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Justice Can Be Achieved Without Speech-Chilling Human Rights Commissions

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It would be hard to find a plaintiff more sympathetic than Jeremy Gabriel. He was born deaf with Treacher Collins syndrome, a rare congenital disorder characterized by severe deformities of the head and face, such as absent cheekbones, and malformed or absent ears. Since birth, Jeremy has undergone 23 surgeries. He has worn a special hearing aid since age six, which enabled him to hear more than 80 per cent of sounds. He learned to speak and sing. At age nine, Jeremy sang the national anthem at a Canadiens hockey game. The following year, he sang before Pope Benedict in Rome. His professional singing has raised money for non-profits.

In human rights proceedings launched by Jeremy and his parents against a raunchy Quebec comedian, the defendant garners much less sympathy. Mike Ward's dark comedy tramples on taboos and sacred cows, including race, religion and even more sensitive topics. In one of his routines, Mr. Ward claimed to have defended Jeremy against accusations of not singing well, by telling Jeremy's accusers "He's dying, let him live out his dream." Mr. Ward then said "five years later, he's not dead yet ... I saw him at a pool and tried to drown him ... I finally realized he's unkillable." He described Jeremy's large hearing aid as a "sub-woofer." Mr. Ward insinuated that Jeremy's mother had used Jeremy's money to buy herself a sports car, resulting in Jeremy not receiving adequate care. Over the course of 230 live performances, jokes at Jeremy's expense were heard by over 130,000 people, plus numerous online viewers.

At the human rights hearing, Jeremy testified that, after seeing the comedy routine online (at age 14), he started to question his own worth, lost confidence and hope, became depressed, and lost his desire to sing. Jeremy's mother said that she encountered people who thought she was rich, and who accused her of taking advantage of her son.

When someone says something about you that is false and that hurts your standing in the community, you can seek and obtain monetary compensation.

Who can blame Jeremy and his parents for filing a human rights complaint? They did not have to pay the (taxpayer-funded) Human Rights Commission to prosecute Mr. Ward, who was ordered to pay $42,000 in general and punitive damages to Jeremy and his mother. The outcome of this case, as it affects Mr. Ward and Jeremy and Jeremy's parents, does not appear unjust.

However, the means used to pursue justice are profoundly troubling for free expression.

In its decision, the Quebec Human Rights Tribunal misinterprets "equality" as including a legal "right" not to feel offended by "discriminatory" comments. This is the same "right" claimed by university student mobs who, in fascist fashion, disrupt and shut down the peaceful displays and speaking events of people on campus that they disagree with. It's the same "right" claimed by some gays and by some Muslims, to be spared the trouble of having to deal with vigorous criticism of a particular lifestyle or theology. The so-called "right" not to feel offended by another's speech is a toxic cancer that is slowly killing our freedom and our democracy. This false understanding of "equality" chills freedom of speech for everyone, not just comedians.

Long before human rights commissions, the common law provided victims of false accusations with a real remedy to protect their reputation: defamation. When someone says something about you that is false and that hurts your standing in the community, you can seek and obtain monetary compensation. The defendant can argue that his words about you were actually true, or that they qualify as the reasonable expression of opinion ("fair comment").

The law of defamation protects an individual's right to a good reputation, as well as everyone's right to express opinions freely, on all topics.

Mr. Ward's insinuations about Jeremy's mother profiting from her son's handicap, and denying him proper care in order to purchase a sports car, are clearly defamatory. Other jokes about Jeremy might also qualify as defamatory.

Jeremy and his parents should not be faulted for using available legal mechanisms. But if speech-chilling human rights proceedings did not exist, the law of defamation would still be available to provide justice without causing comedians (and everyone else) to worry about a state prosecution for violating another's "right" not to feel offended.

Calgary lawyer John Carpay is president of the Justice Centre for Constitutional Freedoms (www.jccf.ca). This column first ran in the National Post, July 28, 2016.

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