(Ottawa) Comedian Mike Ward did not discriminate against Jérémy Gabriel by making fun of him in a show, the Supreme Court ruled on Friday in a highly anticipated decision. The highest court in the country, however, recalls that artists do not enjoy a “higher degree of protection” than other citizens in terms of freedom of expression.
“Although Mr. Ward utters spiteful words and shameful remarks related to Mr. Gabriel’s disability, his words do not lead the audience to treat him as an inferior being. […] Placed in their context, his remarks cannot be taken at first degree, ”concludes the Supreme Court, in a decision divided at 5-4.
Five years after being ordered to pay $ 35,000 to Jérémy Gabriel by the Human Rights Tribunal, comedian Mike Ward finally won his case on Friday at the end of a long legal saga. The Supreme Court of Canada essentially concludes that the humorist’s jokes about Jérémy Gabriel were not intended to discriminate against him under the Quebec Charter of Human Rights and Freedoms.
Thus, a “reasonable” person attending the Mike Ward show would not consider these jokes to “despise” Jeremy Gabriel. “The contentious remarks exploit, rightly or wrongly, a discomfort in order to entertain, but they do little more than that”, concludes the Supreme Court.
The comedian known for his corrosive jokes made fun of Jérémy Gabriel in an issue on “untouchable” personalities in Quebec performed dozens of times in the early 2010. The young teenager, then nicknamed “Le petit Jérémy”, was notably known for having sung in front of Pope Benedict XVI and in numerous television shows.
PHOTO HUGO-SÉBASTIEN AUBERT, PRESS ARCHIVES
Jeremy Gabriel
In his number, Mike Ward referred to the boy as “lette” and young with a “sub-woofer” on his head. The comedian also joked about the fact that he had tried to “drown” him, but that Jérémy Gabriel was “not killable”. The young singer suffers from Treacher-Collins syndrome, a disease that causes head deformities and severe deafness.
In 2019, the Quebec Court of Appeal concluded that Mike Ward had crossed the “legal limit” with his discriminatory jokes. “Comedians, like artists, do not enjoy a special status in terms of freedom of expression,” argued the highest court in the province. In addition, under the “cover of humor”, Mike Ward could not “say anything”.
In its decision, the Supreme Court deals relatively little with the issue of freedom of expression, other than to recall that artists do not benefit from special protection in this matter. That said, the context of Mike Ward’s comments is important in determining whether there has been discrimination, according to the Supreme Court.
Another important point is that the Supreme Court is bringing the Human Rights Tribunal to order on the scope of its jurisdiction. “The action for discrimination is not, and should not become, a claim for defamation”, conclude the majority judges. A defamation lawsuit is in fact the responsibility of the Superior Court of Quebec. Moreover, Jérémy Gabriel could have brought such an action, recalls the Supreme Court.
“Recourse to discrimination must be limited to statements the effects of which are genuinely discriminatory. The Tribunal is not empowered to rule on defamation or other civil liability claims, since its jurisdiction is limited to complaints of discrimination ”, summarized the majority judges, under the pen of Chief Justice Richard Wagner and Justice Suzanne Côté, two Quebec magistrates.
Strong minority dissent
In a strong dissent, the four judges of the minority believe that Mike Ward’s jokes about Jérémy Gabriel, then aged 10 to 13, were “pejorative insults” based on his disability, and that they constituted a discriminatory infringement of his right to dignity.
“His jokes about his attempt to drown [Jérémy Gabriel] were inspired by pernicious stereotypes that people with disabilities are objects of pity and burdens on society that we can get rid of, ”write the minority judges, from the pen of judges Rosalie Abella and Nicholas Kasirer.
In their view, Mike Ward used his right to freedom of expression “completely disproportionately” in relation to the damage suffered by Jérémy Gabriel. A reasonable person, even sensitive to artistic expression and satire could not stand the comments of the comedian, according to the dissenting judges.