More than six months after closing arguments, the BC Human Rights Tribunal has yet to decide if comedian Guy Earle violated the BC Human Rights Code when he allegedly targeted Lorna Pardy and her girlfriend with sexist and homophobic insults at Zesty’s on Commercial Dr in 2007.
“We can’t ever say when the decision is expected as it depends on the workload of the members and their schedule,” a tribunal staff person says.
The decision will take longer than usual, the person says, since two tribunal members’ contracts, Judith Parrack and chair Heather MacNaughton, expired on July 31. “We are short board members at this point and that means that the remaining members and acting chair are short-handed.”
The Pardy case, which was extensively covered by regional and national news outlets, brought into question the place and purpose of the tribunal, with many bloggers and columnists asking, “Do we really need the Human Rights Tribunal?”
Xtra asked various stakeholders of the tribunal, as well as opponents, if the gay community needs the quasi-judicial body.
Conservative columnist Ezra Levant is an outspoken critic of human rights tribunals. In 2006, Levant published cartoons depicting the Muslim prophet Muhammad in his magazine Western Standard. Syed Soharwardy, head of the Islamic Supreme Council of Canada, filed a complaint with the Alberta Human Rights and Citizenship Commission.
Levant believes the gay community should be especially wary of governmental regulation of speech and text.
“Until quite recently, gays and lesbians were targets of state censorship because their ideas are transgressive,” he says, pointing to Little Sister’s experiences with Canada Customs.
“Even in San Francisco or Amsterdam gays are a permanent minority, and permanent minorities should always be afraid of government power,” Levant says. “They should stand up for the right to be eccentric, dissident.”
Herman Nilsson, a former Vancouver Pride Society board member, agrees with Levant that the tribunal has no place ruling on areas such as free speech.
Nilsson thinks the “rate with which these cases have been showing up at the tribunal has accelerated” since the BC Human Rights Commission was abolished and all its responsibilities were delegated to the tribunal. “In the last year and a half, we’ve had the Pardy case and the Mark Steyn case,” he says.
The BC Human Rights Tribunal dismissed the Canadian Islamic Congress’s complaint against Maclean’s in October 2008, saying Steyn’s article contained inaccuracies, relied on common Muslim stereotypes and tried to rally public opinion against Muslims, but did not violate the Human Rights Code’s section prohibiting discriminatory or hateful speech.
Nilsson stops short of saying the tribunal should be abolished completely, comparing such a move to throwing the baby out with the bath water.
“If we were to get rid of the tribunal in its entirety there would be a gaping hole, in my opinion, as far as people who have legitimate grievances,” he says. “It’s an unfortunate fact that prejudice is out there and there are people who won’t rent apartments to people if they suspect they might be gay. There are people who’ll take a woman in an interview and suspect she’ll have a child and pass over a resumé.”
Levant maintains other existing courts are faster, cheaper and fairer. “Important stuff is covered by real life, criminal law, landlord law and employment law,” he says. “We already have real courts to deal with those things. If you’re evicted wrongfully, [your] lease is broken, you can hit him in civil court and get more money out. If someone fires you from your job for being gay, watch out for employment law.”
Former tribunal member Lindsay Lyster disagrees. She says the tribunal is the only body that has jurisdiction to protect gay people from discrimination in this province.
“For the gay community, like any other community that has historically and continues to be subject to discrimination, it’s essential to have access to an effective means for the protection of human rights,” she says.
“In order to have protection from discrimination you need to have a statutory body to provide that protection,” she continues, pointing out that courts have made it clear there is no independent right to seek protection from them for discrimination cases.
“Pursuing [Charter cases] in court is far more expensive and difficult than proceeding before the human rights tribunal,” she says. “So it’s only available in respect to government action and far less accessible than the Human Rights Tribunal.”
For Kimberly Nixon it’s a deeply personal issue. In 1995, she filed a complaint with the tribunal after Rape Relief rejected her because she was not female at birth.
Nixon says the tribunal was the only place she could turn to for help.
In 1997, Peter and Murray Corren filed a complaint with the tribunal over the public school system’s failure to include LGBT information in course curriculum. The case ended when the provincial government reached a settlement with the Correns that acknowledged the omission and potentially paved the way for more queer content in schools.
“So many queer issues have been settled in our favour because the BC Human Rights Act, the former Human Rights Commission and now the tribunal exist,” says Murray Corren. “Had we not been able to access the tribunal during the initial stages of the marriage case, and had we not had the clout of the tribunal behind us, I don’t think my late husband, Peter, and I would have been able to achieve the things we did through our settlement with the Ministry of Education.”