The180·The 180

The courts aren't the place to fight against cultural racism

Last month, an indigenous activist went to court to get the Cleveland Indians logo and team name banned from Ontario. It's not the first time a Canadian has tried to use the courts, or human rights tribunals to push back against cultural racism. But lawyer Anthony Morgan says it's not the way to go.
A sign at a 1997 Cleveland Indians game, and a blackface portrayal of P.K. Subban in 2014. ((Tony Dejak/Associated Press and Radio-Canada))

It may be 2016, but Canada's courts and human rights tribunals are not ready to deal with matters of cultural racism. 

That's the message from Toronto lawyer Anthony Morgan. 

Morgan says while he hopes that will change, right now the conversation about why instances of blackface, or the Cleveland Indians' use of Chief Wahoo as a mascot, are racist and offensive have to happen elsewhere.

A lawyer himself, Morgan says there must be public conversations to create an understanding of the harm such things can cause. 

Anthony Morgan is a lawyer in Toronto. (CBC)

He says the arts are one venue to do that: "Within the arts, you have a lot of power to engage these sensitive topics in ways that won't get people to be too defensive." 

Indigenous hip-hope group A Tribe Called Red asked fans to stop coming to its shows in redface. (Pat Bolduc)

This interview has been edited for clarity and length. 

Why, in your mind, are courts not the best place to fight racism? 

Well to be sure, I mean specifically racist misrepresentations of peoples. Indigenous peoples, for instance, and black peoples. So, while I think there's absolutely a role for the courts to play in addressing situations of racism as articulated in our Charter, and our various provincial human rights codes, specifically on the question of how Indigenous people are represented in media in television and things of that sort, and also black people,  that is where I think we should rethink going to the courts to makes those challenges. 

Anthony Morgan's encounter with these students changed his mind about human rights tribunals.

Let's talk a little bit about how you came to hold this point of view. Five years ago, you encountered a group of students in blackface in Montreal, and you planned to file a human rights complaint. But then you changed your mind. Why? 

Because of the feedback I got from community. Many within the black Quebecer community had reached out to me, seeing the attention that the story had gotten, and they heard that I planned to make a human rights complaint, and they spoke up. I got many emails, telephone calls, people in the street saying "You know what, we don't think this is a good idea. What we are happy for is the fact that you've created a climate for a conversation about race, that tends to be very fraught and difficult to have in Quebec. But if you make this complaint, we run the risk of this institution making a decision that is not favourable to the community." 

It almost seems counter-intuitive. On the one hand , you'd think members of the community who feel like the culture is being insulted would see this as the way to go, and then on the other hand you have the fact that human rights tribunals seem designed for this very purpose. 

Yeah, absolutely. But I think we're at a stage, right now, where we're not yet seeing the kind of decisions come out of our human rights tribunals across the board that would give the community confidence that they are able to handle those kinds of questions, and if we look at the composition of our provincial human rights tribunals, they are often not reflective of the multicultural heritage of Canada, if you look at the way in which they apply the various provincial human rights codes too, there is not room for a ton of confidence in terms of their ability to address these very specific questions.

We're not yet seeing the kind of decisions come out of our human rights tribunals across the board that would give the community confidence that they are able to handle those kinds of questions.- Anthony Morgan

So if courts and tribunals are the wrong way to deal with these issues, what's the right way? 

I think opportunities like this one, where we can increase public awareness that this is an important issue within community, where I can have a nice, frank conversation with you, but also have broader public dialogue on the issue of representation and why it matters to various minority communities. Often we are too quick to dismiss it as just being harmless but when we open it up to public dialogue and we facilitate respectful and honest debate, than I think that we can get to a point where we can generally, as a public, influence our judicial system, our tribunal system, so that they can see that, you know what, the public desire to see them reflect the interest of community in terms if how they approach these questions.