Mike Ward narrowly won his bet, but it would be wrong to boast. If the artistic context of his “disgusting” jokes on Jérémy Gabriel was decisive in establishing that they were not discriminatory, this could not translate into a form of impunity for comedians with regard to public figures. , recalled Friday the Supreme Court of Canada, by deciding in favor of Ward in the lawsuit which opposed him to the Commission of the rights of the person and the rights of the youth.
“Freedom of expression cannot confer on the artist a higher degree of protection than that of his fellow citizens”, specified the Court, adding that artistic freedom was “not a category in its own right, whose status would be superior to that of general freedom of expression ”.
I wrote it five years ago, and I will say it again: the Human Rights Tribunal ruling in the Ward-Gabriel case set a dangerous precedent and shed light on the tendency of the time towards judicialization. and political correctness. This decision could, in the long term, have unfortunate consequences for freedom of expression, in particular that of artists. By opening the door to subsequent, more restrictive decisions that could have been assimilated to censorship. Which, the Supreme Court recalled on Friday, is not the objective of the Charter of human rights and freedoms.
The role of the Human Rights Commission in this case has rightly been disputed. The Commission was not initially the body best chosen to assert the rights of Jérémy Gabriel. The Commission interfered, so to speak, in what did not concern it directly, by mechanisms diverted from their original meaning.
Would it have been better to take this matter to court in a libel suit rather than to an administrative tribunal on grounds of discrimination? Certainly, the Supreme Court decides. “The recourse in discrimination is not, and should not become, a recourse in defamation ”(In italics in the text), she recalls.
The five majority justices of the highest court in the land determined, just like the trial judge, that Mike Ward chose to make jokes about Jeremy Gabriel not because of his disability, but rather because he is a personality. public. This distinction alone could have decided them to agree with the comedian.
Even though Ward had made fun of Gabriel because of his disability, the majority believe, his words must be put in context. They cannot, according to the Court, “be taken at face value” by a “reasonably informed” person. “Although Mr. Ward utters spiteful words and shameful remarks related to Mr. Gabriel’s disability, his words do not encourage the audience to treat him as an inferior being,” believe the majority. These jokes, while in bad taste, seek to entertain, but “do little more than that,” they write.
The majority of the Court considers in this case that the right to the protection of his dignity of Jérémy Gabriel has not been compromised. Offensive remarks and prejudice suffered by a person, the majority said, are insufficient to constitute discrimination “when the social effects of discrimination, such as the perpetuation of prejudice or disadvantage, are absent”.
Freedom of expression is a fundamental right which must be protected at all costs. The most recent Supreme Court decision certainly reinforces this principle, with a broad interpretation. “Freedom of expression presupposes […] the tolerance of society towards unpopular, derogatory or repulsive expressions, ”recalled the majority judges. It is therefore necessary, for it to be restricted, that there be a “high degree of seriousness which does not trivialize the notion of dignity”.
The fact remains that freedom of expression is not absolute in Quebec and Canada. Also, like the four dissenting judges in this case, I wonder if the fact of publicly and repeatedly mocking a disabled child does not reach the degree of seriousness that the majority evokes. In his show Mike Ward exhibits himself, at the heart of the dispute, the comedian mocked – for three years and some 230 performances – the handicap of Jérémy Gabriel, born prematurely and suffering from Treacher-Collins syndrome, at the origin of his malformations and a severe deafness. Ward said in particular that Gabriel’s illness was that he “is milky”, and that he had tried to drown him, but that he was “not killable”.
These jokes have been picked up in DVD format and in popular web clips. Jérémy Gabriel, who was 13 at the time of the show, was the target of mockery, suffered psychological distress and considered suicide.
“This case concerns the right of vulnerable and marginalized people, particularly children with disabilities, not to be subjected to humiliation, cruelty, intimidation and public denigration targeting them in a particular way on the basis of their disability,” as well as the devastating attack on their dignity which results therefrom, ”say the dissenting judges, recalling that it is not only hate speech that can pave the way for legal action.
I tend to believe, like them, that the attack on Jérémy Gabriel’s dignity could have been considered sufficiently serious to justify a limit on Mike Ward’s freedom of expression. And I am far from being convinced, unlike the majority of the Court, that “perpetuation of prejudice or disadvantage” is absent in this case.
If making fun of a disabled child, operated at least 23 times under general anesthesia since birth, is not a reasonable limit on freedom of expression, I wonder what can constitute a reasonable limit.
I watched the three hours of argument before the Supreme Court in this case. Mike Ward’s lawyer, Me Julius Gray, made a distinction between the number of his client on a disabled child (“Y die not, the little tabarnak!”) And Dieudonné’s jokes about Jews, which, according to him, amount to hate speech disguised as humor . What is good for some is not good for others, it seems.
“Perhaps at a certain time, we were able to tolerate certain discriminatory and denigrating remarks […]. The one where the handicap of certain people was exploited to entertain the population is over, ”wrote the majority judges of the Quebec Court of Appeal in their decision in 2019. They obviously spoke too quickly.
Jérémy Gabriel accepted the verdict on Friday, with humility and dignity. Let us hope that Mike Ward does the same and that he avoids adding more to his victim’s account, which he did not stop doing throughout the legal process. Discernment, unfortunately, is not its greatest quality. If there is one thing that no decision of the court will be able to change, it is that Ward’s jokes about Gabriel were filthy, heinous and, as the majority of the Supreme Court themselves write, loathsome.