Should a bullying comedy routine be illegal? Canada’s high court may decide.

Listening to the joke now, in 2021, can be shocking.

He’s called ugly. The stand-up comic pokes fun at his hearing aid. The “he” in question was a 13-year-old boy named Jérémy Gabriel who has a disability. The comedian Mike Ward says that when he found out the child wasn’t dying, he tried to kill him.

Back then, in 2010, audiences roared. The bit was part of a popular routine attacking the “sacred cows” of Quebec society, including Mr. Gabriel, who was born deaf but against the odds learned to sing and became a Quebec sensation.

And now the Supreme Court of Canada must decide whether the routine discriminated against Mr. Gabriel, or whether it was a protected expression of Mr. Ward’s artistic freedom.

For those who are rallying behind Mr. Ward, including comedians and free speech advocates, many say they don’t necessarily like the joke. They wouldn’t tell it themselves. But they say the courts should not be deciding the legality of comedy routines.

For Mr. Gabriel’s family and many supporters, including human rights workers and disability advocates, this is more than an offensive joke. It is repeated speech that attacks an individual because of his disability.

The court must balance these rights at a time when social mores and public tolerances toward what we can laugh about are quickly evolving.

“The joke”

Mr. Gabriel was diagnosed at birth with Treacher Collins syndrome, which affected his facial structure and ability to hear. He underwent multiple surgeries and, with the help of an anchored hearing aid, learned to sing, gracing the stage as a 9-year-old with Celine Dion and even performing for the pope. In Quebec he needed no introduction; he was “Le Petit Jérémy.”

“The joke,” as it’s often called, may have entailed perfect comic timing for its howling audience, but it came at the worst possible time for the object of it. Mr. Gabriel had just started his first year of high school. It was hard enough to make new friends; students started calling him ugly in the hallways.

His parents urged him not to watch the replays of the adult-only shows available over the internet. But one day he flicked on his screen and listened to the two-minute segment that built up to Mr. Ward saying he tried to drown Mr. Gabriel at a water park when he found out he wasn’t terminally ill. “I thought it was not real. And then the people started laughing really, really hard,” Mr. Gabriel says. “And then I started to cry for the first time.”

Mr. Ward, on a circuit tour from 2010 to 2013, told that routine more than 200 times.

“He did not attack the fact that I was famous,” says Mr. Gabriel, now a university student in Quebec City. “He targeted the disability directly.”

Mr. Ward declined, through his manager, to be interviewed. But comedians have stood behind Mr. Ward, who’s known for his dark and edgy humor and took home comedian of the year in Quebec in 2016 and 2019. They say the joke has been taken out of context. It was part of a social commentary – pushing the boundaries as the best comedy does – about why it’s taboo to critique the icons of Quebec like Ms. Dion or Le Petit Jérémy.

Derek Seguin, an improvisational comic in Montreal, says his friend’s intent was never to injure Mr. Gabriel. “If you’re sitting in the room, you could feel that it’s not mean,” he says. “He’s a master of what he does. It was really, ‘Let’s play with this idea that people are often scared to play with.’”

In fact, Mr. Ward’s lawyer said in the Supreme Court hearing in February that by mocking Mr. Gabriel, his client had been treating him as an equal. “Come on, don’t go that far,” Justice Russell Brown responded. “We’re not talking about Galileo or Salman Rushdie.”

But Mr. Seguin says it’s not an absurd argument. At his own shows, sometimes he has audience members in wheelchairs. When he has teased them – “good way to get a front-row seat,” he’ll joke – they have approached him with thanks afterward. “They’ll say, ‘Usually people won’t look at me, or I’ll catch them looking at me and they’ll just look away. Thanks for just talking to me like a person.’”

Expression vs. dignity

The case has been touted as a high-stakes battle between freedom of expression and protection of dignity against discrimination.

The Gabriel family brought their complaint to the Quebec Human Rights and Youth Rights Commission in 2012. Four years later the province’s Human Rights Tribunal, which hears cases on discrimination and harassment, sided with the family. It ordered Mr. Ward to pay $42,000 (Canadian; U.S.$33,000) in total to both Mr. Gabriel and his mother. Mr. Ward appealed, and in 2019 the decision was upheld – although not in the case of Mr. Gabriel’s mother – at the Quebec Court of Appeal. He has appealed to the Supreme Court, which is expected to decide the case within a few months.

The case itself applies narrowly to Quebec, as it questions the balance of rights protected by the province’s charter of human rights and freedoms, and whether the tribunal had a place wading into a free speech debate. But, depending on how broadly the justices base their decision, the general principles of law could reshape speech across the country – and even internationally, says Pearl Eliadis, a lawyer and an adjunct professor at both the Max Bell School of Public Policy and the Faculty of Law at McGill University in Montreal.

As the fight has wound its way through the justice system over the past decade, a cultural movement has kicked up outside, from #MeToo to Black Lives Matter, and the pandemic has exacerbated disinformation wars. “We have a much stronger understanding of the importance of equality law and the ways in which speech can be used to silence minorities,” says Ms. Eliadis.

Christopher Bredt, a lawyer for the Canadian Civil Liberties Association, an intervener in the case, argues that a province’s human rights codes are subject to the Canadian Charter of Rights and Freedoms, and that the Supreme Court has already established that discriminatory expression can only be banned if it rises to the level of hatred.

“If the court lowers the standard of what gets protected in the context of the Quebec human rights code, then in effect, it permits the lowering of standards not just in Quebec but across the country,” he says.

“There’s no question that this was offensive and affected the dignity of Little Jérémy in the sense that nobody likes to be made fun of. But sometimes you have to accept that there is going to be expression that takes place that is offensive and harmful to people,” he says. To try and regulate it opens the door to censorship. “Try going to a comedy club in Russia and telling some jokes about Putin.”

Ms. Eliadis counters that this “essentialist view” of free speech doesn’t reflect the laws of Canada or international human rights law; here free speech isn’t as “absolute” as it is under the First Amendment of the U.S. Constitution.

“This really is a social choice at some level, about the extent to which a person’s right not to have their dignity affected, not to have harm caused to them because of the fact that they were singled out due to their disability, whether that is more or less important in this case than Mike Ward’s free speech rights,” she says. “I think we need to be vigilant about protecting free speech, but it doesn’t mean that people who are vulnerable, people who have disabilities, people who are from [racial minority] communities, women who are often targeted on social media in particular ... it doesn’t mean that all these people become roadkill in the name of free speech.”

Non-legal solutions?

When Mr. Seguin looks back at the joke, he says he feels empathy for Mr. Gabriel. Mr. Seguin is a father. He flinches when he recounts the joke’s last punch – Mr. Ward saying he couldn’t kill Mr. Gabriel so he looked up what he had, and found out it’s that he’s “ugly.” “His life must not have been easy,” Mr. Seguin says.

Jess Salomon, a Montreal-born comedian in Brooklyn, New York, who used to work as a war crimes lawyer in The Hague, also feels sorry for a child who was bullied at school, but is unequivocal that the question doesn’t belong in court.

“I’m not saying that there shouldn’t be consequences for comedians’ speech. But there are a lot of other things that make more sense as a consequence than being before the Supreme Court for what is clearly a joke,” she says.

Outlets for publicly expressing displeasure, for example, are everywhere. Patrons can talk to the venue or the tour promoter; they can skewer comedians over social media. They can walk out of the room.

But for Ms. Eliadis, that’s a right that the victim himself wasn’t granted. “Jérémy Gabriel couldn’t walk away,” she says. “He was the one who was targeted. Why is he deserving of less protection?”

As both sides await a decision, there is a sense of regret about how far it has all gone. Mr. Gabriel says he regrets the two never met; Mr. Ward has told other media outlets that he would not tell the same joke today. His friend Mr. Seguin says that, had they simply talked, he’s sure Mr. Ward would have shown Mr. Gabriel the generosity he says his friend is known for.

Dan Delmar, a political commentator and managing partner of communications at public relations consulting firm TNKR in Quebec, calls this a classic breakdown in communication.

“The case has gone too far, and it’s gone too far because we’re caught up in a bit of a social panic now on these questions,” he says. “I think as Canadians, we can come up with a better compromise.”