On June 5th, 2014, a jury ruled in the St. Lewis v. Rancourt defamation action. The decision before the Ontario Superior Court found that, the Defendant’s actions were malicious. They awarded $100,000 in general damages and $250,000.00 in aggravated damages. The Defendant has been ordered to take down his blog articles, cease defaming Professor St. Lewis and to assist in having the materials removed from Google and other search engines. The decision is likely to be appealed by the Defendant and awaits the imprimatur of the Ontario Court of Appeal and perhaps the Supreme Court of Canada. However, there are already significant benchmarks achieved that need to be immediately recognized.
The jury found that Professor Joanne St. Lewis was defamed when the Defendant used a racist insult tied to Black slave experience to describe her work for the University of Ottawa. St. Lewis never denied racism in an advisory report she authored in 2008. Her evaluation of a student report found it to be poorly written and unsubstantiated when it accused the University of having systemic racism in its academic fraud process. Despite these flaws, St. Lewis called upon the University to meet its obligations under the Ontario Human Rights Code and conduct a proper systemic racism analysis.
Rarely do cases actually define a slur. This case is the first to define the term “house Negro” in Canadian and perhaps North American jurisprudence. The jury found that the ordinary meaning of the term refers to someone who lacks integrity and behaves in a servile manner toward white authority. They also accepted the expert evidence of Camille Nelson, the first woman and person of colour to serve as Dean at Suffolk University Law School in Boston. Dean Nelson testified that the term has specific meanings for the Black community in Canada including (a) a race traitor; (b) pariah in the Black community (c) a person who by their actions has forfeited their social identity with the Black community and (d) someone who has severed their bond with the Black community and their racial and cultural heritage. These meanings are important when one considers the implications for the professional reputation of Black persons in the workplace faced with this epithet. The jury award of aggravated damages showed their appreciation of the evidence that the term is even more devastating when applied to a lawyer and law professor.
St. Lewis – in her own words:
I could not and would not bend to accept the yoke of servitude implicit in the Defendant’s slur. He could not know that it was so much more than personal pride. I had no choice but to serve as guardian of our family name. I was chosen to scour it clean of the smear so the collective “we” of all that is family could retain our dignity. If it is my fate to be the first Black Canadian so publicly defiled then it is my hope to be the last. It was essential that no other suffer as I have.
The Defendant used the slur as a proxy for an attack on every aspect of my professional being. The accusations over the course of the 3.5 years were varied – unprofessional, author of a fraudulent report, participant in a cover up and currying favour and advancement with the University administration, among many other professional smears. Never voiced until now, was my firm belief that what was under attack was the most essential privilege that I gained with my tenure as a law professor in 2001 – my academic freedom. I was reduced to my skin colour. I no longer was the bearer of expertise. Simply by being Black and refusing to slavishly endorse a poorly written student report, I lost my capacity for independent thought. I watched in fascinated horror as the Defendant and his various “experts,” pontificated about Black Canadian culture. They did not need to reference a single peer-reviewed authority – their words became “truth.”
The Defendant’s attack on the independence of my voice made a sham of the expertise that I had earned. At the time of his attack, I had served as a the first Black woman elected as a Bencher of the Law Society in its then 214 year history. I was the recipient of numerous national awards for my social justice work. All evaporated, as his blog trumpeted this false speech to the world. Worst yet, any Google search of my name returned his views as #3 in my first page search results. I eventually avoided any search of my name because it was just too painful. I became more and more skittish as I stood in front of my classes, conducted workshops or met new colleagues outside of my immediate sphere. What had they read? What did they really think of me behind their polite smiles? I struggled against paranoia but my fears increased as the volume of misinformation expanded.
This case was brought in the name of the shadow that the Defendant imagined me to be. He imagined a young vulnerable Black academic, with limited resources, dependent on the largess of others. That young professional could not have survived with her dignity, reputation and spirit intact after 3.5 years of unrelenting cyber bullying. How could she measure her embryonic professional self against a public personality controlled and manipulated by a stranger who spread his falsehoods from Thailand, to the UK, across the US and Canada and back, in ever overlapping strands. How could she combat his dedicated group of proxies and the mob rule of widening defamation through every form of new social media. I had no doubt that her self would have shrunk in despair as the circle of defamation widened without respite. Where her hope would have died, my own was dampened but never extinguished. I was anchored in a self that existed in the flesh and had been tempered by over 30 years of professional experience. I was supported by family, friends and colleagues who continually reminded me that I was real not an avatar on the internet in some perverse video game.
I wonder what the Defendant saw – did he see my black flesh and immediately think – this is the soft, vulnerable slate that I can write upon with my white chalk? He would cover me in his words until only scraps of Black remained. But I was not made of slate. I have always been obsidian. That surgical material preferred by the surgeon in the know. Through my defiance in filing this case, I sought to excise his racism from my life.
I refused the false “dialogue” of commenting on any of the Defendant’s blogs. I avoided wallowing in his virtual mud. This silence was the antithesis of my outspoken self. As the years wore on, I hungered to speak even to shout. Yet, I was committed to testing my faith in the law. I invested in my counsel (Richard Dearden and his team at Gowlings), the courts and a jury of strangers, to draw a bright line against the statements made by the Defendant. Though slow in coming – my faith was rewarded.
By the time the case arrived at the jury’s door in May 2014, it had travelled a well-worn path of over 30 Motions to the courthouse. The self-represented Defendant had idiosyncratic readings of the law and often put us to the test of establishing basic principles such as the privacy of the discovery and out of court cross-examination process or reestablishing that witnesses do not have an independent right to counsel. I was mired in a Champerty motion that delayed my day in court by years. He challenged my right to have my legal fees funded by my employer. I was stunned at the number of law students, Black and White, who asked me whether this was indeed proper. When I asked them who paid the legal fees of then Crown Attorney Casey Hill, now Mr. Justice Hill, they drew a blank. I pointed out that it was his employer. This was upheld up to the Supreme Court of Canada. The law was settled. It is an insignificant issue in teaching this seminal tort case. His value to his employer need not be reaffirmed to law students. I challenged them to examine why the idea that my employer could equally recognize and value my expertise was so worthy of suspicion…another teachable moment.
Reputation can be ephemeral in the digital universe. This is particularly so in a society that has yet to excavate its own racism. The protective tools to ensure dignity in the workplace can be very costly, as this case has shown. The Harper government repealed section 13 of the Canadian Human Rights Act that enabled individuals to pursue racist speech made through electronic media. In that vacuum, racialized professionals are left to the devises of tort law if their defamation falls short of the Criminal Code. The downloading of the cost to individual employers and the resulting injustice if they are denied support is ignored. A lack of protection from racist speech for racialized professionals impoverishes society as a whole.
The Defendant distorted the complexity of Black engagement in public life by fetishizing a 3 minute segment of Malcolm X’s oft repeated speech. The reality of who I am gave way to the label and all that it embodied. Malcolm X named his “house Negroes” in his 42-minute, “Message to the Grassroots” in 1963. They are the six leading figures of the civil rights movement – he specifically names Martin Luther King, jr., Philip A. Randolph and James L. Farmer, jr. However, the Defendant did not place me in their company. The Defendant intended the label to strip me of my membership in the community of Black social justice activists. He was now the arbiter on Black authenticity – enough said!
In the end, it was not simply pride that enabled me to persist. I firmly believe that racialized professionals in the academe have a unique role as knowledge producers well beyond the expectation that they be role models and mentors. We must do our work with integrity. This integrity includes bringing rigor to how issues of racism are analyzed and developed within and outside the classroom. If we cannot engage in these discussions within the academe then what hope is there for the broader social engagement that is essential for the realization of an enlarged Black humanity in a constitutional democracy?
There was no choice. I stood up for the dignity we are entitled to as Black professionals in our public lives. bell hooks equally speaks of me:
“I will not have my life narrowed down. I will not bow down to somebody else’s whim or to someone else’s ignorance.”