How brittle, fragile and aggrieved we have become.
The Globe and Mail1
[This electronic document was produced with optical-character-recognition software. It consists of the first part of Chapter 8 of the book Princess at the Window.]
Sex, Lies and Court Transcripts
In the heart of Toronto, in office spice leased by the Ontario government,, in the files of an august and official body are gathered a selection of pornographic magazines bearing titles such as Couples in Heat, D-Cup, Hot Shots and Tight Cheeks. They have been purchased with taxpayers money, photographed and duly examined—all in an effort to force three mom-and-pop convenience stores to stop selling them.
In January 1988, teacher Pat Findlay and psychologist Marty McKay
approached the operators of three stores’ in their
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for men to buy and were none of our business.”
Undaunted, the women returned two weeks later. On this occasion, the owner of Mike’s Smoke and Gifts again declined to listen to them, the cashier at Jug Mart picked up the phone and began to call the police (prompting the women to leave since “his manner was threatening and he was not willing to hear our complaint”), while the person behind the counter at Four Star Variety “again became hostile and shouted” at Findlay and McKay. The two feminists say they followed up by writing to each of the stores in question, once again asking them to stop selling such material?
Findlay and McKay have every right to hold negative opinions about pornography. They have every right to lobby their elected representatives and to attempt to persuade others of their views, These women were entitled to communicate their opinions to the businesses in question and, having been unsuccessful at convincing them to adopt another course of action, had the right to vote with their feet, to do their shopping elsewhere.
For their part, the stores were selling perfectly legal publications, many of which would have been inspected by Canada Customs prior to being allowed into the country. Furthermore, the stores were in compliance with a municipal by-law that stipulates that adult magazines must be displayed five feet above the floor, behind barriers that reveal little more than the publications’ titles? Having been informed that two of their customers found such magazines offensive, the proprietors had a choice: either act on these concerns or disregard them. They were well within their own rights to pick the latter option.
But matters didn’t stop there, The women then filed formal complaints with the Ontario Human Rights Commission, alleging that they were being discriminated against on the basis of their sex. Findlay and McKay con-
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tended that the mere presence of such publications creates “an environment which is hostile to and discriminates against women.” They claimed that, “because of their stereotypical and demeaning portrayal of women, the display and sale of these magazines creates a negative environment for [us] as well as for other women.”4
McKay would later tell the media that porn makes her feel like a second-class citizen, that she symbolically identifies with the models in these magazines, and she doesn’t think she should have to walk by such publications when coming in for a loaf of bread. Findlay would express frustration that, after having been informed that the magazines were “harmful,” the store owners persisted in selling them anyway5
This matter has consumed inordinate amounts of time and money. Human rights officers have visited the stores and photographed the magazine racks. They have purchased and examined copies of these publications. Bylaw enforcement personnel have been interviewed, Two different investigative reports have been written and distributed,6 A number of legal opinions have been solicited. In January 1993, a relatively rare three-person board of inquiry was appointed to preside over a human rights hearing that was expected to stretch on for weeks. The store owners, all of Korean extraction, who work long hours at their family-run businesses, were advised that if they or their lawyers. failed to show up for the proceedings they would “not be entitled to any further notice” of what transpired.7
Press releases were issued and newspaper ads were purchased informing the public of the inquiry.8 In response, nearly three dozen groups and individuals applied for intervenor status, including various feminist anti-porn organizations, the Canadian Civil Liberties Association and Canadians for Decency (the majority of them were allowed
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to make written submissions at the end of the hearing). A judge was interrupted during a party one evening by lawyers seeking a ruling on whether the board was within its rights to ban the publication of Findlay and McKay’s names in the media (he decided they weren’t entitled to anonymity).9 The total cost to taxpayers is estimated to be in excess of half a million dollars. How much the store owners, as well as a periodical distributors’ group that came to the defence of one of them, have been obliged to spend on legal fees remains unknown.
In October 1994, two of the three people on the board of inquiry decided it couldn’t continue hearing the case, but only because of a technicality. By not attempting to negotiate a settlement between the parties prior to turning the matter over to the board, the Human Rights Commission was found to have violated its own guidelines. What’s disturbing is that the board unanimously rejected preliminary arguments that the Commission was overstepping its mandate by taking such complaints seriously in the firstplace.10
The Ontario Human Rights Code was established to give people who suffer sexual harassment on the job—or are denied employment, accommodation or goods and services as a result of their race, creed, gender, marital status, disability’ and so forth—somewhere to turn. Indeed, as one of the board members has conceded, this case isn’t your run-of-the-mill human rights matter. Rather, it represents an attempt to “expand the existing jurisprudence to include the concept of a ‘poisoned or hostile environment’ in the provision of services,” and it is “based on a ground not specifically set out in the Code.”11
In other words, the selling of pornographic magazines in corner stores isn’t on the list of behaviours that the Code clearly and expressly forbids. Nor is this a situation in which such behaviour has already been found to be a
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legitimate human rights issue by earlier hoards of inquiry. Rather, this is a test case, in which people are trying to use mechanisms that were intended to address very real, tangible instances of harassment and discrimination (such as a woman being denied a promotion because she refused to sleep with her boss, or someone being denied an apartment because he or she is black) to determine where legal goods can be bought and sold. Moreover, this is a case that has received large amounts of attention at the same time that other, more obviously appropriate human rights complaints continue to be backlogged at the Commission.12
The fact that these complaints have been treated with such gravity provides an indication of the thoroughness with which feminist thought has permeated the highest levels of our society. But this matter also demonstrates how well-intentioned activists can, if they’re not careful, end up making the world less just rather than more so. What these complaints suggest about feminist ideas regarding politics, insults, discrimination and sex is also deeply troubling.
In this instance, three convenience stores out of an estimated 4,500 retailers of adult material in the province were singled out for a highly stressful, time-consuming and potentially expensive legal ordeal—for no other reason than because they had the misfortune to he located close to where Findlay and McKay live. (A report prepared by the Commission found that there were, indeed, other stores in the area that didn’t stock porn, which these women could have frequented instead. The Toronto Sun noted that a retailer across the street from one of the three stores “opens earlier, stays open later and sells no skin magazines at all.”13) Once these women filed their complaints, the vast resources and intimidating authority of the state were arrayed against a few small, law-abiding entrepreneurs. At the time of this writing, nearly eight years after their filing, the saga continues as the Human Rights
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Commission, having been unsuccessful in mediating a settlement between the complainants and Four Star Variety, considers whether to call a second board of inquiry.
(As of March 1995, McKay was saying she’d be satisfied if Four Star restricted its sale of pornographic magazines to no more than three titles, while Findlay was insisting that such publications should not be displayed at all but kept “under the counter” so that patrons had to ask for them. Four Star rejected these terms, since such restrictions wouldn’t apply to its competitors and afforded no protection against someone filing a future Human Rights complaint over the few remaining publications. The other two stores have now come to some arrangement with the women, but the Human Rights Commission has declined to release details.14)
Responding on behalf of his parents, the co-owners of Four Star Variety, Peter Kwon calls Findlay and McKay’s paperwork one-sided. He alleges that the women went behind the counter without permission, “aggressively seeking the store’s vendor permit,” behaved rudely and tried to intimidate his mother by threatening to call the police. He says he believes Findlay and McKay are “on a crusade to decide what society should or should not read,” something he finds disturbing in a democratic country.15 While Findlay and McKay weren’t required to hire lawyers when they filed their complaint and ran no risk of being hit with a $10,000 fine should the decision go against them, the same cannot be said for the store owners.16
What conclusions, though, are those of us who believe there’s more than one kind of injustice in the world supposed to draw here? First, two established, middle-class women choose to make a statement about pornography, not to a large milk-store chain but to the working-class proprietors of family-run businesses—all the while refusing to acknowledge that the sale of this material might be a
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significant factor in whether or not these people earn a living from one month to the next. When that didn’t work, the women then took steps to subject the store owners, some of whom have a limited command of the English language, to a bureaucratic nightmare that has stretched on for the better part of a decade. Next, they have the audacity to insist that they themselves have a “right to privacy,” that the media shouldn’t be allowed to report their names. --->
In 1993, a Commission lawyer told the board that “the claimants feel that they at this point are on trial for having voiced a complaint,” adding that Findlay “and her two children and husband have been shouted out of one of the stores and indeed feels that publication of her name may increase this kind of treatment”. Reva Landau, acting on behalf of McKay, said of the psychologist:
my client is in a profession where she deals with other people, and the other people she deals with might react very negatively to the knowledge that she had been involved in this kind of case. I do not mean that they will take away their business and she will suffer financially, I mean it would create a very unpleasant atmosphere.17
But who says taking a political stand should be a “pleasant” experience, insulated from all risk, consequence or inconvenience? Changing people’s attitudes, or the direction of public policy, shouldn’t be easy. Demonstrating against capital punishment or nuclear weapons or for abortion access often isn’t “pleasant” either—especially when one is confronted by equally passionate protesters on the other side of the debate. But surely this is the price one pays for having moral convictions. ------->
Findlay and McKay, though, seem to be saying that while they believe pornography is harmful to women, they
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should be able to protest it without disturbing the calm of their own lives. Don’t get me wrong. These women deserve to be protected from criminal behaviour like everyone else. It would be unacceptable for anyone to assault them, for example, or to commit vandalism against their property. But why should they be shielded from the opinions of fellow citizens who disagree with them, or who think their own actions raise difficult questions? Why should they think they’re entitled to a “pleasant” life when they premeditatively and of their own free will chose to
set into motion a series of events that have caused other people a great deal of grief? [Back]
Surely there were other ways Findlay and McKay could have protested against pornography. Surely these mom- and-pop stores have a right to earn a modest living in the same manner that those across town do without being persecuted by governmental bodies that can afford to view the question of the availability of porn as an intellectual exercise. Surely the discomfort two women feel while being exposed to little more than the titles of such magazines during the few minutes they’re in a store they needn’t be shopping at anyway should he balanced against the views of numerous other customers who regularly purchase porn there. (Incidentally, in Ontario, a human rights board of inquiry doesn’t enjoy the same far-reaching authority as a court. Any ruling it makes applies only to the specific store against which a complaint has been filed. Therefore, in order to enforce a ban on porn in all corner stores in the province, a complaint against each of the thousands of individual stores would have to be filed with, and investigated by, the Human Rights Commission. It’s difficult to imagine a more inefficient, costly and ungainly mechanism than the one Findlay and McKay chose to make use of in their campaign against porn.)
But just as Findlay and McKay think they have a right
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to a pleasant” time even while they’re making other people’s lives miserable, underlying their assertion that the mere presence of port-i creates a “hostile” and “negative” environment is the idea that women have a right to go through life without ever being offended, insulted or uncomfortable. Says who?