While far too many brush off reactions to racist and culturally incompetent costume choices as much ado about nothing, I’m interested in whether open debate and think pieces like this one are the best way to resolve the issue. Is ongoing public discussion the best forum for determining the fate of blackface, Pocahontas and geisha get-ups, or is it time to address these recurring controversies in court?

You’d be forgiven for thinking that my position as a lawyer would lead me to advocate for judicial intervention. But, in thinking of a recent Canadian court challenge to the Cleveland Indians’ name and logo, as well as my own experience confronting the use of blackface, I believe that at present the overall risks of bringing the battle to court significantly outweigh the benefits.

“Can we finally get back to baseball?”

On the morning of Oct. 17, 2016, before game 3 of the American League Championship Series between the Toronto Blue Jays and the Cleveland Indians, renowned Canadian Indigenous architect and activist Douglas Cardinal launched a court challenge requesting a ruling that would prevent the broadcast of the Cleveland team’s name and logo in Canada.

Cardinal wanted the court to make an interim ruling pending the outcome of his human rights complaints against the Cleveland team’s moniker and mascot, which he had also launched before the Ontario and Canadian human rights tribunals. The foundation of Cardinal’s argument is that the team’s name and logo, as represented by its mascot, Chief Wahoo, are racist.

Learning about this legal challenge filled me with excitement and despair.

Their tone and tenor suggested that countless sports fans and followers of the debate were enjoying a giant sense of relief.

As an ardent advocate for all oppressed peoples’ right to self-determination over their image and likeness, I was excited to see this resistance reach the courts. Over the last two years there has been an unprecedented level of public discussion about the racist names and logos of professional sports teams such as the NHL’s Chicago Blackhawks, the NFL’s Washington Redskins and Kansas City Chiefs, the CFL’s Edmonton Eskimos, and another MLB team, the Atlanta Braves. As far as I was aware, there had been no formal challenge to these team names and logos in a Canadian court. I was eager to see how Cardinal’s court challenge would be handled by a Canadian judge, especially considering the backdrop of the Canadian government’s commitment to prioritizing reconciliation with Indigenous peoples.

Any curiosity I had upon hearing of Cardinal’s case was also steeply tempered by what I have come to observe as a lawyer. I was gripped by an unshakeable sense that a negative ruling from the bench was inevitable. This was not because I thought the challenge lacked legal merit, but because I couldn’t imagine the challenge surviving the often impenetrable double barrier that exists in the form of a diversity deficit in the Canadian judicial ranks coupled with the colonial character that still infects the underlying logic of too much of Canadian law and legal reasoning.

Lo and behold, on the same day as the hearing and just a few hours before the first pitch was set to be thrown for game 3, the Superior Court of Ontario judge who heard Cardinal’s case, Justice Thomas McEwen, officially confirmed my concerns. Cardinal’s request to have the court prohibit the broadcasting of Cleveland’s racist name and logo into hundreds of thousands of Canadian homes pending the outcome of his human rights complaints was flatly denied with written reasons to follow.

Almost immediately, I saw a steady stream of thinly veiled triumphalist articles and tweets about the decision. Their tone and tenor suggested that countless sports fans and followers of the debate were enjoying a giant sense of relief that they now had an official court decision that, in their minds, proved they were not racist. They felt the decision confirmed that the name and logo of the Cleveland baseball team and other professional clubs that traffic in the capitalist exploitation of racist representations of Indigenous peoples were totally fine, and there was no longer any room for debate.

“Can we finally get back to baseball?” they asked impatiently.

Joe Brusky

A complaint never made

This widespread reaction was what I dreaded. It was one that I made the strategic decision to avoid about five years ago when I found myself at the centre of a major blackface scandal in law school.

In September 2011, I was walking across a Montreal university campus when suddenly I found myself in the midst of a loud and obnoxious group of approximately 20 white students singing, cheering and chanting … in blackface. Thinking no one would believe me, I decided to take my phone out and start recording. Later that day I sent the video to various Canadian media outlets, and within days it had become a national story that even caught the interest of CNN, with which I ended up doing a live interview. For at least a few days, much of Montreal and the broader Canadian public was talking about whether the students’ actions were racist.

In almost all of the dozen or so media interviews I did after the story broke, I declared that I would make a complaint about the students’ blackface parade to Quebec’s human rights tribunal. When I said it, I meant it, and as an aspiring social justice lawyer, I was eager to initiate the legal challenge that would firmly and finally declare blackface a racist practice that had no place in multicultural Canada.

It’s uncomfortable and embarrassing to admit now, but in my head I was going to become a hero. In the end, though, I never made that human rights complaint.

Issues of race and representation are not necessarily best served through the law. Many Black, Indigenous and people of colour already know this too well.

Following all the press attention the story was getting, more and more members and leaders of Montreal’s Black community began reaching out to me. While there was a lot of range, texture and nuance to the perspectives I heard, the consistent message I got was that filing a human rights complaint was not what the community wanted or even cared about.

I was told that they had already received what they wanted from the publicizing of the story itself. The controversy sparked a new and much needed public dialogue that went beyond blackface and into the lives and experiences of discrimination faced by Black Quebeckers. It certainly wasn’t the first, and sadly wasn’t the last, such conversation, but persistent anti-Blackness within Quebec society and Canada more broadly was such that folks appreciated that the story provided them with another chance to penetrate public consciousness and stir action that would address the social conditions of anti-Black racist exclusion experienced by too many Quebeckers.

I was told by more than a few individuals and leaders in the community that making a formal human rights complaint would take control over how the discussion continued and where it ended up totally out of the hands of Quebec’s Black community. It would put the issue back into the hands of Quebec, as represented by one of its major state institutions (namely its human rights commission), and do so in a way that would most certainly end up silencing and invalidating their experiences and calls for justice and more equitable social inclusion. It was said to me over and over again that filing a complaint would be a mistake because the outcome would be a finding of no wrongdoing. The consensus was that a complaint would set the community back.

Recognizing that I was just an anglophone Ontarian Black student and thereby essentially just a long-term visitor to the province, I decided to listen and put aside my ambition of bringing a successful Canadian court challenge to blackface.

In the end, I’m happy I did. By not making the complaint, it seemed that the discussion about blackface and the Black experience in Quebec stayed live, vibrant, public and largely in the hands of the broader Black community and its allies. No leader or common Quebec civilian could say, “Well, I can’t comment because the matter is before the courts.” Or worse, “Look, the human rights tribunal had no problem with blackface, so why should I? The decision’s been made.”

Self-determination and self-representation

To be sure, none of this should be read as a critique of Douglas Cardinal’s or anyone else’s decision to initiate a court challenge against racist misrepresentations of their people. What makes such a decision right or wrong is determined by the people whose rights one seeks to have vindicated.

Indeed, a cursory online review of the responses to Cardinal’s legal challenge indicates that a broad cross-section of his fellow Indigenous community members support and encourage it. As such, the court ruling to allow the continued broadcast of the Cleveland name and logo is not a measure of the quality of Cardinal’s decision. That the challenge was launched in the interest of and with the support of his people is what matters.

In the end, what connects Cardinal’s decision to initiate a court challenge and my own to not launch one is our people’s right to self-determination over decisions of how our respective people’s images, cultures and likeness will be publicly displayed, used and represented by others.

Using strict and purportedly objective evaluative criteria only means applying the principles of white supremacy.

At this point in the development of the social consciousness of the Canadian court system, we may be more likely to advance change through public dialogue than through judicial intervention. In other words, issues of race and representation are not necessarily best served through the law. Many Black, Indigenous and people of colour already know too well that our courts are not yet ready to apply a lens of racial equity to historically disadvantaged racial groups.

In other words, the unfortunate reality is that the persistence of a “judiciary of whiteness” in the composition of Canadian courts and legal principles is such that our courts are not culturally competent enough to effectively deal with issues of race and representation.

Though courts routinely engage matters of copyright and trademark, as well as defamation, those issues don’t rest on historical contexts of systemic and persistent racial inequity. The mechanics of judicial reasoning have not yet evolved to the point of appreciating that representations of the sort we see with blackface and Indigenous-appropriated sports teams cannot be effectively adjudicated without centralizing and historicizing the experience of the peoples represented.

Using strict and purportedly objective evaluative criteria only means applying the principles of white supremacy that are already too deeply entrenched in Canadian law and social realities.

I recognize that Cardinal’s initial challenge only failed at a preliminary procedural stage and that his matter has yet to be heard on its merits by the Ontario and Canadian human rights tribunals. And compared to the courts, human rights tribunals don’t tend to be as monocultural in composition or as wanting in cultural competence. A prime example of the latter point is the recent landmark Canadian Human Rights Tribunal decision that found the Canadian government has engaged in discrimination by dramatically underfunding Indigenous child welfare services for decades. Whether that decision will be the exception that justifies the rule is something that we should all pay very close attention to. But sadly, despite their differences, Canadian human rights tribunals, like our courts, have not established a record of recognizing in their decisions the destructive effects of misrepresentations of racialized and Indigenous peoples.

So, do I think Canadian courts will be able to equitably and adequately address these issues in the future? Sure.

But not until the court of public opinion gives our courts of law no choice but to do the right thing.