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Executive Summaries Dec 3, 2019

The Mike Ward Case: Why Did the Jokes About "Little Jérémy" Cross the Line According to the Court of Appeal?

On November 28, 2019, the Court of Appeal of Quebec released its decision in the matter between Mike Ward and the Commission des droits de la personne et des droits de la jeunesse relating to the comedian's comments about "little Jérémy" in one of his stand-up performance. Here is an overview of the decision and the important concepts to remember.

From September 2010 to March 2013, Mr. Ward presented a show entitled "Mike Ward s'eXpose". One of his performances was "Les Intouchables" (The Untouchables), which dealt with celebrities from Quebec who, according to the comedian, we are not allowed to make fun of. Jérémy Gabriel, who has had Treacher Collins syndrome since birth, was targeted in this performance along with other Quebec celebrities. 

Mr. Ward made fun of Guy A. Lepage (his beard, haircut and ego), Louis-José Houde (his masculinity), Céline Dion (her simplicity and changes to her physical appearance), Gregory Charles and Jacques Languirand (their eyebrows), René Angélil (his physical appearance and sensitivity), Ariane Moffatt (her weight) and Jérémy Gabriel (his disability).

Jérémy Gabriel's Disability

What sets Jérémy Gabriel apart from other celebrities is that he is discriminated against on one of the grounds outlined in article 10 of the Charter of human rights and freedoms (the “Charter”), namely discrimination on the basis of disability. 

The purpose of article 10 of the Charter is to protect against discrimination, exclusion or preference based on race, colour, sex, gender identity or expression of gender, pregnancy, sexual orientation, marital status, age, religion, political beliefs, language, ethnic or national origin, social status, disability or the use of any means to overcome such disability. 

However, not all jokes relating to one of the reasons listed in article 10 of the Charter give rise to an appeal. It must also be established that the comments prejudiced the full and equal recognition of the right to the protection of dignity, honour and reputation. The comments must be sufficiently serious as to affect a reasonable person's dignity. 

The Distinction between Defamation Proceedings and Those Based on Discrimination

The Court is careful to distinguish between actions for defamation and those based on discrimination. 

An infringement upon dignity, honour and reputation may give rise to an action for defamation under the general rules of civil liability (art. 1457 of the Civil Code of Québec and art. 4 of the Charter) or an action for infringement of the right to equality (or discrimination) (art. 10 of the Charter). 

In the latter case, the complainant must demonstrate the unlawful interference with their full and equal right to recognition and the exercise of a right guaranteed in articles 1 to 9 of the Charter. The defendant must demonstrate that the infringement can be justified by the exemptions provided for by law.

The Ward Case and Freedom of Expression

Humour is protected by the right to freedom of expression. 

Thus, the right against discrimination here is at odds with the right to freedom of expression. The Court must, therefore, assess the situation from the point of view of a "reasonable person in a pluralistic society, in which freedom of expression is valued and some immoderate language is allowed in the exercise of this other fundamental right." 

For there to be an infringement, "the insult must be particularly contemptuous and tactless and have serious consequences for the person concerned." The Court of Appeal upheld this conclusion. 

The Court of Appeal clearly states that its "intention is not to restrict creativity or censor artists' opinions", but that "comedians, like any citizen, are responsible for the consequences of their words when they cross certain lines."

The Damages 

In its judgment, the Court of Appeal confirmed the amount awarded in this case is $25,000 in psychological damages and $10,000 in punitive damages. The Court of Appeal overturned the decision to pay $7,000 to Jérémy Gabriel’s mother. 

 

At the time that this article was written, Mr. Ward had publicly announced his intention to appeal this decision before the Supreme Court of Canada.

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