By Jessica Murphy-BBC News, Toronto
https://www.bbc.com-image copyright Marie-Josée Boisvert/Michel Grenier
A decade ago, as part of his stand-up act, a Canadian comedian began telling a joke about a disabled young singer. This is how that joke ended up in front of the country’s top court.
Jeremy Gabriel was born with Treacher Collins Syndrome, a genetic disorder that can affect facial bone structure and, in his case, caused severe deafness.
Despite this, he fulfilled his dream of becoming a singer, performing for public figures from songstress Celine Dion to Pope Benedict XVI – all before he reached his teens – and achieving minor celebrity status in his home province of Quebec.
In 2010, a popular Quebec comedian, Mike Ward, known for his dark and edgy comedy, put together a 90-minute stand-up act.
Alongside the thorny issues of race and religion, it targeted what he called the “sacred cows” of the province’s celebrity star system, people who in his view were for various reasons – too rich, too powerful – seen as out-of-bounds for mockery.
The repercussions of that show have been followed for almost a decade in Quebec and will culminate on 15 February, when the lengthy legal battle over a joke Ward told about Gabriel in that act will be heard by Canada’s Supreme Court.
As part of the show, Ward took aim at, among others, the likes of Quebec-born singer Céline Dion and her late husband Rene Angelil.
He also takes on Gabriel, who’d by then become known in the press as “Petit Jeremy” and who had released an album and autobiography.
The bit about Gabriel had Ward describing how he’d mistakenly believed the boy’s condition was terminal, and eventually tried to drown him. He also joked about Gabriel’s appearance in relation to his disability.
On the page or in court documents, stripped of Ward’s delivery, it can be hard to see why the audience laughs, but they do, and heartily.
Ward chides them: “I didn’t know how far I could go with that joke. At one point I said to myself, you’re going too far, they’re going to stop laughing. But no, you didn’t.”
The show was performed live over 200 times between 2010 and 2013, with copies sold online.
Gabriel first came across Ward’s jokes about him in 2010, when he was 13 and starting high school. Already bullied, he says Ward’s act added fuel.
“I couldn’t go a day without being told one of his jokes,” says the now 24-year-old.
He felt targeted due to his disability, and began to withdraw socially and thinking seriously about suicide. But Gabriel’s family never reached out directly to the comedian about it.
“Due to the nature of the jokes, due to what was being said, we thought we wouldn’t be taken seriously,” says Gabriel.
Then in 2012, they heard Ward on a popular news programme discussing the joke.
“Comparing himself to a cocaine addict, he said that he needs to make jokes that go too far,” court documents state.
That’s when the family filed a human rights complaint.
When Ward’s case was brought before the Quebec Human Rights Tribunal – a specialised court that handles cases related to discrimination or harassment under the provincial rights charter – the comedian lost.
The tribunal found he had “exceeded the limits of freedom of expression” and that his joke was discriminatory on the basis of disability.
He appealed, and in a 2019 split decision, the Court of Appeal mostly upheld the tribunal’s ruling, as well as C$35,000 ($27,500; £20,000) awarded to Gabriel in moral and punitive damages.
The court’s “intention is not to restrict creativity or censor artists’ opinions”, said the ruling, but “comedians, like any citizen, are responsible for the consequences of their words when they cross certain lines”.
Ward had already decided that if he lost, he’d seek to take the fight to Canada’s top court.
“Comedy is not a crime,” he said in a statement after the Court of Appeal decision. “In a ‘free’ country, it shouldn’t be up to a judge to decide what constitutes a joke on stage.”
He said the crowd’s laughter “already answered that question”.
Ward has said he is refusing to pay the damages “not for myself, but for the young comedians, the comedians of tomorrow”, arguing it’s fundamental to the craft that comedians be allowed to take risks.
And he contends because Gabriel was a public figure, he was open to satire.
Gabriel argues: “It’s not because you’re a public person that you no longer have any rights.”
“A line has been crossed – I firmly and strongly believe that,” he adds.
Many comedians, in Quebec and elsewhere, have rallied behind Ward. Just For Laughs, the world-renowned Montreal comedy festival, hosted a show a few years ago to help him pay his legal costs.
The support comes amid concern in stand-up comedy circles that it’s found itself pulled into the debate around political correctness, free speech, censorship, and cancel culture.
There’s a fear of a chilling effect on comedy.
Michael Lifshitz is a Canadian comedian born with Multiple Congenital Musculoskeletal Abnormalities and uses stand-up to educate people on disability.
When the case was first made news headlines, he used to joke “I’m going to sue myself for the jokes I make about my disability, because I’ll admit, some of my jokes are not politically correct.”
He says he doesn’t want to be treated differently due to his condition – even if that includes it being the butt of a joke – and sees the case as a lost opportunity for changing social attitudes around disability.
“I’m not sure how a court case really moves the issue of inclusion forward or prevents other people from becoming victims of bullies,” he says.
He sees it as a slippery slope.
“I think it’s a dangerous precedent when the court says what you can and can’t say – that should be left to the court of public opinion.”
Ahead of the Supreme Court hearing, Gabriel says both sides in the case have dug in.
“I think it’s important to stand up for what you believe in. I think that’s what I did and I think that’s what Mike Ward did” when he decided to continue to fight the tribunal decision, he says.
“I also stick to my beliefs that freedom of expression is not freedom from consequences.”
On his end Ward has quipped in the past that if he loses this last round, he’ll “move to Syria, or Saudi Arabia, or some other country that respects free speech as much as Canada”.