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BC Supreme Court rejects Zesty’s comedian appeal

Entertainment not exempt from discrimination law, judge rules

Lorna Pardy leaves BC's Human Rights Tribunal after testifying in 2010. Credit: Nathaniel Christopher photo

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.”