In a 5-4 split decision Friday morning, the Supreme Court of Canada ruled Quebec comedian Mike Ward had the right to make fun of singer Jeremy Gabriel, who has Treacher Collins Syndrome.
The case brought the comedian against the Commission des droits de la personne et des droits de la jeunesse, which had succeeded in obtaining $35,000 in damages for Gabriel from the Quebec Court of Appeal.
The Supreme Court allowed Ward's appeal and overturned the lower court's decision. Justice Rosalie Abella, Nicolas Kasirer, Sheilah Martin and Andromache Karakatsanis were the dissenting judges.
The majority decision was written by two Quebec judges of the country's highest court: Chief Justice Richard Wagner and Justice Suzanne Côté.
"The question is whether a reasonable person, informed of the relevant circumstances and context, would consider that the remarks about Mr. Gabriel incite contempt for him or his humanity on a prohibited ground of discrimination. The next question is whether such a reasonable person would consider that, in context, the words could reasonably be expected to lead to the discriminatory treatment of Mr. Gabriel. In our view, the remarks made by Mr. Ward do not meet either of these requirements," said the decision, which was also endorsed by Justices Michael Moldaver, Russell Brown and Malcolm Rowe.
"The only question at issue is the legal framework applicable to a remedy for discrimination under the Quebec Charter, in a context of freedom of expression, in order to determine whether, in this case, Mr. Ward violated Mr. Gabriel's right to the preservation of his dignity," the judges said.
"A discrimination claim must be limited to speech that has a truly discriminatory effect," they said. They do not want defamation suits to use the back door of discrimination to achieve their ends.
The majority decision also read:
"Limitations on freedom of expression are justified if there are, in a given context, serious reasons to fear a sufficiently specific harm that the discernment and critical judgment of the audience cannot prevent. Freedom of expression cannot confer on the artist a higher degree of protection than that of his fellow citizens," the judges warn. However, they do elaborate on the humorous context.
"The audience knows how to identify these processes (exaggeration, generalization, provocation), when they are clear, and it is necessary to recognize enough discernment not to take everything that is said at face value," they say. "This is especially true when the comments are made by a person known to the public for his or her particular sense of humour or when they target a public figure. It would be surprising if comments made in such circumstances were sufficiently mobilizing to elicit discriminatory treatment."
The Canadian Constitution Foundation also applauded the ruling as an important clarification of the scope and importance of free speech.
“The decision is an excellent result which clarifies the test for discrimination in the context of a conflict between the right to the safeguard of dignity and freedom of expression. In particular, the decision underscores the fact that free speech has inherent social value and should be protected from unjustified state intrusion”, said Joanna Baron, CCF’s Executive Director. “Merely causing offence does not amount to discrimination and should not attract state-imposed fines.”
At the Court, the CCF argued that the test for discrimination should be modified to reflect the important role that freedom of expression plays in an open society.
The SCC adopted the CCF’s proposed test, finding that where there are competing rights under the Quebec Charter, these rights must be balanced with a proper regard for democratic values, especially the societal value of free expression. The Court affirmed the CCF’s position that freedom of expression is not merely a defence, but also an internal limit to the scope of rights protected in the Quebec Charter.
“It is not the role of the government to censor comedy through punitive fines, or to decide what jokes comedians are allowed to tell. This case isn’t about whether the jokes Mr. Ward told were funny or if they were in bad taste. It is about the notion that it is not for the government to decide”, said Christine van Geyn, the CCF’s Litigation Director.