Why We Defend Nasty Speech

Posted January 14, 2021
By Danielle S. McLaughlin

I don’t know about you, but I am not fond of humour that is aimed at humiliating or degrading individuals, even if those individuals are public figures. It is one thing to point out the foibles of people’s actions and another to make fun of someone’s appearance or other characteristics that are immutable. I am truly over racist, sexist, and body-shaming humour.

But should nasty or dark humour be prohibited or punished? A Quebec comedian (and I use that term broadly) named Mike Ward specializes in the kinds of jokes that are aimed at making people uncomfortable, so called “nasty comedy.” 

In a performance a number of years ago, he chose to single out a young singer named Jérémy Gabriel. Gabriel has Treacher-Collins syndrome, a condition which causes a malformation of certain cranio-facial bones and results in an unusual facial difference.  He is known in Quebec as “Little Jérémy” and has sung for Céline Dion and also for the Pope.

Ward’s joke was based on Jérémy’s physical appearance. Ward said that he thought the singer was dying but when he found that Gabriel was only “ugly” and not dying, he decided to drown him. Of course, he didn’t. While comedy is protected speech under the Canadian Charter of Rights and Freedoms, I am not laughing. 

I would not voluntarily attend a performance of Mike Ward’s because I have learned what sort of comedian he is. This line of “comedy” is a regular part of Ward’s performances.

While I am not a lawyer, I think I understand the difference between having hurt feelings and suffering discrimination. No one wants to be humiliated or insulted, but if they want to make a claim for damages in court, they will need to show that the defendant said something untrue about them that resulted in their having suffered something like a loss of income, or an unjust loss of reputation that resulted in a loss of opportunity.

To claim discrimination under a statute that protects equality rights, a person needs to demonstrate that, on the basis of specific grounds (such as race, colour, ethnicity, country of origin, religion, gender, marital status, and disability) they have been refused housing, employment educational, or similar opportunity.

The first requires making a defamation claim in civil court, and the second, in Quebec, requires a complaint of discrimination at the Commission des droits de la personne et des droits de la jeunesse (the Commission). The civil court can assess whether the complainant should be compensated for their damages. The Commission can send the complaint to a Tribunal that can decide whether the complainant should be awarded compensation for loss of opportunity and also whether the defendant should be made to pay additional, or punitive damages to ensure that the act of discrimination is denounced and not repeated. 

Mr. Gabriel and his mother chose to complain to the Commission des droits de la personne et des droits de la jeunesse. The case was sent to a Human Rights Tribunal which decided Jérémy had been discriminated against on the grounds of his disability. They awarded Mr. Gabriel $25,000 in psychological damages and $10,000 in punitive damages against Mike Ward. Jérémy’s mother was awarded $7,000 in damages as well. 

Ward appealed to the Quebec Court of Appeal. Their decision upheld the award to Mr. Gabriel but not the award to his mother. The court also ruled that that Ward’s remarks were discriminatory and undermined Mr. Gabriel’s honour and dignity.

Now the case is scheduled to be heard by the Supreme Court of Canada. 

Chances are, if you are reading this blog, you like me, have a strong affiliation to freedom of speech. But also like me, you may find that, as the court ruled, it is time for jokes that make fun of disabled people to be over. But is a court the place to make this call?

I have spent a lot of time in schools attempting to help young people understand why Canada needs to protect freedom of expression. Having a clear appreciation of the distinction between prejudice and discrimination is key to this understanding.

We all have prejudices. Each of us has a sense of “them” and “us.” There are those we feel free to dislike, to fear or even to ridicule, and then there are those whom we feel the need to protect. Many, though not all of us, feel the need to protect the most vulnerable in our society. But who is vulnerable – and vulnerable to what?

Our human rights commissions in every province and territory state that people in designated target groups must have the right to equality. A liberal society understands that fairness requires that everyone has the right to dignity and to equality of opportunity. These statutes do not and cannot protect anyone from hurt feelings. Nor should they.

What if I want to stand on a street corner and shout about how much I hate white supremacists; and if Mike Ward wants to stand on a stage and make fun of people? If, however, I call for armed insurrection or if Mike Ward successfully prevents his targets from getting access to health care, or from running for public office? Criminal law is needed to protect our rights to life, liberty, and security of the person – but not from insult or hurt feelings.

I am genuinely sorry for the way Mr. Gabriel was insulted and certainly understand how he and his mother must feel about Mike Ward. However, I cannot see that threatening the freedom of expression of comedians, often the people who hold up a mirror to society’s absurdities, is worth the price. Just imagine if all the late-night comedians had to pay politicians damages for insults to their dignity every time they were the butt of jokes. 

No one I know would voluntarily go to a performance by Mike Ward. But if the Supreme Court of Canada upholds the damages awarded by the lower court, I will be shocked – and very afraid.