Speaking freely

By all reports, Guy Earle’s performance at Zesty’s in 2007 was rude, vulgar and not at all funny — the hallmarks of a third-rate and soon-to-be-former comedian.

Earle was hosting an open-mic comedy night at the Commercial Dr restaurant five years ago when this story began.

According to testimony later heard at the BC Human Rights Tribunal in 2010, Earle felt that Lorna Pardy and a group of friends disrupted his act. He responded by letting loose with what he no doubt considered to be some clever putdowns on the topic of their apparent lesbianism. Earle left the stage at one point for a break and Pardy hurled a glass of water in his face. He worked the dousing into his next set and continued to mock and humiliate Pardy.

At some point Pardy tossed another glass of water at Earle. Later, in a post-show verbal confrontation, Earle snatched the sunglasses off Pardy’s head and broke them.

The story should have ended there. Except that Pardy felt the affront to her dignity justified a complaint to the BC Human Rights Tribunal.

Unable to come up with anything more substantive, Pardy’s and the tribunal’s taxpayer-funded lawyers decided to invoke Section 8 of the BC Human Rights Code, which forbids us to “discriminate against a person or class of persons regarding any accommodation, service or facility customarily available to the public.”

What ensued was a Keystone Cops comedy of justice denied, presided over by tribunal member Murray Geiger-Adams. Earle was unable to attend hearings because he couldn’t afford the airfare; Geiger-Adams refused to allow Earle to participate by phone or any other newfangled technology; Earle’s pro bono lawyer, James Millar, sought a Supreme Court ruling that the tribunal had no authority to rule on the case, and Geiger-Adams chose to ignore the resulting Supreme Court direction that the tribunal not proceed with the case until the jurisdictional issue had been resolved. Dates were set that were impossible for both Earle and Millar, and proceedings commenced without their participation. Many papers were shuffled.

In May 2011 Geiger-Adams ruled in Pardy’s favour and awarded her $15,000 from the impecunious Earle and $7,500 from the owners of Zesty’s, which by then had been rebranded as Zawa’s. The tribunal also banned Earle from performing in this province — a power I was not aware anyone could wield.

This month, Earle’s advocate, Millar, brought the case back to the BC Supreme Court for “judicial review,” seeking to have the tribunal’s decision overturned on three basic points:

That Section 8 of the BC Human Rights Code is unconstitutional in that it is vague, overbroad and an unjustified infringement of Section 2(b) of the Charter of Rights and Freedoms, which guarantees “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication”;

That a comedian’s performance is not the “provision of a service” but an artistic expression;

That the tribunal’s proceedings were inherently unfair, denying Earle any semblance of due process.

It’s now up to BC Supreme Court Justice Jon S Sigurdson to decide whether to uphold or overturn the tribunal’s ruling.

Had it been up to me, I might have argued that Pardy did in fact receive the full benefit of the service provided by comedian Earle — and then some. But fortunately for everyone I’m not a lawyer.

Personally, I love comedians who really offend me. That’s why I read the opinion columns in the National Post. And as a 62-year-old gay white man, I find plenty to be offended by. It keeps the blood moving.

It may be that the BC Human Rights Tribunal has never before acted on a complaint involving an artist’s expression and that this case is an anomaly amidst the tribunal’s serious work dealing with cases where individuals have been denied employment, accommodation, goods or services because of their gender, race, sexual orientation or disability.

Anomaly or not, the fact that the tribunal proceeded on Pardy’s complaint, with reckless disregard for the BC Supreme Court’s instructions, is cause for interest, concern and even alarm.

Geiger-Adams’s interpretation of the BC Human Rights Code turns a useful legal instrument into a dangerous piece of legislation that empowers a bureaucrat to extinguish a citizen’s freedom of expression and run roughshod over lives and livelihoods. Tribunal members play at being judge and jury, without the procedural constraints imposed on real-life judges and juries, and all at the expense of the taxpayer, operating, in short, a kangaroo court.

As Ezra Levant commented on the case, “Does Commissar Geiger-Adams, the chief kangaroo, have some special, official sense of humour? So if he laughs, it’s legal, but if he doesn’t, it’s not?”

Yes, rightwing windbag Ezra. In standing with others who value freedom of expression above all else, one finds oneself in some pretty dubious company. But that’s the whole point of freedom of expression. Rightwing windbags, leftwing activists, authors of pedophile literary fantasies and third-rate comedians all have protection under the Charter to say, write, draw and publish whatever they wish, or none of us does. Unless, of course, approved by Mr Geiger-Adams.

Geiger-Adams seems to stand with Canadian Human Rights Commission “hate speech investigator” Dean Steacy, who is on record as saying that “freedom of speech is an American concept, so I don’t give it any value.”

Remembering clearly a day that Vancouver police raided the offices of the Georgia Straight to cart off boxes of comic books as evidence in an obscenity trial, I have a keen sense of where this sort of thing can lead.

To my mind, one of the most chilling turns of phrase, which appears often in writings on these topics, is “legitimate free speech.” The implication is that there is an authority that can be turned to to arbitrate on the legitimacy of someone’s expression of opinion.

Apparently in BC that authority is Geiger-Adams.

There is a school of thought, in which I am enrolled, that isn’t at all convinced that we should be giving unelected citizens with no judiciary experience the authority to rule on “legitimate” free speech. In fact, some members of that school go so far as to hold that all forms of speech should be arbitrated only by public opinion, as expressed in ticket sales and critical acclaim or disdain.

Reasonable people can disagree, and Simon Fraser University associate professor Özlem Sensoy outlined the prevailing orthodoxy in an opinion piece entitled “Ann Coulter and Free Speech? Hardly,” first published in the Vancouver Sun on March 25. It is all about power, who has it, who doesn’t, and how those who have it silence and oppress those who don’t.

Sensoy closes her polemic by stating, “You can’t say whatever the hell you want.”

I beg to differ. I will think and write and say “whatever the hell” I want, whenever and wherever the hell I want. Only publication editors, broadcast producers and theatre directors can determine whether I can say it in their particular forum. And nobody, certainly not Murray Geiger-Adams, gets to rule on the “legitimacy” of my free speech.