02/09/06, Richard Wright, On guard for human dignity
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Michael McKinnon lodged a complaint about racist harassment at his workplace, an Ontario prison. That was 18 years ago. Every court and tribunal has vindicated him, as Richard Wright reports. But the province refuses to act, leaving his career and his wife's both in limbo. How old will they be before justice is done?
It is the late spring of 1988. Michael McKinnon is on his way to work. He's dropped the kids off at school in his silver pickup truck, and is now cruising down Highway 12 from his home northeast of Toronto. He tunes the radio dial to pick up the traffic reports -- he has to get to Warden and Eglinton in time to start his 9 o'clock shift at the Toronto East Detention Centre, a maximum-security prison in Scarborough.
At the summer Olympics in Seoul that year, Canadian sprinter Ben Johnson would set a new world record in the 100 metres, briefly. It was the year Prozac was introduced and the year CDs outsold vinyl for the first time. It was a long time ago.
Since then, what should have been a sad little footnote in Ontario's human-rights history has grown into a full-blown epic -- Michael McKinnon vs. Her Majesty the Queen.
But that morning in 1988, Mr. McKinnon had been a prison guard for 11 years. His wife, Vicki Shaw-McKinnon, was a guard at the same institution. They had met when he was playing hockey for the Toronto East team against teams from the police department, the firefighters and the Toronto West prison across town. Almost six feet tall and a solid 200 pounds, with eyes that burn with intensity, Mr. McKinnon was a formidable enough defenseman to catch the attention of a fellow guard watching from the stands. They married in May, 1985.
The wedding included a bagpiper, since Mr. McKinnon's father was Scottish, and to honour his mother's side, Mr. McKinnon wore a full aboriginal headdress. His mother is Cree from the northern Quebec town of Gracefield, near Maniwaki. "I'm very proud of my heritage on both sides of the family," he says.
Apart from his jet-black hair, there's little in Mr. McKinnon's appearance to make his native heritage obvious. He grew up in Scarborough, doesn't speak French or Cree, and attended St. Rosalina elementary school and David and Mary Thomson secondary school, where he played hockey and football and hung out at the mall, like everyone else. Upon graduation, he took courses in Corrections at Centennial College, also in Scarborough.
"I guess you'd say I'm a thoroughly suburban Indian," he laughs.
The wedding guests included many of the couple's friends from Toronto East. "We socialized a lot, went to dances, played baseball," he says. Still, for many of his colleagues, the wedding was the first time they heard that Mr. McKinnon was part aboriginal.
His salute to his native ancestry would come back to haunt him.
There always had been a trickle of racist taunts at work. Now there was a flood. Derogatory cartoons were posted on the prison bulletin boards depicting Mr. McKinnon as a bow-and-arrow-toting redskin, and the name-calling became constant: Mr. McKinnon was now "McInjun," or "Chief Crazy Horse McKinnon" or simply "Chief." He was also called Geronimo, Wagon Burner, Big Canoe, Tomahawk, Running Bear, Big Indian, and FBI (i.e., Fucking Big Indian).
Vicki Shaw-McKinnon, who is not aboriginal, was now nicknamed Vicki Squaw-McKinnon.
The taunts came from colleagues, fellow guards, former friends, hockey teammates, even prison managers. On one occasion, Mr. McKinnon was greeted in a corridor of the prison by a group of four corrections officers decked out in feathered headdresses, who were war-whooping, laughing and doing their best imitation of a native ceremonial dance.
"They were having quite a laugh at my expense," says Mr. McKinnon. "I was totally humiliated."
This sophisticated display was orchestrated by Frank Geswaldo, Mr. McKinnon's immediate supervisor. It was played out in front of cells full of inmates, who joined in the fun. Mr. McKinnon simply turned and walked away.
"You're expected to take it," he says. "You turn your hearing off, and you try to mix in."
Things continued in that vein for three more years -- until this particular morning in 1988.
As Mr. McKinnon pulled into the Toronto East parking lot, Bobby McFerrin was on the radio, crooning Don't Worry, Be Happy. It was a bit irksome, since Phil James, one of his tormentors, had taken to singing this tune in Mr. Mckinnon's presence. The message was that he should stop worrying about the racist attacks and be happy with second-class status.
Mr. McKinnon was, in fact, tolerably happy. Apart from Mr. James and a handful of others, his colleagues respected him, and despite the hostility from his supervisor, Mr. Geswaldo, his personnel file said he had a "commendable record." The job paid well, and his wife was fast-tracked for promotion. Life was looking at least okay, if not entirely good.
He parked his pickup in front of the building. Toronto East is an uninspiring hulk. Five stories of brown brick with tinted glass windows, it squats among wholesale butcher shops and auto garages, with its back to the railway tracks. It is distinguished only by a towering chain-link fence, topped with coils of razor wire. The prison houses 400 to 600 of the system's most serious offenders.
Mr. McKinnon passed through a sally port -- "our lingo for the security doors," he explains. "Someone looks at you, you're identified and you go through the first sally port door. That locks behind you with a clang before the second door opens. You go through that. Another clang. You're in the main secure area of the facility."
The incident happened later that morning. "I was discussing some paperwork with a colleague, Donny Stockwood, when Frank [Geswaldo] comes out and says 'What's this? Another Pow Wow?' "
"Mike and I looked at each other," Mr. Stockwood recalls, "and, you know, I say, 'What's his fucking problem?' " (Mr. Stockwood is now president of the correctional officers' union local, and he remains a supporter of the McKinnons. But he believes it has cost him dearly, in missed promotions and raises.)
This time, Mr. McKinnon did not turn and walk away. "It wasn't just this event," he says now. "It was the accumulation.
"I asked Geswaldo why he would use that terminology. He said, 'Well, you are a fuckin' Indian, aren't you?' I said, 'Look, I'm aboriginal. I'm not a "fuckin' Indian." ' And he started to mock me. I told him I didn't appreciate it, and asked him to stop. And he said, 'Yeah, right. I don't change for anybody.'
"So I put in an informal complaint with management. I just could not take it anymore."
And according to the Ontario Human Rights Code, he didn't have to. "Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race or ancestry," it says. The Code is legally binding, and applies to every employer in Ontario, including the Ministry of Correctional Services.
"Naively, I thought the ministry would move quickly to fix my situation," says Mr. McKinnon. "But that's not what happened."
There was already plenty of evidence that racist harassment was common at Toronto East. Other human-rights complaints from other employees, already on record with the institution, documented a medley of racist gibes. "Nigger," "Chink" and "Filipino dog-eater" were far from unheard-of in prison-guard exchanges.
The Ontario Ministry of Corrections moved quickly, but not in the direction he hoped. It seemed to be excusing Mr. McKinnon's harasser and belittling his own complaint.
"All I wanted at the time was an apology," he says, "but Geswaldo wouldn't apologize, and management backed him up. They said I was too thin-skinned, that I was making too much of a small thing, and they refused to act."
"This was not a petty incident," emphasizes Don Stockwood. "It was -- it is -- just an example of the mindset of the place."
"For them to admit shortcomings was unthinkable," says Vicki Shaw-McKinnon. "At Toronto East, you do what you're told. 'Management's right to manage,' they call it, and you don't challenge it."
"I felt I really had no choice," says Mr. McKinnon. "[On] November 29, 1988, I took my complaint to the Human Rights Commission."
At that point, Mr. McKinnon was 32 years old. He is now 50. Going to the commission would be the defining moment of the next 18 years of his life, and counting.
The Ontario Human Rights Commission administers and enforces the Human Rights Code. It investigates complaints that can't be resolved at the source and attempts to settle them through mediation. If mediation is unsuccessful and the complaint is found to have merit, it is passed on to an independent body -- then called the Board of Inquiry, but now the Human Rights Tribunal -- which makes a ruling on the extent of the problem and how it must be remedied.
The investigation and attempts at mediation in Mr. McKinnon's case took several long years. But in the end, the matter of "the complaints of Michael McKinnon alleging discrimination in employment on the basis of race, ancestry, [or] ethnic origin, and harassment by Her Majesty the Queen in Right of Ontario, the Ministry of Correctional Services, Frank Geswaldo, George Simpson, P. James and Jim Hume" was duly forwarded to the tribunal.
Chairing the proceedings for the McKinnon case would be Albert Hubbard of the University of Ottawa Faculty of Law, a vastly experienced and respected legal mind. He is small of physical stature, quiet and respectful in his chairman's role, almost invisible, although occasional flashes of gentle humour remind you he's there. He's a man as mild as Michael McKinnon is intense.
The tribunal has what the Canadian Supreme Court calls "quasi-constitutional powers," meaning its decisions carry exceptional weight. If it finds that a complainant's rights have been infringed, according to the Human Rights Code, the tribunal may "direct the party to do anything that . . . the party ought to do to achieve compliance with this Act."
After years of bureaucracy, Mr. McKinnon believed that now nothing would stand in the way of solving his problem for good.
And finally, on Feb. 27, 1996, Prof. Hubbard began to listen to arguments. Mr. McKinnon was represented by a Human Rights Commission lawyer. Over time, as the commission ran out of funds and time to deal with the case, this lawyer would be replaced by one paid for by Mr. McKinnon's union, OPSEU. That lawyer would in turn retire on a question of conflict of interest, and Mr. McKinnon's file would pass, in 1999, to Kate Hughes, a human-rights specialist with the Toronto law firm Cavalluzzo, Hayes, Shilton, McIntyre & Cornish. She still represents the McKinnons today.
On the other side, the Ministry of Corrections has had a similar instability in legal counsel, running through two government lawyers before the Toronto law firm of WeirFoulds LLP was engaged, in the person of partner Kate Stephenson.
The only constants throughout the process would be the McKinnons and Prof. Hubbard.
Mr. McKinnon and Ms. Shaw-McKinnon continued to work at Toronto East, but their situation became increasingly untenable. Mr. McKinnon was labeled a rat for breaching the institution's unwritten code of silence, which in prison culture easily outweighed the Human Rights Code.
A few friends such as Don Stockwood continued to support the McKinnons openly, but most did not. They said, "Mike, we support you but we can't stand beside you," according to Mr. McKinnon. "They were afraid of reprisals."
And with good reason. Mr. McKinnon found himself getting much more than his fair share of undesirable assignments. He was closely scrutinized in areas where other guards were given latitude. They were routinely allowed to stretch breaks or leave early on slow days, for example, while Mr. McKinnon was disciplined if he arrived even a few minutes late for his shift.
When he and his wife applied for promotions, they were denied. The quick rise of Ms. Shaw-McKinnon's career came to a halt after the complaint. A senior manager at Toronto East, George Simpson, said before witnesses that she would go nowhere as long as her husband pressed forward with his action.
The pressure did not sway them. Instead, as early as 1990, Mr. McKinnon lodged a second human-rights complaint to register the continued harassment, with the additional charge of retaliation. This complaint was added to the Hubbard tribunal's agenda.
Its sessions lasted more than a year-and-a-half, until October of 1997. There was a total of 45 days of hearings, and 246 exhibits were tabled -- all to determine whether, in a tax-supported provincial institution, a supervisor referring to an aboriginal employee as a "fuckin' Indian" was a problem that needed fixing.
Prof. Hubbard listened, pondered, and on April 28, 1998, reported, in 179 pages, that the Toronto East workplace was "redolent with racism."
He upheld the allegations of racist abuse, and said that management had failed to take appropriate action. He found Mr. Geswaldo's testimony "not credible." He found that George Simpson, the senior Assistant Superintendent of Services at Toronto East, was "less than forthright." Prof. Hubbard ruled that Mr. Simpson had threatened to block Ms. Shaw-McKinnon's career, and that Toronto East Supervisor Jim Hume was in sympathy. He found that both of these senior managers had made a "flagarant abuse of authority."
"It is obvious," Prof. Hubbard concluded, "that the workplace environment of the Centre was poisoned by racial harassment and discrimination, and that such sporadic efforts as were taken to address it were inadequate and often begrudged. The complainants' requests for action were viewed with suspicion and either ignored, mishandled or met with undue delay, as were the complaints of several others."
Prof. Hubbard ordered employees Geswaldo, Hume, Simpson and James to pay the McKinnons a total of $20,000 in general damages, the maximum allowable under the Code. The ministry itself was ordered to promote the McKinnons to the positions they likely would have achieved if the original complaint had not been made, to give them back pay for the missed promotions, to set up a human-rights training program within six months, and to ensure that neither Mr. Geswaldo nor Mr. James would work in the same institution as Mr. McKinnon ever again.
"I was absolutely ecstatic with the decision," Mr. McKinnon says. "I recall getting a call from the lawyer. He said, 'Mike you won! . . . You won everything.' "
This elation would be short-lived.
Instead of abating, the abuse increased.
The Ministry of Correctional Services itself covered the $20,000 penalty that Prof. Hubbard had ordered the four individually named respondents to pay -- a clear message to prison staff about management's sympathies. Mr. McKinnon, meanwhile, was shunned as an outcast by most of his colleagues.
He received no support from prison management when faced with insubordination when he was himself briefly an acting manager. He was denied training opportunities. He faced a series of unfounded, nuisance grievances, and threatening phone calls to his home. His locker was kicked in -- the only one in the prison to be vandalized. Mr. Geswaldo, still his supervisor, refused to investigate.
Ms. Shaw-McKinnon complained that Phil James -- her supervisor -- had referred to her as a "blood cloth," using Caribbean slang for sanitary napkin. When she drew the insult to the attention of senior manager Jim Hume, he advised her that she had "misunderstood the intent" of the remark.
"We couldn't let this stuff go," Ms. Shaw-McKinnon says. "We had to fight for what's right." She has urged her husband on when his energy for the battle has flagged. "We're both of the philosophy that if you stand by and watch a wrong occur, you're almost as culpable as if you'd done wrong yourself."
On March 23, 1999, a year after Prof. Hubbard had issued his first ruling, the tribunal reconvened.
Mr. McKinnon's new counsel, Kate Hughes called a surprise witness, Ralf Agard, an independent consultant in corporate diversity training and human rights, who'd recently worked for the consulting company of Devlin and Associates Canada -- which had a contract with the Ministry of Correctional Services.
Mr. Agard's job there had been to recommend how to fix problems of workplace harassment and discrimination. He had inside information, which he'd assembled into a report and a set of recommendations. Over vigorous objections from the ministry, he was allowed to testify.
In this round of hearings, Prof. Hubbard was trying to determine if his earlier orders had been carried out in good faith. Mr. Agard's testimony became central.
"I found that the ministry had shown some interest in addressing racism," Mr. Agard says now, "but that there was a significant amount of organizational resistance. . . . One got a sense that the directing minds were listening, but not necessarily hearing."
Prof. Hubbard released his second decision on Nov. 29, 2002. His orders this time scarcely concealed a growing frustration. He ordered that the McKinnons be given paid leaves of absence until the ministry had complied with all other orders He ordered that further complaints at Toronto East be handled by someone outside the ministry to ensure that errant managers were not simply policing themselves.
He also lifted a leaf from Mr. Agard, ordering that the 13 recommendations in his report be implemented -- especially that employees found guilty of racist conduct be fired. And he reiterated the need for effective antidiscrimination training.
The ministry spokesperson at the tribunal, Assistant Deputy Minister Deborah Newman, said she supported most of the recommendations. But how did the ministry react?
On Dec. 20, 2002, it appealed Prof. Hubbard's new orders to Divisional Court. A year later, the repeal was rejected: "We are confronted in this appeal," the court wrote in its ruling, "with a unique situation in which outrageous discrimination continued unabated for a period of fifteen years and in which the Tribunal's original remedies appear to have been at least in part subverted."
And later: "It's clearly desirable that the racist atmosphere of the workplace should be attacked as soon as possible. The two [Hubbard] reports indicate a shameful situation that is totally unacceptable in a civilized country."
The ministry appealed that ruling to the Ontario Court of Appeal, which on Dec. 6, 2004, issued a decision reaffirming the lower court ruling. The McKinnons' lawyer, Kate Hughes, estimates that this final appeal in itself cost Ontario taxpayers $50,000 -- on top of the nearly $2-million already spent, according to evidence given at the tribunal, on failing to comply with Prof. Hubbard's first set of orders.
Spokespeople in Corrections and in the premier's office would not answer the question of how much Ontario has spent fighting the McKinnons in total, and refused to discuss any other aspect of the case until it is settled once and for all.
Mr. Agard, however, has his theories about why the ministry acted as it did -- he calls it "a classic case of institutional resistance to change." It's a reaction, he adds, that "stems partly from the stigma and the emotional attachments that exist with respect to racism and discriminatory behaviour. Nobody wants to be called a racist openly. Those accusations make the organization feel vulnerable. They don't know how to deal with it, so out of fear they circle the wagons."
The additional grim irony, he says, is that the government's energy is being spent on denying the authority of a tribunal the government itself created.
But finally, its appeals exhausted, the ministry was required by law to go ahead and do as Hubbard had ordered. But as far as the McKinnons could tell, it largely did not.
And so, in the spring of 2005, to almost everyone's surprise, the tribunal was back in session. According to Ms. Hughes, no respondent had ever put up such resistance to repairing a breach in the Human Rights Code in the history of the Human Rights Commission.
She told Prof. Hubbard that rather than ramping up anti-racism training and action, the ministry seemed determined to wind it down. The ministry's anti-racism co-ordinator had been seconded to another job, and had not been replaced in two years. The third-party consultant hired at Prof. Hubbard's order to vet the ministry's efforts found that the work environment had worsened, not improved -- to the extent that it would now be "unsafe" for the McKinnons to return to work.
It is June of this year -- 18 years after the original complaint was made -- in the Lanark Room of the offices of the Human Rights Tribunal on University Ave. in Toronto. The tables are arranged in an open square, about the shape and size of a boxing ring. It is the end of the third round of hearings. There have been 27 more days and 23 more witnesses. Final arguments are about to commence.
In one corner sits ministry lawyer Kate Stephenson, a gentle-seeming person who looks like she'd rather be almost anywhere else. She is flanked by Jan Jeffries, the head of Human Resources for the Ministry of Correctional Services, a tall, thin woman with a helmet of short silver hair, quietly scribbling notes.
In the other corner sits Michael McKinnon, with Kate Hughes and a junior from her firm.
The tables on both sides of the ring groan with the weight of binders and boxes containing 248 more exhibits that have been entered in evidence. There is a small gallery for observers at one end of the room, and at the other sits a court stenographer, with fingers flying over her laptop, and Prof. Hubbard, the referee, preternaturally still.
Ms. Hughes is summing up the contrast between the McKinnons' careers since the first complaint and the career paths of their harassers. She describes it as "perversely asymmetrical."
George Simpson retired early, but his retirement income was topped up by the ministry to full salary to age 65. Jim Hume, former Deputy Superintendent, rose to the rank of Superintendent. Phil James was also promoted.
And what about Frank Geswaldo? Immediately after Prof. Hubbard's first orders came down, Mr. Geswaldo took sick leave, protesting that the finding that he had poisoned the workplace for others had poisoned it for him. The ministry's health-insurance company investigated his ailment and refused to support a further absence or to pay for the time he had already taken. The ministry picked up the tab.
When Mr. Geswaldo returned to work in 2000, he was promoted up a level. And in 2002, he topped up his $65,000 base salary with overtime and bonuses of $110,000, to a total of $175,000 before taxes. Mr. Geswaldo became the only prison guard on the "Gold Stars" list of provincial employees making more than $100,000 a year. In 2003, he made $130,000.
He boasts that he has never been counseled or reprimanded, much less demoted or fired, for his role in the McKinnon affair, in contrast to the stated resolve of the ministry to punish human-rights offenders. Meanwhile, Deborah Newman, the official who stated that resolve, has advanced from Assistant Deputy Minister to Deputy Minister, the highest non-elected position in the ministry.
The McKinnons and their supporters have fared less well. Don Stockwood remains stuck in the rank he had when he bore witness to the "Pow Wow" incident. Vicki Shaw-McKinnon never got back on the fast track, and remains away from work. And Michael McKinnon is on a regime of anti-depressant drugs.
Mr. McKinnon says that he hates not working, and hates what the 18-year struggle has done to his family. He worries about his relationship with his two children, 12 and 7 years of age.
"The kids have known nothing different," Ms. Shaw-McKinnon observes. "It started before they came, and its still on-going."
She adds, "We took the kids to a hearing this time. This has been an ongoing issue for them all their lives. Mike disappears to these meetings all the time, on the phone discussing with his lawyer, e-mailing and that sort of thing, and you try to explain. But we thought seeing for themselves would be an eye-opener, to see exactly where Daddy goes, and put faces to these people -- Kate, and Prof. Hubbard."
Kate Hughes is trying a new strategy in this round of hearings, designed, she says, to end the madness.
First, she is asking Prof. Hubbard to make a public, on-the-record statement, registering his revulsion at the ministry's conduct. But in case embarrassment doesn't do the trick, Ms. Hughes is also asking, for the first time, that the ministry pay for its actions with a large amount of cash.
The McKinnons had to be convinced that this was the way to go. Money had never been their issue. Early on they were offered $165,000 simply to go away, and they refused. "We didn't want money," says Mr. McKinnon. "We wanted change."
But now Ms. Hughes has suggested that money is the way to get change. Leaning over the boardroom table, her reading glasses perched on the top of her head and punctuating her arguments with jabs of her ballpoint pen, she asks Prof. Hubbard to award her client a substantial sum for his lost 18 years (the exact amount to be determined by the tribunal).
But more importantly, she is asking that the ministry "pay for delay" -- with the bill increasing steadily as long as the tribunal's orders for reform go unfulfilled. A mounting penalty, she argues, could prompt the province to do something about its correctional system's culture at last.
Prof. Hubbard thanks the participants, closes the hearings and retires to his Ottawa residence to ponder, for the third time in a decade, what to do in the case of Michael McKinnon vs. the Queen. His report could appear any time from next week to next year.
Ms. Shaw-Mckinnon remains optimistic. "You can't just let this go, because it's not right that people are treated like that," she says.
But her husband is weary and discouraged. "To be quite truthful" he says, "I'm not holding out much hope things are really going to change."
The 1980s are long gone. Ben Johnson has faded into obscurity, vinyl records are now collectables, and Prozac -- the anti-depressant that hit the market the year he lodged his first complaint -- now has a permanent place in Michael McKinnon's medicine cabinet.
Richard Wright is a writer based in Toronto.
It is the late spring of 1988. Michael McKinnon is on his way to work. He's dropped the kids off at school in his silver pickup truck, and is now cruising down Highway 12 from his home northeast of Toronto. He tunes the radio dial to pick up the traffic reports -- he has to get to Warden and Eglinton in time to start his 9 o'clock shift at the Toronto East Detention Centre, a maximum-security prison in Scarborough.
At the summer Olympics in Seoul that year, Canadian sprinter Ben Johnson would set a new world record in the 100 metres, briefly. It was the year Prozac was introduced and the year CDs outsold vinyl for the first time. It was a long time ago.
Since then, what should have been a sad little footnote in Ontario's human-rights history has grown into a full-blown epic -- Michael McKinnon vs. Her Majesty the Queen.
But that morning in 1988, Mr. McKinnon had been a prison guard for 11 years. His wife, Vicki Shaw-McKinnon, was a guard at the same institution. They had met when he was playing hockey for the Toronto East team against teams from the police department, the firefighters and the Toronto West prison across town. Almost six feet tall and a solid 200 pounds, with eyes that burn with intensity, Mr. McKinnon was a formidable enough defenseman to catch the attention of a fellow guard watching from the stands. They married in May, 1985.
The wedding included a bagpiper, since Mr. McKinnon's father was Scottish, and to honour his mother's side, Mr. McKinnon wore a full aboriginal headdress. His mother is Cree from the northern Quebec town of Gracefield, near Maniwaki. "I'm very proud of my heritage on both sides of the family," he says.
Apart from his jet-black hair, there's little in Mr. McKinnon's appearance to make his native heritage obvious. He grew up in Scarborough, doesn't speak French or Cree, and attended St. Rosalina elementary school and David and Mary Thomson secondary school, where he played hockey and football and hung out at the mall, like everyone else. Upon graduation, he took courses in Corrections at Centennial College, also in Scarborough.
"I guess you'd say I'm a thoroughly suburban Indian," he laughs.
The wedding guests included many of the couple's friends from Toronto East. "We socialized a lot, went to dances, played baseball," he says. Still, for many of his colleagues, the wedding was the first time they heard that Mr. McKinnon was part aboriginal.
His salute to his native ancestry would come back to haunt him.
There always had been a trickle of racist taunts at work. Now there was a flood. Derogatory cartoons were posted on the prison bulletin boards depicting Mr. McKinnon as a bow-and-arrow-toting redskin, and the name-calling became constant: Mr. McKinnon was now "McInjun," or "Chief Crazy Horse McKinnon" or simply "Chief." He was also called Geronimo, Wagon Burner, Big Canoe, Tomahawk, Running Bear, Big Indian, and FBI (i.e., Fucking Big Indian).
Vicki Shaw-McKinnon, who is not aboriginal, was now nicknamed Vicki Squaw-McKinnon.
The taunts came from colleagues, fellow guards, former friends, hockey teammates, even prison managers. On one occasion, Mr. McKinnon was greeted in a corridor of the prison by a group of four corrections officers decked out in feathered headdresses, who were war-whooping, laughing and doing their best imitation of a native ceremonial dance.
"They were having quite a laugh at my expense," says Mr. McKinnon. "I was totally humiliated."
This sophisticated display was orchestrated by Frank Geswaldo, Mr. McKinnon's immediate supervisor. It was played out in front of cells full of inmates, who joined in the fun. Mr. McKinnon simply turned and walked away.
"You're expected to take it," he says. "You turn your hearing off, and you try to mix in."
Things continued in that vein for three more years -- until this particular morning in 1988.
As Mr. McKinnon pulled into the Toronto East parking lot, Bobby McFerrin was on the radio, crooning Don't Worry, Be Happy. It was a bit irksome, since Phil James, one of his tormentors, had taken to singing this tune in Mr. Mckinnon's presence. The message was that he should stop worrying about the racist attacks and be happy with second-class status.
Mr. McKinnon was, in fact, tolerably happy. Apart from Mr. James and a handful of others, his colleagues respected him, and despite the hostility from his supervisor, Mr. Geswaldo, his personnel file said he had a "commendable record." The job paid well, and his wife was fast-tracked for promotion. Life was looking at least okay, if not entirely good.
He parked his pickup in front of the building. Toronto East is an uninspiring hulk. Five stories of brown brick with tinted glass windows, it squats among wholesale butcher shops and auto garages, with its back to the railway tracks. It is distinguished only by a towering chain-link fence, topped with coils of razor wire. The prison houses 400 to 600 of the system's most serious offenders.
Mr. McKinnon passed through a sally port -- "our lingo for the security doors," he explains. "Someone looks at you, you're identified and you go through the first sally port door. That locks behind you with a clang before the second door opens. You go through that. Another clang. You're in the main secure area of the facility."
The incident happened later that morning. "I was discussing some paperwork with a colleague, Donny Stockwood, when Frank [Geswaldo] comes out and says 'What's this? Another Pow Wow?' "
"Mike and I looked at each other," Mr. Stockwood recalls, "and, you know, I say, 'What's his fucking problem?' " (Mr. Stockwood is now president of the correctional officers' union local, and he remains a supporter of the McKinnons. But he believes it has cost him dearly, in missed promotions and raises.)
This time, Mr. McKinnon did not turn and walk away. "It wasn't just this event," he says now. "It was the accumulation.
"I asked Geswaldo why he would use that terminology. He said, 'Well, you are a fuckin' Indian, aren't you?' I said, 'Look, I'm aboriginal. I'm not a "fuckin' Indian." ' And he started to mock me. I told him I didn't appreciate it, and asked him to stop. And he said, 'Yeah, right. I don't change for anybody.'
"So I put in an informal complaint with management. I just could not take it anymore."
And according to the Ontario Human Rights Code, he didn't have to. "Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race or ancestry," it says. The Code is legally binding, and applies to every employer in Ontario, including the Ministry of Correctional Services.
"Naively, I thought the ministry would move quickly to fix my situation," says Mr. McKinnon. "But that's not what happened."
There was already plenty of evidence that racist harassment was common at Toronto East. Other human-rights complaints from other employees, already on record with the institution, documented a medley of racist gibes. "Nigger," "Chink" and "Filipino dog-eater" were far from unheard-of in prison-guard exchanges.
The Ontario Ministry of Corrections moved quickly, but not in the direction he hoped. It seemed to be excusing Mr. McKinnon's harasser and belittling his own complaint.
"All I wanted at the time was an apology," he says, "but Geswaldo wouldn't apologize, and management backed him up. They said I was too thin-skinned, that I was making too much of a small thing, and they refused to act."
"This was not a petty incident," emphasizes Don Stockwood. "It was -- it is -- just an example of the mindset of the place."
"For them to admit shortcomings was unthinkable," says Vicki Shaw-McKinnon. "At Toronto East, you do what you're told. 'Management's right to manage,' they call it, and you don't challenge it."
"I felt I really had no choice," says Mr. McKinnon. "[On] November 29, 1988, I took my complaint to the Human Rights Commission."
At that point, Mr. McKinnon was 32 years old. He is now 50. Going to the commission would be the defining moment of the next 18 years of his life, and counting.
The Ontario Human Rights Commission administers and enforces the Human Rights Code. It investigates complaints that can't be resolved at the source and attempts to settle them through mediation. If mediation is unsuccessful and the complaint is found to have merit, it is passed on to an independent body -- then called the Board of Inquiry, but now the Human Rights Tribunal -- which makes a ruling on the extent of the problem and how it must be remedied.
The investigation and attempts at mediation in Mr. McKinnon's case took several long years. But in the end, the matter of "the complaints of Michael McKinnon alleging discrimination in employment on the basis of race, ancestry, [or] ethnic origin, and harassment by Her Majesty the Queen in Right of Ontario, the Ministry of Correctional Services, Frank Geswaldo, George Simpson, P. James and Jim Hume" was duly forwarded to the tribunal.
Chairing the proceedings for the McKinnon case would be Albert Hubbard of the University of Ottawa Faculty of Law, a vastly experienced and respected legal mind. He is small of physical stature, quiet and respectful in his chairman's role, almost invisible, although occasional flashes of gentle humour remind you he's there. He's a man as mild as Michael McKinnon is intense.
The tribunal has what the Canadian Supreme Court calls "quasi-constitutional powers," meaning its decisions carry exceptional weight. If it finds that a complainant's rights have been infringed, according to the Human Rights Code, the tribunal may "direct the party to do anything that . . . the party ought to do to achieve compliance with this Act."
After years of bureaucracy, Mr. McKinnon believed that now nothing would stand in the way of solving his problem for good.
And finally, on Feb. 27, 1996, Prof. Hubbard began to listen to arguments. Mr. McKinnon was represented by a Human Rights Commission lawyer. Over time, as the commission ran out of funds and time to deal with the case, this lawyer would be replaced by one paid for by Mr. McKinnon's union, OPSEU. That lawyer would in turn retire on a question of conflict of interest, and Mr. McKinnon's file would pass, in 1999, to Kate Hughes, a human-rights specialist with the Toronto law firm Cavalluzzo, Hayes, Shilton, McIntyre & Cornish. She still represents the McKinnons today.
On the other side, the Ministry of Corrections has had a similar instability in legal counsel, running through two government lawyers before the Toronto law firm of WeirFoulds LLP was engaged, in the person of partner Kate Stephenson.
The only constants throughout the process would be the McKinnons and Prof. Hubbard.
Mr. McKinnon and Ms. Shaw-McKinnon continued to work at Toronto East, but their situation became increasingly untenable. Mr. McKinnon was labeled a rat for breaching the institution's unwritten code of silence, which in prison culture easily outweighed the Human Rights Code.
A few friends such as Don Stockwood continued to support the McKinnons openly, but most did not. They said, "Mike, we support you but we can't stand beside you," according to Mr. McKinnon. "They were afraid of reprisals."
And with good reason. Mr. McKinnon found himself getting much more than his fair share of undesirable assignments. He was closely scrutinized in areas where other guards were given latitude. They were routinely allowed to stretch breaks or leave early on slow days, for example, while Mr. McKinnon was disciplined if he arrived even a few minutes late for his shift.
When he and his wife applied for promotions, they were denied. The quick rise of Ms. Shaw-McKinnon's career came to a halt after the complaint. A senior manager at Toronto East, George Simpson, said before witnesses that she would go nowhere as long as her husband pressed forward with his action.
The pressure did not sway them. Instead, as early as 1990, Mr. McKinnon lodged a second human-rights complaint to register the continued harassment, with the additional charge of retaliation. This complaint was added to the Hubbard tribunal's agenda.
Its sessions lasted more than a year-and-a-half, until October of 1997. There was a total of 45 days of hearings, and 246 exhibits were tabled -- all to determine whether, in a tax-supported provincial institution, a supervisor referring to an aboriginal employee as a "fuckin' Indian" was a problem that needed fixing.
Prof. Hubbard listened, pondered, and on April 28, 1998, reported, in 179 pages, that the Toronto East workplace was "redolent with racism."
He upheld the allegations of racist abuse, and said that management had failed to take appropriate action. He found Mr. Geswaldo's testimony "not credible." He found that George Simpson, the senior Assistant Superintendent of Services at Toronto East, was "less than forthright." Prof. Hubbard ruled that Mr. Simpson had threatened to block Ms. Shaw-McKinnon's career, and that Toronto East Supervisor Jim Hume was in sympathy. He found that both of these senior managers had made a "flagarant abuse of authority."
"It is obvious," Prof. Hubbard concluded, "that the workplace environment of the Centre was poisoned by racial harassment and discrimination, and that such sporadic efforts as were taken to address it were inadequate and often begrudged. The complainants' requests for action were viewed with suspicion and either ignored, mishandled or met with undue delay, as were the complaints of several others."
Prof. Hubbard ordered employees Geswaldo, Hume, Simpson and James to pay the McKinnons a total of $20,000 in general damages, the maximum allowable under the Code. The ministry itself was ordered to promote the McKinnons to the positions they likely would have achieved if the original complaint had not been made, to give them back pay for the missed promotions, to set up a human-rights training program within six months, and to ensure that neither Mr. Geswaldo nor Mr. James would work in the same institution as Mr. McKinnon ever again.
"I was absolutely ecstatic with the decision," Mr. McKinnon says. "I recall getting a call from the lawyer. He said, 'Mike you won! . . . You won everything.' "
This elation would be short-lived.
Instead of abating, the abuse increased.
The Ministry of Correctional Services itself covered the $20,000 penalty that Prof. Hubbard had ordered the four individually named respondents to pay -- a clear message to prison staff about management's sympathies. Mr. McKinnon, meanwhile, was shunned as an outcast by most of his colleagues.
He received no support from prison management when faced with insubordination when he was himself briefly an acting manager. He was denied training opportunities. He faced a series of unfounded, nuisance grievances, and threatening phone calls to his home. His locker was kicked in -- the only one in the prison to be vandalized. Mr. Geswaldo, still his supervisor, refused to investigate.
Ms. Shaw-McKinnon complained that Phil James -- her supervisor -- had referred to her as a "blood cloth," using Caribbean slang for sanitary napkin. When she drew the insult to the attention of senior manager Jim Hume, he advised her that she had "misunderstood the intent" of the remark.
"We couldn't let this stuff go," Ms. Shaw-McKinnon says. "We had to fight for what's right." She has urged her husband on when his energy for the battle has flagged. "We're both of the philosophy that if you stand by and watch a wrong occur, you're almost as culpable as if you'd done wrong yourself."
On March 23, 1999, a year after Prof. Hubbard had issued his first ruling, the tribunal reconvened.
Mr. McKinnon's new counsel, Kate Hughes called a surprise witness, Ralf Agard, an independent consultant in corporate diversity training and human rights, who'd recently worked for the consulting company of Devlin and Associates Canada -- which had a contract with the Ministry of Correctional Services.
Mr. Agard's job there had been to recommend how to fix problems of workplace harassment and discrimination. He had inside information, which he'd assembled into a report and a set of recommendations. Over vigorous objections from the ministry, he was allowed to testify.
In this round of hearings, Prof. Hubbard was trying to determine if his earlier orders had been carried out in good faith. Mr. Agard's testimony became central.
"I found that the ministry had shown some interest in addressing racism," Mr. Agard says now, "but that there was a significant amount of organizational resistance. . . . One got a sense that the directing minds were listening, but not necessarily hearing."
Prof. Hubbard released his second decision on Nov. 29, 2002. His orders this time scarcely concealed a growing frustration. He ordered that the McKinnons be given paid leaves of absence until the ministry had complied with all other orders He ordered that further complaints at Toronto East be handled by someone outside the ministry to ensure that errant managers were not simply policing themselves.
He also lifted a leaf from Mr. Agard, ordering that the 13 recommendations in his report be implemented -- especially that employees found guilty of racist conduct be fired. And he reiterated the need for effective antidiscrimination training.
The ministry spokesperson at the tribunal, Assistant Deputy Minister Deborah Newman, said she supported most of the recommendations. But how did the ministry react?
On Dec. 20, 2002, it appealed Prof. Hubbard's new orders to Divisional Court. A year later, the repeal was rejected: "We are confronted in this appeal," the court wrote in its ruling, "with a unique situation in which outrageous discrimination continued unabated for a period of fifteen years and in which the Tribunal's original remedies appear to have been at least in part subverted."
And later: "It's clearly desirable that the racist atmosphere of the workplace should be attacked as soon as possible. The two [Hubbard] reports indicate a shameful situation that is totally unacceptable in a civilized country."
The ministry appealed that ruling to the Ontario Court of Appeal, which on Dec. 6, 2004, issued a decision reaffirming the lower court ruling. The McKinnons' lawyer, Kate Hughes, estimates that this final appeal in itself cost Ontario taxpayers $50,000 -- on top of the nearly $2-million already spent, according to evidence given at the tribunal, on failing to comply with Prof. Hubbard's first set of orders.
Spokespeople in Corrections and in the premier's office would not answer the question of how much Ontario has spent fighting the McKinnons in total, and refused to discuss any other aspect of the case until it is settled once and for all.
Mr. Agard, however, has his theories about why the ministry acted as it did -- he calls it "a classic case of institutional resistance to change." It's a reaction, he adds, that "stems partly from the stigma and the emotional attachments that exist with respect to racism and discriminatory behaviour. Nobody wants to be called a racist openly. Those accusations make the organization feel vulnerable. They don't know how to deal with it, so out of fear they circle the wagons."
The additional grim irony, he says, is that the government's energy is being spent on denying the authority of a tribunal the government itself created.
But finally, its appeals exhausted, the ministry was required by law to go ahead and do as Hubbard had ordered. But as far as the McKinnons could tell, it largely did not.
And so, in the spring of 2005, to almost everyone's surprise, the tribunal was back in session. According to Ms. Hughes, no respondent had ever put up such resistance to repairing a breach in the Human Rights Code in the history of the Human Rights Commission.
She told Prof. Hubbard that rather than ramping up anti-racism training and action, the ministry seemed determined to wind it down. The ministry's anti-racism co-ordinator had been seconded to another job, and had not been replaced in two years. The third-party consultant hired at Prof. Hubbard's order to vet the ministry's efforts found that the work environment had worsened, not improved -- to the extent that it would now be "unsafe" for the McKinnons to return to work.
It is June of this year -- 18 years after the original complaint was made -- in the Lanark Room of the offices of the Human Rights Tribunal on University Ave. in Toronto. The tables are arranged in an open square, about the shape and size of a boxing ring. It is the end of the third round of hearings. There have been 27 more days and 23 more witnesses. Final arguments are about to commence.
In one corner sits ministry lawyer Kate Stephenson, a gentle-seeming person who looks like she'd rather be almost anywhere else. She is flanked by Jan Jeffries, the head of Human Resources for the Ministry of Correctional Services, a tall, thin woman with a helmet of short silver hair, quietly scribbling notes.
In the other corner sits Michael McKinnon, with Kate Hughes and a junior from her firm.
The tables on both sides of the ring groan with the weight of binders and boxes containing 248 more exhibits that have been entered in evidence. There is a small gallery for observers at one end of the room, and at the other sits a court stenographer, with fingers flying over her laptop, and Prof. Hubbard, the referee, preternaturally still.
Ms. Hughes is summing up the contrast between the McKinnons' careers since the first complaint and the career paths of their harassers. She describes it as "perversely asymmetrical."
George Simpson retired early, but his retirement income was topped up by the ministry to full salary to age 65. Jim Hume, former Deputy Superintendent, rose to the rank of Superintendent. Phil James was also promoted.
And what about Frank Geswaldo? Immediately after Prof. Hubbard's first orders came down, Mr. Geswaldo took sick leave, protesting that the finding that he had poisoned the workplace for others had poisoned it for him. The ministry's health-insurance company investigated his ailment and refused to support a further absence or to pay for the time he had already taken. The ministry picked up the tab.
When Mr. Geswaldo returned to work in 2000, he was promoted up a level. And in 2002, he topped up his $65,000 base salary with overtime and bonuses of $110,000, to a total of $175,000 before taxes. Mr. Geswaldo became the only prison guard on the "Gold Stars" list of provincial employees making more than $100,000 a year. In 2003, he made $130,000.
He boasts that he has never been counseled or reprimanded, much less demoted or fired, for his role in the McKinnon affair, in contrast to the stated resolve of the ministry to punish human-rights offenders. Meanwhile, Deborah Newman, the official who stated that resolve, has advanced from Assistant Deputy Minister to Deputy Minister, the highest non-elected position in the ministry.
The McKinnons and their supporters have fared less well. Don Stockwood remains stuck in the rank he had when he bore witness to the "Pow Wow" incident. Vicki Shaw-McKinnon never got back on the fast track, and remains away from work. And Michael McKinnon is on a regime of anti-depressant drugs.
Mr. McKinnon says that he hates not working, and hates what the 18-year struggle has done to his family. He worries about his relationship with his two children, 12 and 7 years of age.
"The kids have known nothing different," Ms. Shaw-McKinnon observes. "It started before they came, and its still on-going."
She adds, "We took the kids to a hearing this time. This has been an ongoing issue for them all their lives. Mike disappears to these meetings all the time, on the phone discussing with his lawyer, e-mailing and that sort of thing, and you try to explain. But we thought seeing for themselves would be an eye-opener, to see exactly where Daddy goes, and put faces to these people -- Kate, and Prof. Hubbard."
Kate Hughes is trying a new strategy in this round of hearings, designed, she says, to end the madness.
First, she is asking Prof. Hubbard to make a public, on-the-record statement, registering his revulsion at the ministry's conduct. But in case embarrassment doesn't do the trick, Ms. Hughes is also asking, for the first time, that the ministry pay for its actions with a large amount of cash.
The McKinnons had to be convinced that this was the way to go. Money had never been their issue. Early on they were offered $165,000 simply to go away, and they refused. "We didn't want money," says Mr. McKinnon. "We wanted change."
But now Ms. Hughes has suggested that money is the way to get change. Leaning over the boardroom table, her reading glasses perched on the top of her head and punctuating her arguments with jabs of her ballpoint pen, she asks Prof. Hubbard to award her client a substantial sum for his lost 18 years (the exact amount to be determined by the tribunal).
But more importantly, she is asking that the ministry "pay for delay" -- with the bill increasing steadily as long as the tribunal's orders for reform go unfulfilled. A mounting penalty, she argues, could prompt the province to do something about its correctional system's culture at last.
Prof. Hubbard thanks the participants, closes the hearings and retires to his Ottawa residence to ponder, for the third time in a decade, what to do in the case of Michael McKinnon vs. the Queen. His report could appear any time from next week to next year.
Ms. Shaw-Mckinnon remains optimistic. "You can't just let this go, because it's not right that people are treated like that," she says.
But her husband is weary and discouraged. "To be quite truthful" he says, "I'm not holding out much hope things are really going to change."
The 1980s are long gone. Ben Johnson has faded into obscurity, vinyl records are now collectables, and Prozac -- the anti-depressant that hit the market the year he lodged his first complaint -- now has a permanent place in Michael McKinnon's medicine cabinet.
Richard Wright is a writer based in Toronto.
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