Indians. Redskins. Braves. Blackhawks. Long-held sports traditions or discriminatory cultural misappropriation? It’s a contentious debate that found itself front and centre in a downtown Toronto courtroom on Monday 17 October. Douglas Cardinal, a prominent Indigenous activist, had just launched actions with the Human Rights Tribunal of Ontario and the Canadian Human Rights Commission, and was seeking injunctive relief before Justice Thomas McEwan of the Ontario Superior Court. It was just hours before the start of the home stretch of the Blue Jays’ playoff rendezvous against the Cleveland Indians, and Mr. Cardinal sought to stop broadcast of the “Indians” name and the team’s insignia, a buck-tooth character named Chief Wahoo.
It was an uphill battle for Cardinal: the long-standing test for granting injunctive relief, established by the Supreme Court of Canada in RJR-MacDonald Inc. v. Canada, meant the architect and residential school survivor had to establish that there was a “real issue” to be a tried; that irreparable harm would befall him if his application wasn’t granted, and that a balance of convenience between the parties militated in his favour.
Counsel for Mr. Cardinal, led by Monique Jilesen, argued that Mr. Cardinal ought to be able to watch the game without being faced with the sight of the team name and its logo, which his lawyers argued incited discriminatory conduct against persons of Indigenous descent. In their application record, his counsel pointed to multiple studies that demonstrated the psychological impact of the “racist sport iconography” of Chief Wahoo. His lawyers also cited instances where courts had granted injunctive relief to Indigenous applicants, particularly with respect to resource development projects. At one point, McEwan J asked what the baseball game would look like if the injunction was granted. In response, Ms. Jilesen argued that the injunction could “easily” be complied with. The team could switch to their spring training jerseys that were devoid of the impugned logo, Sportsnet reporters would have to refrain from mentioning the team name, but fans wouldn’t be barred from wearing team merchandise to the game.
It appeared that for every submission made by counsel for Cardinal, the tripartite contingent of lawyers making oral submissions for respondents Rogers Communications, Major League Baseball (MLB), and the Cleveland team hit back with a stronger dose of rigor and precision. They attempted to characterize Mr. Cardinal’s request as “delayed,” sought many decades after the Cleveland team began to employ their name—with countless prior excursions north of the border. In another attempt to undermine the applicant’s argument of irreparable harm, counsel for the respondents made McEwan J aware that unbeknownst to them and unmentioned in any of the filed court documents, Mr. Cardinal was actually in China at the time of the proceedings. They doubted whether he even intended to watch the game.
In addressing the balance of convenience prong of the test, Rogers lawyer Kent Thomson sought to demonstrate some logistical impossibilities that would bar complying with the request. Sportsnet reporters could easily find themselves in contempt of court by accidentally mentioning a team name they had uttered for years, and Mr. Cardinal’s request would mean that millions of fans, both in the stadium and at home, might face the prospect of a blacked-out “Jumbotron” and television broadcast.
Jonathan Lisus, lawyer for the Cleveland Indians, quipped that while he confessed he “may not know much about baseball,” he had made been aware that at least one player joined the Cleveland team after spring training was completed. Besides, he submitted to the court, the MLB style guide didn’t permit the team to wear spring training jerseys during the regular season or playoffs.
In a moment that appeared to cause a couple members of the public gallery to cock their heads in intrigue, Marcus Koehnen, the lawyer for MLB, sought to show that Mr. Cardinal’s application contained no real issue to be tried, contending that the word Indian was “not inherently derogatory.” As foundation for his claim, he pointed to the Applicant’s past writings that casually referenced Indigenous individuals with the term, and the myriad of federal legislation, currently in effect, that bestows rights to “Indians.”
If McEwan J couldn’t be swayed by the earlier submissions of the trio, he may have found harbour in a submission argued particularly forcefully by Mr. Lisus: The entire framework of the RJR-MacDonald test, he submitted, wasn’t actually available to Mr. Cardinal. Instead, in circumstances where injunctive relief was sought with respect to “fundamental free speech” pending the determination of human rights proceedings, the court ought to adopt a higher threshold established by the Federal Court of Canada in Canada v. Winnicki. In that ruling, the court found that an interlocutory injunction should only be issued where the expression was “manifestly contrary” to human rights legislation. Lisus attempted to draw a strong contrast between the contemptible nature of written ramblings about “negroes” and “kikes” that attracted a successful injunction in Winnicki with the “robust” public debate pertaining to the Cleveland team insignia.
As oral submissions wound down, Ms. Jilesen made a final appeal: We wouldn’t be questioning the derogatory nature of a team named the “New York Jews,” she implored the court. It was a last-ditch effort, a sentiment she meant to embed in the mind of McEwan J as he announced that he would retire to his chambers and return with a decision for 5:10 p.m. —just a handful of hours before the first pitch of the home series was set to take place. When he came back, he announced he would be dismissing the application, with written reasons to follow at a later date.
Ms. Jilesen’s analogy about the “New York Jews” mirrored a Globe and Mail op-ed penned earlier in the week by Osgoode Hall Professor Signa Daum Shanks and University of Ottawa Professor Adam Dodek, in which they urged readers to consider whether there would ever need to be a conversation about the nature of hypothetical team names such as “Jasper Jewboys” and “Northern Negroes.”
Michael Swinwood, a lawyer for Mr. Cardinal, told reporters after the hearing that while his client was disappointed by the result, he was satisfied by the “elevated” attention given to the issue. Asked for comment while the case was unfolding, Toronto’s popular mayor John Tory implored sports teams across Canada, particularly the Edmonton Eskimos, to review their team names.
Counsel for the respondents was able to dismiss Mr. Cardinal’s injunction request through skillful undermining of mostly logistical and technical faults, though the public debate that Mr. Lisus conceded was happening will undoubtedly continue. Whether a decision of such a commercial dimension should have its hand forced by the power of a court of law will also continue to be debated.
It is only a matter of time, however, before the Cleveland Indians and other sports organizations find themselves standing alone, undertaking an exercise in soul-searching: Whether it is worth it, for the sake of “tradition” —or other arguments based on “time immemorial”—for their players to display images of headdresses and buck-toothed Chiefs across their bodies, imagery that is at best conducive to continued ignorance of Indigenous struggles, and at worst perpetuates prejudicial beliefs and discriminatory actions.
Sure, there are much bigger fish to fry: dozens of First Nations communities across Canada are under boil-water advisories, and Indigenous women face extremely disproportionate rates of domestic abuse and violent death. But one must only look to the bi-partisan effort across state lines south of the border to understand that symbols do in fact have meaning: public display of the confederate flag, which once found its place on the grounds of legislatures across the United States, has all but evaporated.