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.
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 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.
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:
 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. 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.
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.
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.
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.
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.
- 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
- 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. “
- 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.”
On July 28, Ward said that so far, he’s spent approximately $93,000 in legal fees to avoid paying the $42,000 fine to Gabriel and his mother.
What is your point , that he’s made a bad financial decision ? This supports Ward’s case especially against those who believe he is somehow profiting by victimizing an easy target . My initial inclination was to support Ward as he cracks me up and I despise these unelected , non-judicial so called human rights tribunals .
Having said this , Fagstein’s arguments have shifted my opinion somewhat .(Maybe the HR tribunal should fine him for blatant homophobia) My thought have become somewhat more nuanced . Darn you !
I think this so-called comedian should try to create a comedy routine that doesn’t cruelly insult a handicapped child who has suffered enough already.
Sure, that would be nice. But that doesn’t mean he should have to fined and censored for it though. I, and anyone else should have the right to say what I want, and if it isn’t “nice” or if you feel offended by it it, so be it, who cares. Counter it with your own speech. That shouldn’t give you or the government the right to censor and fine me.
He was not promoting any violence towards the kid, And he wasn’t slandering him maliciously with lies in a way that would affect his employment or a way to make a living (of course not, because he’s a kid). Therefore, Mike should be well within his rights to say what he wants without censorship and government interference.
This whole debacle is such an absolute disgrace and is very troubling.
The only thing that’s an absolute disgrace and very troubling is a ruthless bully attacking a disabled individual in the name of comedy. No different than Trump making fun of that reporter.
I’m not saying it’s in good taste, but in no way shape or form should he be censored and/or fined.
I’ve had it up to here with this case. Our society is not one where you can freely hurl insults and ferociously mock someone* with disabilities and/or illnesses and disguise it as comedy. There is a line you simply don’t cross and that includes comedy.
Mike Ward doesn’t get it. He needs to pay up, publicly formally apologize, and ceast & desist from further insulting the kid.
Why? Does a politician with a disability not deserve human rights?
Excellent piece – best piece I have seen about this whole issue. Thanks for reading the judgement and analyzing all the issues so carefully. Which court heard this case? Is the judgement being appealed?
The Quebec Human Rights Tribunal. Mike Ward said immediately he would appeal, to the Supreme Court if necessary.
I am so glad Mike is fighting this and willing to take it so far to the highest court. Hoping this does go all the way and the Supreme Court rules on Mike’s side and this is a severe blow to these insane Human Rights Tribunals across the country.
In my opinion, full disclosure I am a partner in a comedy club, Yuk Yuk’s Ottawa that is holding a fundraiser this Sunday for Mike Ward, freedom of speech, like pregnancy and cancer, is an absolute. Either you are for it or you are against it.
As far as I am concerned he can go down in flames….making fun of someone because of a physical disability or something someone cannot control is lame and cheap. Nobody would make fun of another person for being gay or old or for being a man or a woman or old, those are conditions nobody can control, having a physical deformity or a handicap is the same, Mike Ward give the human species a bad name, he’s a waste of humanity.
“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.”
Actually, as a kid, Jeremy Gabriel was able to live his dream of going to Walt Disney World through the Children’s Wish Foundation, which is aimed at dying and very sick children. His parents probably weren’t expecting him to get this far, and I believe that’s what Mike Ward was referring to.
Wonderfully written piece! I would be curious as to why the mother’s decision to make Jeremy a public figure in the first place was never questioned by him though. To put it simply, if i was Jeremy and i would have been exposed to the harsh reality of a public figure’s critiqued life because of my mother, i would cut ties so much with her because she led to even more bullying than whatever would have happened away from the media. My point being that the same way this article approached the “chilling” effect on comedians, parents should be made aware of the risks of turning their kids into public figures! It’s not just giving them a chance to shine, it’s putting them at risk of failing in front of everybody too!
Jérémy isn’t complaining about being a public figure. His dream is to sing, and you need an audience for that. And I don’t think the bullying would have been much different had no one known who he was.
My take is pretty simple: show me the harm, and Ward should pay.
The problem here is that the “harm” isn’t provable, solid, of obvious. The kid didn’t suddenly stop getting singing engagements because of Ward, rather it’s because once you get past the warm fuzzy of “handicapped kid sings for Pope” you realize that there isn’t much going on and the public just doesn’t care.
Put nicely, his 15 minutes of fame are over, and that is more or less where Ward was going with it all.
So without actual harm, what do we have? Hurt feelings? The part the tribunal ruled on is nothing but hurt feelings. Ward’s jokes, while rude and boorish, and not harmful. The boys life didn’t change because of them. It’s not like a lot more people suddenly hated him or anything. The public was pretty much over the kid already. It almost makes me think the lawsuit is the parents saying “but my kid is still important” rather than really considering that no actual harm was done.
Ward is a jerk. But if you like free speech, you also understand that you have to respect jerks right to be jerks.
Absolutely true. You can’t rule based on hurt feelings and being offended because it is so subjective. What one person finds offensive, another person will not; or someone can lie about it just to receive payment even if they were not. You can’t have a justice system built on that. It has to be objective, malicious intent, falsehoods, and some solid evidence of actual harm coming from it, and substantial harm from it too, such as having to shut down your business, not just losing a few customers as an example.
The missing nuance as you say is that anything can be said in the name of art or in the name of freedom of speech so what Ward said in his show is not offensive at all. Like the famous quote in the Airplane movie `they knew what the were getting into ` …. You pay the ticket price you know what to expect.
I would rather blame the parents for having their little special kid spread his wings and make whatever dough they could with it … Sorry but when you expose yourself publicly this is what you can expect. Of course it`s every parent`s nightmare but just don`t BS me. You knew you had a special kid and you knew in what world we were living in. And to say the Truth , the kid is an awfull signer. Do we have to endure the effort because he is a somewhat handicapped kid? Not if his parents took the risk…
This is not the first time this has happened. I remember a few years ago a comedian out in Vancouver, Guy Earle, was bought before the human rights commission out in BC when some one in his audience was not happy with a joke he made about them and filed a complaint. Earle lost the original decision and even lost the appeal and had to pay $15,000 to the plaintiff. For some odd reason no one talks about this case and everyone talks about the Mike Ward case as a first time this has happened and as setting a precedent even though the precedent has already been set.
I don’t think people are saying the Mike Ward case is the only one of its kind, and a lot of the media attention has been focused on it from the Quebec media, whose human rights tribunal adjudicated here. But the Guy Earle case and others should definitely merit mentions on stories about the issue.
Thank you for your thoughtful commentary. Very helpful.
Over five years have passed. This case, which should be black and white, has not been resolved. The slowness of the courts is, in my view, insane. It only profits the government and the lawyers for both parties.
Dan Shields, Yuk Yuks Ottawa.