A comedian who was fined by the BC Human Rights Tribunal after a confrontation with a lesbian couple at a Vancouver restaurant is appealing the decision, arguing the province's human rights legislation shouldn't apply to stand-up comics.
The tribunal ruled in favour of Lorna Pardy, a gay woman who testified that Guy Earle shouted gay slurs and other insults at her and her girlfriend from both on and off the stage during a comedy show in 2007. Earle and the restaurant were ordered to pay a total of $22,500 in compensation.
The case became a flashpoint in the debate over whether provincial human rights bodies should be regulating speech, particularly the potentially off-colour jokes in a stand-up comedy routine.
Earle says in a petition filed with the B.C. Supreme Court that the province's Human Rights Code shouldn't apply to arts performances and asks the court to strike down the law.
"I can see no reasoning or law that says that the [Human Rights] Code has authority to restrict the content of a performer's expression," Earle writes in an affidavit filed with the court last week.
"I couldn't have known that I was subject to Section 8 of the code and that I did not have the protection guaranteed to all Canadians under the Charter or that I would be held up in the national media as a convicted homophobe."
Much of the public discussion surrounding the case has focused on whether Earle's jokes were offensive enough to justify a human rights complaint, but the tribunal's decision made it clear the accusations extended far beyond the content of his standup act.
Tribunal member Murray Geiger-Adams concluded Earle needlessly berated the women several times throughout the night, using gay slurs and other profanities both on stage and at the women's table when he wasn't performing.
Geiger-Adams concluded the women weren't heckling, but rather Earle's behaviour appeared to be in response to seeing Pardy and her girlfriend kiss.
Earle did not appear at the hearings because the tribunal wouldn't allow him to testify over the telephone, but in his recently filed affidavit, he disputes nearly all of Pardy's claims about what happened and says the tribunal's findings were wrong.
Earle insists the women were disruptive as they came inside Zesty's restaurant from the patio and began heckling him almost immediately. He admits to using a gay slur, but he downplays his use of the word and says he was simply calling out a heckler.
"Comics will speak of the 'perfect' way to handle hecklers, but the fact of the matter is that stand-up is spontaneous, often unscripted, and sometimes the comic will handle a heckler with elan and sometimes they will not," writes Earle, describing his response to Pardy as a "smackdown."
"Just as a judge is entitled to shut up people who are disrupting the proceedings, a comic is entitled to smack down members of the audience who disrupt the show."
Earle claims he did not become aggressive even when Pardy threw water at him, and he insisted it was Pardy who repeatedly approached him.
Earle was ordered to pay $15,000, while the restaurant and its owner, Salam Ismail, were fined $7,500.
Ismail has also filed an application for judicial review, making many of the same arguments as Earle. They are both also disputing the tribunal's finding that Earle, who was volunteering as an MC, was an employee of the restaurant.
Lawyers for Earle and Pardy could not be reached for comment.