An unelected quasi-judicial board of PC police with no respect for fundamental freedoms is trying to force a comedian to pay thousands of dollars because someone didn’t like one of his jokes about a public figure.

A bigot who makes a career out of vulgarities and insults is finally being brought to minor justice after bullying a young boy by mocking his disability and expressing a desire for him to be murdered.

Either one of those sentences could describe the much-discussed legal battle between comedian Mike Ward and Jérémy Gabriel, the boy born with Treacher Collins syndrome who made headlines a decade ago when his wish to become a singer led to him singing in front of Céline Dion and the pope.

Just before he began a week of hosting the Nasty Show at Just For Laughs, Ward was ordered by Quebec’s human rights tribunal to pay a total of $42,000 in moral and punitive damages to Gabriel and his mother for comments he made during a one-man comedy show.

If you’re unfamiliar with the case, pat yourself on the back, because it seems like everyone has been talking about it. Even visiting American comedians were asked about the case during JFL.

Since the decision was announced, and even before while we were waiting for it, just about every communications medium that exists has hosted discussions on it. On one side, comedians and free speech absolutists who say this is a slippery slope toward government censorship of comedy. On the other side, social justice warriors who say comedy is no excuse for bullying a disabled child.

I’ve been thinking about the case for the past couple of weeks, trying to decide which side I’m on. I believe in protecting the vulnerable people of society from hate speech and children from bullying, but I also like Ward’s comedy.

And I saw the comedy bit in question, and I laughed. I still do.

So unlike most people who have commented on this case publicly, my position is more nuanced.

The jokes

It’s helpful in this discussion to know exactly what Ward said, and what point he was making.

The jokes come from Ward’s show Mike Ward s’eXpose, which he performed from 2010 to 2013, starting about five years after le petit Jérémy became famous in Quebec.

As part of a segment about the personalities that are considered untouchable because they’re so loved by the public, Ward talked about Gabriel, describing him as the kid with “a sub-woofer on his head”. Ward said he defended Gabriel when people criticized how poorly he sang, thinking that he was in a Make-a-Wish-Foundation-type situation, a dying kid who wanted to live his dream.

And then he realizes that Gabriel’s disease wasn’t fatal, and starts complaining that he’s still alive. He jokes that he saw him at a water park and tried to drown him, but he was unkillable. The bit peaks with the line “I defend you, you die, [swear word]!”

He goes on to say that he looked up Gabriel’s disease and discovered that the disease is that he’s ugly.

Other jokes that didn’t make the unauthorized clip posted to YouTube include one in which he suggests Gabriel’s mother spent money on luxury items for herself instead of helping her son. (There’s no basis for this, and I don’t see why it would be funny, though I haven’t seen it performed.)

The key issue of this debate is whether those statements are fair comment.

It would be easy to dismiss this as Ward going after a disabled child and wanting him dead. But that kind of misses the point of the joke. The overall point isn’t that Gabriel is ugly (that was just a gratuitous insult), it’s that Gabriel was pitied like a dying child even though he wasn’t dying. It makes fun of the fact that the gravity of his condition was exaggerated and the amount of media attention and public sympathy afforded to him.

The statement “I defend you, you die” doesn’t mean he seriously wants Gabriel dead. It means you should only get the treatment that Gabriel did when you have a terminal illness.

That sounds like fair comment to me.

And yet.

And yet the joke would be so much easier to defend if it made that point more clearly, and if it didn’t include gratuitous insults directed at a vulnerable child and his mother.

Calling him ugly is more funny because it’s mean than funny because it makes a point. And the straight-up slanderous comments about the boy’s mother don’t seem to have any purpose to me.

The decision

If you haven’t read the decision yet, go do so. Few stories about it in the online media bother to link to the decision, and so many people base their opinions on this issue on the superficial description offered by the media.

One thing that surprised me most about the decision is how much of the material was dismissed by the tribunal, not because they declared it was okay, but because its jurisdiction only allowed it to rule on matters pertaining directly to Gabriel’s disability. It doesn’t rule on slander/libel or good taste. So the joke about mom embezzling money? It can only rule on that where it relates to Gabriel’s disability. A joke about the pope being a pedophile also doesn’t count here because it doesn’t relate to the disability.

And of the jokes that the tribunal found it could rule on, there is much discussion of the need to balance Gabriel’s right of dignity and reputation against Ward’s right to freedom of expression. The decision cites relevant case law.

Is Jérémy Gabriel a public figure?

One of the key questions, not so much for the tribunal, but for the public at large, is whether or not Gabriel can be considered a public figure. No one would suggest that mean jokes about Donald Trump’s appearance should be grounds for a court case. If so, late-night comedians would all be heading to jail. In Canada, sketch comedy shows in the 1990s continuously caricatured Jean Chrétien’s speech and facial expressions, even though his impediment was due to a minor physical disability.

But Trump and Chrétien are public figures, who chose to enter politics. Gabriel isn’t.

Except everyone already knew who Gabriel was. Since his 2005 debut in the TV show Donnez au suivant, to his appearances singing at a Canadiens game, and before Céline Dion and the pope, and his launch of an album and becoming a de facto spokesperson for his disease. Becoming a public figure doesn’t strip you of all your rights, but whether he is one is definitely up for debate.

Is this bullying?

Mike Ward bullied a disabled child, they say. That sounds bad. But is this a case of bullying? And is Ward responsible for the actions of Gabriel’s classmates, who apparently used Ward’s jokes as fodder for bullying Gabriel?

I’m strongly against bullying, and I think everyone needs to do more to stop it. But Gabriel wasn’t brought on stage and mocked. He was referenced in a joke about his media exposure. And some young people used that material to fuel bullying efforts that probably would have happened anyway without Ward — and indeed, the decision says the bullying preceded Ward’s jokes.

Similarly, it found that while Gabriel’s career went downhill after Ward’s jokes (or more diplomatically, it slowed), there’s no evidence that Ward’s jokes were responsible for that.

And yet, Gabriel never asked to be part of this. He didn’t sign up for a roast. His disability is not due to some personal choice he made. Plenty of comedians with disabilities use themselves as targets, but that’s their choice. It shouldn’t be imposed on Gabriel.

The group versus the individual

During my two weeks at Just For Laughs, I heard a lot of jokes that can’t be repeated here. Many were vulgar, off-colour and disrespectful.

But the biggest difference between Ward’s joke about Gabriel and jokes other comedians made about people with disabilities or of various ethnicities or sexual orientations or gender identities or other protected classes is that Ward’s joke was about a particular person rather than a generalization about a group. That’s an important point to the tribunal:

[129]   Le litige dont le Tribunal est saisi se distingue du fait que les propos discriminatoires de monsieur Ward ne visaient pas un groupe mais une personne en particulier[71]. La question est donc de déterminer si la liberté d’expression protégée par la Charte permet de faire des blagues discriminatoires en lien avec le handicap d’une personne nommément identifiée.

Personally, I think we need more jokes about individuals and less about racist caricatures of a whole group, but the former can be more harmful for the target.

Ward’s behaviour

Mike Ward likes to push the limits. He’s admitted this. Hell, when he told the joke he wondered aloud about the consequences of it.

The thing about pushing the limits is that eventually they’re going to break. It’s like a driver driving down the highway at an ever increasing speed. Eventually you’re going to get a ticket.

So if Ward has to pay a few thousand dollars because he finally crossed the line, shouldn’t we (and more importantly he) accept that? If you push the envelope and it breaks, do you ask for a refund because of poor envelope construction?

On the other hand, Ward’s ability to predict this would happen is about as relevant as his reputation as one of the nicer and more generous comedians off the stage, supporting younger comics and giving to charitable causes. Knowing there’s injustice doesn’t make that injustice okay.

The chilling effect

Even if you agree that Ward went over the line and should be fined for his comments, you have to agree that there’s a chilling effect for other comedians. If you try to tackle an important but touchy subject, and you slip up, could you also be on the hook for thousands of dollars?

This wasn’t, of course, a slip of the tongue. It was a rehearsed joke, repeated many times during a tour of shows and sold later on DVD. And Ward’s refusal to apologize or even stop saying the joke aggravated the situation and led to the larger fine.

But we need comedy to tackle uncomfortable issues. We need it to say the things that otherwise wouldn’t be said, to expose the brutal, impolite honesty of the world. And making humour subject to analysis by some committee or judge means comedians would have to consult lawyers about their jokes, and would probably tone down touchy issues in favour of safer dad jokes.

That said, with respect to professional comedians, comedy shouldn’t benefit from some sort of special protected legal status where anything goes, like the absolute privilege afforded to legislators speaking during a parliamentary session. Like journalism, comedy is a craft that has no formal barrier to entry, and it would be far too easy to say whatever you want and attempt to dismiss its implications by claiming it’s just a joke (ahem).

And so like journalism, a claim that a comment is a joke should be taken into consideration, but weighed against other factors that could still classify it as hate speech or discrimination.

The show

I bought a ticket to the special show, organized by comedians sympathetic to Ward’s case, on the last weekend of the festival. Not so much to support the cause, but because I knew there would be a lot of great comedians there in both languages.

Inside the venue, there were people with buckets collecting change, as if this was a charity to feed starving orphans or something.

I was comfortable there until some of the comedians started angrily yelling about free speech and the crowd responded with raucous support. I started doubting whether I should be there.

The thought crossed my mind: Are these the same people I would see at a Donald Trump rally? Or an Ezra Levant speech? Did these people all carefully examine the issue and conclude that the tribunal overstepped its authority, or do they just think “ah screw the whiny nerd cripple?”

When they weren’t yelling, the comedians made some good points, comparing Ward to Charlie Hebdo (which also made offensive jokes but got worldwide support after it was attacked for them), saying this decision shows a lack of respect for the craft of comedy, and Brad Williams saying that the best way to deal with bullying about a physical difference is to choose not to let it get to you.

And yet, I didn’t leave there convinced that Ward’s side of this case was 100% right.

Why mom?

One part of the decision did leave me scratching my head. The tribunal dealt only with matters directly relating to Gabriel’s disability, and not on straight up slander, which is the jurisdiction of regular civil court.

But it found that Ward’s joke about Gabriel’s mother, accusing her of buying things for herself instead of treating an issue with young Jérémy’s mouth not closing completely, was discriminatory, because without the disability, that joke would not have been made.

The logic doesn’t make sense to me, nor does the order to compensate Gabriel’s mother. She has no disability, so how can she be discriminated against for someone else’s?

The decision cites case law, first an appeal court decision that found parents can’t be found to be victims of discrimination against their children, but then a more “nuanced” view in several decisions showing that they can be victims if the discrimination relates directly to their child. In two of the cases cited, the parents were denied services that would have indirectly helped their child because of their child’s situation.

That’s a far cry from saying that baseless accusations about a mother can be found discriminatory just because they wouldn’t have been made if the child didn’t have a disability.

The future

Ward says he’ll appeal. That’s good, I think. We should have a higher court look at this issue carefully.

On the other hand, an amicable settlement between Ward and Gabriel’s family would also be a satisfactory outcome. Ward could find better hills to die on. And Gabriel could grow a thicker skin, especially since he’s now an adult.

In the meantime, maybe we can be a bit more nuanced in our discussion of this case. Let’s not say that those who agree with the tribunal and believe disabled children deserve a modicum of respect are anti-freedom politically-correct comedy-killers. And let’s not say that those who criticize the decision are angry bigot bullies.

Because there are good reasons to see this from either side.

Further reading

• The decision
• CBC explains the process of the decision
• The National Post on how visiting comedians see the implications of this case
• La Presse on Ward’s show in Edinburgh, which focuses on this case

Pro-Ward opinions

• David Mitchell, The Guardian: “So it’s fine to insult someone without a disability, but a disabled person can’t take it?”
• Samantha Gold, Forget The Box: “Is Mike Ward the one who should be punished for making the joke? Or should the tribunal punish all the people who used the joke as an excuse to bully a disabled and disfigured kid?”
• Dan Delmar, Montreal Gazette: “Standup comedy is, however, one of the last remaining bastions of free speech. Short of a clear incitement to violence, not present in Ward’s act, this form of comedy must be uncensored to preserve its raison d’être.”
• John Carpay, lawyer: “The so-called “right” not to feel offended by another’s speech is a toxic cancer that is slowly killing our freedom and our democracy. This false understanding of “equality” chills free speech for everyone, not just comedians.”
• Suburban editorial: “Freedom is indivisible. And freedom of speech – except for overt incitement to violence against a specific individual or group – is absolute.”
• Mathieu Bock-Côté, Journal de Montréal: “à moins de souhaiter une société tarte aux pommes où tout le monde est gentil et convenable, il faut bien convenir que l’humour, à l’occasion­­, peut être abrasif et même insupportable.”
• Pierre Trudel, Journal de Montréal: “Assimiler à de l’intimidation des propos prononcés hors la présence d’une personne publique, dans un dessein humoristique, c’est condamner a priori toute parole qui présente un potentiel d’être reprise dans un dessein d’intimider. C’est donner une portée démesurée à la notion d’intimidation. “

Pro-Gabriel opinions

• Don Macpherson, Montreal Gazette: “We have since grown more tolerant of cruelty in the guise of humour. Now, as shown by the trial of Mike Ward, the laughter of a much larger audience encourages a famous stand-up comic to lead the verbal bullying by name of an adolescent made especially vulnerable by a deforming physical handicap.”
• Robert Everett-Green, Globe and Mail: “He just got sloppy about choosing his targets, then affected shock that his right to free expression isn’t absolute.”
• Ian Birrell, iNews: “Imagine the furore, rightly, if these people were making racist or homophobic jokes in similar cheap taste. Yet laughing at the most excluded minority seems fine.”
• Richard Martineau, Journal de Montréal: “Mike Ward, lui, pratique l’humour extrême.
  Ce qui le fait triper, c’est d’aller le plus loin possible, de tester les limites de la loi.
  Or, avez-vous remarqué que dans l’expression «tester les limites», il y a le mot «limites»? Pas de limite, pas de risque, pas de fun…”
• Stéphane Paradis: “Ce même « humour » polarise, entre autres sur les réseaux sociaux, à coups d’insultes, de dénigrement et de qui-aura-la-réplique-la-plus-cinglante-qui-mettra-l’autre-KO.”
• Julie Boivin, teacher: “Donc d’une part, socialement, on s’entend tous pour prendre des mesures pour contrer l’intimidation et d’une autre, on doit donner libre cours à un humoriste qui insulte et s’acharne à ridiculiser un jeune qui est déjà victime des moqueries à son école?”
• Marie-France Lanoue, teacher: “La justice nous rappelle, en effet, que la liberté d’expression a ses limites et que le droit n’est pas synonyme d’un pouvoir absolu. C’est-à-dire que le droit ne peut pas servir d’excuse pour justifier tout et n’importe quoi.”
• Luis Vargas Dias, father of a handicapped child: “Les enfants handicapés, contrairement aux humoristes, personne ne les écoute, personne ne s’intéresse à eux. Ils n’ont pas de voix”
• Rémi Bourget, lawyer: “D’ailleurs, en tant que handicapé, je suis le premier à rire des bonnes jokes de handicapés! Mais la faculté d’en rire n’arrive pas du jour au lendemain. Si t’as trouvé ça tough être au secondaire parce que t’avais de l’acné ou que t’étais un grand slack, imagine ce que ça a pu être pour quelqu’un qui est né avec un handicap.”