Professor Joanne St. Lewis: Why I Stood Up to Racist Cyber Libel
The Case:
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.”
_________________________
Joanne St. Lewis is an Assistant Professor in the Common Law Section of the University of Ottawa’s Faculty of Law. You can find her on Twitter @firing_control or by email at joanne.stlewis@uottawa.ca
Brava Joanne!
I’ve followed your ordeal since the beginning. Stood by helpless.
Thank you from us all. You have given us hope. You have handed us back our courage.
We will all draw on your strength and integrity.
If the St. Lewis v. Rancourt defamation action was decided properly, then Canada needs to revise its defamation laws. The decision in this case will serve to chill discussion and criticism. Fair comment should be a defence and awards should be based on actual harm. It is especially dispiriting that an academic, someone who should value freedom of expression and criticism, sued for defamation. If she thought the allegation false, she had the resources to make public the evidence and arguments that they were false. We should all be concerned about the baleful effects on candour and public discussion this decision could well have.
Mark,
Really? The inability to refer to one another as “House Negroes” will chill discussion and criticism in academia? If so, that does say much about the quality of academic discussions or the academics making such comments.
Fair comment is a defense to defamation (WIC Radio Ltd. v. Simpson, [2008] 2 S.C.R. 420), albeit one that can be defeated where the comment is motivated by malice (though I’m having a hard time imagining a contxt where you would call someone a “house negro” in a manner not motivated by malice). The defendent apparently couldn’t make it, well, too bad for him.
In any event, while I’m not a big fan of defamation suits, Professor St. Lewis was well within here rights to sue the defendent for defamation and to “make public the evidence and arguments” that the defendant’s statement was false. And she did, hence the successful defamation suit.
I address some of Bob’s points in an article on the website of the Canadian Centre for Ethics in Public Affairs: http://www.ccepa.ca/blog/?p=418 We should be free to call each other “house negroes,” fairly or unfairly, until the cows come home. Courts should not be putting terms on the shelf out of our reach, no matter how hurtful they might be. St. Lewis did not have to go to law to make public her evidence and argument against the calumny (if calumny it was). By going to law, she helped erode civil society and the civil liberties. Because she is an academic, I’d call it an instance of la trahison des clercs. Yes, the jury found that Rancourt spoke falsely and maliciously, but that’s one opinion (even if it is a true one); why should one group’s opinion cost someone a ton of money? Let’s hope the decision is overturned on appeal, or that our defamation laws are heavily revised.
Based on one of the published decisions in this case:
http://www.canlii.org/en/on/onsc/doc/2014/2014onsc3209/2014onsc3209.html?searchUrlHash=AAAAAQAVc3QuIGxld2lzIHYuIHJhbmNvdXJ0AAAAAAE
I wonder if racism was considered at all in the judgement, or whether it was just based on the damages to the professional and academic reputation of Prof. St. Lewis? Reading par.13-14 of the endorsement (pasted below), it seems that the judge accepted the integrity/professionalism aspects of the defamation claim, but rejected those pertaining to race.
Although it is good news that professionals can protect their reputation and integrity, irrespective of the colour of their skin, I’m still skeptical of the potential of defamation law to benefit the underpriviledged. Does this ruling give any hope to people who are victim of racism but whose reputation is, in the eyes of the law, not “worth” the same as a world-renowned academic?
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[13] When read in the context that Professor St. Lewis had agreed to undertake a review of the SAC report which alleged systemic racism in the academic fraud process and that she was providing her evaluation of that report as a lawyer, law professor and expert in the field of Human Rights and Research, the words in their natural and ordinary meaning would more than likely be considered defamatory by the ordinary fair-minded individual. They more than probably would be viewed as an attack on Professor’s St. Lewis honesty, independence and professionalism. As such, the words are capable of lowering the plaintiff in the estimation of an ordinary, objective, reasonable member of society who does not have overly fragile sensibilities.
[14] On the other hand, I am not satisfied that the same reasonable person would likely give the impugned words the other meanings alleged by the plaintiff. Most of these other alleged meanings talk of being a traitor to black people or denigrating black people or supporting racism. I am of the view that these are not meanings which naturally flow from the words themselves or any reasonable inference from the words themselves in the overall context in which the words were written and published. Therefore the remaining meanings alleged by the plaintiff will not be submitted to the jury.
I disagree with some of the factual statements in this article. Also, some incompleteness could cause readers to be misled about the events at trial.
1. The judge instructed the jury that there were no defences for it to consider, despite the fair comment defence having been pleaded and presented to the jury in opening statement.
2. My fair comment defence relied on true facts that were in evidence at trial: the student report, the plaintiff’s evaluation report of the student report, and access to information documents that had been made public by the student association.
3. The judge summarily struck out the defendant’s pleaded abuse-of-process remedy, during the defendant’s attempt to explain this remedy to the jury during opening statements.
4. The plaintiff’s expert was not opposed by a counter-expert and was not cross-examined. A counter-expert who is a professor and has two PhDs in relevant fields and has written academic articles about racial words offered her services to the Court and was refused. Her criticism of the Nelson report is incisive and is posted to the web on the Ontario Civil Liberties Association web site.
5. There is nothing in the jury verdict that “shows” the jury’s reasons for awarding aggravated damages.
6. The blogpost-imbedded video of the Malcolm X speech, in which the term complained of is defined in detail, was not showed to the jury, despite the defendant’s express intent (in opening statement) that it be shown.
7. The so-called “cyber bullying” consisted of my making blogpost reports about the procedural steps in the action, about media articles about the action, and my communications to journalists about developments in the action. The blogposts and media articles are on-line and can be consulted regarding whether or not they constitute “cyber bullying”.
8. Contrary to the statement made, I never challenged “the privacy of the discovery” principle by any motion or procedure in the action. I never challenged the implied undertaking rule.
9. Contrary to the statement made, I never made a motion or argued for any witness to have “an independent right to counsel”.
I do not believe that it is racist for a white man to make the racial political analysis criticism complained of of a Black woman. The trial did not determine that this was racist.
I have filed a Notice of Appeal, which I have posted to the internet.
I have also posted all/most of the court-filed documents of both parties in the whole action at http://rancourt.academicfreedom.ca/background/stlewislawsuit.html , for anyone who wants to benefit from the open court system in studying this particular case.
I believe I was unjustly treated by the legal system in this action and I have written about this in an on-line article entitled “The crisis of access to justice and self-represented litigants — as I see it”:
http://activistteacher.blogspot.ca/2014/05/the-crisis-of-access-to-justice-and.html
Mark,
“We should be free to call each other “house negroes,” fairly or unfairly, until the cows come home.”
Fine, but Canadians are not (and never have been) free to defame one another, whatever term of denigration they choose to use. If you want to change that, change the law.
You claim that calling someone a “house negro” is not defamatory. That is a ludicrous statment, and one that is contradicted by your subsequent claim that “if St. Lewis did act as a house negro would, she would, in the eyes of many black students, richly deserve condemnation”. Describing someone as someone as something that “richly deserved condemnation” is almost the definition of a defamatory statement. If its untrue. Unfortunately for Mr. Rancourt, it doesn’t seem like he had much success proving the truth of his claim.
As for your statement that the “law must not prevent people from criticising the attitudes and actions of others” I agree. Of course, defamation law doesn’t prevent peopel from critizing that attitudes or actions or others, it merely prevents them from doing so in a way that is untrue and defamatory (and not otherwise entitled to a recognized defense). Funny, though, most people (and, I would have though, most academics) are quite capable of criticzing the attitudes and actions of other without defaming them, even if their criticisms are ill-founded. Perhaps in your circle, calling one another a “house negro” constitutes reasoned criticism and debate, although if so that would say much about the intellectual calibre of the St. Mary’s Philosophy Department.
Bob
Calling someone a house negro may indeed be a move in reasoned criticism and debate, Bob. Or it might be purely abusive. It depends on the context. Freedom of expression, though, is not freedom merely of reasoned expression. I hope you don’t think we should be free only to speak what other people consider to be the truth and only in a manner other people consider proper. (I think we should be free to say what we want how we want. Others should be free to determine for themselves whether we are worth listening to.) Whether a specific use of “house negro” is warranted by evidence or not is a matter each of us should be free to determine for ourselves (and we can argue among ourselves about it). We don’t need a jury to offer an authoritative verdict. If discussion in the philosophy department at Saint Mary’s is poor, criticise it, and lend us a hand, don’t sue us. Here’s an earlier article of mine, originally in the Ottawa Citizen, on these matters: http://www.ccepa.ca/blog/?p=386 And one criticizing a journalist for threatening Rob Ford with a defamation suit: http://www.ccepa.ca/blog/?p=399
St. Lewis’s complaint would have been laughed out of court in the States. I think we need to reform our defamation laws so that such complaints would be laughed at here, as well.
“St. Lewis’s complaint would have been laughed out of court in the States.”
How do you know that? Do you have any case law or information on US defamation law to support that truth claim? Please share – not being totally cynical here totally, but curious too.
He would most likely have faced even worse consequences in a US court. Given evidence of the blatant nature of Mr. Rancourt’s defamatory speech – its blatant falsity and overt malice – it would have easily passed even the lowest threshold of requirements for a successful defamation action in the US. Malice is the lynchpin that makes defamation actions winnable in the US and there seems to have been more than enough of that in this case. My colleagues in the US would have had a field day with this case were the defendant not so impecunious. He might just as likely be sitting in a US jail awaiting his contempt of court hearing, rather than lounging around his home office filming crowd-funding videos for his appeal. They rightfully are pretty harsh about messing with jury deliberations down there.
I have yet to see any lawyers anywhere rush to Mr. Rancourt’s defense on principle. As somebody noted on another forum, what is remarkable about this case is not the defamation issue – that seems pretty straightforward on the facts. Its all the side show issues and the internet rippling from his online campaign. This likely contributed to the malice award in this case. It is amazing that the Plaintiff got 100% of her aggravated damages claim, but only 20% of her general damages claim. Never seen that before – usually its the other way around.
With this case, Canadian law has rightly provided protection against defamation to an individual subjected to repeated published attacks on her reputation that were not only false as found by the jury’s findings of defamation, but which specifically defamed the plaintiff based on her status as a member of a racialized group. This case confirms what should be obvious that a defamatory communication does not change its character as lies because the falsehood contains a racial slur.
However, in case this needs to be stated explicitly for some people…. Professor St. Lewis is at least as deserving of protection and legal remedy for defamation as any other individual under Canadian law – unless we accept the core of the defendant’s argument that defamation somehow magically is not defamation if you racialize your false reputational attack and label it “racial political analysis”. The jury found his communications untrue and defamatory. The racial slur was a particularly nasty way to launch his attack.
As others have pointed out, the defendant stood no chance of winning in the U.S. or any common law jurisdiction. Thankfully, Canadian law relating to the elements required to establish defamation as well as the required elements to establish discrimination and hate speech are notably distinct from the U.S.A, and in these areas better reflect international human rights standards on the balance that should be struck between freedom of expression and the right to be free of both defamation and racial discrimination. In the area of hate speech as one example, the U.S. Supreme Court has on several occasions found cross-burnings targeting black people, protected speech. Thanks but no thanks, U.S. law on such questions of balance is not superior.
Mark Mercer,
“St. Lewis’s complaint would have been laughed out of court in the States”
Perhaps (though other more knowledgeable than me on that subject seem to disagree). Too bad Mr. Rancourt didn’t defame Ms. St. Lewis in the United States. Of course, he probably would have been dead in the water under UK libel law (which is notorious liberal). Any thoughts on how Tunisian defamation law would apply? I’m not sure what relevance any of that has to the current case, since the suit in question was governed by Canadian libel law.
“Freedom of expression, though, is not freedom merely of reasoned expression. I hope you don’t think we should be free only to speak what other people consider to be the truth and only in a manner other people consider proper.”
I agree, and all sorts of untruths are constitutionally protected – take today’s Ontario budget as an example. Indeed, PJ O’Rourke recently make a brilliant amicus brief to the US Supreme Court on the constitutional merit of false political speech (http://object.cato.org/sites/cato.org/files/pubs/pdf/sba-list-merits-filed-brief.pdf)Mind you, not all untruths are defamatory (and, indeed, PJ O’Rourke’s submission is based on the premise that while the state can’t/shouldn’t ban untruthful political speech, wronged politicians can nevertheless seek the remedy of a defamation suit). No civilized country, anywhere, provides immunity to lawsuits for defamatory speech (and its somewhat embarassing for an academic – who the naive might assume is committed to the persuit of truth (and civility) – to be arguing for such immunity). While the US approach to defamation is generally narrower than, say, the UK approach, one can be successfully sued for defamation in the US.
Moreover, you have no general right to free expression vis-a-vis your fellow citizen. Against the state, sure, be it under paragraph 2(b) of the Charter or the 1st Amendment of the US Constitution. But the state isn’t a party to a dispute between Ms. Lewis and Mr. Rancourt. Mr. Rancourt has no private right to free expression against Ms. Lewis. By way of example, the state can’t sanction you for calling your boss an asshole, but your boss sure can (if the statement is false, but especially if its true). In contrast, Ms. Lewis does have a private law right not to be defamed by Mr. Rancourt (a right, I note, that traces its history back to roman law). He violated that right, time for him to man up and bear the consequences of doing so.
Of course, defamatory or no, I’m hard pressed to have anything but the utmost contempt for people who use expressions like “house negro”.
“To date, the University of Ottawa has spent over 1 million dollars (comprised of student tuition and taxpayer dollars) on the St. Lewis vs. Rancourt civil litigation ”
Where does this $1M figure come from – do you know this for a fact or is it just more hyperbole? The legal fees paid are normally privileged so its hard to understand where this is coming from. If you have some factual information on this, cite it. This figure has been bounced around but there appears to be no basis for the figure, just conjecture.
Any students and taxpayers who are worried about the cost of this litigation should hope that Ms. St. Lewis is successful in obtaining costs from Mr. Rancourt. This seems likely given the way his case has progressed over the years, and if so, most of their money will be recovered from Mr. Rancourt, a private litigant who has raised thousands of dollars already through his crowdfunding and donations.
In reality, this ruling in this case is an example of how the legal system works to protect innocent people, punishes wrongdoers, and makes public a rightful vindication against false speech that’s been opportunistically wrapped in racism to get more webclicks.