Photo © Kevin Thom

If you’re a comedian living in Canada, it’s likely you’ve heard about this Guy Earle case. And for good reason.

In 2007, while dealing with a table of hecklers (Lorna Pardy and her girlfriend), stand-up comedian Guy Earle let loose a series of lesbian jokes (maybe homophobic slurs?) which later brought him in front of the Human Rights Tribunal. He lost the case and was forced to pay $15,000, which coincidentally is the annual income of the average stand-up comedian.

Last week the Supreme Court of British Columbia upheld the ruling.

So what does that mean for you, an improviser working (for free, probably) in Canada?

You have to deal with the audience’s suggestions every night. And most of those suggestions are “dildo.” What rights do you have?

Plus, you’re not perfect. Some scenes work, others fail. Most new jokes fail. And like all comedians, you love pushing boundaries. (Have you ever seen the Catch-23 improv game, “More Rape, More Retarded”? You’re probably better off if you haven’t…)

The question for every comedian in Canada is: What jokes are in your act that could get you pulled in front of the next Human Rights Tribunal?

More importantly, is Canada still a safe place for edgy, alternative comedy?

This question bothered me so much, I spent a weekend with a bottle of Glen Livet and the Charter of Rights and Freedoms and found out the answer. And it’s yes. Surprisingly, yes. Canada is a great, safe, liberal place to make jokes at the expense of others. But there are some limitations.

With the help of a few lawyer friends, I put together some easy guidelines (not actual legal advice, they made me say that), to prevent you from accidentally joking your way into Guy Earle-like martyrdom.

The Guy Earle case has taught me how much freedom we as comedians actually have, and how one stand-up could get absolutely everything wrong in a single set. So let’s get started…

1. There’s a big difference between playing a paid set and an open mic.

At an open mic or an improv jam, you’re a patron of the club just like everyone else. But as soon as you become a paid comedian, you could be considered an employee of the club. Now you’re subject to workplace discrimination laws, which are more restrictive than the “freedom of expression” afforded to you in the Charter.

Guy Earle wasn’t charged for Hate Speech (inciting violence towards a minority group, one of the few limitations of free speech), but rather discrimination in the workplace. Section 8 of the Human Rights Code protects minority groups from being harassed while obtaining a service available to the public. The Supreme Court ruled the heckler (Ms. Pardy) had the right to hear Earle’s act without being singled out as a “stupid dyke.” [324]

2. Your jokes about ethnicity, sexuality, and gender are protected by the Charter of Rights and Freedom.

Even if you’re being paid, most jokes you make are protected as free speech. Even if they are offensive. Even if they aren’t funny. Even if they seem racist, sexist, or homophobic to your audience. Or if you clumsily parade sensitive topics like rape, incest, or the Holocaust. You are welcome to act like a bigot onstage, provided you can argue that these jokes “expose prejudices” of bigots. [336]

Guy Earle argued that his interaction with Lorna Pardy was satirical: “an aspect of self-realization for both speakers and listeners.” Which is kind of insane. He argued he was pointing out the problems with homophobia, by directing slurs at an actual lesbian. But if the same exchange had occurred between two comedians onstage (or at least not directed at a specific audience member), Earle’s case may have been summarily dismissed. [453]

3. Leave what happened onstage, onstage.

When hosting a comedy event, you have to shut down hecklers. It’s one of your few jobs. (Others include pretending that last act was funny, continually asking: “Is everyone having a good time?” and sitting in the green room playing Kingdom Rush on your iPad.)

But shutting down a drunk, belligerent heckler is when things can get out of hand.

Do what you need to onstage, but don’t continue the conflict at the bar. Go home. Have a smoke. Get back together with your ex. Do whatever it takes to stop yourself from re-engaging with your heckler.

A big problem for Earle was that he continued to call Pardy names after the set was over. He even escalated events by breaking her sunglasses. It was impossible to justify Earle’s comments as “performance” after it continued away from the stage. [330]

4. A “justified response” has a lot to do with what has come before, and what your peers are doing.

Shutting down a heckler is a common practice in comedy. How other comedians deal with the audience is a great benchmark for how you should treat your audience. If you can prove your jokes are common practice, then it’s harder to suggest discrimination.

You don’t have to perform the same jokes, sketches, or shortform games as others, but as long as you’re in the same ballpark, these could be argued as “common practices.” But as my lawyer friend explained: “ultimately, it depends on context.”

One of Earle’s biggest problems was that he couldn’t prove his conduct was typical for a comedy club. Not when he personally dealt with hecklers. And it wasn’t part of his act. He couldn’t even prove that it was an average response for other stand-ups dealing with a hostile crowd. This part of the ruling made me wonder if Earle was even trying to win the case.  [332]

5. Clearly establish the heckler before ripping into them.

Asking “Who just said that?” is great protection for comedians. Shutting down a heckler is common practice (so it has a justified response), but accosting a random audience member out of the blue is not. Just make sure you have the right person first, then let your Reign of Burns begin.

Improvisers might also think about getting consent before bringing an audience member onstage. Or riffing with them in the crowd. You might be able to argue that by agreeing they are now a participant in the show. Which is an entirely different legal relationship.

Earle’s lawyers argue that just by Ms Pardy calling out, she involved herself in the show, making anything said part of the show. Unfortunately, no one could prove Ms Pardy heckled during the show. None of the other comedians or witnesses could confirm that fact. Another major fail for Earle.  [323]

6. This isn’t legal advice at all. It’s common sense: don’t be an asshole.

It has happened to every comedian I know. Something goes wrong in your set. You offend someone and then during or after your set you are confronted. Maybe you break every guideline listed above. If you do, find that audience memeber and make it right with them.

That doesn’t mean you have to apologize for your joke. But sympathize with their concerns. Try to explain your perspective on why what you said onstage is important. Don’t expect to change their viewpoint, but just by listening you lessen their outrage. The less angry they are, the less likely they are to take legal action.

Lorna Pardy has spent the last five years dealing with lawyers, testifying in court, and dealing with appeals. That’s a massive commitment of her life. No one wants to take legal action. No one thinks “I’ll sue that comedian wearing Modrobes pants from 1995 and then I’ll be rich!” They do it because their beliefs are important to them, and if they don’t stand up to you, no one will. So make it easier for them. Let them be heard.

Personally, I think Guy Earle could have prevented this whole situation with a simple apology afterwards. Instead his stubbornness and pride (how proud can you be when you’re hosting a Tuesday open mic at a place called Zesty’s?) allowed this to become a human rights issue.

This has become an important issue for comedians in Canada. None of us want to sit around making safe jokes about the suburbs (Whitby) and making fun of shitty universities (Lakehead).  Ethically, we are obliged to push societal taboos and challenge our audience. It is literally in our job description. So go ahead and keep doing it.

Just don’t get yourself sued. And if you do get sued, it’s probably because you’re a gay retarded Muslim woman rapist. (Thank you Charter of Rights and Freedoms.)

Special thanks to Alex Colangelo, Claire Farmer, and Katie Beahan.

Rob Norman is an actor, improviser, director, and a writer for Sexy Nerd Girl. He’s also a Second City alumnus and four-time Canadian Comedy Award nominee. You can catch Rob performing at Comedy Bar with the testosterone-infused improv juggernaut Mantown.