How
brittle, fragile and aggrieved we have become.
—Editorial
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.]
CHAPTER EIGHT
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
277
278 THE PRINCESS AT THE WINDOW
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-
Sex, Lies and Court
Transcripts 279
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
280 THE PRINCESS AT THE WINDOW
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
Sex,
Lies and Court
Transcripts 281
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
282 THE
PRINCESS AT THE WINDOW
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
Sex,
Lies and Court Transcripts 283
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
284 THE PRINCESS AT THE WINDOW
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
Sex, Lies and Court
Transcripts 285
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?
*********