5-4 IS A CLOSE RULING

Comedian had right to mock disabled teen singer, Canadian court rules

Leyland Cecco in Toronto
Fri, October 29, 2021, 

Photograph: Plinio Lepri/AP

Canada’s supreme court has ruled that a comedian had the right to mock a disabled teen singer – including joking that he wanted to drown him – in a case that raised questions over satire and the need to protect vulnerable children.

The 5-4 decision from the country’s top court ended a legal battle of more than a decade that had probed the limits of artistic freedom.

Jéremy Gabriel, who is now 24, was born with head, facial, ear and skull deformities. He gained fame as a singer, performing for Pope Benedict XVI in 2006 and singing Canada’s national anthem at a hockey game five years later.

Beginning in 2010, comedian Mike Ward mocked Gabriel’s physical appearance and his singing. Ward said people were only nice to the singer because they believed he might die. He also joked to audiences about trying to kill Gabriel by drowning him. Gabriel, at the time a teenager, was bullied at school and became suicidal.

In 2016, Ward was ordered by Quebec’s human rights tribunal to pay C$35,000 (US$28,000) to Gabriel, as well as C$7,000 to his mother, Sylvie Gabriel. The tribunal concluded that Ward had damaged their dignity and honour and engaged in discrimination.

In 2019, the Quebec court of appeal upheld the discrimination finding, saying artistic freedom has limits, but overturned the award to Ms Gabriel.

On Friday, a majority in the supreme court justices wrote that while Ward “said some nasty and disgraceful things” the case had did not meet the high level set by Quebec law for proving discrimination – and that Ward’s commentary “did not incite the audience to treat Mr Gabriel as subhuman” when he performed.

“A discrimination claim must be limited to speech that has a truly discriminatory effect,” they wrote.

In their ruling, however, the majority left open the possibility that a discrimination claim could be brought where expression by an performer incites others to “vilify them or to detest their humanity” on the basis of a disability or other prohibited ground of discrimination.

The court’s minority, saw the case reflected the need to protect vulnerable people from humiliation.

“We would never tolerate humiliating or dehumanizing conduct towards children with disabilities; there is no principled basis for tolerating words that have the same abusive effect. Wrapping such discriminatory conduct in the protective cloak of speech does not make it any less intolerable when that speech amounts to willful emotional abuse of a disabled child,” the judges wrote.

Speaking to reporters after the ruling, Gabriel said he worried about the message the court’s decision sent to comedians about using children as comedic props.

“I would want to tell [Ward] if today I weren’t here to talk about it because I would have [taken] my own life, how would he feel? How would he react? Would he talk about freedom of speech? That’s a question I would have asked him,” said Gabriel. “What is the limit of treating children? I am a little worried for the future about that.”