Case comment Funny or absurd Law

Funny, Not Funny

The Quebec Court of Appeal decides that hurt feelings are now a human right

Mike Ward, seen here wondering why judges seem to hate him

Hot on the heels of BC’s Jessica Yaniv case, another instance of human rights abuse — that is, the use of human rights legislation to punish others — comes to us courtesy of the Quebec Court of Appeal. In Ward v. Human Rights Commission released November 28, 2019, two of three appeal judges upheld a human rights commission award against the comedian for $35,000 for “moral and punitive damages”, to be paid to Jeremy Gabriel, who suffers from congenital conditions which cause facial deformities and will likely limit his lifespan.

Gabriel became something of a running joke in Ward’s comedy act, with Ward referring to Gabriel’s condition and joking that since Gabriel did not appear to be dying after all, Ward had tried to drown him. Tasteless? Maybe. Offensive? Possibly. But the jokes became the subject of serious legal analysis when Gabriel (and his mother) brought a complaint against Ward in the Quebec Human Rights Commission, where both were awarded money for compensatory and punitive damages totalling $35,000 for Gabriel and $7,000 for his mother. 

On appeal the QCA reversed the award to Gabriel’s mother, but upheld the award to Gabriel on the basis that Ward’s jokes had compromised Gabriel’s dignity. The majority, while noting the importance of freedom of expression, found that artistic freedom is limited — and that limit is apparently exceeded when one individual is offended by your jokes.

It’s important to note that the Province of Quebec sometimes departs from conventional Classical Liberal traditions that inform English, Canadian, US and Australian common-law. As a predominantly French-speaking Province within Canada with a chip on its shoulder the size of Newfoundland, Quebec identifies more with the principles of the French Revolution (Liberty, Equality, Fraternity) rather than John Stuart Mill and the commitment to freedom of speech as expressed in On Liberty. The result are important differences in the way human rights are recognized and enforced. In the Ward case, the QCA was considering the balancing of interests between human rights and freedom of speech as contained in Quebec’s Charter of Human Rights. That Charter (unlike Canada’s Charter of Rights and Freedoms) lists familiar grounds of discrimination as one would see in provincial human rights legislation, but includes protection against an individual having any distinction drawn which has the effect of jeopardizing one’s right to full equality and the recognition of one’s right to dignity, honour and reputation.

In other words, the Quebec Charter protects not only protected groups from actual discrimination, but from commentary which draws attention to any physical or other difference that person may have and which hurts that person’s feelings.

I’m simplifying the analysis somewhat, but not by much. The real problem here is not that Ward made a joke at someone else’s expense. The problem is that he made a joke which referred to Gabriel’s medical condition, therefore bringing his comments within the scope of human rights legislation. Presumably, if Gabriel was completely healthy, but just a bad singer, Ward could have devoted his entire act to joking at Gabriel’s expense. And here is where we encounter the problem — human rights legislation certainly has its place in discouraging or punishing actual acts of discrimination against certain individuals. But when “discrimination” is equated with “offence”, we’re no longer protecting someone’s fundamental human rights — we’re protecting their feelings. 

Say goodbye to Juste pour Rire and say hello to Juste pour Silence

If the new standard in Quebec is that comedians (or anyone else) who speaks in public is required to determine whether anyone within listening range is a member of a protected group, and then ensure those individuals are not offended, say goodbye to Juste pour Rire and say hello to Juste pour Silence. Self-censorship rarely leads to a good comedy bit.

With a lengthy dissenting judgment on his side, Ward has a good argument to convince the Supreme Court of Canada to take up this case. My guess is that the SCC will grant leave. In the meantime, the QCA has set a precedent that should worry everyone who cares about comedy — or free speech.


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