Systemic Discrimination

I was once asked by the Ontario Human Rights Commission staff interviewing me for a job, what “systemic discrimination” was. That was thirty-five years ago. I did not get the job.

There is a lot of talk about systemic discrimination these days. It is largely in the context of racism. Many say we have it here in Canada. Some disagree. It has become a cry of political jousting. But I do not believe people are talking from the same standpoint.  

If one means our society is systemically discriminatory because our laws were, and indeed our very Constitution was fashioned by rich white men, then yes, there may be hidden biases embedded. But tell me how to fix it. Do we toss out Parliament because it is a Caucasian and European invention? What do we replace it with: tribal councils? I have seen nothing that works any better and much that functions far worse.

A wise woman has once stated that hindsight is a poor judge of history. I concur. Taking down statues or changing the names of streets, schools or towns is not the answer. One should not whitewash the past anymore than one should glorify its wrongs.

We know dreadful things have happened throughout time. The witch hunts of the New England colonies and elsewhere, the inquisition, the criminalization of homosexuality, the Jewish pogroms, the enslavement of blacks – and the socially forced servitude of others, the extermination of indigenous people, religious massacres, the expulsion of people from Acadia, Ireland, Scotland and other places. And of course, there has been conquest and colonization since time immemorial: by France of England, by Rome, by Greece, by Islamic countries of Europe, by European countries of the world, and more recently by the United States, and by China. Dreadful things are still happening worldwide and at home. And of course there has been mass migration, which has caused great upheaval, since homo sapiens first arose in the belly of Africa.

In Canada, I agree, there is systemic racism against indigenous people written into our Constitution of 1867. It was somewhat tempered by the embedding of the Charter of Rights and Freedoms into it over one hundred years later; but not perfectly so. We still have a form of apartheid. 

We are conflicted. Did Europeans conquer Canada, or did they settle here under non-European terms? What do these so-called treaties with various tribes mean? I have not seen any conclusive or convincing answer. Sometimes one must accept reality and practicality. One cannot go back in time anymore than the Anglo-Saxons could undo the Norman conquest of 1066, or the ancient Picts could undue the Scots' invasion many centuries earlier. One must go forward. Sometimes “good” does arise from the ashes of “bad”.

One says that our police forces are home to “systemic discrimination”. If one means that the laws and policies around policing are in a system-wide manner filled with discrimination, then I think this is not correct. The problem is not the system. It is, I believe, the people. People are racist, homophobic, anti-Semitic, sexist, xenophobic. What we lack is education. People learn these discriminatory stances at home. They learn them in their churches, and sometimes in their exclusive clubs and schools. We have come a long way to change the laws and the policies. We have failed, however, in the education of the people. We have failed in the recruitment and screening of people in positions of authority: be they law enforcement officers, politicians, preachers, bureaucrats or educators.

From some of these dreadful events, we have learned. And from others we are still learning. But does anyone have a solution or are they just advocating change without knowing what that looks like. The latter is dangerous. There is no consensus, even among the different interest groups.

Another wise old woman, my maternal grandmother, used to say: “Don’t throw out the baby with the bathwater”. When someone, - politician, activist or whoever - can offer a practical solution, I will listen. Until then, from my perspective, we need to work on education. We need to weed out the remaining laws and policies, or perhaps it's only their application, which have an impact on people in a discriminatory fashion. This is not just about racism.

Oh Canada

Some people are saying that our government was too slow to react to the Covid-19 virus. Canadians should not have been leaving the country, as they still were, for spring break in March. We, who had been in Cuba since very early in January, noticed many pale people who had obviously just arrived in mid-March and we found this curious. Perhaps if there had been an earlier reaction to Covid-19, things would not have had to be so restrictive as they are now. But hindsight is always a poor judge of past events.

However, one stranded tourist has written that he now understands why it is important to register with the Canadian government when travelling abroad. We have done so in our recent travels over the last five or six years. Fortunately, we had never had the occasion to rely on this. This year we did. And it was very unsatisfactory, if not downright disgraceful.

By early March, we had started to pay as much attention as we could to the news of the Covid-19 virus with our limited access to the internet. But we were lulled into a sense of security. On March 15, we received an offer by Westjet to upgrade our seating on our "upcoming flight" (March 24). Then on March 17 we received a concerned email from a friend on Cape Breton alerting us to the fact that Westjet’s last international flight out of Cuba would be by midnight on the 22nd. Our flight home had been cancelled. We did not receive this news from either the airline or the Canadian government.

We logged onto Westjet’s site and were informed we could change our flight on-line. We tried. The message we received was that our flight could not be changed on-line. We would have to call an agent. There are no Westjet agents in Cuba. There was a toll free number to call. It did not work from Cuba.

We started to panic. We had received no notifications from the Canadian government so far. So we called the Canadian Embassy in Havana. A recorded message said the Embassy was closed (during business hours and in a crisis!); but that if we needed consular services we could leave a message with contact information. We did. We never received a response.

Fortunately, I was able to get hold of my niece back home and give her as much of our information as I could, so that she could try to change our flight. Within an hour she emailed (March 17) us with confirmation of our flight change. We would be leaving on the 21^st at 6:05 p.m. Although things seemed quite calm in Cuba at the time, we wanted to cry with relief. We had been ready to come home anyway and three days early was just fine with us.

It was only late in the day on the 19^th that we had received our first email notification from the Canadian government. Too little too late! It advised us of cancellations of flights by three airlines, none of which was ours, and said we should try to change our flights. Kindly, it advised us this might be difficult and that we would likely be on standby!

So being registered with the Canadian government was not at all helpful to us at least. And our country’s consular services were laughable. But we are home and we are happy.

A Peck of Dirt

One thing this Covid-19 pandemic with which we are currently confronted should teach us is to be vigilant: not with respect to viruses but with respect to the loss of freedom. Hard won

rights are too easily lost. Sometimes this may be necessary in the short term. But it is not always so.

Human beings are social animals. The loss of the freedom to socialize will have, I fear, a greater impact than the virus itself. I wonder if we are not over-reacting. Yes, the virus will kill some – perhaps many. But so will isolation, fear, and despair. We can, perhaps, tolerate having social norms taken away for a short while; but the longer that while drags on, the more crazed people will become.

After a few weeks, we are already seeing the “holier-than-thous” smugly “outing” those who struggle with this new way of being. And the rules change quickly and the restrictions grow daily. Unless one is glued to the media one cannot possibly keep up. What was permitted yesterday, may not be permitted tomorrow.

As I write this, there are just over one million one hundred thousand cases, with not quite sixty-two thousand deaths worldwide. That’s about 5% of cases. There will be more cases and more deaths I know. But last year there were four point two million people who died from pollution related illnesses and no doubt many more who are ill because of it. And it is estimated that there are three to five million serious flu cases worldwide annually with two hundred and fifty to five hundred thousand deaths annually.

So I ask myself, are the governments' broad restrictions wise. There are always those who are more susceptible to viruses. Perhaps our over-use of antibiotics and pharmaceutical medication generally is to blame. With our wipes, and our masks, and our physical distancing are we just adding to the problem of diminished immune systems. My grandmother used to say a healthy person must eat a peck of dirt when they are young. And I believe that. The world has become too sanitized for our own good.

Sweet Justice

When I retired from an almost thirty year career as a legal aid lawyer, I truly wondered if it had been a wasted three decades. The wins in the courts were vastly outpaced by the losses. And not because the legal arguments were necessarily unsound. The expression “one step forward and two back” was a constant reality. A win in court often meant that the government amended the law to gain the result it had hoped for. Usually that result was less rights for the disadvantaged and fewer benefits. The law or legal principles were applied differently to the banks and large corporations or the wealthy than they were to the poor, the marginalized and the ordinary citizen. It was indeed a discouraging three decades with only a few glimmers of social justice being achieved.

Perhaps I should have realized this as a young law clerk at the Supreme Court of Ontario. One day, I was assisting at a fledgling Constitutional legal challenge by a same-sex couple seeking the same benefits as heterosexual couples. I could tell that the judge I was working for was uncomfortable with the arguments advanced by the applicants, which were sound in every way. During a recess, the presiding judge, whom I was working for at the time, stood smirking with another judge, (need I state that they were both older, white males). I overheard them joking about the case in a snickering school boy sort of way. My judge stated that he could not find in their favour, “after all, what would my neighbours say”. I immediately recognized that legal principles would not win out. There were a few other instances over the decades similar to this.

Most of my career was spent doing legal research and writing legal opinions for court and tribunal proceedings by legal aid lawyers and paralegals. I also wrote a number of legal journal articles over the years advancing certain legal arguments. Sometimes I would discover that these opinions were being ridiculed publicly. There are three incidents that come foremost to mind. I have now been retired for almost five years.

One article I wrote in the early 1990s advanced a legal position in favour of recipients of unemployment insurance benefits. The lower court and tribunal decision had accepted what I viewed as an untenable position based on the law. Years later I would be informed by a colleague that she had just read an article calling my article a “rant”. I did not mind, although I thought it somewhat unprofessional of the author to have put it in those terms. The reason I did not mind was the Federal Court of Appeal had since accepted the legal position I had been advancing in that “rant”.

Almost a decade later I had written opposing the transfer of a legal system for tenants from the courts to a tribunal. I saw this as a purely political move disguised as a review of an earlier legal decision by our highest court. Well that was a battle I could not win. Changes are often made in the name of service efficiency. Unfortunately, that efficiency frequently means less access to justice for the poor.

Regardless, although the shape of the legislation itself did not change dramatically, the tribunal’s re-interpretation of its broad remedial powers under it did. I wrote papers and journal articles about how this restrictive interpretation was unwarranted. A few years later, I discovered that a lawyer who worked for this tribunal had ridiculed me for my position in a published master of law thesis. A few years later, Ontario’s highest court accepted the position I had been advancing and been ridiculed for.

And recently, I discovered that years after I had unsuccessfully and repeatedly advanced a legal argument , it was accepted by Canada’s highest court. This argument was in favour of the same standard of review being applied to questions of law by administrative and quasi-judicial tribunals as is applied routinely in the courts. Once again I, or those advancing similar arguments, had been repeatedly “shot down” and warned to cease and desist from raising the issue. Our argument should have been a “no-brainer”, but it was not convenient or “efficient”. We had argued that a question of law must be decided correctly. Reasonable decisions that are wrong are not sufficient. For indeed, how can a wrong decision on a question of law be reasonable. It would allow for multi-tiered justice.

These few “wins” do somewhat alleviate the sense of being a voice crying out in the wilderness. They do somewhat abate the wounds from insults incurred. But they are really bitter sweet pills in retrospect.

A Princely Dilemma

To begin my rant: I have never been a “fan” of Prince Andrew. But this recent media frenzy for sleaze, and the mob mentality stirred by it is sickening. If I am not fond of the Prince, then I am far less fond of the media induced "guilty until proven innocent" craze.

Over the years, I have been friends with people whom I learned later had been involved in some seedy, or even illegal activity. Should I apologize for my friendship? I won’t.

Indeed, do we cast people aside, simply because they have fallen? Not in the world I want to be part of. Our friendship may be tempered; it may even come to an end, but why the need to apologize. Why the need to turn our backs on them.

And even accepting the possibility that the Prince is lying about his lack of involvement with certain young women, I have difficulty with the accusations.

First of all, it is difficult to accept that the Prince would have known that these very mature looking women were underage at the time. They certainly do not appear to me from photographs I have seen of them at the time, to have been teenagers, innocent or otherwise.

And what if they were. Our age restrictions are purely arbitrary. They vary from place to place, from culture to culture, even from circumstance to circumstance, and from time to time. Yes, it would have been illegal. But would it have been, if it were true, immoral or repugnant? I don’t think so. These young women, more than likely, knew exactly what they were doing. They were not naïve virgins. They were gold diggers, not victims.

And I cannot believe that any young woman was forced to have sex with the Prince. If they did so, I suggest that they did so willingly, and for whatever motive. Come on! A good looking, relatively young British Naval Officer, and a Prince to boot! Many young woman, and probably many young men, would have jumped at the opportunity. 

So I have problems with the allegations. I have problems with the sleazy media reporting. I have problems with the reaction of the vocal and indignant public.

Further, if it is true that the Prince has, or had at the time, a medical condition that made it impossible for him to sweat, then there are credibility issues with the accusers. 

We love to idolize the rich and famous. We love it even more when we can see them fall. Then, I say, pity our society.

The Western Cry for Separation

Regarding the call by westerners for separation from Canada, a western whiner has written that in addition to an early winter that has hit the farmers, they have also been affected by a“…[H]uge carbon  tax bills on the drying which is one more hit on the farmer, on top of China not taking product, India putting huge tariffs on pulse crops and railways shipping oil instead of grain because of the pipeline issue. Overall result out here is anger like I have never seen it …  The separatist movement out here is very real and I personally have written to our Premier and the Premier of Alberta asking for a referendum.”

And who is responsible in part for the weather crisis? Not the Federal government. I suggest it is people like those who oppose the carbon tax and support big oil that turn their back and bury their heads in the (oil) sand. And who worked very hard and in favour of the pipeline despite widespread opposition. It wasn’t the Federal government that nixed it. It was the people and the courts. The Federal government is not in control of what China or India or the USA does. It is not in control of world oil prices.

And who is responsible for the squandering of the huge Alberta oil reserve fund that was socked away during the boom days of irresponsible oil production? Not the federal government. Who is responsible for lulling its people into believing one can have a responsible society without paying taxes. Not the federal government. Who is it that simply shipped its raw oil out of the country at low prices, denying thousands work in what could have been a rich oil refinery industry, if it had had the wisdom to create one. Not the federal government. Who failed to diversify their economies, something that is in the provincial domain of power? 

Take responsibility for yourselves western Canada. Stop thinking you exist in a vacuum. The only vacuum is in your heads!

Brown Face

I think political correctness has gone a little too far with this roasting of Justin Trudeau for appearing 19 or 20 years ago at a private costume party in “brown face” and Arab attire. Nineteen years ago! He was 27 or 28 years old! He was not a politician at the time. And it was a very different time.

Anyway, what is offensive about brown face at a costume party? If one is living in the dessert, one does tend to brown up, regardless of one’s cold weather complexion. When I was a child I was dressed as King Farouk of Egypt for a party. And oh no, my older brother was dressed as an Indian! Should I apologize? It was 1954 in England.

Sometimes a white actor has to play Othello. Sometimes a black actor may have to play Hamlet. A woman has played King Lear!

What I am offended by is that he felt a need to apologize. What I am shocked at is the outrage! Get real. Shouldn’t one’s intention be what is relevant. He had no intention to offend, and likely, at the time offended no one. 

One can’t fairly judge distant past deeds by present day standards. And sometimes those present-day standards are simply ridiculous. You’ll get no apology from me for frivolous acts of my youth. And there were many. All intended in good fun. None intended to offend.