Supreme Court Split Decision in Quebec Comedian Case Concerns Free Speech Advocates

By Lee Harding
Lee Harding
Lee Harding
Lee Harding is a journalist and think tank researcher based in Saskatchewan, and a contributor to The Epoch Times.
November 2, 2021 Updated: November 3, 2021

Canada’s top court upheld the freedom of a Quebec comedian to make fun of a public figure who suffers from a disability, but the narrow margin of the 5–4 decision has some advocates concerned that free speech rights are in jeopardy.

In 2010, Quebec comedian Mike Ward began telling jokes about Jeremy Gabriel, a teen singer who became famous for performing for celebrities like Pope Benedict XVI and Celine Dion. Eleven years later, the Supreme Court of Canada ruled in a 5–4 decision that Ward’s comments did not constitute discrimination under Quebec’s provincial charter of human rights.

“A discrimination claim is not, and must not become, an action in defamation,” Chief Justice Richard Wagner and Justice Suzanne Côté wrote in their majority decision. “The two are governed by different considerations and have different purposes.”

Gabriel was born in 1996 with a deformed head and severe deafness due to Treachers-Collins syndrome. However, thanks to powerful hearing aids and support from his parents, he began a singing career and became famous in Quebec.

Ward, a standup comic in Quebec City, had a set of jokes aimed at various Quebec celebrities, including Dion and Gabriel. His jokes included comments on Gabriel’s disability.

Ward performed his routine more than 200 times and in 2013 released it as a video titled Mike Ward s’eXpose. Later that year, Gabriel’s parents complained to Quebec’s human rights commission that the comments were discriminatory against a person with disabilities.

The Quebec Human Rights Tribunal sided with the complainant and ordered Ward to pay Gabriel $25,000 in moral damages and $10,000 in punitive damages. In a 2–1 decision, the Quebec Court of Appeal upheld the tribunal ruling.

Ward then appealed to the Supreme Court of Canada, whose majority decision said the use of tribunals to rule on speech cases “creates a second avenue of recourse for discrimination, parallel to an action in defamation, to compel a person to answer for the harm caused by their words, with a much less onerous burden of proof on the complainant.”

Côté and Wagner wrote that while there was “certainly nothing uplifting” in Ward’s comments, they would not lead Gabriel to suffer vilification, hatred, or discrimination.

Cara Zwibel, director of fundamental freedoms at the Canadian Civil Liberties Association, supports the ruling.

“What the court said was that this isn’t discrimination under the Quebec charter. Maybe he could have pursued an action in defamation, maybe there’s other things he could have done, but it’s not discrimination, and we think that’s the right result,” Zwibel told The Epoch Times.

“It would be really problematic to allow discrimination claims to be brought every time someone is offended or insulted.”

The Quebec tribunal acknowledged that Ward joked about Gabriel in the context of his fame, not his disability. “This conclusion on its own is sufficient to dispose of the appeal,” Côté and Wagner wrote.

Zwibel said that while she is glad the Supreme Court affirmed that courts, not tribunals, are better avenues to assess discriminatory or libellous speech, she’s still worried about the small margin in the decision.

“It concerns me that there were four judges that thought this constituted discrimination,” she said.

‘On the Knife’s Edge’

The four dissenting justices, Rosalie Abella, Sheilah Martin, Andromache Karakatsanis, and Nicholas Kasirer found Ward’s words legally intolerable.

“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,” reads the minority ruling.

Lisa Bildy, a lawyer at Libertas Law in London, Ont., is concerned a legal “cancel culture” could soon prevail.

“The minority’s desire to limit speech where it causes subjective feelings of harm and humiliation [is an] approach [that] knows no bounds. The close 54 decision demonstrates that we are on the knife’s edge in terms of protection of freedom of expression in this country,” Bildy said in an interview.

“The fact that this went to the Supreme Court of Canada when it was evident that there was no discrimination here on a protected ground under the Quebec Charter, suggests an appetite at the Court of Appeal and certainly the Human Rights Tribunal to penalize offensive speech. … [This] doesn’t bode well.”

John Robson, a professor of history at Augustine University and a defender of free speech, had similar reflections.

“I think it’s the right ruling, but it concerns me greatly that it was a 54 decision not 90. The next could easily go the other way. What’s more, the case took 11 years and in the end the comedian had to pay his own legal costs. So in a very real way he lost, personally and as a precedent. Who would dare do it again?” Robson, who is also an Epoch Times contributor, said in an interview.

“The ‘jokes’ were mean-spirited and not very funny, but in a free society we shun people whose sense of humour we dislike—we don’t grind them down with endless, horribly expensive court proceedings.”

Zwibel hopes the courts will continue to uphold the charter right of free speech.

“If you’re going to be someone who advocates for free speech, you don’t get to choose the content of that speech. You have to defend it, regardless of whether you find that content pleasing or odious,” she explained.

“We don’t have to like what Mr. Ward said to think that he has the right to say it.”

Lee Harding
Lee Harding is a journalist and think tank researcher based in Saskatchewan, and a contributor to The Epoch Times.