MONTREAL -- Quebec Comedian Mike Ward says he had "no choice but to fight" the ruling from the Quebec human rights commission which called one of his jokes discriminatory.
"I had no choice but to fight," said Ward in a Friday evening reaction video posted to social media. "I think I did what any comedian should do, what any comedian must do."
The comedian said he was "relieved" by the Supreme Court's ruling which, in a In a 5-4 split decision Friday morning, ruled Ward had the right to make fun of Jeremy Gabriel, a former child singer with a disability.
"It's a big day for me ... I'm not happy to have won, I am relieved, there's a difference," said Ward, "Jeremy, if you’re listening, good luck in your life. I wish you joy and success."
The case pitted the comedian against the Commission des droits de la personne et des droits de la jeunesse, which had succeeded in obtaining $35,000 in damages for Gabriel from the Quebec Court of Appeal.
The Supreme Court allowed Ward's appeal and overturned the lower court's decision. Justice Rosalie Abella, now retired, and her colleagues Nicolas Kasirer, Sheilah Martin and Andromache Karakatsanis were the dissenting judges.
The majority decision was written by two Quebec judges of the country's highest court: Chief Justice Richard Wagner and Justice Suzanne Côté.
They point out that the issue here was whether there was discrimination under the Quebec Charter, not whether there was defamation.
"The question is whether a reasonable person, informed of the relevant circumstances and context, would consider that the remarks about Mr. Gabriel incite contempt for him or his humanity on a prohibited ground of discrimination. The next question is whether such a reasonable person would consider that, in context, the words could reasonably be expected to lead to the discriminatory treatment of Mr. Gabriel.
In our view, the remarks made by Mr. Ward do not meet either of these requirements," said the decision, which was also endorsed by Justices Michael Moldaver, Russell Brown and Malcolm Rowe.
Jeremy Gabriel responds to a question during a news conference Thursday, July 21, 2016 in Montreal. THE CANADIAN PRESS/Paul Chiasson
"The only question at issue is the legal framework applicable to a remedy for discrimination under the Quebec Charter, in a context of freedom of expression, in order to determine whether, in this case, Mr. Ward violated Mr. Gabriel's right to the preservation of his dignity," the judges said.
"A discrimination claim must be limited to speech that has a truly discriminatory effect," they said.
In a tweet referencing Norm Macdonald, the Quebec-born comedy star who showed support for Ward prior to his recent death, Ward wrote simply "We did it, Norm."
GABRIEL 'WORRIED' ABOUT YOUTH BECOMING TARGETS
Gabriel has Treacher Collins syndrome, a congenital disease characterized by skull and facial deformities. Between 2010 and 2013, when he was a high school student, he was butt of Ward's jokes during the comedian's shows in which he commented on his physical disability.
He referred to Gabriel as the "the kid with the sub-woofer on his head. He also said he was a lousy singer, but since he was terminally ill--which he was not--he should be allowed to live out his dream.
"He's dying, let him live his dream," he said during his act. "Five years later, he's still not dead."
On Friday, the 24-year-old reacted the Supreme Court ruling during a news conference, in which he acknowledged that the treatment from Ward caused him to become suicidal at age 13. Speaking about the aftermath of the jokes brought him to tears as he shared that he faced threats from the public as the case made its way through the courts.
He said if he had a chance to talk to Ward today he would tell him about how it affected his life.
"I would want to tell him if today I weren't here to talk about it because I would have [taken] my own life, how would he feel? How would he react? Would he talk about freedom of speech? That's a question I would have asked him," he said.
The ruling makes him worried about children being an open target for comedians, he said.
"If someone like a really well-known comedian can say those things about a child and not be guilty or have to be responsible for those words, I mean, after that what are we going to say about children?" he said.
"What is the limit of treating children? I am a little worried for the future about that."
The Quebec Human Rights Commission (Commission des droits de la personne et des droits de la jeunesse) also reacted, saying it hopes that the Supreme Court's decision will not discourage people who have been targeted by discrimination from asserting their rights.
IS THE CASE REASSURING TO COMEDIANS?
Justices Wagner and Côté point out that their court has already refused to place artistic freedom in a separate category from freedom of expression in general.
"Limitations on freedom of expression are justified if there are, in a given context, serious reasons to fear a sufficiently specific harm that the discernment and critical judgment of the audience cannot prevent," said their majority decision.
"Freedom of expression cannot confer on the artist a higher degree of protection than that of his fellow citizens," the judges warn. However, they do elaborate on the humorous context.
"The audience knows how to identify these processes (exaggeration, generalization, provocation), when they are clear, and it is necessary to recognize enough discernment not to take everything that is said at face value," they note.
"This is especially true when the comments are made by a person known to the public for his or her particular sense of humour or when they target a public figure," they say.
"It would be surprising if comments made in such circumstances were sufficiently mobilizing to elicit discriminatory treatment," in their view.
'A 5-4 WIN FOR COMEDY'
Even though it was a split decision, the comedy community is feeling vindicated, according to Montreal comedian Joey Elias, who told CTV News “there was a weight that lifted off the shoulders of so many comedians and also Mike himself.”
“I think there's vindication for so many other comedians who may or may not have wondered like, what are we allowed to do now? What are we allowed to say? Are we allowed to talk to the crowd?Over the last little while, I mean, we've seen people are very particular about a word or two words. You know, look at what Dave Chappelle is going through right now. So I think it's a big step,” he said.
He said Gabriel was a public persona at the time Ward was telling jokes about him. Gabriel came to notoriety after singing for Céline Dion, Pope Benedict, and at Montreal Canadiens games as a young child and that, according to Elias, opened the young Quebecer to public commentary.
“If you're in the public eye, you may be a target for comedians and people who write for these types of shows, late night talk shows, sketch shows, and the only advice I can give anybody who is in the public eye is — and it took me a long time to realize this — not everybody's gonna like me. And once I realized that, it let me sleep a little bit easier at night,” he said.
“It's a 5-4 win for comedy and, specifically, for Mike.”
As is customary, the Supreme Court justices were careful not to blame their colleagues on the Court of Appeal who, by a two-to-one margin had decided the case differently.
They recall that a few weeks after the 2019 decision, the Supreme Court in another case changed the standard of review applicable to an administrative decision, such as that of the Human Rights Tribunal.
Where the law provides for an appeal mechanism, 'the general standards of appeal apply rather than the standard of reasonableness,' the Friday decision argues.
With files from CTV Montreal's Joe Lofaro
-- This report by The Canadian Press was first published in French on Oct. 29, 2021.
