Several US blogs and media outlets have taken aim at Canada’s human rights system following a decision last month by the British Columbia Human Rights Tribunal ordering stand-up comedian Guy Earl to pay $15,000 to an audience member for insulting her. The owner of the restaurant were he was performing was also ordered to pay the victim $7,500. These US bloggers and media claim this case makes a mockery of our right to freedom of speech and expression.
The victim, Lorna Pardy, alleged that Earle directed homophobic and sexist insults at her when she was a patron and he was the master of ceremonies at an open-mike comedy show in 2007. To briefly summarize, when Earle believed a group of women—two of them appeared to be homosexual—to be interrupting his performance (because in his opinion they were intoxicated), he began yelling at the women to shut up. When they did not, he began hurling gender-specific and homophobic insults at them. (I dare not repeat them in this post.) When Earle approached Pardy after his performance, there was an altercation and he removed and broke her sunglasses. Pardy launched a lawsuit through the British Columbia Human Rights Tribunal, arguing that she was discriminated against because of her sex and sexual orientation.
Earle’s lawyer, James Millar, says his client is entitled to the freedom of artistic expression guaranteed by the Canadian Charter of Rights and Freedoms, which, he says, trumps Pardy’s complaint under the Human Rights Code.
According to the tribunal, the psychological impact of Earle’s conduct on Pardy was immediate, severe and lasting. Moreover, the impact was supported by credible evidence from Pardy and others, and by detailed, uncontradicted medical evidence. The tribunal found that Pardy’s claim was justified. Every one of Earle’s comments on and off the stage was directed specifically to either her sex or sexual orientation (or both). Therefore, his conduct constituted discrimination.
In relation to the owner of the restaurant where Earle was performing, the tribunal decided that at the time of the incident, Earle was an “employee” of the restaurant, within the meaning of section. 44(2) of the Human Rights Code, and his acts were deemed to be their acts for the purpose of considering liability for discrimination under the Code. Pardy suffered adverse treatment from both Earle and the restaurant. The owner of the restaurant failed to restrain Earle, protect Pardy from his verbal or physical assault, or otherwise take effective steps to remedy his treatment of her. As a result, there was a connection between the adverse treatment and Pardy’s sex and sexual orientation.
Various American bloggers and commentators seem to believe that this case is one of many that are bringing about the criminalization of free speech in Canada. They believe Earle’s right to free speech has been violated, that the human rights tribunal, and by extension the government, has censored Earle.
Earle and the restaurant at which he performed have raised the issue of freedom of expression in several hearings since the original tribunal case in 2007:
Is Section 8 of the Code unconstitutional in that it purports to unjustifiably limit Mr. Earle’s Charter right to freedom of expression?
They submit that the Charter prevents the Tribunal from dealing with allegations of discriminatory expression in providing a service to the public under s.8 of the Code.
They say the Tribunal can only deal with such expression if a complainant alleges that it violates the “hate speech” provisions of s. 7 of the Code.
Mr. Earle argues that his words and actions were protected expression under Section 2 (b) of the Charter “Everyone has the following fundamental freedoms: (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication…”
Section 8 of the Code states:
(1) A person must not, without a bona fide and reasonable justification,
(a) deny to a person or class of persons any accommodation, service or facility customarily available to the public, or
(b) discriminate against a person or class of persons regarding any accommodation, service or facility customarily available to the public,
because of the race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age of that person or class of persons.
(2) A person does not contravene this section by discriminating,
(a) on the basis of sex, if the discrimination relates to the maintenance of public decency or to the determination of premiums or benefits under contracts of life or health insurance, or
(b) on the basis of physical or mental disability or age, if the discrimination relates to the determination of premiums or benefits under contracts of life or health insurance.
After analysis, the tribunal found that the respondents could not challenge the constitutionality of s. 8 of the Code on Charter grounds before them, as the tribunal does not have jurisdiction to decide the respondents’ Charter-based free speech arguments. The tribunal has no power to hear a case on those issues for the BC Supreme Court.
Notwithstanding the above, the tribunal further stated:
I conclude that any defence by the respondents that Mr. Earle’s freedom of expression was a bona fide and reasonable justification for discrimination fails on both the facts and the law. Mr. Earle’s conduct was not reasonably related to any effort to deal with a disruption to the show. Mr. Earle was not engaged in exposing the stereotypes of others. Nothing about Mr. Earle’s asserted purposes in verbally and physically attacking Ms. Pardy on the basis of her sex and sexual orientation justified elevating his right to free expression over her right under the Code to be protected against his discriminatory conduct.
…Nothing in the comedian’s routine justified violating Pardy’s Charter-guaranteed protection from discrimination.
Earle’s lawyer said he plans to file an application for judicial review, arguing that the courts must decide whether the words that come out of a comedian’s mouth can violate someone else’s human rights. “What’s not in the judgment is my concern: a comedian comes under attack, claims protection under the Charter of Rights, and there’s no adjudication on whether this is protected speech or whether discrimination is a reasonable limit on the expression of a comedian on stage,” Millar said in an interview.
Overall, in my opinion, the findings and conclusion of the British Columbia Human Rights Tribunal are right. The tribunal took the Charter argument for free speech seriously but, correctly within the context of the existing BC human rights regime, ruled that Pardy’s right not to be faced with discrimination in a public place while being served trumped Earle’s Charter Right to say whatever he wanted.
However, this case is further evidence that the inherent conflict between constitutional freedoms and human rights is a never-ending source of litigation. Many say that tribunals have consistently upheld human rights legislation as a valid restriction on our fundamental freedoms, meaning human rights override fundamental freedoms.
It is very possible that Canada’s human rights system will perpetually face claims of unfairness due to the clash of rights, particularly the freedom of expression vs others. Hopefully, the law and the system can continue to evolve to clarify situations like this one. This may be a clear case of discrimination, but comedians and similar performers should benefit from clear precedent-setting case law that proscribes the limits they can go to in their acts.
The appearance of unfairness is an opportunity for us to examine the law as well as the conditions under which we live. In this case, the question is not just, Is it acceptable for an employee of a business to hurl discriminatory insults or comments at customers in public? Our laws make it reasonably clear that such behaviour is not acceptable. The question is rather, Do we want to live in a society where an employee can act that way? And also, Is it worth restricting a person or organization’s right to free speech in order to achieve that aim?
Maybe some American commentators are not ready to exchange those rights, but we have clearly chosen to do so.