Chohan v. Capital Health Authority et. al.
January 8, 2009: Edmonton. Before Justices Rowbotham, McFadyen, Marceau.
My Ladies, My Lord:
This is a defamation case; but, no ordinary defamation (or civil appeal). It raises significant issues about who we are and our values; as fellow citizens and as Canadians. It contains within it issues and questions about racism and its systemic nature (modern context); power (about responsibility and how it can be abused), mental illness labeling and the abuse of nomenclature of medicine and psychiatry on individual reputations and lives; the use of defamation to suppress and discredit concerns around race and reputation; and the efficacy of administrative and legal processes. And, it is about the struggle and experience of one man, Dr. Inderjit Singh Chohan. And, his experience – I submit – has wider implications, as it is the experience of the one and the many.
The matters of which I am about to speak may make you/us uncomfortable – and this is necessarily so – at this time and place, because we need to talk about racism in its various and modern manifestations and defamation and how they operate in our midst – within our modern, liberal democracy. These are “uncomfortable” – difficult, painful questions/matters – because they require us to look at ourselves; to look in the mirror – and that takes courage and honesty. But, we need to talk to each other and expand our understanding and knowledge – not just about each other – but, to serve the interests and the progress of law.
It has been said: the most important factor in the outcome of any case are the values that underlie the adjudication. You are the conscience of the community and the custodians of justice. I submit humbly this truly is an important case. It will define all of us.
We – Canadians – have come a long way and have made much progress. Still, every generation has its challenges – its shortcomings/prejudices and blind spots. And, our generation is not so unique- we are not immune.
The facts of this case, properly understood and appreciated, were an affront to the values of modern multicultural Canadian society and seriously wronged the Appellant. To come to this conclusion, you will need to examine and understand racism in its modern context. You will need to, quite likely, step out of your own experience – and that’s not easy to do. You will need to rise above our human tendency to use our own cultural spectacles and inclination to see what we want to see or are unable to see. You will have to put yourselves in the shoes of the Appellant to, as Madame Justice McLachin has referred to as, an “Enlargement of the Mind” or human experience. It is not something most of us are accustomed to doing. It will be difficult and skeptics will say you cannot truly put yourself in the place of a person of colour – a man like Dr. Chohan – with brown skin and who wears the articles of his faith – distinct from the predominant culture. And, yet the imperatives of justice and the jurisprudence of this land requires that you do just that.
The Appellant submits this case is about the use of defamation as a tool to mask and suppress a complaint of racism and to further perpetuate defamation. Mental illness labeling was used to discredit and disparage legitimate complaints of racism, threats and defamatory statements. We contend that Dr. Cadsky uttered a racist and defamatory statement when he called Dr. Chohan a “paranoid Sikh” and that this was accompanied by an expressed intention to force or precipitate Dr. Chohan’s departure or resignation from AHE (Alberta Hospital Edmonton) – and, that such statements were also made before and after February 4, 2003. I submit that you ought not to have difficulty finding Dr. Cadsky is a bigot and racist – and that his statements were defamatory. More importantly, we contend that conduct of the other Respondents was more egregious and reprehensible because they defamed Dr. Chohan by wrongfully labeling him mentally ill or paranoid when he appealed to them for help. They occupied positions of authority and power. Properly understood their conduct was an abuse of power and trust. The statements attributed to them were more harmful and damaging to the reputation of Dr. Chohan because they carried more weight and inflicted on-going damage – right to this day – given whom they emanated from and the small world of forensic psychiatry and medicine. That they did so, I submit, in the face of a complaint that included racism and discrimination is all the more repugnant. We know the Respondents will vehemently reject this characterization and the trial judgment was not in favour of the Appellant.
We submit the trial judge was distracted from the relevant evidence by the repetitive and manipulative use of the power of language and word play such as politics, factions, group of seven, old guard and new guard, political correctness and colloquial language. (If the message is the medium; those who control language – control the outcome.) The evidence in this case is simple. If you follow the evidence it will lead you inevitably to the truth. It is all there. Follow the evidence.
It will reveal that defamatory statements were made; the wrongful application of the defence of qualified privilege, and the presence of malice. To do that you will need to understand the presence and modern context of racism and why the Respondents chose to discredit and defame Dr. Chohan, by mental illness labeling, in the pursuit of their own selfish egos and ambitions – the false arrogance of power. What is remarkable about this case is that there is essentially no denial that the statements alleged were made. The trial judge lost himself. If you are able to step out of your comfort zone and see the world through new eyes – put yourself in the place of Dr. Chohan – as required by the needs of justice and the law of this increasingly complex and diverse country – then you will inevitably come to the conclusion we advocate. If you not able to see with those eyes – then you will not find for us. And, that will have an ominous and chilling effect on those who look to our courts of justice. (The experience of Dr. Chohan is not alone – nor an isolated incident.) Five million Canadians were born outside of this country. Six million are “visible minorities.” Please do not be mistaken: we believe your decision will have implications – for our collective future. This is a challenge of our generation; right here and now. It is a rare occurrence in our presently configured system of justice that someone would subject himself to such a long journey and risk everything such as Dr. Chohan. There are not many like him. In time, I hope others will come to see and understand the great sacrifice and service he will have performed for all of us. Justice is often advanced and elucidated through such men and woman. They are given to us – what we make of it is a test of our wisdom and humanity.
If a kind and understanding heart is the first requirement of a wise and good judge, you will have no choice but to embark on this uncomfortable and difficult examination. In the Preface to “Black Like Me” John Howard Griffin wrote:
We fill too many gutters while we argue unimportant points and confuse issues. The real story is the universal one of men who destroy the souls and bodies of other men (and in the process destroy themselves) for reasons neither really understands. It is the story of the persecuted, the defrauded, the feared and detested. I could have been a Jew in Germany, a Mexican in a number of states, or a member of any (so called) “inferior group” Only the details would have differed. The story would be the same.”1
The trial judgment must not stand. And, I begin my submissions by addressing the evidence and argument as it relates to each of the Respondents.