Sunday, March 28, 2010

The Guy Earle Trial

When people do not respect us we are sharply offended; yet deep down in his private heart no man much respects himself - Mark Twain

I'm not offended by all the dumb blonde jokes because I know I'm not dumb ... and I also know that I'm not blonde -Dolly Parton

Whenever anyone has offended me, I try to raise my soul so high that the offense cannot reach it - Rene Descartes

My friends, being offended is one of the outgrowths of multiculturalism - Rush Limbaugh

No man lives without jostling and being jostled; in all ways he has to elbow himself through the world, giving and receiving offence - Thomas Carlyle

Men shrink less from offending one who inspires love than one who inspires fear - Niccolo Machiavelli

Justice consists of doing no one injury, decency in giving no one offense - Marcus Tullius Cicero

In seeking a Canadian community standard based on the average appreciation of art, the Court, in my opinion, is not limited to a settled national consensus. The average in community attitudes is better struck according to the range of exposure that particular art or art forms have had in the localities of Canada where art is exhibited. - Justice Bora Laskin, Canadian criminal cases, 1966, 304.

Earls and barons shall not be amerced except through their peers, and only in accordance with the degree of the offense - Magna Carta, 1215

Tomorrow marks the beginning of the Jewish festival of Passover, and Guy Earle's quest to free himself from the comedy- and wallet-killing bondage of three years of waiting and preparing to go to trial on claims being made against him at the British Columbia Human Rights Tribunal. As time allows, I will attempt to do some reporting on the Lorna Pardy v. Guy Earle HRT hearing this week; and so I thought I might preface this now with some accounting of the interpretive bias I bring to the event, if anyone is interested.

To this untrained legal eye, it seems that what is at issue in the Pardy vs. Earle/Zesty's case (background here and here, and here, and here) are potentially two quite different things: a claim of "discrimination" attending the alleged "jokes"/insults of Guy Earle, and a claim of "discrimination" attending the altercation that followed from the parties' heckling/jokes/insults and that, if the reports we have had so far are correct, turned violent.

Ostensibly, this is a case that turns not on that now-famous part of the "Human Rights" Code that aims to ban "hate speech", but rather on that part that aims to ban discrimination in the provision of a commercial service. I have no idea how previous cases in "human rights" law have played out in determing what qualifies as discrimination in the provision of a service. As far as I can tell, the plaintiff in this case was not refused service at the restaurant in question. Rather, in the perfomance of the service, a comedy "act", she claims to have been treated in a "discriminatory" manner. Now, one might easily ask, as I imagine the defendants will, isn't the very point of comedy to "discriminate" to make jokes? (bad or good, does it matter?) If so, can one make a claim of "discrimination" against a comedy act if one in fact has been the butt of a joke (good or bad)? And, I imagine the Plaintiff will argue in response that the humiliation she received was not part of any legitimate comedy routine: it just wasn't funny (in her eyes).

As for the question of the violence and destruction of property that allegedly flowed from the nasty exchange of words, I have seen it stated, though I don't know how true this is, that the police investigated the matter before declining to lay criminal charges. The question that thus arises: what claim on justice is being made when someone is allowed to pursue a matter outside of the criminal (or regular civil) law, almost as a concession, given that the case does not meet the standard for a criminal charge?

And how does the claim that one who belongs to a "protected group" should not be humiliated in the context of a comedy act (in this case discrimination is being claimed on the basis of gender and sexual orientation) limit what is, in my mind, a rather more fundamental human right - free expression? And, if humiliating someone is ever unacceptable to the "human rights" law, what is the test of unacceptable humiliation, since in life in a free society we surely have to put up with many little humiliations, since we cannot insist that everyone respect our idea of what should be sacred? And how can any law define a blasphemy against the sacredness of the so-called "human right" not to be discriminated against?

I will be interested to discover whether the BC Human Rights Tribunal has a disciplined approach to such difficult questions, an established case law, or whether their use of the vaguely-worded Human Rights Code is flexible, even arbitrary, and biased towards those who, by dint of their "protected status", can claim victimization and demand monetary compensation.

As may already be clear, I am quite suspicious of "human rights" law. Yet I am only interested in Guy Earle's freedom to be a possibly tasteless and rude comedian to the extent this is a defense of everyone's freedom - on questions of taste, each to her own. I have little idea whether Earle, as a humourist, deserves accolades or contempt and/or anonymity. I do not know if his conduct might, on another day, have led the police to lay criminal charges against him or, for that matter, against his rivals in a conflict that devolved into violence. All I sense is that we need be ever wary of substituting a desire for revenge for a true notion of justice. (An eye for an eye is a true notion of justice inasmuch as it aims to uphold a standard of fairness that will hopefully stop the ever-accelerating desire for a revenge that seeks one-upmanship, an eye plus one thing more.)

If someone can go to the Human Rights Tribunal and demand tens of thousands of dollars in compensation for a humiliating disturbance/assault that has not, it seems, met the test for criminal charges, exactly what kind of "justice" is the BCHRT dealing in?

That the criminal law in modern Canada no longer actually demands an eye for an eye, while the civil law is quite fair, procedurally careful, and thus quite time-consuming and expensive to conduct, may well help explain the historical factors behind the emergence of the desire for the kind of "cheap" legal therapy that "human rights" or "administrative" law seems to want to provide (though it too has become quite expensive to those who need to defend their interests). But even if so, this should not be seen as a legitimate excuse for therapy as a substitute for true justice (why does Canadian society pay for the large bureaucracies of "human rights" law instead of just providing needy plaintiffs - with reasonable claims - with the means to pursue complaints in regular civil courts?) Therapy, even when it throws dollars at you like a guilty parent, never really makes you happy or whole, in my experience; what does is a sense that one has been truly reconciled with justice, properly conducted, with the sacred traditions of our long-evolved legal and social order.

Here are some of the further assumptions I bring to this case:

First, I assume that if one cannot afford to tell jokes that risk offending someone, on the basis of their membership (whether this membership is ascribed, or freely chosen) in one or another "protected group", then much of the creative energy necesary to a free society will be seriously restrained.

In my view, the purpose of equality is not to tax and caution and scare our creative energies (however poorly we may use them), to stop us from expressing the resentments which are, to a degree, a necessary part of our creative energies. Rather, the purpose of the fundamental moral intuition of human equality is to make creative energy possible in the first place, through a recognition of our shared humanity and shared needs that, if they are to be served, nonetheless rely on the individual intuition and exercise of a shared freedom.

Anthropologically, the original purpose of human equality was that it was necessary to generate our shared human language. Or, in other words, the use of human language by its very nature implies a certain equality among those who trade in the signs of language. Our language, unlike anything in the animal world of pecking orders, creates the possibility for anyone to address every other member of the human scene as a whole - every other equal user of language, every member of a collective consciousness - and thus signify a difference that others can then re-cognize, modify, and use in relating to each other.

The purpose of equality is to have equal access to the scene of language in order to say, this is different from that. Recognizing, trading, reformulating, differences is how we build complex societies through the reciprocity of exchanging differences.

So, we should only resist acts of differentiation, or discrimination, that do not provide a basis for reciprocity, however basic or crude this reciprocity may be. We should only resist acts of differentiation, or discrimination, that truly banish one or another from the scene of exchange. But once we are all together on the scene of exchange, it is a free exchange of our differences that we need - for only thus can we learn how to best serve our ever-evolving human needs (most basically, our need to stop our society from freezing up through arbitrary restraints on freedom, and thus turning violent).

Nothing is more offensive, to my mind, than those who are keen to be offended by their share in the rough and tumble of free exchange. Our shared freedom is based on a fundamental trust that we not seek - through misuse of guilt, law, or violence - to limit others' freedom unless they truly have limited ours in some unjust way. We should remember the difference between justice and revenge. We should remember the difference between being unjustly excluded from the scene, and the desire to appear as if we have been excluded from the scene if this can win us opportunities in a society that is overly keen to redeem "victims". In short, we should not offer ourselves, nor anyone else, as victims, should we find ourselves in a society that worships its victims to the point of creating them unnecessarily.

We begin with equality in the exchange of linguistic signs, so that we can differentiate things and engage in a reciprocal exchange, re-affirming equality only to renew the basis for an ongoing exchange. If we attempt to reverse this equation, and work backwards to insisting upon deference to some absolute equality, we are attempting not to uphold human rights but rather to deny their free exercise. We are denying a basis for true reciprocity. We are attempting to insure that nothing ever happens that could offend our sense of a foundational equality. In short, we are demonstrating bad faith in the free exchange of differences. We are forgetting that the need for reciprocity is just as fundamental as the need for equality. We are attempting to stop history from happening too much. And, taken to its logical conclusion, we are pursuing the logic of a death cult - a world that needs victims in order to affirm its ideology - as the twentieth-century experiments in enforcing "equality" through the dictates of a socialist leadership should have taught us.

A human right is a guarantee of free participation. It is not a guarantee of any necessary result or experience of that participation. Free participation means unexpected and discomfiting things can happen. I am not free if you are not free. You are not free if I am not free.

Or, to put it slightly differently, "equality" is not meaningful until we see how it is used to differentiate one from another. In order for us to intuit the fundamental nature of human equality, we have to first move beyond it. We positively need to be offended or alienated, and at least a little resentful. Only then can we intuit what "equality" is - shared possibility, shared freedom - because the purpose of the "equality" we have just intuited in the act of being offended is its guarantee of an ongoing possibility, the promise of a way to recycle our resentment back into the shared human system.

Recycling resentment means having a hand in creating new differences, new discriminations. The success of the recycling can be judged by whether the new differences lesson or increase the overall amount of resentment that in turn will have to be recycled (one often succeeds in the short term, but no deferral of resentment lasts forever.) It's no good to "rectify" one person's resentment at being offended if the result is immediately to leave many more feeling offended by a sense of injustice, or loss of freedom. No society can sustain itself for long if revenge always gains the upper-hand over justice.

Thus I will be judging the BCHRT on the basis of its ability to distinguish the need to ensure equal access to the public scene, from the need for that scene to be used to differentiate one from another in maximally free or diverse ways (real diversity, not faux PC diversity). It is only through free differentiation or discrimination that others can hear, and accept or reject or transform one man's attempt at making a point. And such free-wheeling back and forth is the only process by which we can build an ethical social order.

If we shadows have offended,
Think but this, and all is mended,
That you have but slumber'd here
While these visions did appear.
And this weak and idle theme,
No more yielding but a dream,
Gentles, do not reprehend:
if you pardon, we will mend:
And, as I am an honest Puck,
If we have unearned luck
Now to 'scape the serpent's tongue,
We will make amends ere long;
Else the Puck a liar call;
So, good night unto you all.
Give me your hands, if we be friends,
And Robin shall restore amends.

A Midsummer Night's Dream 5.1

See Parts 2 and 3


skyhook8 said...

Good commentary. I look forward to your coverage of the trial.

Blazing Cat Fur said...

This is a weird one, stay on it Tru.

Anonymous said...

This is one of the ten best commentaries on Canada's human rights issues I have yet read. Thanks for a worthwhile contribution.

-Pete E