Is a verbal insult outside the jurisdiction of a Human Rights Tribunal?

About ten years ago when I was practicing law before I retired, I represented a man who was a tenant in an apartment building. He was a witness who was testifying against the superintendent of his building. The super was charged with mischief. Whenever he had an argument with a tenant (including my client) he would sneak into the parking garage of the building late at night and cause damage to the tenant’s vehicle. I was overheard referring to the super as a Polish Bastard. A few days later, I got a call from a young twit who said that she was with the Ontario Human Rights Commission. She warned me that if I call the super a Polish Bastard again. I would be charged under the Human Rights Act of Ontario. I told this young twit on the phone that I cannot be charged with telling the truth. I said the man is Polish and he certainly is a bastard. I further told her that if I hear from her or any other person in the Commission, I would make fools of them all. Needless to say, I didn’t hear from them again.

There is an interesting case being heard before a British Columbia Human Rights Tribunal. It is dealing with a major question, the question being; does the tribunal have the jurisdiction to deal with off-the-cuff personal remarks of a comedian or anyone else for that matter. The background in this case is as follows:

Lorna Pardy, an admitted lesbian and two friends were attending a Vancouver comedy club three years ago. Pardy testified that she went to Zesty's to meet her girlfriend and another woman for drinks on the patio. She was halfway through her second beer when the waitress told them that the patio was closing and they should go inside. Pardy said she had no idea that a comedy show was about to start. As they were being seated inside the restaurant, the group was trying to sort out their drinks order with two waitresses when the comedian on stage, Guy Earle started targeting them after he saw Pardy’s girlfriend kissing her on the cheek. Earle, a volunteer emcee at Zesty's restaurant's open-mic comedy night, called Pardy and her two friends "dykes," among other things, and made explicit suggestions about their sexual practices, apparently because he thought they were being disruptive. One of the things he said to Pardy was, “Someone should put a dick in her mouth.”

Making such a statement in a public place is not only out of place, its disgusting and being a comedian doesn’t give him or anyone else the right to make such an insult in front of other people. Earle may have felt that his performance was being disrupted but saying what he said wasn’t the proper thing to say. He could have said, “I am sorry folks but I will stop speaking and not continue again until the group over there has stopped their talking.”

Years ago when I was giving a performance on the piano at an old folk’s home, I could hear two woman talking so I stopped playing the piano in the middle of the piece and turned around and stared at the two women until they stopped talking. Then I continued with the performance. While I was playing the second piece, the two women began talking again. This time I stopped playing the piece, stood up and walked right out of the room. No amount of pleading by the management got me to return.

Pardy's lawyer told the hearing on March 29, 2010 that his client, a 32-year-old airport meteorological technician, has been diagnosed with post-traumatic stress since the May 2007 incident. Quite frankly, I find that hard to believe. All of us at one time or another has been insulted publicly and although we have been embarrassed, I think very few people have to be treated by a psychiatrist for post-traumatic stress syndrome. I think that she is making the claim in order to get money from the comedian.

The comic’s lawyer (Millar) withdrew on the first day of the human rights tribunal hearing Pardy's complaint. He was protesting a decision by adjudicator Murray Geiger-Adams to hear evidence before ruling whether the tribunal has jurisdiction to hear the case. The lawyer said that Earle's onstage comments were outside the jurisdiction of B.C. Human Rights Commission and its proceedings and if it proceeds, it could have a chilling effect on artistic expression. He said that what the comedian said to Pardy should be referred to as smack downing a heckler during a comedy show.

First of all, I don’t think ordering drinks should be considered as heckling albeit, it is disruptive. The waitress is at fault by taking an order while someone was talking through the mike on stage.

Millar's walkout may send the case back to the B.C. Supreme Court, which quashed the commission's first bid to hold a full hearing, citing questionable jurisdiction.
The right to free speech is extensive and we can say almost anything we want other than the following which is; alarming people, threatening people, defaming people and advocating treason, murder or genocide.

Calling someone a dyke and suggesting that another person should stick his penis in someone else’ mouth is disgusting but not illegal unless it can be proven that it would incite a public disturbance. It incited anger but not a public disturbance when Early made those asinine remarks.

Years ago when I was doing stand-up comedy, I was heckled by someone who said that he heard that joke before and it sounded better when he heard it before. I asked my audience to raise their hands if they heard that joke before. Only the heckler raised his hand. I then said to him. “If you didn’t go to the toilet before you left home, it’s OK for you to leave the room and go to the toilet now.”

For a comedian to swear at a heckler or say disgusting things to him or her is simply asking for trouble. I don’t know if the Tribunal will be forced to stop the proceedings against Earle but one thing I am sure of. His lawyer is billing him for his services. His stupidity will be costing him. I also believe that the Tribunal will be ordered not to deal with this issue. Whatever the decision is, I will write it up and later put it at the end of this article as an ADD ON.