10 V O L . 8 0 P A R T 1 J A N U A R Y 2 0 2 2 THE ADVOCATE
defendant’s right to freedom of expression in the context of a complaint
brought against a “shock” comedian pursuant to the Quebec Charter.
The facts in Ward are troubling. From September 2010 to March 2013,
Quebec-based professional comedian Mike Ward performed a stand-up
comedy routine in which he decided to take on the “sacred cows” of Quebec
culture, specifically tackling by way of ridicule the “‘untouchables’, that is
people whom Quebecers like and who are successful and powerful”,4
mainly by poking fun at their physical appearances. One such notable Quebec
celebrity was the claimant, Jérémy Gabriel, a young teenager with a
physical disability (Treacher Collins syndrome) who had become a
celebrity as a child through his singing for the Pope, at a Montreal Canadiens
game and with Céline Dion. The comedy skit was performed for about
230 audiences for a combined total of over 100,000 people, and distributed
online and through the sale of approximately 7,500 DVDs.
In her dissent at the Quebec Court of Appeal, Savard J.A. (as she then
was) described the style of humour as “shocking and trenchant”, involving
mockery of Mr. Gabriel’s appearance and culminating in describing him as
suffering from being ugly and indicating that he should be drowned.5 As the
majority of the Supreme Court described it, “there is certainly nothing
uplifting in the fact that a popular, well-known comedian used his platform
to make fun of a young man with a disability”.6 The dissent described the
issue as involving “the widely disseminated taunting of a 10 to 13 year-old
disabled child that plays on dehumanizing notions associated with his disability”.
7 The impact on Mr. Gabriel was very real. He was subjected to
taunting at his school to the point that he contemplated suicide. There is no
real question that the “comedy” was in poor taste, but was it the proper foundation
for a human rights complaint?
Ward is one of those curious cases where a review of the procedural history
reveals that of the 13 adjudicators who heard the case over the course
of its history, 7 found the complainant had been discriminated against and
6 found he had not. Nevertheless, it was the majority of the Supreme Court
of Canada that carried the day: in a 5:4 split decision, the court concluded
that Mr. Ward had not discriminated against Mr. Gabriel contrary to the provisions
of the Quebec Charter.
The majority decision8 focused on the fact that while ss. 4 and 10 of the
Quebec Charter guarantee, respectively, the right to the safeguard of dignity
and the equal recognition and exercise of human rights and freedoms, s. 3
of the same legislation raises freedom of expression to the level of a fundamental
right. In weighing those competing interests, the majority revisited
its own jurisprudence to address “a trend by the Commission and the Tribunal,
in their decisions, to interpret their home statute, the Quebec Charter,