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Stand-up comedy translates poorly in print, but here goes: Comedian Louis C.K. has an excellent bit where he talks about sexual assault (which is awkward since he has been accused of exposing himself to women without their consent) where he suggests that “you should never rape anyone … unless you have a reason.” For example, he continues, you want to have sex with someone and they won’t let you.

His delivery – which involves crass language – makes clear that the joke is actually at the expense of those who commit sexual assault, and not at their victims or at the act itself. Yet many have made the case that topics such as rape should never be so trivialized as to be included in a public stand-up routine.

Quebec comedian Mike Ward was trying to challenge that idea more than a decade ago when he made fun of Jérémy Gabriel, who was a child at the time and something of a mini-celebrity in the province. Mr. Gabriel has Treacher Collins Syndrome, which is characterized by facial deformities and profound hearing loss.

Mr. Ward’s bit was about deflating the province’s “sacred cows,” and so he used his act to mock Mr. Gabriel for having a “subwoofer on his head” and joked about drowning him when he found out the condition was not terminal. Mr. Ward’s intention was to poke fun at the sacrosanctity of Quebec’s celebrities, though unlike Louis C.K., he made the point by dragging a specific person: a kid with a disability.

Arguably that makes for cheap comedy, or evidence of a moral deficiency, or some combination thereof. But what it doesn’t make for, according to a split 5-4 decision by the Supreme Court of Canada, is a breach of Mr. Gabriel’s rights. In its decision, the majority wrote that: “The exercise of freedom of expression, for its part, presupposes, at the same time that it fosters, society’s tolerance of expression that is unpopular, offensive or repugnant.”

The case was essentially one of competing rights: the right to free speech versus the right to the safeguard of one’s dignity and the freedom from discrimination as defined by Sections 4 and 10 of Quebec’s Charter of Human Rights and Freedoms. The majority noted that the test of discrimination is not about the emotional harm suffered by the target (which could be a matter for civil court), but whether a distinction was made of an individual based one of the grounds listed in Sec. 10 (race, sex, gender identity, etc.) and whether a reasonable person would view the expression as “inciting others to vilify them or to detest their humanity” and would be likely to lead to discriminatory treatment. In the end, the majority decided this test was not met.

The more interesting – if alarming – reasoning came by way of the dissenting justices, who focused almost entirely on the individual harm caused by Mr. Ward’s comments. Indeed, they offered little to no acknowledgement of the chilling effect that a decision in favour of the plaintiff would have on wider principles of freedom of expression.

The four justices labelled Mr. Ward’s jokes “willful emotional abuse” and compared his words to abusive conduct toward Mr. Gabriel. They wrote that the comedian invoked “archaic attitudes” about segregating children with disabilities when he joked about drowning the boy, and they cited a lower court’s finding that “freedom of expression could not serve as a defence in this case because Mr. Ward’s jokes did not raise an issue of public importance” – as if the test of whether a breach of one’s right to preserve his or her dignity hinges on whether the offender has something objectively important to say.

The dissenting justices suggested unacceptable speech is characterized by being “so harmful that a reasonable person in their circumstances would refuse to tolerate it,” which is an imprecise test since reasonable people have varying levels of tolerance. And they concluded by writing that punitive damages “serve not only a denunciatory purpose, but serve to deter people like [Mr. Ward] from profiting from the intentional interference with the Charter rights of others.”

That last line is perhaps the most unintentionally poignant of the justices’ dissent. In their view, a positive effect of finding that Mr. Ward violated Mr. Gabriel’s Charter rights is that it would have dissuaded other comedians from telling jokes that could contravene protections under Sec. 10 out of fear of legal reprisal. That would be proving the point Mr. Ward was trying to make.

This case was an important victory for free speech, but it was not a comfortable one. The court was just one vote away from deeming the infliction of emotional distress a Charter violation. That would’ve created a harm much more profound than Mr. Ward’s tasteless words.

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