Although controversial comedians give audiences endless fodder for discussion and debate, “never punch down” is the golden rule for humour for many Canadians. So when the Supreme Court of Canada ruled in 2021 on a Québécois comedian’s jokes about singer Jérémy Gabriel, its judges challenged Canadians to consider what comedy is about.Gabriel was born with Treacher Collins syndrome, a condition that affected his facial bones and hearing. After getting cochlear implants, he learned to speak and then to sing. He went on to perform for the Pope and with Céline Dion. He released an album and published his autobiography by the age of 10. Fans affectionately called him “le petit Jérémy.” When Mike Ward started making jokes about Gabriel back in 2010, Ward was in his late 30s and Gabriel was 13. For three years, Ward made fun of Gabriel online and in a live and recorded stand-up show called “Mike Ward s'eXpose.”Ward mocked Gabriel’s voice, appearance and medical diagnosis: “You know what he’s got? He’s ugly!” He joked that when he found out his illness isn’t terminal, he tried to drown Gabriel in a public pool. “Couldn’t do it, couldn’t do it. He’s unkillable,” Ward said, according to a transcript of “Mike Ward s'eXpose.”In 2012, Gabriel’s parents filed a complaint. The Human Rights Tribunal of Québec, eventually, ordered Ward to pay $42,000 in moral and punitive damages. In 2019, Ward took the case to the Québec Court of Appeal, which again ruled for Gabriel. But two years later, a 5-4 Supreme Court of Canada decision favoured the comedian’s freedom of expression and overturned the charges.Four judges saw discriminationFor four of Canada’s nine top judges, the Québec courts had got it right. In the 2021 Ward v. Quebec judgment, they reasoned that comedy doesn’t give anyone extra speech rights, and as a minor with disabilities, Gabriel had been doubly vulnerable to verbal abuse. Their view was that: “Mr. Ward preyed on Jérémy Gabriel’s disability and the way it manifests itself in order to make his audience laugh […] causing severe dignitary harm.”In short, Ward had punched down hard, well past the limits of the law.But for five of the nine Supreme Court judges, it was Québec that had overstepped. In their argument, the five deciding judges insisted that discrimination is not just about who is targeted, but how, and what happens next. Finding the Québec Charter of Rights and Freedoms too vague in how it attempts to protect human dignity, they drew heavily on a 2013 Supreme Court hate speech case that concluded that “Canadian law protects the victim’s social standing while forgoing protection of the victim’s emotional serenity.” The law, they noted, counts speech as hateful or discriminatory only when it causes harms that are “social and not mental, collective and not individual.”Punching across, not downThe fact that high school bullies had used Ward’s words to taunt Gabriel and even the fact that Gabriel had sometimes felt suicidal as a teen were irrelevant to the question of discrimination for the five deciding judges. Instead, they argued that with respect to discrimination, the most important responses to Ward’s jokes were fictional ones.“The reasonable person test,” at the heart of Canadian law, imagines how someone of ordinary intelligence and sensitivity, fully understanding but not personally involved in the situation, would likely make sense of it. Would Jeanne or Joe Average understand that Ward was not really trying to spread ill will toward Gabriel? The five deciding judges were confident that they would. And for them, this hypothesis was seemingly supported by the many actual people who did laugh at Ward’s jokes without later rising up en masse to commit hate crimes. Ward’s jokes about Gabriel were part of a longer bit, “The Untouchables,” that targeted Québec audiences and their almost religious devotion to local celebrities. For the deciding five judges, this setup mattered. Since Ward explicitly went after Gabriel on account of his fame, they reasoned in their judgment that his ridicule was “not based on a prohibited ground.”To them, the comedian had simply punched across — one well-known figure to another.What the ruling has meantSince the ruling was made, some human rights advocates have argued that the decision in Ward v. Quebec reflects “a stunning lack of understanding, and devaluation, of equality for people with disabilities.” They argue it has stripped away protections against “the growing and nebulous world of internet bullying and offensive remarks in virtual platforms.” Fo Niemi, executive director of the Centre for Research-Action on Race Relations, coined the phrase “the Ward effect” to show how this Supreme Court decision has also blocked hundreds of minority Québécois targeted by racial slurs.Yet other legal scholars have celebrated the ruling as an important victory against censorship of all kinds. In a YouTube video posted just after winning the case, Ward said that even though defending free speech for a decade made him age prematurely, it was worth it: “I think this is a good sign for comedy. I think this means the pendulum is about to swing the other way.” As an English professor who teaches and does research in critical humour studies, I am puzzled by what got left out on both sides of the Supreme Court’s split decision. Why didn’t the five deciding judges consider that public visibility is both harder to obtain and more costly for people with disabilities? Why didn’t they grapple with the reality of emotional abuse and the potential harms of humour? Didn’t they understand that they were setting a dangerous precedent by defining discrimination so narrowly?What is clearer than ever to me now, however, is that there are no infallible gods of laughter to hand down verdicts from on high, nor any foolproof formulas for evaluating jokes. Not even in Canada. Can jokes go too far? Our Supreme Court didn’t settle that question so much as it showed how truly unresolved this topic still is.Danielle Bobker's project, "Ward v. Quebec: A Case for Literary Critical Humour Studies," is funded by an Insight Development Grant from the Social Sciences and Humanities Research Council of Canada and has been supported by research assistance from Yara Ajeeb, Maia Harris, Paola Lopez, and Sophie Moulaiison, graduate students in English at Concordia University.