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Is Comedy the Sharp End of a Free Society?

A complaint before the B.C. Human Rights Tribunal, involving an allegation of discrimination against a stand-up comic, is attracting much attention and comment. I sense this is one case we’re going to be hearing about for a long time to come.
According to the Tribunal, Lorna Pardy filed a human rights complaint against comic Guy Earle and the owner of the Vancouver club (Zesty’s) at which he was performing in 2007. Pardy alleged she and her same-sex partner were “subjected to a tirade of homophobic and sexist comments” by Earle and that, as a result, she experienced harassment.
Earle denied that he discriminated against Pardy (while admitting his interactions with her were heated). He said that Pardy and her companions were “loud, disruptive, and heckled the comics who performed that evening, including him.”
Earle and the owner of Zesty’s applied in 2008 to have Pardy’s human rights complaint dismissed. Both applications were rejected by the Tribunal. Earle and Zesty’s appealed that decision to B.C.’s Supreme Court which reportedly sent the matter back to the Tribunal for reconsideration.
Now, almost three years after the dustup at Zesty’s between Pardy and Earle, the Tribunal appears on the verge of issuing a ruling on Pardy’s complaint.
As I’ve said, the case has attracted a substantial amount of commentary and both sides have their vocal supporters.
On the one hand, a casual observer might say, “She was in a comedy club - what did she expect? That’s what comics do.” On the other hand, Pardy’s supporters would assert she was entitled to enjoy the club’s services without being singled out and subjected to a “tirade” aimed squarely at her gender and her sexual persuasion.
The question of whether human rights protections should extend to a setting such as a comedy club is definitely a thorny one. It’s scenarios like this which are the basis for the legal truism that “hard cases make bad law”.
Earle was reported, in the Globe and Mail, as saying, “The point of stand-up comedy is that you can say whatever the hell you want on stage. It’s the sharp end of a free society.” 
He may be attributing a little more importance to the societal role of comedians than they warrant (if barbarian hordes sweep down on us out of the hills, will anyone be relying on comedians to stem the tide with their stinging one-liners?) but his point does seem to have resonated.
In my view, the commentary back and forth suggests that we simply haven’t decided, as a society, whether human rights protections should be extended to such settings. It’s an indication that the human rights regime we’ve let loose is an evolving one in which many of the areas on the fringe have yet to be charted.
One has to sympathize with the plight of the Tribunal in this situation. If our society, as a whole, hasn’t decided whether human rights protections should extend to the comedy club setting, then should we expect the Tribunal to be able to provide a satisfactory answer?
Does the fact that Pardy was allegedly heckling Earle justify his reaction? Surely not - if patrons at comedy clubs should be prepared to be singled out, certainly comics must also expect to be heckled. In any event, I think that “She started it!” ceases to be a reliable defence once we emerge from primary school.
Members of the legal profession know that hard cases, such as this, make for decisions that are susceptible to appeal. That being the case, Pardy and Earle and the owner of Zesty’s might prepare themselves for the long and winding road towards the Supreme Court of Canada.
Robert Smithson is a lawyer in Kelowna practicing exclusively in the area of labour and employment law. For more information about his practice, or to view past “Legal Ease” columns, log onto