Free Expression Walks into a Bar: The Case of Mike Ward and the Future of Canadian Comedy: Part 1

Posted March 28, 2022
By Dax D’Orazio

This is part 1 of a 4 part series.

If you want to truly understand free expression and why it’s so vital for a democratic society, you need to immerse yourself in the margins of public discourse. An important subculture that often finds itself at these margins is stand-up comedy, where a variety of controversies are pushing the boundaries of free expression and attracting no shortage of public attention. 

Even if deliberately offensive comedy grates your own moral sensibilities, stand-up comics are an important litmus test for a society’s tolerance for free expression. This is because they can expand expressive possibilities, providing a particular artistic context in which absurdity, obscenity, offensiveness, and vulgarity are often entertained as a matter of good form. 

While this broader social purpose of comedy can easily go unnoticed, the Quebecois comedian, Mike Ward, has shone a bright spotlight on the issue. In October of 2021, the Supreme Court of Canada released its judgment in Mike Ward v. Commission des droits de la personne et des droits de la jeunesse, a case that raises a variety of important questions about the reasonable limits of both free expression and artistic expression. 

Over the next few months, I’ll offer a series of blog posts focused on the Ward case. This post is meant to be an introduction to the series, in which I’ll argue that comedy serves an important social function, one that’s equally relevant for comedy that most would consider a low value form of expression.

Let’s start with some background. 

The Ward case focuses on a (formerly) young singer from Quebec named Jérémy Gabriel, also known affectionately as Le Petit Jérémy. Gabriel experiences Treacher-Collins Syndrome, which results in an uneven development of facial and skull features. Over the years, Gabriel became a youth celebrity in Quebec, first impressing audiences while singing the national anthem at a hockey game at age eight. Born deaf, he surmounted extraordinary obstacles in developing his vocal repertoire. He has since sung in a number of esteemed venues across the world, including for the Pope in 2006, and then signed a book and record deal while gradually building a following. 

His consistent presence in Quebec media was one of those reliable feel-good human-interest stories: a child who has experienced much adversity in his life basking in the limelight and sharing his talent with the world. Gabriel was even an ambassador for the Shriners Hospitals for Children, directly assisting fundraising efforts that supported countless other children living with disabilities. 

Given this context, one might reasonably ask: What could possibly spoil this otherwise touching story? Well, stand-up comedy would, because that’s a part of its job: to completely shatter the sacred and the sacrosanct.  

Ward’s jokes don’t necessarily translate well into English, but the Anglophone press has captured the gist. He joked that, based on Gabriel’s appearance, he was essentially a soon expiring ‘make a wish’ child. He asked why, given Gabriel was not dying, Quebec society had become so transfixed on the child, because he was just ‘ugly.’ In Ward’s own words: “I was making fun of the fact that he had become famous because everyone thought he was dying and then he didn’t die, which is, you know, good for him.” 

Gabriel was 13 years old around the time Ward’s jokes about him began circulating in live shows, on television, and online. As a result of the jokes, Gabriel says that he was subjected to bullying at school and even attempted suicide. As Gabriel told a journalist: “When you’re 13 years old, just figuring out your own identity, just going into high school, and you are receiving that amount of bullying, that amount of negative attention, you don’t think it’s possible to go on.” 

Gabriel and his mother subsequently filed a complaint with the Quebec human rights commission (Commission des droits de la personne et des droits de la jeunesse) in 2012. The complaint was then referred to the Quebec human rights tribunal, which subsequently ruled that Gabriel was discriminated against based on the prohibited ground of disability in 2016. The ruling included a $42,000 fine, with $35,000 awarded to Gabriel (for general and punitive damages) and $7,000 awarded to his mother. 

Upon appeal in 2019, the Quebec Court of Appeal upheld damages awarded to Gabriel but not those to his mother. “Everything in his jokes were discriminatory,” said Gabriel after the initial ruling from the Quebec tribunal. To make matters worse, ostensible fans of Ward sent Gabriel harassing messages (including death threats) after his human rights complaint went public. Ward’s jokes drew unprecedented attention and then became one of the most recent free expression cases to be heard by the Supreme Court.

A key moment in the Court’s hearing was when Ward’s defence counsel, Julius Grey, made a provocative argument. He suggested that one could interpret Ward’s jokes as treating Gabriel equally by subjecting him to the same comedic scrutiny as any other public figure. For context, Ward’s jokes about Gabriel were part of a larger segment about sacred cows in Quebec society. Justice Russell Brown balked at the suggestion: “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.” Justice Sheilah Martin reacted with a similar tone: “We’re talking about somebody saying that they tried to drown a 13-year-old child that has a physical disability. So, let’s make sure we understand the stakes here and not plead the straw case.” 

Stand up comics of the Ward variety are rarely paragons of virtue or equality, but Justices Brown and Martin’s responses are the sort of thing that should give advocates of free expression and artistic freedom cause for concern. They seem to have overlooked the fact that the putative ‘heroes’ of free expression are rarely, if ever, presenters of popular arguments or ideas. The two judges were saying we ought to consider the social contribution or value of expression when calibrating Canadian society’s reasonable limits for expression. 

On this note, it’s probably difficult for most to see the broader social value in the expression of the Mike Wards of the world. For example, much of the public commentary on his case is quick to emphasize that the comedy routine in question is distasteful by mainstream standards, even for those that generally agree with the Supreme Court’s judgment overturning the lower court’s ruling against Ward. 

Nonetheless, it would be a grave error to equate the popularity of expression with its societal value. Before delving into the specific elements of the Ward case, including potential expressive harms in the context of comedy, I want to make a strong argument for the social value of comedy, even expression that might seem completely devoid of value at first glance. 

Comedy tends to arouse some truisms about the human experience. Laughter is a universal language. Comedy allows us to process grief and horror. Satire is a potent political weapon. But, is there a justification for defending comedy that deliberately pushes our personal and collective boundaries, or is plainly offensive? Is there any value in comedians who explicitly offend and provoke? 

The answer is yes, because every joke is a risk. The last people in society that we should want to take fewer risks are those who create art, including the creators of art that we just don’t or can’t understand.  

Even among seasoned comedians, the polished routines that audiences see are usually the result of countless hours of experimentation, refinement, and trial. Jokes often fail, and sometimes fail miserably. The inherent risk of a joke is also contingent upon context. A joke that gets a stand-up comic booed and heckled off stage in one location may provoke raucous applause in another. You might then say that the stand-up comic is bound solely by an artistic imperative to share what they subjectively think will be funny. How far one might be willing to go in the name of funny therefore depends upon our collective perceptions of acceptable expressive risks.  

Although the law provides us with some relatively clear boundaries for expression, our everyday talk and text is much more important for identifying and understanding those boundaries. As social beings, we perceive what’s acceptable or unacceptable to say in specific contexts in concert with a variety of others. Therefore, stand-up comedy ought to be understood as a sociocultural venue that finds itself at the margins of public discourse (and entertainment) for a good reason. It’s a place where subtle expressive boundaries are simultaneously rendered visible and then tested through artistic transgression and play. 

This is precisely why censorship can have such a caustic effect on artistic expression. 

If artists internalize expressive boundaries placed upon them by society, it’s more than likely that taking creative risks simply won’t be worth it. This potential for artistic risk-aversion isn’t something that we can easily quantify, but individual artists are always navigating expressive boundaries in real time. 

What expressive restrictions do is alter the creative calculus of the artist, who may consequently refrain from expression not because what they wanted to say would necessarily cause undue harm, but because they fear a response with which there can be no reasonable disagreement. 

On the side of audiences, a similarly important point about risk perception applies. Audiences are often willing to grant artists license that aligns with the latter’s potential social value (i.e. relatively wider expressive latitude) because taking that risk is probably worth the result (i.e. art that is enjoyable). If, however, audiences err on the side of risk-aversion, this easily translates into relatively less expressive latitude for the artist and perhaps less valuable art. 

Importantly, this doesn’t mean that there’s no merit in stand-up comics consciously designing their routines to be more empathetic and self-aware. As I’ll argue in a future blog post, some of the most exciting and talented stand-up comics do just that. The broader and more important point is that artists need ample expressive latitude to take risks in order to perform their social function. If they get too comfortable with risk-aversion, their art may suffer as a result. 

This is why society at large expects stand-up comics to push buttons. 

It’s the historic role of comics to erect a large mirror in which society may gaze and see aspects of itself not visible or addressed in other settings. Absurdity, hypocrisy, and satire are some of the most reliable raw materials for comedy with real social impact. 

But we can’t expect artists to deliver upon this desired social function if we don’t create spaces for them to take risks, or to fail. In this sense, analyzing the significance of the Ward case first requires an appreciation of the social role of comedy.

Stay tuned for the next blog post, where I’ll walk readers through some of the modern history of stand-up comedy while focusing on some important cases and controversies that illustrate the importance of comedy for free expression.