Mike Ward's Human Rights Tribunal decision, explained

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 Jrmy Gabriel and his mother, compensation for being the butt of several jokes.

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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 invokedMartin Niemller'sFirst 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.

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More specifically, there are three sections of theQuebec Charter of Human Rights and Freedomsat play.

Section 3 guarantees, among other things, freedom of expression. Section 4 establishes ourright 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 casedisability.

In the Ward case, Section 3 clashed with Sections 4 and 10. To decide which toprioritize, Hughes establisheda two-step test for himself.

First, figure out if Ward's jokes discriminated againstJrmy'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.Jrmyand 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 aboutJrmymake reference tohis physical disability. One, for instance, linksJrmy, the pope and pedophilia. No discriminationthere, says Hughes,because the joke isn'tbased onJrmy'sdisability.

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But Hughes does single out three jokes in particularin which Ward ridiculesJrmy'sappearance physical characteristics that are due to Treacher Collins syndrome, a condition he was born with. SoJrmywas singled out because of his disability.

That's not cool according toSection 10,says Hughes.

The third condition: Has the discrimination affectedJrmy's"dignity,honourand reputation"?Here things start to get fuzzy.

Hughes acknowledges that not everyinsult qualifiesas a violation of someone'sdignity. There has to be real harm. That, of course, can besubjective.

But Hughes writes the "Tribunal has no doubt" that Ward's jokes caused enough damage toJrmyto 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 inIrwin Toy LtdvQuebec, which outlines the types of speech that do enjoy absolute expression.

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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 tomeet one of these conditions in order to qualify for free-speech protection.

Hughes doesn't deny that comedy has certain civicvirtues, but decidesthat 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 Jrmyand 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.

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