No one would have blinked if the complaint brought to the Ontario Human Rights Commission against HMV Canada Inc. for selling rap tunes hostile to women had been overshadowed by a debate on freedom of expression.
But such weighty considerations seem to have been completely lost on the commission.
Along with its recent recommendation that culture activist Valerie Smith's case not be given a full hearing before the Ontario Human Rights Tribunal, the OHRC rendered a bewildering decision against her charge that Canada's largest retailer is poisoning attitudes against women.
Nowhere in the legalese, which smells a lot like bureaucratic fence-sitting to this gangsta-rap-lovin' scribe, does the OHRC deal with the main point of Smith's complaint: that the sale of offensive rap music constitutes discrimination against an identifiable group, namely women.
The commission did find that the lyrics Smith cited by some of the most reviled purveyors of rap - Snoop Dogg, 50 Cent, Eminem and Ja Rule - are "violent, hateful and abusive towards women and clearly contrary to the values of the [Ontario Human Rights] Code."
Indeed, the Code itself speaks clearly about discrimination based on sex, which includes "sexual harassment or inappropriate comments and actions of a sexual nature , offensive remarks , rough and vulgar humour or language related to gender."
However, the OHRC chose a narrow, and curious, interpretation of its own Code in Smith's case. From the commission's perspective, the manner in which the offending tunes are hawked, not the content of the tunes in question, must "result in unequal treatment to the complainant in services on the basis of her gender" for there to be any contravention of the Code.
The OHRC maintains that the sale of the music in question had not "created an environment that poisoned or chilled a reasonable woman from purchasing other goods." In saying this, it notes that HMV doesn't play the offending music over the sound system in the store or display "posters with misogynist images that would be associated with the misogynist lyrics."
So that means, says Smith, "that it's okay to poison society in general with this music, but if you poison the immediate environment, then that brings you in conflict with the Code. How bizarre is that?" Further, the OHRC ruling says Smith herself was not "subjected to unequal treatment with respect to the provision of goods and services because of sex." And it says HMV didn't refuse gender-based "access to their website or stores or treat her differently.'
Smith's lawyer, Cynthia Watson, says one of the purposes of the Code is education, and that an opportunity has been missed. "We weren't asking for inappropriate sanctions against HMV, but for the commission to ensure there was appropriate public education,' she explains.
The argument that there's no discrimination under the Human Rights Code as long as there is equal access to the offensive material is "fatally flawed," Watson says. The whole idea of equal access to hateful and discriminatory material runs contrary to the Criminal Code, which sets out harsh penalties for the promotion of hate.
Alas, women are not classified as an "identifiable group" in the Criminal Code, and that's the main reason Smith brought her complaint against HMV in the first place. It was her hope that a favourable ruling by the Commission would provide the legal ammo needed to push in that direction.
Maybe the OHRC is sending a cagey backhanded political message, in effect saying to the federal government, "There's nothing we can do unless women are protected as a group under the Criminal Code"?
According to Watson, the commission did not collect sufficient information to make the assessment that Smith's complaint is without merit. She says no data was gathered from HMV relating either to its sales policy or its efforts to comply with the Code. On this basis, Smith has filed an appeal of the OHRC's decision.
But that means Smith and Watson are just going back to the same body that rendered the negative analysis in the first place. Once the appeal route is exhausted, the more serious consideration will be whether to pursue a judicial review application in court on the grounds that the OHRC has improperly failed to exercise its jurisdiction.
From HMV, meanwhile, the song remains the same. Company VP of product, Dan Kuczkowski, declined to comment when Smith filed her complaint back in September 2005, and has not returned NOW's calls requesting a comment on this decision. Perhaps they're not ready to gloat just yet.