a finding of discrimination. One, there has to be a distinction, an exclusion or a preference given to someone, two, on the basis of a protected ground such as disability that, three, has resulted in compromising or negating a person’s ability to exercise their right, in this case to dignity, honour or reputation.
With regard to the first and second steps the Tribunal concludes that Mike Ward didn’t choose to make Jérémy a part of his act because he was handicapped. He chose Jérémy because he was a sympathetic public person that was “untouchable” like the others on the list. That should have been then end of it. Not a case of discrimination. Not a case within the Tribunal’s jurisdiction.
But then the Tribunal goes on to analyze the jokes Ward made about Jeremy. And they conclude that the jokes about his appearance, because his appearance is related to his disability, are discriminatory. They come to this conclusion despite the fact that Ward made fun of the other celebrities’ appearances. How this constitutes differential treatment is a totally mystery.
The most relevant precedent cited is a case called Calego. In that case the Quebec Court of Appeal upheld the Tribunal’s decision that a group of newly arrived Chinese immigrants had been discriminated against by their employer when he called them into his office to blame them for the dirtiness of the company kitchen and bathroom. Without any evidence beyond his own racism, the employer called only the Chinese immigrants into his office and then he explained to them:
This is Canada, not China. We take showers and shampoo every day, wash hands with soap, flush the toilet after use. Don’t piss on the floor… This is my kitchen, not yours. My kitchen, I want it clean. You Chinese eat like pigs.
The employer’s attempt to avail himself of his right to free expression was roundly rejected. There is a big difference though between this case and that of Mike Ward. The discriminatory element in Calego was very clear. These workers were actually singled out from the rest of the workers because they were Chinese. And that’s putting aside the clearly very different context, purpose, and value of the speech in question. It’s also worth noting that in Calego, the Tribunal’s imposition of punitive damages was overturned on appeal. In Mike Ward’s case the Tribunal also imposed both moral and punitive damages, which, indicates in my view an overzealous approach to determining a remedy here.
When you read the Tribunal’s judgment is becomes clear that judges sympathized with the harm Jérémy has suffered. I sympathize with it too. But that is not a reason to expand your jurisdiction so that you can do something about it.
There are many people who talk about this case as one of bullying and I understand that argument. I believe if anything, it is an indication that Jérémy and his parents should have availed themselves of our anti-bullying laws. They probably didn’t because it would be a difficult case to make. So instead they approach a quasi-judicial mechanism without the regular defenses available to a defendant – like the ability to argue intent or truth – and sue. In all the time Mike Ward was making his joke, they never asked him to stop, they never told him what impact his joke was having on Jérémy’s life. Audiences have a lot of various expectations of comedians, being a psychic I didn’t think was one of them.
In conclusion, I’d like to state for the record that this Tribunal has offended me as both a lawyer and a comedian. And now all we can to is wait for the Quebec Court of Appeal to hopefully offer some reason in this matter. I’ll be watching from my new country of residence, America the land where no words are too hateful or too stupid to be broadcast.
*Fires gun into the air*
*Cracks a Budweiser open*
*Trips a disabled kid*
Jess Salomon is a comedian who just immigrated to America from Canada with her Muslim-Canadian wife because she has excellent comedic timing.