Even if Mike Ward launched “wickedness” and “shameful words” to Jérémy Gabriel, the comedian did not however discriminate against the young singer by making fun of him. In a widely divided decision on Friday, the Supreme Court came to strengthen freedom of artistic expression, while bringing the Human Rights Tribunal in line.
Read “Sigh of relief in the middle of humor” Read “Very disappointed”, Jérémy Gabriel is ready to turn the page
“It’s a big day for me. It’s a great day for humor. I am not happy that I won. I am relieved, there is a difference. […] I had no choice but to fight, I think I did what any comedian should do, ”responded Mike Ward Friday in a video posted on Facebook. The comedian maintains that this case has “scrapped” his mental health. He ends with good words with regard to Jérémy Gabriel.
The Supreme Court concluded that the comedian made fun of Jérémy Gabriel because he was a public figure and not because of his disability. The young singer was therefore not discriminated against under the Quebec Charter of Human Rights and Freedoms. Mike Ward was ordered to pay Jérémy Gabriel $ 35,000 by the Human Rights Tribunal in 2016.
“The fact that a well-known, popular comedian takes advantage of his platform to make fun of a young man with a disability is certainly not edifying. In any event, this is not a question of whether Mr. Ward’s words are in good or bad taste. […] Placed in their context, his words cannot be taken at face value, ”explains the Supreme Court five to four.
In this decision, the Supreme Court comes above all to curb the tendency of the Human Rights Tribunal to downplay the importance of freedom of expression in cases of discrimination. “The recourse in discrimination is not, and should not become, a recourse in defamation », Insist the majority judges (in italics in the judgment).
According to Pierre Trudel, professor of law at the University of Montreal, the Supreme Court thus put an end to an “extremely slippery and very dangerous trend which could have made speaking and almost all artistic discourse much more risky”.
“Decisive” context
Without issuing new guidelines on the limits of freedom of expression, the Supreme Court clarifies the importance of “artistic expression”, which is “at the heart of the values at the base of freedom of expression”. Thus, the artistic context of Mike Ward’s comments is “decisive” in establishing whether there has been discrimination, according to the Supreme Court.
Indeed, spectators will not take “literally” all the jokes of a comedian, all the more so if he is known for his “particular humor”. However, this does not confer a “form of impunity” on artists, nuances the Supreme Court. These are not in a category “in its own right, whose status would be higher” than that of other citizens in terms of freedom of expression.
A “reasonable” person attending Mike Ward’s show would therefore not consider these jokes to “despise” Jérémy Gabriel, believe the majority. “The contentious remarks exploit, rightly or wrongly, a discomfort in order to entertain, but they do little more than that”, concludes the Supreme Court.
PHOTO HUGO-SÉBASTIEN AUBERT, PRESS ARCHIVES
Jeremy Gabriel
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 teenager, then nicknamed “the little Jérémy”, was notably known for having sung in front of Pope Benedict XVI and in numerous television shows.
In his number, Mike Ward called the boy “milky” 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. He claims to have suffered greatly from Mike Ward’s jokes. In 2019, the Quebec Court of Appeal concluded that Mike Ward had crossed the “legal limit” with his discriminatory jokes.
Important decision for freedom of expression
According to Louis-Philippe Lampron, professor in law and freedom at Laval University, the Supreme Court comes to “strengthen” the freedom of artistic expression by recalling that there is a certain “hierarchy” on this subject, even if the artists do not. do not enjoy “immunity”. The Supreme Court also clarified that the “sensitivity” of a person is not a sufficient criterion to prohibit someone from comments, analyzes Mr. Lampron.
The Supreme Court has also considerably reframed the “restricted” powers of the Human Rights Tribunal and the Human Rights Commission. “You have to call a spade a spade. It is a real reframing that comes to bring the Supreme Court ”, slice Mr. Lampron.
The Supreme Court underlines that the jurisdiction of the Tribunal has “indirectly widened” in the last decades in favor of “generous” interpretations of rights and freedoms. Thus, according to this current, “hurtful remarks” can constitute discrimination, even if the harm is “relative” and the social effects of the discrimination are “absent”. This current raises “serious concerns” in terms of freedom of expression, concludes the Supreme Court, since it has the effect of “reducing the burden of proof in an action for discrimination”.
“The action for discrimination must be limited to words whose effects are really discriminatory”, summarize the judges of the majority, under the pen of Chief Justice Richard Wagner and Judge Suzanne Côté, two Quebec magistrates.
Strong minority dissent
In a strong dissent, the judges of the minority believe that Mike Ward’s jokes about Jérémy Gabriel were “pejorative insults” based on his disability, and that they constituted a discriminatory attack on his right to dignity . In their view, Mike Ward used his right to freedom of expression “completely disproportionately” in relation to the damage suffered by Jérémy Gabriel.
“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.
“We are facing an extremely divided, even split, Supreme Court. It is rare, such strong divisions. But this is not the first decision with so many fault lines, ”analyzes Professor Louis-Philippe Lampron.