Front Burner - The joke that made it to the Supreme Court of Canada

Episode Date: February 17, 2021

More than a decade ago Canadian comedian Mike Ward told a joke about a disabled young singer named Jérémy Gabriel. Marie-Danielle Smith on the questions it raises about freedom of speech versus discrimination.

In the Dragon's Den, a simple pitch can lead to a life-changing connection. Watch new episodes of Dragon's Den free on CBC Gem. Brought to you in part by National Angel Capital Organization, empowering Canada's entrepreneurs through angel investment and industry connections. This is a CBC Podcast. Hey, I'm Jamie Poisson. Today on FrontBurner, we're going to be talking about a joke. A joke that over the last decade has actually wound its way up to Canada's Supreme Court and sparked a debate over free speech and marginalized people in this country. I'm joined today by Marie Danielle Smith of Maclean's Magazine.

She recently wrote a really interesting feature on this case that we're going to dig into. Hi, Marie. Thanks so much for being here. Thanks for having me. So a lot has happened for this case, this joke, essentially, to get to the Supreme Court. And let's talk about how this all came to be, starting with who's involved here. Jeremy Gabriel was the subject of this joke, and he was just a kid when this all started. And who is he, and how did he become a bit of a celebrity in Quebec? Yeah, so Jeremy Gabriel, he was born with Treacher-Collins syndrome. That's a condition that causes malformations of the head and severe deafness.

That's a condition that causes malformations of the head and severe deafness. When he was six years old, he had an operation. That's one of 23 surgeries that he had during his childhood. And that operation implanted a bone-anchored hearing aid. It allowed him to hear 80 or 90% of sounds. And once he was able to hear, he learned to sing. And he really loved singing. And his mother helped vault him into the spotlight. So 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 he serenaded the Pope in Rome. And by the time he was 10, he was regularly on television and had published an autobiography. Okay. And then on the other side of this, there's this comedian, Mike Ward, and he has a pretty substantial following in Quebec. And in 2010, for the first time, he makes a joke about Jeremy. And I know that this was in French and jokes, sort of offensive or not, are hard to translate, obviously. But I'm wondering if you could tell us what that joke was and also the setup that he gave leading up to the joke. Yeah, so I mean, it helps to understand a little bit what Mike Ward is

famous for. He describes his comedy as something that tries to provoke, tries to make people feel uncomfortable, tries to make people judge themselves for what they're laughing at. Some people like me because I'm mean and they'll be like, oh, I like it that he makes fun of this group or that group. I really don't like that because I don't think I'm making fun of certain groups. I'm just talking about them. So by the time he got into this legal battle, he had had a very well-established career in a comedy industry that was very proud of him. So yeah, it was actually around 2008 that Ward started testing jokes in the bar scene that

riffed off of an idea that Quebecers refuse to laugh at certain sacred cows in their society. So he poked fun at celebrities like Guy Lepage, Céline Dion, Louis-José Eudes, Ariane Mafat, and Jérémie Gabriel. Right, and so what did he start saying about Jérémie? Yeah, so at the beginning of the bit, this is a jaunty guy in a wrinkly shirt. He's got an adult-only audience, and so far they've been laughing along with everything that he's been saying in his one-man show. At the beginning of the bit about Jérémie Gabriel,

he refers to him as the kid with a subwoofer on his head in reference to-man show. At the beginning of the bit about Jacques-Aimé Gabriel, he refers to him as the kid with a subwoofer on his head in reference to his hearing aid. He describes defending him for his bad singing, telling people that, you know, at the time when Gabriel was singing for the Pope, oh, the kid is dying, he's living his dream, let him live his dream. And then he describes finding out that Gabriel doesn't have a terminal illness. He's not a make-a-wish kid. All it is, Ward says, is that he's ugly. He asks why the kid isn't dead yet.

He says he tried to drown him at the water slides, but he's unkillable. And the audience laughs along with all of this. At the end of the routine, Mike Ward says he wasn't sure how far he could take the joke. And then he chides the audience for having laughed at it. Was this just a one-off, or were there more jokes about Jeremy? Did he keep making the same joke? So he kept making the same joke. He first tested it out at open mic nights,

then he added it to his one-man show and performed it about 230 times from 2010 until 2013. That show was also sold on a DVD, and meanwhile, he also published online several comedy videos that featured Gabriel as a character. For example, one of them joked about pedophilia in the context of his singing to the Pope. Another one insinuated that his mom was looking to make money off her son. So this was sort of a major subject for Mike Ward at the time. And people are always laughing at these jokes. It looks to be the case as far as in terms of the clips that we have of Mike Ward performing the act, yeah. He's not a killer. I saw him last year at the Moncler, he was sitting there, I tried to drown him, he's not a killer. He's not a killer.

Okay, so these jokes were made a while ago, right? When Jeremy was just a young teenager. He's 24 now. But I know that first his family made a complaint in 2012 to the Quebec Human Rights Commission, which escalated to the Human Rights Tribunal. And what was this complaint? What argument did the family make at the tribunal? So the argument is basically that these words, Ward's comments, had caused significant harm to Gabriel and had infringed upon his right to dignity. The first time that he saw the material, Gabriel was 13 years old.

He says the material sent him into a state of depression. Kids bullied him at school using the jokes as their ammunition. He thought about killing himself. It was horrible during all these years to be a teen, to be a successful artist with all those comments, with all those laughs. So it was important for me to show that it's not acceptable. And so the Human Rights Tribunal in the end, in 2016, ended up finding that Ward's comments did ostracize Gabriela, that they did infringe on his rights to dignity and honor. An intent, I should note, is not a defense in human rights law, so it doesn't really matter that Ward says he never intended to discriminate against Gabriel. And I'll just quote a little part of the decision. The judge found that Ward recognizes he does not concern himself

with the feelings of the victims and their families when he writes jokes. The tribunal is convinced that Ward could not have been oblivious to the consequences of his jokes on Jigami. And ultimately, the tribunal ordered Ward to pay $35,000 in damages to Jigami Gabriel and another $7,000 in damages to his mother. Okay. And I know that over the course of the last nine years, so this has been going on for a long time now, Mike Ward appealed this twice. And the fine at some point was lowered to I think about $35,000, right? And then this week, the case was heard in front of the Supreme Court. And can you tell me a little bit about what's been happening there? Let's start with Ward's lawyer. What arguments are they putting forward for why the Supreme Court should strike down the decision

from these lower human rights tribunals, these lower courts? Yeah, so most of the argumentation we heard this week was similar to what we've heard earlier. And it's basically a question of whether freedom of speech should be protected, except in severe cases where you can prove that hate speech or incitement to violence occurred. It was striking, though, this week to see how some new terminology made its way into the conversation. And Mike Wurzler made a bit of a splash. for example used a cancel culture to explain part of his argument that you know freedom of expression should ultimately prevail kind of invoking this broader debate the society is having right now if the majority view in the court of appeal was correct the whole notion of a stand-up comedian becomes questionable because who will dare at what point do we

will somebody say you lampooned by political convictions? You lampooned this and it hurt me. I have to have redress for what you've done. He said that the court needs to be careful because the test for limits on speech should not boil down to what he said society considers offensive at any given moment, what the standard of political correctness is, what an individual's feelings were hurt. And in a world where the standard has to do with hurt feelings, Ward's lawyer and a few interveners argued that, you know, there would be a chill on speech, especially in the artistic context. And Ward's lawyer ruffled some feathers on the court with these lines of argumentation. Justice Abella was questioning him on the relevance of political correctness

as a concept here. And when he suggested that Ward was actually treating Gabriel equally. I think in fact, it could be argued that Mike Ward provided equality for Jeremy by treating him the same as the other. Oh, come on, come on, come on.

Don't go that far. We're not talking about Galileo or Salman Rushdie here. He's no hero. Justices did not appreciate the hubris of that. Right, I saw that too. And you know, you mentioned these interveners. We're talking about like the Canadian Civil Liberties Association here. They're also concerned about the precedent that this could set, right?

That's right. The Canadian Civil Liberties Organization argued that this could set, right? That's right. The Canadian Civil Liberties Organization argued that, you know, satire is often offensive to the dignity of the target. It can be derogatory, repugnant, hurtful, offensive, but they say there should be a higher bar than that for satire to be prohibited under the law. Okay. And tell me a little bit about how Jeremy's lawyers have come back against those arguments made this week. You know, are they still making the arguments they did all those years ago that this is about discrimination? That essentially this went too far by trading on Jeremy's dignity, right?

Yeah, that's right. They've basically held fast to their original argumentation. It's the effect that matters. Maybe he wasn't chosen because of his disability, but the comments go directly to his disability. And there's no doubt about that. It's important to keep in mind that this is a discrimination case, right? It's from a human rights tribunal, not a defamation case in civil court. And so they're arguing here that we're not asking the court to define good taste or morality. It's about seeking remedy for a very specific breach of a very specific right of a very specific person, right? Under human rights law, the effect matters, the intent doesn't. And the commission argued that no matter what Mike Ward's intent was, his comments went towards

Gabriel's disability, and the effects were proven to be serious, so the right to dignity should prevail. Disability advocates told me that, you know, it's reasonable to allow recourse in this case where somebody was making money off of comments that exacerbated discrimination that people with disabilities already are bound to face, and the commission's lawyer in her argument said that comedy can be inclusive, but it can also be exclusive. It can be an insidious way to emphasize someone's difference and exacerbate their marginalization. So Mike Ward built his career on pushing up against the threshold,

and in this case, he went past it. But it wasn't a surprise. It was a characteristic of the kind of humour that Mike Ward has in his comedy routines. So there's a limit and the limit was overstepped. I would imagine on the other side of that, the concern is that all comedians make money, this is how they make their living.

So, you know, they worry about sort of like the slippery slope of this. Yeah, exactly. I mean, all of the lower courts agreed that Ward didn't choose to make fun of Gabriela because of his disability as well. It was because he was a celebrity at the time. So you have people basically concerned that it would be dangerous for public figures to be protected from criticism, you know, even when comments are insulting or unfunny. And Ward's lawyer was basically saying, you know, there's a public interest in being able to challenge the unchallengeable and sort of poke holes in celebrity. Any indication here of how the Supreme Court could rule? It's kind of hard to tell what they're going to do. This case is very wed to the rights context in Quebec and Quebec's human rights code. I actually had lawyers tell me that they thought it would be

unlikely for a similar case to make it this far in a province like Ontario. So the Supreme Court here, you know, they could offer clarity on how lower courts should go about balancing freedom of speech and other rights they could vindicate you know either of this story's main characters on the other hand they could decide only to comment on jurisdiction whether the tribunal was an appropriate form in the first place and stay among the bigger questions In the Dragon's Den, a simple pitch can lead to a life-changing connection. Watch new episodes of Dragon's Den free on CBC Gem. Brought to you in part by National Angel Capital Organization. Empowering Canada's entrepreneurs through angel investment and industry connections.

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In my new book and podcast, Money for Couples, I help you and your partner create a financial vision together. To listen to this podcast, just search for Money for Couples. You know, I know that you talked to both these guys, to Jeremy Gabriel and Mike Ward, and you know, they actually, they've never spoken to each other, right? And I find that so striking, you know. I think it's what makes this case a microcosm for so many disputes right now, I think today, where it seems like pretty rare that two people on opposite sides would try to come to a resolution privately or communicate privately, rather than escalating a conflict through legal means or through media. There are a lot of layers of assumption on both sides here. You know, Ward told me that when he first heard from the commission, he assumed that

Gabriela's family was just after money, that, you know, if they had been offended by the joke, if the jokes had caused harm to Gabriela, that they would have, you know, contacted him and asked him to stop. But they didn't. And he didn't realize how deeply they had affected Gabriel until he saw his face when they were making arguments in court. On the other hand, Gabriel, you know, assumed and his family assumed, he says, that reaching out to Ward would embolden him to escalate the ridicule, you know, that he'd show them the door. And they believe that because Ward never asked for permission to mention Gabriel in his act, that was a show of bad faith. Now, that's not something comedians normally do, but this was the belief that they had at the time. So you have to wonder what could have happened,

you know, if there'd been any communication between the two of them. One comedian I spoke to said, you know, she knows Ward, she thinks maybe he would have offered Gabriel a chance to learn some comedy and have Gabriel roast him on a stage. Now, that might sound like kind of an alternate universe fairy tale ending, but I think it's interesting to think about. Right, right. I mean, so it seems so impossible to imagine that now, considering they're both sitting on opposite sides of a Supreme Court case, you know, it's interesting that Mike Ward says that he doesn't think this joke would actually fly today, and that he wouldn't make the same joke today. And tell me a little bit more about what he said to you about that. Yeah, so you know, it's been about 12 years. And he said, it's been really

weird to see, I guess, the court of public opinion and then the actual court, Supreme Court justices, litigating a joke that he wrote that long ago. He says, you know, if audiences hadn't laughed at the joke at the time, he wouldn't have kept telling it. And he thinks that they wouldn't laugh today. So there's something to this idea that audiences evolve over time according to society's values, right? And he thinks the values have shifted. And he thinks that society, you know, ultimately will reward comedians by buying tickets to their shows, by laughing at their jokes, right? Or they won't. Right. You know, I have been thinking about this a lot around this case, you know, this quote that Mike Ward has, that he said at one point, you know, in a free country, it shouldn't be up to a judge to decide what constitutes a joke on stage.

And, you know, as you mentioned, that comedy has gone through years of debate, this debate about punching up versus punching down. And lots of comedians have come to the conclusion that they should punch up a powerful people, not down to more vulnerable people. You know, Dave Chappelle's jokes about trans people and sexual assault victims were an example of punching down. And a real flashpoint around this recently, he faced a ton of criticism, though, you know, I will say he hasn't really suffered any real consequences for this. But other comedians have, right?

Like, I'm thinking of Shane Gillis as an example who was immediately fired from Saturday Night Live. Four days after videos surfaced of the comedian referring to Asians by a racial slur and making homophobic jokes on his podcast. Chinatown's f***ing nuts. It's crazy. And also I'm thinking of 30 Rock's scrubbing of the blackface episode. And so, you know, is it possible that all these years later, we don't necessarily need the courts to weigh in here because the court of public opinion is actually doing it?

Yeah, I mean, that's really at the heart of this, right? Whether society should be allowed to catch up independent of the courts and to catch up with, you know, the protections that are afforded by human rights law. You could argue that society maybe wasn't altogether comfortable with all of those protections until recently, or maybe still isn't, right? And so is it valuable here for the Supreme Court in this very specific case to basically set a precedent and decide whether a comedian went too far or not? And there are so few examples of the law actually intervening in a stand-up comedy act. Once before in Canada, there was a guy, a comedian named Guy Earle, who got a $15,000 fine from the BC Human Rights Tribunal. He had used some gay slurs to make jokes about a patron at an open mic night,

a lesbian patron. And the BC Supreme Court upheld a decision saying that, you know, she had suffered long-term psychological effects from that incident and that he should pay the money. But that case was never tested by the Supreme Court of Canada federally. So this is really a unique opportunity for the court to basically decide whether it wants to weigh in on this. What about outside Canada? Have any other countries, you know, taken a run at this really complex and thorny issue? Yeah, so probably the best example is in France. There's the case of this comedian called Dieu Denis, which actually was invoked in the arguments of the Canadian Supreme Court this week. So he's a comedian who went well beyond the pale with anti-Semitic statements on stage,

and these were roundly seen as hate speech in the guise of comedy. And he was convicted eight times under French anti-Semitism laws and banned from performing in several cities. And this week, Mike Ward's lawyer pointed out that in Canada, those same comments would have risen to the level of hate speech too. And so that you wouldn't necessarily in that case need to, you know, lower the bar in terms of what can be considered something worth litigating. Over in the United States, public figures actually constitute a special category under the law. So celebrities almost never succeed in defamation suits unless lawyers can prove actual malice. It's almost unheard of. And as much as comedians are criticized

and they've always been criticized for their material, you know, you mentioned several comedians who've gotten into hot water in recent years. That father is not happening in a court of law. It's happening in the court of public opinion instead. Mm-hmm. All right, Marie Danielle, thank you so much for this conversation.

We're going to have to watch the Supreme Court decision really closely. I'm so interested to know where they're going to come down on this. Thank you so much. Thank you. All right, so before we go today, the federal government announced it is moving forward with its promise to impose stricter gun laws, introducing new gun control legislation. This includes a buyback program for barred firearms. The bill would also allow municipalities to ban handguns and increase criminal penalties for gun smuggling

and trafficking. That's all for today. I'm Jamie Poisson. Thanks so much for listening to FrontBurner. Talk to you tomorrow.