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The joke that went to the Supreme Court

Comedian Mike Ward mocked a disabled boy. Nine years after the boy's family filed a complaint, the case tests the rights of artistic expression versus discrimination.

Jérémy Gabriel (left) and Mike Ward (Courtesy of Marie-Josée Boisvert; Courtesy of Michel Grenier/Bang Management Inc.)

Jérémy Gabriel (left) and Mike Ward (Courtesy of Marie-Josée Boisvert; Courtesy of Michel Grenier/Bang Management Inc.)

It’s a story that started with the sound of raucous laughter. Cruel, hurtful laughter, some are quick to point out. But for a decade now, a legal drama between two Quebec men has played out against a contrasting backdrop of silence.

The pair have never spoken to each other. Over the years, each has held to his cause, convinced he is on the nobler side of an increasingly weighty struggle for fundamental rights. As their tale approaches perhaps its final chapter—to be written in the coming days by the Supreme Court of Canada—each struggles to imagine how a judge could ever side with the other guy.

Nobody’s laughing anymore. But this fight between Mike Ward and Jérémy Gabriel did begin, years ago, with a joke.

Did you hear the one about the comedian who mocked a disabled boy?

***

Jérémy Gabriel was born with Treacher Collins syndrome. It’s a condition that causes malformations of the head and severe deafness. At six, he had an operation—one of 23 surgeries during his childhood—to implant a bone-anchored hearing aid, which allowed him to hear 80 to 90 per cent of sounds. He learned to sing. He loved to sing. His mother helped put him in the spotlight.

When he was eight years old, in 2005, Gabriel performed the national anthem at a Montreal Canadiens game. When he was nine, he met and sang with Céline Dion in Las Vegas, and serenaded the Pope in Rome. By the time he was 10, there were regular TV appearances and a published autobiography.

Quebec’s homegrown celebrities are covetously defended by an audience that associates French-Canadian achievement with the survival of a unique culture. So this young talent, with his heartwarming story and a photo next to Céline, was roundly embraced.

In 2006, Gabriel met Dion in Las Vegas (Facebook)

In 2006, Gabriel met Dion in Las Vegas (Facebook)

Mike Ward had been a professional comic since the mid-90s, earning several awards for his dark humour. He honed his craft in a young industry that was cutthroat and culturally paramount. At least one in five live event tickets sold in Quebec, pre-pandemic, were for solo comedy acts.

Around 2008, Ward started testing jokes in the bar scene riffing on the idea that Quebecers refused to laugh at certain “sacred cows.” He poked fun, brutally, at celebrities: Guy A. Lepage. Céline Dion. Louis-José Houde. Ariane Moffatt. Jérémy Gabriel. The “untouchables” bit was popular enough to make it into an hour-long show, “Mike Ward s’eXpose,” performed about 230 times from 2010 until 2013, and sold on a DVD. The poster featured a red X over Ward’s mouth.

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Print is an awkward medium to convey stand-up, especially translated from another language. Much is conveyed by the performer’s face, their tone of voice. So take a moment to imagine a jaunty guy in a wrinkly shirt whose captive audience has, so far, been eating up his routine, laughing with him at the raunchiest subjects and cruellest jabs, at his description of himself as “pear-shaped.”

Ward introduces Gabriel as “the kid with a subwoofer on his head”—in reference to his hearing aid. He describes defending Gabriel against people who criticized his singing. “I was like, ‘F–k! He’s living his dream! He’s dying and he’s living his dream. Let him live his dream! He’s been dreaming since he was little to sing off-key in front of the Pope.’ ”

He describes realizing Gabriel did not have a terminal illness. “I defended him, non-stop. But now it’s been five years and . . . f–k! He’s not dead yet!” Ward continues: “And he’s impossible to kill, too! I saw him last summer at the waterslides. I tried to drown him. Impossible! So I went on the internet to check what his disease really is. And do you know what he has? He’s f–king ugly!” Then Ward tells his audience he wasn’t sure how far he could take the joke. He chides them for having kept laughing.

Ward subsequently referred to Gabriel in several online videos, insinuating his mother wanted to profit off her child in one, in another making reference to pedophilia in the context of Gabriel’s performance for the Pope.

Gabriel with his mother, Cardinal Ouelett (Jacques Boissinot/CP)

Gabriel with his mother, Cardinal Ouelett (Jacques Boissinot/CP)

The first time he saw Ward’s material, Jérémy Gabriel was 13 years old. The age when, he explains in a French-language interview, you start to develop a sense of yourself, to build self-confidence. This had already been difficult for Gabriel because of his visible physical disability. Then it got a lot harder.

“There was a very well-known comedian who everyone knew, who all the kids knew, too, who made jokes about my appearance, about how I should die,” Gabriel says. “He found it funny that I’d get drowned in a pool. It was really overwhelming. It had a psychological impact that lasted several years.”

As kids teased him at school, using Ward’s routine as ammunition, Gabriel says he entered a period of depression. He thought about killing himself. “I really question how the debate would have ensued if I had gone through with that.”

In 2012, Gabriel’s family made a complaint to Quebec’s human rights commission (Commission des droits de la personne et des droits de la jeunesse), which enforces Quebec’s human rights code at an arm’s length from government. The commission brought a case against Ward to the province’s human rights tribunal on their behalf.

In 2016, the tribunal found the effect of Ward’s comments—no matter their intent, since good intent is not a defence in human rights law—was to ostracize Gabriel and infringe on his rights to dignity and honour. It ordered Ward to pay $25,000 in moral damages and $10,000 in punitive damages to Gabriel, plus $7,000 to his mother. “Ward recognizes that he does not concern himself with the feelings of the victims and their families when he writes jokes,” the decision states. “The Tribunal is convinced that Ward could not have been oblivious of the consequences of his jokes on Jérémy.”

Ward appealed. In 2019, the Quebec Court of Appeal upheld the decision but dismissed the damages awarded to Gabriel’s mother. A dissenting judge found the case should be dismissed altogether, and would’ve been more appropriately weighed in a civil defamation suit. Ward appealed again.

***

In February, for the first time, Canada’s highest court will consider whether a human rights tribunal was right to award damages to the subject of a comedian’s stand-up routine. On its face, the case pits freedom of speech against the right to dignity and protection from discrimination. As modern culture warriors skirmish over the same delicate balance, this gives the Supreme Court of Canada a rare opportunity to weigh in. Despite how wed the case is to Quebec’s legal context, it is garnering attention across the country.

The appellant, Ward, stands ready to defend artistic expression, contending lawyers and judges and quasi-judicial bodies should not define the limits of an art that at its very core is meant to provoke. For Gabriel, now an adult, the case, still being argued by the human rights commission on his behalf, is about recognizing the harms of unrestricted speech on vulnerable members of society. It is about seeking justice for the marginalized.

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Ward and Gabriel seem to agree on what a judgment in either’s favour may mean, though they strongly disagree on which is the preferable outcome.

If justices throw out the lower courts’ decisions, the two acknowledge, it could signal that artists can get away with saying just about anything in this country, no matter how obscene or hurtful or discriminatory. If they do the opposite, it could signal that new avenues of recourse are available to those who have suffered harm due to someone else’s words—their words alone—in situations that could go even beyond comedy.

Both believe they are on the side of the angels. Both fear a slippery slope and abuse of the system should the other prevail. Neither sees much humour in any of it.

***

Mike Ward says he never wanted to hurt Jérémy Gabriel. And he says he wouldn’t make the same joke today. Tolerances have changed over the years. If open mic audiences were offended by the joke then, he says, he’d have spiked it. He thinks they’d be offended now. “The response I want is laughter. I don’t want people leaving my show going, ‘He’s a monster,’ ” Ward insists. “I like people being uncomfortable for half a second. The thing I love most about comedy is when you go, ‘Oh, f–k, I can’t believe he or she said that, and I can’t believe I laughed at that.’ I like it when they judge themselves.”

Ward says his intent was never to ostracize Gabriel by making light of his disability. He sees himself doing the opposite. “People treat disabled people like they’re less-than,” Ward says, describing witnessing discrimination against a friend who has cerebral palsy. “I’ve always tried to treat them like anyone else. Making fun of someone is showing you respect them enough to mock them.”

The lower courts agreed Ward targeted Gabriel because he was famous, not because he was a child with a disability. Ward’s lawyers argue freedom of speech should be applied broadly to comedians and other artists, so they can criticize those in the spotlight and expose societal hypocrisy.

“There is this irony that the comedy bit he was doing was about people you can’t make fun of in the province,” says Cara Zwibel, director of the fundamental freedoms program at the Canadian Civil Liberties Association, which is intervening in the case. “And it turns out, I guess, that he was right.” The association argues courts have paid too little attention to artistic expression, and offensiveness alone isn’t enough to suppress speech unless it rises to the level of hatred. The case offers a good opportunity, Zwibel says, for the Supreme Court to reaffirm freedom of expression outside those careful limits.

If courts decide that comedic intent has no legal bearing, artists will self-censor and avoid teasing individuals whose differences—race, sexual orientation, religion—are protected, argues Walid Hijazi, a lawyer for the Association des professionnels de l’industrie de l’humour, another intervenor. “A comedian’s going to be afraid that it will be labelled as discrimination, that he might get into trouble with the state, that he might be sued,” Hijazi says. “That creates a chilling effect that is incompatible with humour.”

Christelle Paré, a Just for Laughs executive and a part-time professor at the University of Ottawa, agrees. “If we start being super nice because we are afraid of financial negative impacts, eventually that is going to shut creativity,” says Paré, who wrote a chapter about the case in the 2020 book The Dark Side of Stand-Up Comedy. “That is going to shut counter-discourse.”

Ward was well-established and able to self-fund a defence, Paré notes, while the Gabriel family paid no legal fees; those were covered by the commission. Few comedians could fight a fine, let alone pay one.

There is a fundamental difference between disliking a joke and believing it should earn financial penalty, says Andrew Clark, who runs a comedy program at Humber College in Toronto. Anyone wary of where the legal precedent could go will find themselves defending Ward’s right to joke about anything, he says, even if in this case the joke is “obviously in bad taste.”

Ward took the 2016 decision personally, he says, and began obsessing over the concept of free speech. That year, he performed a show about the saga at the Edinburgh Festival Fringe. Much of the comedy world backed him up. Of about 15 solo comedy shows that debuted in Quebec in 2016, Paré remembers at least 10 included a line like: “Well, I’ve got to be careful, otherwise it’s going to cost me $42,000.” Joe Rogan invited Ward on his podcast in 2018 and opined the original joke about Gabriel was “not even that particularly mean.”

As Ward gained notoriety, he committed an ultimate irony, Paré writes in her book chapter: “He dressed himself as a victim, in the clothes of the same sacred cows he once ridiculed.”

***

This case is not about free speech in general, or discrimination in general, argues the commission. It’s about a specific person who suffered specific harms. “What the commission says is that it’s basically bullying. If you were doing that on school grounds, you’d be told it was bullying,” says lawyer Marie-Hélène Beaudoin, at Woods LLP in Montreal. “But now, somebody’s making money off of it.”

Ward’s comments were “derogatory in nature” and “made for personal economical gain,” not for reasons protected under freedom of expression, such as truth-seeking or self-actualization, argues the International Commission of Jurists Canada, which is intervening in the case. Because the comments were proven to have caused mental distress, its factum says, Gabriel’s right to dignity should prevail.

Ward leaving the Quebec Appeal Court on Jan. 16, 2019, in Montreal (Ryan Remiorz/CP)

Ward leaving the Quebec Appeal Court on Jan. 16, 2019, in Montreal (Ryan Remiorz/CP)

Comedians already accept some limits, argues Beaudoin. Freedom of speech doesn’t protect someone who thinks it’s funny to booby-trap a theatre and watch people fall down. Most comedians today would be careful about the way they frame a joke about someone’s racial characteristics.

Though he decries the “comedy of persecution” and sees many comedians as acting with vicious intent, Gabriel rejects the idea the courts are dabbling in censorship. Ward is simply being held to account, he says. “We’re responsible for what we say. Having freedom of expression doesn’t mean being free of all consequences.”

Gabriel’s experience sounds familiar to many, says Jewelles Smith, with the Council of Canadians with Disabilities. “Mocking him and saying, ‘Aren’t you dead yet,’ that’s a thing people with disabilities hear all the time,” she says. “It’s incumbent upon adults to educate ourselves on the harm of some of our words.”

Smith dismisses Ward’s argument that mocking a person with a disability puts them on a level footing with others. “You can’t treat a group equally in the negative things until they have equal status in society.”

She takes issue, too, with the idea Gabriel’s celebrity made him fair game. At the time, he was still a child. His performances were a novelty. He already faced barriers in the arts. Now 24, Gabriel is studying political science at the Université Laval and working part-time as a hospital stretcher-bearer. Although his musical career never took off as a full-time gig, he still writes songs and has put out a couple of singles. He released one, called I Don’t Care, in 2016, the year of the tribunal decision. “I’m not an easy victim,” the lyrics go. “Now, it’s plain to see! I don’t care what they think about me!”

***

Because this case is so rooted in the Quebec human rights code, a system particular to the province, it’s difficult to predict what ramifications the Supreme Court’s ruling may have elsewhere. Justices could offer clarity on how lower courts should go about finding the delicate balance between freedom of speech and freedom from discrimination, and vindicate either of this story’s main characters. By the same token, they could comment only on jurisdiction—whether the tribunal was an appropriate forum in the first place—and stay mum on the bigger questions. Either way, close attention is being paid to the case outside Quebec, says Mariam Shanouda, a lawyer with ARCH Disability Law Centre in Toronto. “It signals to the rest of Canada how these issues are approached,” she explains.

A comedian was fined for his jokes once before in Canada. In 2011, the British Columbia Human Rights Tribunal ordered Toronto comic Guy Earle to pay $15,000 for insulting a lesbian patron with homosexual slurs during a Vancouver comedy club’s open mic night. In 2013, the province’s Supreme Court affirmed the finding that Lorna Pardy suffered long-term psychological effects from the 2007 incident. The case was never tested before the Supreme Court of Canada. (Maclean’s reached Earle’s then-lawyer, James Millar, who abhorred the decisions: “That case drove me to quitting the practice.”)

In other democracies, it is rare but not unprecedented for the law to intervene. Take Dieudonné M’bala M’bala, a French comedian now seen as a far-right political figure, who keeps company with the likes of Jean-Marie Le Pen and Mahmoud Ahmadinejad. Starting in the early 2000s, his increasingly controversial material about Jewish people and distortions of the Holocaust first earned criticism, then criminal prosecution. He was convicted eight times under anti-Semitism laws and banned from performing in several French cities. Dieudonné’s is an extreme case. Most of the time, controversies over particular jokes play out in the court of public opinion. The market has its say, too—people pay to watch comedians they find funny, even those considered problematic.

In the United States, “public figures” constitute a special category under the law and cannot succeed in defamation suits unless lawyers can prove “actual malice.” It’s almost unheard of for legal actions against comedians to succeed. Donald Trump, for example, got nothing when he sued Bill Maher in 2013, after Maher asked him to produce a birth certificate proving he wasn’t “the spawn of his mother having sex with an orangutan.”

***

So, 12 years after Mike Ward wrote a joke, nine years after its subject filed a complaint, five years after a tribunal made a decision that captivated the province of Quebec, here we are. Waiting for a final verdict, unsure whether it will prove a landmark case or an anti-climactic end note capping a decade of animus between two people who’ve never spoken to each other.

Upon receiving his first letter from the commission, Ward assumed the family just wanted money, he says. If the routine was so injurious, they would have asked him to stop. He knew his jokes were taboo. But he balked at the idea they could be taken so seriously. He didn’t realize their effect until he saw Gabriel’s face in court.

Gabriel says his family, for their part, assumed reaching out to Ward would embolden him to escalate the ridicule. That he’d show them the door. They believed the fact Ward didn’t ask for permission to mention Gabriel in his act was a show of bad faith (though that’s not something comedians do).

“I still wish Jérémy Gabriel had reached out to Mike Ward,” says Christelle Paré, from Just for Laughs. “Knowing Mike Ward, he would probably have offered to Jérémy, ‘I’m going to teach you comedy, and you’re going to roast me.’ That would have been a Mike Ward reaction in a parallel world.

“I wish that that’s the kind of thing people would do in the future. If you get offended, don’t see humour as something that is extremely threatening. Humour is a tool that can be used both ways. You can attack, or you can defend yourself with it, too.”

What would happen if Mike Ward and Jérémy Gabriel sat down together, even now?

To suggest they could come to an understanding sounds idealistic. To suggest they could laugh together sounds patently absurd. We’ve stopped believing that two people in two opposite silos can find any common ground. There’s a reason this tale of two solitudes sounds so familiar.


This article appears in print in the March 2021 issue of Maclean’s magazine with the headline, “Two guys walk into the Supreme Court.” Subscribe to the monthly print magazine here.