If you're not filled with a great dread by this, you haven't been paying attention, and I am afraid I haven't time to explain to you why this is such a terrible thing right now, but rest assured, this is a terrible fucking thing.
It's also worth bearing in mind it was a situation like this that did Lenny Bruce in. If history teaches us anything it's that history teaches us nothing.
From Daily Extra:
The BC Supreme Court has upheld a decision by the BC Human Rights Tribunal which found that Lorna Pardy's complaint against comedian Guy Earle and the owners of Zesty's restaurant was justified.
Pardy filed a human rights complaint against Earle and Zesty's (now known as Zawa's) in 2007, saying they discriminated against her when Earle shouted homophobic and sexist slurs at her during and after his performance, and broke her sunglasses.In her testimony to the tribunal, Pardy said Earle called her a "fucking dyke" and a "fucking cunt," suggested she take her girlfriend home and fuck her up the ass with a strap-on, and suggested somebody stick a dick in her mouth to shut her up.Pardy also testified that Zesty's owner and manager Salam Ismail "did not intervene to prevent the tirade or the harassment from continuing."
On April 20, 2011 the Tribunal ruled in Pardy's favour.
Earle and Ismail turned to the BC Supreme Court for judicial review. They argued that Section 8 of the BC Human Rights Code, which prohibits discrimination by any service or facility customarily available to the public, should be declared unconstitutional because it is "impermissibly vague, overbroad and an unjustified infringement of the right to freedom of expression guaranteed to all Canadians."
"The prohibition has the potential of a chilling effect on free expression," they told the court.
Earle is disappointed with the BC Supreme Court's June 19 decision against him and Ismail.
"This is a total breakdown in common sense and makes a mockery out of justice, but what else is new?" he tells Xtra by email. "So the bottom line is that in BC, a comedian must not make a remark that a human rights tribunal member later finds to be discriminatory. It's unbelievable."
In his 87-page decision, Justice JS Sigurdson says the limits on freedom of expression in Section 8 are a reasonable limit on free speech and are, therefore, constitutional.
The judge rejected Earle and Ismail's request for a declaration specifying that Section 8 "was never intended to apply and does not apply to the content of entertainment and the arts, such as the standup comedy performance in the case at issue."
"I do not think that [Section 8] requires a provision that it does not apply to artistic performances or comedic performances in order for it to be minimally impairing," Sigurdson writes. "The Tribunal must consider the factual context of a complaint which would include whether the alleged violation of [Section 8] formed part of an artistic performance."
Sigurdson is satisfied that the Tribunal gave "due weight" to the context in this case. "In the restaurant that night, Mr Earle was an emcee who reacted to the disruption caused by the movement of some patrons, including Ms Pardy, to a new table (by the restaurant management). Ms Pardy and her companions that night were not hecklers. And Mr Earle was not giving a comedy performance when he launched into his tirade of ugly words directed at Ms Pardy."
Based on the words and conduct of Earle that evening, his right to freedom of expression was "minimally infringed," Sigurdson rules, and the Tribunal correctly balanced Earle's right to free speech with the Charter-protected values of equality.
"In the end, this is not a case about the scope of expression in a comedy performance or an artistic performance," Sigurdson rules. "It is about verbal and physical abuse that amounts to adverse treatment based on sex and sexual orientation."
Sigurdson illustrates his points, in part, by including some of Earle's comments from that evening in his decision:
"Do you have a strap-on? You can take your girlfriend home and fuck her in the ass." "You're a fat ugly cunt. No man will fuck you; that's why you're a dyke. You fat cunt." "Somebody shut her up. Put a cock in her mouth and shut her the fuck up."
Sigurdson also cites the February 2013 Whatcott decision in noting that the proper application of Section 8 reasonably imposes a "minimal impairment" of freedom of expression. In that decision, the Supreme Court of Canada upheld part of a 2005 Saskatchewan Human Rights Tribunal ruling against Bill Whatcott, a self-described Christian activist who distributed flyers targeting gays and lesbians.
To the extent that it affects expression, it "only does so in connection with discriminatory conduct in the course of providing a service customarily available to the public," Sigurdson says.
Earle maintains that he did not single out Pardy or her friends because of their sexual orientation. He says he did it "because they were disrupting the show" and describes their behaviour as aggressive, combative and abusive.
"It is gob-smacking stuff - that an artist is not protected during an act," he writes. "I have been out of work for six years now. My crime was providing a stage for amateur comics and volunteering my evenings for a dead art form."
Pardy's lawyer could not be reached for comment before press time.
"I haven't read the decision yet," Ismail says. "So I don't know why they decided that and I'll talk to you once I've read it."
Here’s Earle’s response from today, via Laughspin.
I am thoroughly disappointed and disturbed by the British Columbia Supreme Court review of the BCHRC process against me. I was very confident that the court of the land had the sense to see the fundamentals of this case but I underestimated the power of bad publicity. I was never drawn into a “he-said-she-said” debate. I believed in the inherent ridiculous nature of this claim to begin with. In fact, I have never offered a true defense of my words or actions because I never thought it necessary, as again, my lawyer and my focus has always been on constitutional issues. We are fighting for artists no matter what I said or am proposed to have said.
Truthfully, my complaint and companions were not “singled out due to their sexuality” nor were they “intimidated”. They were rude and obnoxious and threatened me physically, off stage. Their behaviour was unsocial when I was trying to defuse tension after a debacle of a comedy show; it happens. I never called them the ‘c’ word – my rebuttals were always in the form of jokes – with punchlines and setups; 1,2 and 3.
Now the Supreme Court of British Columbia has decreed that I am a liar. I am currently, six years, virtually unemployable – I am challenged daily to provide for my family. I have been painted a homophobic monster, which I am patently not.
Obviously, we have to fight this – appeal it – whatever it takes. This is a dangerous precedent to set. The bottom line is that any words uttered by a comic on stage can be taken out of context (or even fabricated) and put before an HRC member and if that member finds the material offensive, it will be deemed discriminatory. I have said it before, stand-up comedy is the canary in the coal mine of free speech; when they start locking up the comics, you’re next. Ironically, I am fighting for the very tenants that support the expression of alternative view points and lifestyles.
I played the part of an edgy comedic host to unruly, aggressive, unchecked hecklers. I gave them three warnings and they persisted, at which time, I opened up on them. They were verbally abusive to me, said horrible things about my mother, talked about attacking my neck with a broken beer bottle and made many more crass comments designed to hurt and belittle me. At one point, they followed me out to the road and yelled at me demanding to know what my annual salary was. Apparently, the complainants girlfriend was “more of a man” than me because she earned more money. It was a juvenile, tactless and hateful display of alcohol driven bravado of which I have been six years paying for in reputation. I am a perceived liability.
When I started into them, one of the audience turned to her friend and said, “Ya know, we could take him to the HRC for saying this stuff…” Imagine what kind of response that is going to illicit from a hardcore, socially driven, idealistic comic. Of course, I used this opportunity to try and educate them about the ethics and mechanics of ‘free speech’ at a comedy show, in the style of Lenny Bruce, George Carlin – “no holes barred commentary”. I was out-maneuvered by a wall of pathological ignorance. It can happen to the best of us, admit it. People, who haven’t seen me perform, call me a hack comic – I was upholding the essence of the principles of authentic urban stand-up. In a live setting, my retelling of what I actually said, gets a laugh EVERY time – but not in BC.
In fact, I didn’t discriminate at all. I actually, in jest, accused them of not really being lesbians – I suggested they were “drunk – in college – and experimenting” – same material you would hear at any comedy club. Had this show been in a proper comedy club, instead of a pub, the girls would have been thrown out after the third warning and none of this would have ever happened.
This was conceived as a quick cash grab that has ballooned into a full-on façade. Legal advisors will recommend paying a fast settlement over lengthy court battles but we could not let this transpire based on issues of freedom of speech, especially concerning the speech of a comedian on stage, during a comedy show and especially in response to hecklers. I will continue to fight. I have no choice in the matter; these results are against everything I have worked on and have taken away an artform that I have loved since I was a toddler. I’m grief struck and momentarily at a loss but the war wages on and we won’t lose it, no matter how many battles it takes.
I am unclear, at this stage, what my appeal process will be or what legal representation or tact I will employ. I am open to suggestion and comments of support. Email me at email@example.com.