Comedians across Quebec are worried their freedom to poke fun at others was dealt a severe blow by the Quebec Human Rights Tribunal.
In a decision handed down Wednesday, the tribunal ordered comedian Mike Ward to pay a total $42,000 to Jérémy Gabriel and his mother, compensation for being the butt of several jokes.
One comedian called the ruling "terrifying." Local radio host Ted Bird described it as having felled the "last bastion of unfettered free speech."
On social media, Ward himself invoked Martin Niemöller's First they came, a poem about the silence of German intellectuals during the rise of Nazism.
But are these concerns warranted? Let's take a closer look at the ruling itself, and tease out some of the deeper issues it has raised.
Freedom of expression v. the right to equality
The case pits two fundamental rights against each other: freedom of expression versus the right to equality. In his ruling, Judge Scott Hughes had to choose which one is more important in this instance.
More specifically, there are three sections of the Quebec Charter of Human Rights and Freedoms at play.
Section 3 guarantees, among other things, freedom of expression. Section 4 establishes our right to "dignity, honour and reputation."
Section 10 is about equality, and says we can't be deprived of our rights because of certain social or physical characteristics. Several are listed, including race, colour and — key to this case — disability.
In the Ward case, Section 3 clashed with Sections 4 and 10. To decide which to prioritize, Hughes established a two-step test for himself.
First, figure out if Ward's jokes discriminated against Jérémy's rights. Then, figure out if Ward's jokes qualify for free-speech protection.
Step 1: Was there discrimination?
Hughes writes that three conditions have to be met in order to establish whether discrimination occurred.
The first condition: Was someone singled out? This was easy for the tribunal to answer. Jérémy and his mother were mentioned by name in several of Ward's performances.
The second condition: Was someone singled out and subjected to different treatment even though Section 10 guarantees them equal treatment?
Not all of Ward's jokes about Jérémy make reference to his physical disability. One, for instance, links Jérémy, the pope and pedophilia. No discrimination there, says Hughes, because the joke isn't based on Jérémy's disability.
But Hughes does single out three jokes in particular in which Ward ridicules Jérémy's appearance — physical characteristics that are due to Treacher Collins syndrome, a condition he was born with. So Jérémy was singled out because of his disability.
That's not cool according to Section 10, says Hughes.
The third condition: Has the discrimination affected Jérémy's "dignity, honour and reputation"? Here things start to get fuzzy.
Hughes acknowledges that not every insult qualifies as a violation of someone's dignity. There has to be real harm. That, of course, can be subjective.
But Hughes writes the "Tribunal has no doubt" that Ward's jokes caused enough damage to Jérémy to merit being called a violation of his dignity.
Step 2: Are jokes protected speech?
Free speech in Canada is not absolute. But, as Hughes notes, certain types of speech are protected.
He cites the 1988 landmark Supreme Court decision in Irwin Toy Ltd v Quebec, which outlines the types of speech that do enjoy absolute expression.
These include speech that aims at truth, speech that contributes to social and political decision making or speech that is an expression of self-fulfillment.
Ward's jokes had to meet one of these conditions in order to qualify for free-speech protection.
Hughes doesn't deny that comedy has certain civic virtues, but decides that it can't be a pretext for discrimination.
"A comedian cannot operate solely in function of the laughs of his audience," he writes. "He also has to take into account the fundamental rights of the victims of this jokes."
Hughes adds that Ward's jokes don't raise questions of public interest. Given that, they don't qualify for protection.
With that conclusion, Ward's case is lost. His jokes were found to have discriminated against Jérémy and aren't considered to be protected speech.
At that juncture, the only thing left for Hughes to do was determine the extent of the damages.