Supreme Court upholds right to tell jokes. Barely.
The Supreme Court of Canada has defended a comedian’s right to tell jokes.
I don’t know whether it’s more egregious that it took a decade of litigation to reach what should have been a self-evident conclusion, or that four of nine justices actually sided against free speech.
Before the decision was released, I felt as though it didn’t matter – Canadians had already lost.
“Supreme Court will rule Oct. 29 on jokes by Quebec comedian Mike Ward.”
This was a headline in the Montreal Gazette that drove home a sobering point about Canada. Culturally, we celebrate the export of Canadian comedy – Mike Myers, John Candy, SCTV, Just for Laughs, etc. Yet we’re also a country that has subjected a comedian – and more importantly his jokes – to ten years of legal battles, tens of thousands of dollars of fines, and huge sums of lawyers’ bills.
For those not familiar with the backstory, the case revolves around jokes Ward told in his act about a young, disfigured singer by the name of Jérèmy Gabriel, who shot to fame in 2005, at age eight, after singing the national anthem at a Habs game, performing with Celine Dion, and serenading the Pope. By the time Gabriel was 13, Ward was treating him as comedic material.
Maclean’s summed up the greatest hits:
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.
In 2012, Gabriel’s family complained to the Quebec human rights commission, which took Ward to a tribunal that ultimately ordered him to pay $35,000 in moral and punitive damages to Gabriel and another $7,000 to his mother. The tribunal chided Ward for not concerning himself “with the feelings of the victims and their families when he writes jokes,” which is apparently illegal.
After an unsuccessful appeal on Ward’s part to the Quebec Court of Appeal (though one of three judges dissented), the case wound up before the Supreme Court of Canada.
I suspect Ward holds the honour of telling Canada’s most-litigated jokes. As the Gazette article notes, “it is the first time a comedian’s jokes are being argued before the Supreme Court of Canada.”
This is not a milestone of which to be proud, especially since it’s unlikely to be the last. Even though the Supreme Court has vindicated Ward, it was only narrowly so – and Ward was on the losing side of every legal battle up to this point.
Some years back, the outrage mob was going after comedienne Tina Fey for some joke, prompting her announcement that she was “opting out” of explaining and apologizing for jokes.
Unfortunately, Ward has not had the privilege of doing the same. I imagine the only thing worse than joyless Twitter trolls parsing your jokes is Canadian jurists doing it.
This isn’t about whether Ward is funny, or whether his jokes were in poor taste. None of that matters in the least.
I shouldn’t need to say this, but ‘mean,’ ‘uncivil,’ and ‘unfunny’ – if one chooses to apply those terms to Ward’s bit – are not and should not be synonyms for ‘illegal’ in a free society. Such is the crux of the Ward case.
By sheer happenstance, today’s decision was released as the Liberals plan to reintroduce a bill that will vastly expand the government’s ability to prosecute people for online speech.
C-36, as it was known in the previous parliament, seeks to reinstate “hate speech” provisions to the Canadian Human Rights Act, making it a human rights offence to communicate speech “likely to foment detestation and vilification” online.
While the government insists this is only for the very worst expressions of speech, not merely offensive or humiliating speech (such as jokes, perhaps), that Ward’s comedy has been censured by a Quebec human rights tribunal and Quebec’s court of appeal is not a vote of confidence.
It’s often asserted as an unwritten rule that comics should punch up, rather than punch down. After all, it’s hard to come up with lower hanging fruit than a disabled child performer. Nevertheless, comic tastes are for comedians and audiences, not courts and tribunals, to sort out.
If comics are not allowed to slaughter sacred cows, then all that’s left are bits that simply parrot widely accepted social norms. Hilarious, right?
“Stand-up comedy will become goody-goody humour,” Ward’s lawyer Julius Grey argued before the Supreme Court.
As a consumer of stand-up, it’s already obnoxious to see how many comedians have been forced to subject their comedy to a level of political and cultural scrutiny that defies the purpose of comedy. It’s ushered in a generation of comedians who aren’t all that funny.
The late Norm Macdonald had previously spoken out against comics who seek applause, rather than laughter.
“There’s a difference between a clap and a laugh,” Macdonald said. “A laugh is involuntary, but the crowd is in complete control when they’re clapping. They’re saying, ‘We agree with what you’re saying; proceed!’”
No one should be clapping for a legal system capable of trapping jokes within it for the better part of a decade. Ward may have won the battle, but free speech is losing the war.
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