The Ward and Gabriel case is now well known. Comedian Mike Ward made fun of Jérémy Gabriel, then a child, on stage for 250 shows, in his DVD which sold 7,500 copies and the video of his show posted on his website. Jérémy Gabriel is a person with a disability. Varying his vocabulary, Ward specifically targeted him with offensive jokes that turned his disability into ridicule.
Jérémy’s action for damages, pleaded under the Charter of human rights and freedoms, was welcomed by the first decision-makers. However, it was rejected by the Supreme Court of Canada, by a narrow majority of five judges against a very strong dissent of four judges.
This case has several angles and can be the subject of commentaries on several of its issues. Leaving aside, among other things, the complex question of the right choice between recourse under the Quebec Charter and defamation under common law, we will limit ourselves to a few specific points, very astonishing, not to say shocking.
PHOTO BERNARD BRAULT, PRESS ARCHIVES
Mike ward
In defense, Ward invoked his freedom of expression, which the majority opinion underlines the great importance. No one, he says, can complain about being the object of mockery in a comedy show.
Ward claimed his goal was simply to entertain. He insists that he didn’t want to hurt Jeremy personally. The majority buy these good words. However, established case law teaches that a benevolent intention does not excuse any violation of the fundamental rights of others.
The majority accepted the Byzantine distinction that Ward had decided to make fun of Jeremy because of his fame, not his handicap. However, while Ward didn’t cast his gall on any child, his jokes on Jeremy himself were clearly aimed at his disability. Can we really separate the person from his disability?
Although causation is a necessary component of a damages claim, the majority opinion seems to cling to an unduly narrow view. According to her, there would not be a sufficient cause and effect relationship between Ward’s taunts and the difficulties experienced by Jérémy, including his anxiety, his suicidal thoughts and his reflex to isolate himself from other students. Despite other possible causes, it is setting the bar very high to require proof of the decisive impact of Ward’s words …
Predictable reactions
The majority opinion often evokes “the reasonable person”, that is to say the person who attends the spectacle of a comedian known for his black humor. The notion of a reasonable person requires an appreciation of the context. Given the wide dissemination of Ward’s words, more attention needed to be paid to the predictable reactions from Jeremy’s classmates and other teenagers. In this context, could these young people take all this in the second degree, as the majority opinion nevertheless affirms it?
The same question arises for the ability of Jérémy, aged 10 to 13 at the time, to take the necessary distance in the face of sarcasm from Ward and his classmates. How can we believe that Ward’s insulting and humiliating taunts at a disabled child did not seriously infringe his right to enjoy his dignity on an equal basis? How to believe that they did not contribute substantially to the isolation of Jeremy and the mockery of his classmates?
Law is not only a big mechanism, it is also a set of values. Moreover, the legislator himself has chosen, in a charter of fundamental rights of which our society has long been proud, to guarantee everyone the protection of their dignity. In our time, which finally attaches importance to the protection of vulnerable people, this judgment sends a confusing message.
The majority opinion takes the trouble to warn artists that they are not above the Charter on human rights and freedoms. Very well, but who, henceforth, will dare to attack an artist in court?
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