Sarah Leamon: Do we really want courts to determine what comedians can say in their routines?

It could very possibly be the worst joke ever told.

It all started in 2012, when Jérémy Gabriel, a 15-year-old singer who suffers from Treacher Collins syndrome, filed a human rights complaint against Mike Ward, a career comedian, for joking about him during his comedy. The lawsuit alleged that Ward’s jokes violated Gabriel’s right to dignity.

Gabriel said he suffered a lot from the jokes. He was mocked by his classmates. He became depressed. At one point, he considered suicide. Gabriel finally sought the help of a psychiatrist, and — of course — filed a lawsuit seeking compensation for his pain and suffering.

In 2016, his case was heard by the human rights court in Quebec.

The court ruled in Gabriel’s favor. It ordered Ward to pay $ 25,000 in moral damages and $ 10,000 in punitive damages to Gabriel. It also ordered Ward to pay an additional $ 7,000 in damages to Gabriel’s mother.

Unsurprisingly, and rightly so, Ward appealed the verdict.

The Quebec Court of Appeal heard the case in 2019. In a 2-1 decision, it upheld the court’s decision. In doing so, the appellate court ruled that Ward’s comments improperly endangered Gabriel’s right to dignity.

It said his jokes could not be justified — even in a free and democratic society where freedom of expression is highly regarded.

It really makes you wonder … could a joke really be that bad?

Ward did not think so, and so he appealed again.

This time, the case went to Canada’s highest court — and it was there that he finally got the decision he was looking for.

The Supreme Court of Canada assisted Ward. It found that his jokes – though not funny – did not break the boundaries of free speech guaranteed under Quebec’s Charter of Human Rights and Freedoms. It further found that they had not violated Gabriel’s right to dignity.

Upon reaching its conclusion, the court applied a two-step test. In the first phase, it was considered whether the jokes were intended to incite Gabriel’s slander on the basis of his disability. At the second, it considered whether they would likely lead to discrimination against him.

In a 5-4 verdict, the court found that none of those thresholds were met.

Although the court conceded that Ward’s set could have caused others to make similar disgusting or insensitive remarks about Gabriel, the judges in the majority could not conclude that this amounted to a violation of his right to live in dignity. They also gestured to the proposal that the comedian could not be held responsible for the actions of others.

Vancouver lawyer Sarah Leamon is concerned about the consequences of regulating artistic expression.

The big picture

In many ways, the legal saga between these two parties may seem like nothing more than one big blunder — but it’s anything but.

This important decision on mockery was the first time that the Supreme Court was required to balance the right to dignity and free expression in the context of entertainment.

And this — perhaps now more than ever — is a very important question.

Social media has largely transformed the way entertainers entertain. A message that would once have been heard by a few hundred people can now be viewed almost instantly by millions of people around the world.

While this created a wider audience, it also spurred more room for debate, criticism and offense.

After all, entertainment — and comedy in particular — is not always politically correct. Filmmakers deal with taboo subjects, musicians push social boundaries and comedians bring ease through humor.

Sometimes, distraction can be uncomfortable, and sometimes it just doesn’t land. Not everything is in good taste. Some of us will definitely be offended.

But does that entitle those who are offended to seek legal compensation?

If the answer is yes, then entertainers will have to be very careful — so that they are not prosecuted.

Under these circumstances, some entertainers may become reasonably afraid to tell something outside of established acceptable stories or press the envelope. Creativity would most certainly be stifled. Dialogue could die.

And in a world where everything seems so serious, shouldn’t we all just laugh from time to time?

Opening our courts to police comedy is a very dangerous and slippery slope.

By no means did Ward’s jokes about Gabriel be good jokes. In fact, they were terrible jokes. But the proper place to silence them was never by legal action. Rather, he would have to suffer his fate the old-fashioned way – due to lack of support and empty seats at his shows.



Leave a Comment