In Canada, Did a Comedian’s Joke Go Too Far?

https://www.nytimes.com/2021/02/20/world/canada/canada-comedian-speech.html

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MONTREAL — About a decade ago, the comedian Mike Ward, of Quebec, mocked the voice of a well-known disabled teenage singer in a standup routine, roasting him for being off-key, making fun of his hearing aid and calling him “ugly.” But he said he had defended the boy to others because he would soon die. When the teen didn’t die of his illness, the comedian joked, he tried to drown him.

This past week, the question of whether a comedian has the constitutional right to offend came under a national spotlight at Canada’s Supreme Court after Mr. Ward appealed a decision that the comedy routine discriminated against the singer, Jérémy Gabriel.

The case, which has grabbed headlines, is a rare example of a comedy routine becoming the subject of the highest court in the land, and could have implications for free speech in Canada. Renée Thériault, executive legal officer at the Supreme Court, wrote by email that, to her knowledge, the case is “unprecedented.”

Comedy has long reflected the cultural mores of a nation, sometimes exposing the fault lines in a society and testing the legal limits of acceptable speech. Canada and countries the world over, including the United States, have come under intensifying pressure to respect minority rights, spurring a debate of where to draw the line between harmful speech and freedom of expression.

In Canada, which prides itself on its humanism, Mr. Ward’s case has been particularly polarizing.

On the one side are civil libertarians and artists who argue that offensive jokes, however egregious, are protected under the Canadian constitution’s freedom of expression provision. The Supreme Court policing comedy, they say, risks having a chilling effect on artistic expression across Canada.

Carissima Mathen, a professor of law and constitutional legal expert at the University of Ottawa, said that a ruling against Mr. Ward could potentially open the door to people in other provinces bringing legal cases against comedians that target them.

Under Canada’s constitution, the bar for interfering with freedom of expression is very high, according to Ms. Mathen, and generally requires extreme speech; for example, speech that promotes hatred against an identifiable group. “I don’t believe that Ward’s statements rise to that extreme level,” she said.

But Mr. Gabriel, advocates of disability rights and some human rights lawyers argue that even comedy should have limits, and that bullying a disabled teenager is discriminatory and violates the right to dignity, which is protected under Quebec law.

Mr. Gabriel has Treacher Collins syndrome, a rare congenital disease characterized by skull and facial deformities. He was born deaf and received a hearing aid implant at age 6. At age 8, he captured hearts across Quebec after singing the national anthem at a Montreal Canadiens hockey game. He went on to meet Celine Dion in Las Vegas, serenade Pope Benedict XVI at the Vatican and write an autobiography.

Mr. Gabriel, now a 24-year-old political science student in Quebec City, said in an interview that the comedy routine — and the raucous laughter it provoked — destroyed his self-esteem during difficult teenage years when he was already grappling with being disabled. As a result of the routine, he said he was bullied at school, and became depressed and suicidal, while his parents were crushed. He said that after his complaint against Mr. Ward, he also received death threats from the comedian’s fans.

“You are already dealing with prejudices when you have a disability and the process of self-acceptance is even harder when you are a teenager,” he said. “It became a thousand times harder when people were laughing at the idea of me dying. I felt like my life was worth less than others.”

Mr. Ward, through his manager, declined an interview request.

In the United States, Lenny Bruce was labeled a “sick comic” for his expletive-laced routines, and in 1961 he was arrested on obscenity charges in San Francisco. His defiance helped to clear the way for other iconoclastic comedians.

In France, the comedian Dieudonné M’bala M’bala has been repeatedly charged with violating anti-hate laws. He is widely associated with an inverted Nazi salute known as the quenelle. In 2013, he lamented that a prominent Jewish journalist had not died in “the gas chambers.”

In Canada, the Supreme Court case has alarmed the comedy world.

Sugar Sammy, a popular Canadian comedian, whose taboo-busting act has included roasting ethnic minorities, among many others, said he feared a potential ruling against Mr. Ward could encourage self-censorship and even force Canadian comics to emigrate to the United States. He said he was particularly alarmed about the deadening effect on improvisation, which requires being unfiltered. In the past, his pungent satire of Quebec nationalists has spurred outrage and a death threat.

“Whether we are talking about Lenny Bruce, Richard Pryor or George Carlin, the comedian’s role in society has long been to push boundaries and dare to say what people are thinking but are too afraid to say,” Mr. Sammy said. “Will I need to have my every comedy routine reviewed by a lawyer, or think before every joke whether I am going to find myself in front of the Supreme Court?”

Mr. Ward, a stand-up comic who has twice won “comedian of the year” in a prestigious Quebec comedy award show, has appeared on television internationally, and is known for his trenchant comedic style. In 2008, his joke about a 9-year-old girl who was abducted spurred death threats against him.

The Supreme Court case took root in 2010, when the comedian used his act to make fun of people in Quebec seen as being above criticism, and targeted celebrities like Celine Dion. He also targeted Mr. Gabriel and, among other jokes, made fun of his hearing aid, calling him “the kid with the subwoofer” on his head. The show was performed hundreds of times between 2010 and 2013, and disseminated online.

In 2012, Mr. Gabriel’s family complained to a commission enforcing Quebec’s human rights code, and in 2016, the province’s human rights tribunal ruled that the teenager’s dignity had been breached. Mr. Ward was ordered to pay 35,000 Canadian dollars in damages to Mr. Gabriel and 7,000 Canadian dollars to his mother.

After Mr. Ward appealed, the Quebec Court of Appeal in 2019 upheld the decision but dismissed damages awarded to Mr. Gabriel’s mother. “Comedy is not a crime,” Mr. Ward said in a statement after the verdict. A ruling is expected in the next few months in his appeal to the Supreme Court.

The divisions over the case were apparent this week at a Supreme Court hearing during which some of the justices, on at least one occasion, appeared outwardly irked by the arguments put forward by Mr. Ward’s lawyer Julius Grey.

Addressing the court’s nine justices, Mr. Grey argued the right “not to be offended” was not a right in Canada. Moreover, he contended that, by singling Mr. Gabriel out as a “sacred cow” that needed puncturing, he had been offering him a sense of “equality.”

The comment provoked an incredulous response from Justice Russell Brown. “Come on! Don’t go that far,” the judge told the court. “We’re not talking about Galileo or Salman Rushdie. He’s not a hero.”

Justice Sheilah L. Martin also weighed in. “We’re talking about someone who said he tried to drown a 13-year-old who has a physical disability,” she said.

Mr. Grey said in an interview that Mr. Ward’s comedy routine did not constitute discrimination. “Discrimination means depriving someone of a good or service — not laughing at them,” he said.

Mr. Gabriel countered that he was singled out for ridicule because of his disability and it had shaped his life.

“It is hard to live with the consequences of a joke targeting you over your disability,” he said. “I’m not sure how I managed to build my self-confidence after that. I have grown up since I first heard the joke. I want to move on.”

Geneva Abdul contributed research.