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Thursday, March 1, 2007
INSIDER REPORT Eddie Goldenberg's The Way it Works
March 1, 2007, Books in Canada
The Way it Works: Inside Ottawa
Eddie Goldenberg
A Douglas Gibson Book McClelland & Stewart Ltd.
402 pages, $36.99 cloth
ISBN 0-7710-3352-4
Eddie Goldenberg worked almost continuously for Jean Chrétien in government and politics from 1974 until Chrétien’s retirement in December 2003. The son of the superbly well connected Senator Carl Goldenberg, Eddie got a summer job working for Chrétien in 1972 through John Rae, Chrétien’s executive assistant from 1967-1971 and his perennial campaign manager. At Chrétien’s right hand as a cabinet minister and Leader of the Opposition, Goldenberg became “Senior Policy Adviser” to Prime Minister Chrétien. At cabinet meetings, meetings with premiers and foreign leaders, wherever the action was, Eddie, as he is careful to point out, and the many photographs in the book show, was almost always there. Often he represented Chrétien. He wrote speeches for him. To the public he was unknown.
Despite his title, Goldenberg had no head for the real work of government. Chrétien had the well known genius Chaviva Hosek as Director of Policy. A self-confessed “political junkie”, Goldenberg was a political strategist and fixer, seeing that Chrétien got what he wanted. He was the boss’s grinning consigliere. His idea of government is simply spending. His proudest personal achievement in government was engineering the flow of billions to universities and research in the last Chrétien years.
The Way it Works partly lives up to its title, giving an account of how cabinets are formed, what goes on at cabinet meetings - boring presentations, ministers catching up with their paperwork, leaving the table to get coffee - how decisions are made. Goldenberg thinks it all works pretty well. The book is also a defence and celebration of the Chrétien government. In this the implication of the title is that critics do not understand how it works, how it has to work.
He says his aim is to explain that cynicism about politics and government is misplaced. He has some explaining to do. The Liberals came to office on the basis that the GST was the work of the devil, NAFTA a bad deal, military helicopters unaffordable, the deficit no big problem that should crimp spending. They knew all this was untrue. At least they could have figured it out. Goldenberg describes David Dodge, then deputy finance minister, explaining to Hosek and himself the financial crisis Canada faced. Dodge said nothing that had not been in the newspapers for years.
Goldenberg confirms Chrétien’s big picture, chairman of the board approach to government, which got him compared to St. Laurent in the early years. He makes light of people who would not speak their mind to Chrétien or who took things Eddie said in casual conversation as commands from the Prime Minister. But if Chrétien was content to leave ministers to get on with their work he was nonetheless determined to have his way in what interested him. If what that was was not clear people were all the keener to do what they guessed was his will. Chrétien’s reputation as a tough boss was not a delusion of weak and inexperienced politicians under him, or a function of his office. Chrétien was a pure power politician. He enjoyed power and being able to help his friends and hurt his enemies. There was work that had to be done. He could not run the country into the ground and enjoy himself. But he could not enjoy himself if he was not securely in charge.
Chrétien’s one challenge was Paul Martin. Goldenberg paints an unpleasant picture of Martin, though of course the Goldenbergs had known the Martins since the 1930’s. There will be other accounts of Chrétien and Martin. What is unaccountable is that Chrétien should have decided to stay on for a third election in 2000 and hang on for three years after that simply to thwart Martin, as Goldenberg affirms. The failure of the Martin government makes it no more creditable. Chrétien would not give up power except by his own free will. Any other possible successor showing signs of restlessness would have provoked Chrétien. Indeed Allan Rock did.
A highlight of the book is Goldenberg’s account of Canada’s decision on the war with Iraq. He claims Canada’s position was always clear and consistent. How then can there have been such drama as he claims on March 17, 2003 when Britain asked what Canada’s position would be and Chrétien announced to the House of Commons that Canada would not participate?
Goldenberg expresses resentment at what he calls the ultimatum and that it came from Britain. It was not an ultimatum. The coalition was about to go to war and needed to know, Canada having sent mixed signals, whether Canada would be with them. Britain was as much in it as the United States, though necessarily on a smaller scale. Perhaps they felt the inquiry coming from Britain would avoid the anti-American paranoia in evidence.
Now that Iraq is a hellish mess the consensus is that the war was wrong and Canada smart to stand aside. At the time many Canadians thought Canada should join in. Opinion in English Canada was roughly evenly divided. Chrétien could have led either way. Support for the war went way beyond business groups trying to curry favour with the U. S., the only support Goldenberg acknowledges. He rightly minimizes the impact of political difference or closeness on trade relations, driven largely by U. S. domestic politics.
Goldenberg calls it a brave decision but what was Chrétien braving? The U. S. was keen to have support but threatened nothing and did nothing as it was refused. He risked no votes over it. The political risk was all on the other side.
There was some drama on March 17, 2003 because Canada’s position was anything but clear and consistent. Shortly before, three Toronto papers headlined three interpretations: we would go only with the UN; we would go whatever the UN said; we would not go in any circumstances. In the confused debate it seemed that some would have had us send forces to defend Saddam against a putatively illegal invasion. If UN authorisation was the issue we still had to decide whether an invasion was justified. If yes, we should have been pressing the Security Council to approve it. If no, we should have been pressing the Council to say so. Our UN ambassador Paul Heinbecker, a latter day Loring Christie with anti-Americanism replacing Christie’s anglophobia, scurried about promoting a resolution for more time for weapons inspections coupled with explicit authorisation for an invasion, a transparent attempt to thwart Anglo-American plans stymied by French opposition to an invasion in any event.
As Goldenberg maintains that Canada’s position was always what Chrétien stated on March 17, he can give no account of the development of the policy. He describes Heinbecker, Claude Laverdure, Chrétien’s foreign policy adviser, and himself considering the British inquiry for a minute and advising Chrétien to say no. A serious country weighing up its interests and principles does not appear. The Ministers of Defence and Foreign Affairs barely appear in the story.
In Goldenberg’s insider account the context disappears: Francie Ducros’ “What a moron?”, Carolyn Parrish’s “Damned Americans....I hate those bastards!”. Canada’s prevarication and the anti-Americanism it nourished resulted in Canada’s decision seeming a condemnation of the invasion, a position many in Canada were pleased to adopt. It is this rather than the decision itself that may have had an impact on relations with the US and events in Iraq. Those massacring scores of innocents every week in Baghdad were encouraged by it.
There is real drama in the story of the 1995 Quebec Referendum, set in the context of a kind of Whig history of national unity with all well after the recruitment of Professor Dion, the Supreme Court Reference and the Clarity Act. Time will tell whether Chrétien has not secured Joe Clark a place in history for his description of the Clarity Act as a “blueprint for separation”.
Goldenberg complains that media accounts of government are “incredibly superficial”. The Way it Works reads like a long newspaper feature.
Wednesday, February 28, 2007
The Supreme Court of Canada leaves us in a quandary - Charkaoui v. Canada
The issues the Supreme Court had to decide in Charkaoui and the two appeals heard with it were pretty simple.
Is it just that foreigners living in Canada can be arrested without being given the full reasons for their arrest? Should they have to wait months or more before they can ask a judge to release them? If the answer to either of these questions is no, can the breach of the foreigners' rights be justified for security reasons? The issues have been widely canvassed in the media and no consensus has emerged. The Supreme Court reached a perfect consensus unanimously saying: No. No. No. But it did not keep it simple
Adil Charkaoui, a permanent resident, what used to be called a landed immigrant, and Hassan Almrei and Mohamed Harkat, refugees, had been arrested, in 2003, 2001 and 2002 respectively, under provisions of the Immigration and Refugee Protection Act that allow the Minister of Immigration or the Minister of Public Safety to issue a certificate declaring someone not a citizen of Canada "inadmissible". The certificate must be reviewed by a judge but the judge may determine that the certificate is reasonable on the basis of information or evidence heard in the absence of its subject or his lawyer, if persuaded by the minister that its disclosure would injure national security or anyone's safety.
The certificate has the immediate effect of an arrest warrant and after it is passed by a judge becomes an order for removal of the subject from the country. A review of the detention of a permanent resident must be commenced within 48 hours of an arrest. Others such as the refugees Harkat and Almrei must wait 120 days before they can apply to have their detention reviewed.
Charkaoui has been on conditional release since last year and Harkat since 2005. Almrei is still locked up.
The Court first considered Section 7 of the Charter:
Under Section 7 of the Charter you can be locked up "in accordance with the principles of fundamental justice". The court considered whether national security could affect the requirements of "fundamental justice". But not for long. The court has generally shown itself keen to find breaches of the Charter. Once it has done that it can consider whether the breach is a "reasonable limit" under Section 1, looking to whatever it pleases as "evidence" and drawing a "reasonable limit" wherever it sees fit.
Having decided that security concerns could not excuse the procedures under the Immigration and Refugee Protection Act, McLachlin then blathered on about "fundamental justice" for twenty pages, worrying for seven pages whether the reviewing judges can be perceived as independent and impartial before roundly concluding that they can, yanking in a completely irrelevant comment on the Arar affair and allowing that, after all, "societal concerns [including national security] formed part of the relevant context for determining the scope of the applicable principles of fundamental justice", before finally reaching the predictable conclusion that there was a breach of Section 7.
Consideration then of whether the breach could be justified came down to a decision that the breach was not a "minimal impairment" of Section 7 rights, that the government could do better, by providing for a special counsel who would have security clearance and see all the evidence but not disclose it to the detainee or take instructions from him. Such counsel used to be used by Canada's Security Intelligence Review Committee and are used in the United Kingdom in some immigration appeals. Perhaps they will be helpful. But it is not something that follows necessarily from the language of the Charter.
What follows necessarily from the language of the Charter is that the Court is free to second guess Parliament and impose its will on it. That is what law professors with solemn facetiousness call a "dialogue between the Court and Parliament". It is no fun having a power if you do not use it and use it the Supreme Court of Canada will.
The court briskly considered Section 9 and subsection 10(c) of the Charter:
Finally the court considered Section 12 of the Charter:
Reactions to the decision were far too excited. The judgment will not change much. Almrei will remain in detention indefinitely. Charkaoui and Harkat will remain on conditional release indefinitely. Security certificates can still be issued and foreigners can still be arrested without knowing the grounds for their arrest. Parliament will try to amend the Immigration and Refugee Protection Act to satisfy the Court. There will be more litigation and controversy. Whatever Parliament does will be challenged and it will be years before we know whether the Court is satisfied or whether it may change its mind in one direction or another.
The excited reaction was fuelled by the Court's pompous language and elaborate treatment of simple issues. McLachlin's reasons are full of invocations of liberty, justice, equality and so on that contribute nothing to the decision but signal the solemnity, importance and almost sacredness of the Court. Issues are dealt with briefly or at length with no rhyme or reason and whether or not they are necessary to deciding the appeals. Whether issues are dealt with at length or briefly, whether they are necessary to the decision or not, the reasons are studiously vague and qualified. Context, used thirty-six times, is all. The purpose of reasons for judgment is to clarify the law. If the Court were doing its work properly its reasons would bring clarity to the vague language of the Charter so that governments and people would know what to make of it. But that would limit the Court's freedom to do as it pleases.
The Immigration and Refugee Protection Act was passed in 2001 when we had already had almost 20 years experience with the Charter. The drafters and Parliament must have supposed that it would withstand Charter challenges. Several Federal Court judges dismissed Charter challenges. But it should have surprised no one that the Supreme Court, unanimously, had at the Immigration and Refugee Protection Act. The Charter licences it to do what it likes. We cannot know what it may like until we ask it. And its power would atrophy if not used. So it was predictable that the Court would do something, but predictable also that it would do nothing radical. The judges are not a bunch of radicals, whatever Stephen Harper may think. They are just nine fairly ordinary lawyers enjoying extraordinary eminence and power.
Most laws are effective because people know them and follow them. Occasionally the courts are drawn in to enforce them on the recalcitrant or sort out confusions but, while the authority of the courts is fundamental to the authority of the law, the courts remain largely in the background. The Charter is different. Its effect and reach result precisely from our not knowing what the courts may make of it, the readiness of people to find whatever they like in it, and the readiness of the Supreme Court to give it to them.
There is unusually little in the reasons on the facts and the proceedings that brought the appeals before the Court. For a full understanding of the appeals it is necessary to refer to some of the 46 reported Federal Court decisions running to about a thousand pages of reasons that the three appellants have generated.
The Court heard 15 intervenors; Amnesty International, Canadian Arab Federation etc., etc.. The practice of welcoming intervenors presents the Court as a public forum where all have their say. It is a false picture. In the end only the Court has its say and the intervenors did not represent all opinions but basically lined up with the appellants. The most impertinent intervenor was "University of Toronto, Faculty of Law — International Human Rights Clinic and Human Rights Watch", a clique of specially unctuous law professors, condescending to offer their learning to the Court knowing that they had already infested it with their annointed students serving as judges' clerks.
The underlying problem in all these cases is that the purpose of the impugned provisions of the Immigration and Refugee Protection Act is simply to get dangerous people out of the country but Charkaoui, Almrei and Harkat can all argue that they risk torture if sent back where they came from. The Minister can issue an opinion that the danger to the security of Canada justifies removal to a country where there is a risk of torture but in the case of Almrei such opinions have repeatedly been quashed by the Federal Court. We are left in a quandary. The Supreme Court has no better idea how to get out of it than the government does.
Is it just that foreigners living in Canada can be arrested without being given the full reasons for their arrest? Should they have to wait months or more before they can ask a judge to release them? If the answer to either of these questions is no, can the breach of the foreigners' rights be justified for security reasons? The issues have been widely canvassed in the media and no consensus has emerged. The Supreme Court reached a perfect consensus unanimously saying: No. No. No. But it did not keep it simple
Adil Charkaoui, a permanent resident, what used to be called a landed immigrant, and Hassan Almrei and Mohamed Harkat, refugees, had been arrested, in 2003, 2001 and 2002 respectively, under provisions of the Immigration and Refugee Protection Act that allow the Minister of Immigration or the Minister of Public Safety to issue a certificate declaring someone not a citizen of Canada "inadmissible". The certificate must be reviewed by a judge but the judge may determine that the certificate is reasonable on the basis of information or evidence heard in the absence of its subject or his lawyer, if persuaded by the minister that its disclosure would injure national security or anyone's safety.
The certificate has the immediate effect of an arrest warrant and after it is passed by a judge becomes an order for removal of the subject from the country. A review of the detention of a permanent resident must be commenced within 48 hours of an arrest. Others such as the refugees Harkat and Almrei must wait 120 days before they can apply to have their detention reviewed.
Charkaoui has been on conditional release since last year and Harkat since 2005. Almrei is still locked up.
The Court first considered Section 7 of the Charter:
7.
Everyone has the right to life, liberty and security of the person and
the right not to be deprived thereof except in accordance with the
principles of fundamental justice.
It
was not difficult to decide that the appellants had been deprived of
their liberty. They had been locked up. That was enough to be getting
on with. But Chief Justice McLachlin writing for the whole Court made
heavy going of Section 7 by also considering the vague, catch all
phrase "security of the person". Being called a terrorist may not be
nice if you are innocent and the risk of return to the somewhat
Hobbesian lands whence Charkaoui and the others came may be worse but
the first is curable and the second hypothetical. The unnecessary
disquisition on "security of the person" signals the Court's readiness
to entertain strained and imaginative arguments in other cases.Under Section 7 of the Charter you can be locked up "in accordance with the principles of fundamental justice". The court considered whether national security could affect the requirements of "fundamental justice". But not for long. The court has generally shown itself keen to find breaches of the Charter. Once it has done that it can consider whether the breach is a "reasonable limit" under Section 1, looking to whatever it pleases as "evidence" and drawing a "reasonable limit" wherever it sees fit.
Having decided that security concerns could not excuse the procedures under the Immigration and Refugee Protection Act, McLachlin then blathered on about "fundamental justice" for twenty pages, worrying for seven pages whether the reviewing judges can be perceived as independent and impartial before roundly concluding that they can, yanking in a completely irrelevant comment on the Arar affair and allowing that, after all, "societal concerns [including national security] formed part of the relevant context for determining the scope of the applicable principles of fundamental justice", before finally reaching the predictable conclusion that there was a breach of Section 7.
Consideration then of whether the breach could be justified came down to a decision that the breach was not a "minimal impairment" of Section 7 rights, that the government could do better, by providing for a special counsel who would have security clearance and see all the evidence but not disclose it to the detainee or take instructions from him. Such counsel used to be used by Canada's Security Intelligence Review Committee and are used in the United Kingdom in some immigration appeals. Perhaps they will be helpful. But it is not something that follows necessarily from the language of the Charter.
What follows necessarily from the language of the Charter is that the Court is free to second guess Parliament and impose its will on it. That is what law professors with solemn facetiousness call a "dialogue between the Court and Parliament". It is no fun having a power if you do not use it and use it the Supreme Court of Canada will.
The court briskly considered Section 9 and subsection 10(c) of the Charter:
9. Everyone has the right not to be arbitrarily detained or imprisoned.
10. Everyone has the right on arrest or detention
(c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.
holding
that security was a "rational foundation" for detention but that the
ban on a review of the detention for foreign nationals such as Harkat
and Almrei breached Section 9 and subsection 10(c) together. They like
Charkaoui must have continuing opportunities for review of their
detention and any conditions of release.10. Everyone has the right on arrest or detention
(c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.
Finally the court considered Section 12 of the Charter:
12. Everyone has the right not to be subjected to any cruel and unusual treatment or
punishment.
which
the court eyes as a blanket authority to let the Court decide how to
make the punishment fit the crime. After ten pages of hemming and
hahing the court decided that Almrei's indefinite detention was not
"cruel and unusual treatment" while saying: punishment.
...this
does not preclude the possibility of a judge concluding at a certain
point that a particular detention constitutes cruel and unusual
treatment or is inconsistent with the principles of fundamental
justice, and therefore infringes the Charter...
just to keep us on our toes.Reactions to the decision were far too excited. The judgment will not change much. Almrei will remain in detention indefinitely. Charkaoui and Harkat will remain on conditional release indefinitely. Security certificates can still be issued and foreigners can still be arrested without knowing the grounds for their arrest. Parliament will try to amend the Immigration and Refugee Protection Act to satisfy the Court. There will be more litigation and controversy. Whatever Parliament does will be challenged and it will be years before we know whether the Court is satisfied or whether it may change its mind in one direction or another.
The excited reaction was fuelled by the Court's pompous language and elaborate treatment of simple issues. McLachlin's reasons are full of invocations of liberty, justice, equality and so on that contribute nothing to the decision but signal the solemnity, importance and almost sacredness of the Court. Issues are dealt with briefly or at length with no rhyme or reason and whether or not they are necessary to deciding the appeals. Whether issues are dealt with at length or briefly, whether they are necessary to the decision or not, the reasons are studiously vague and qualified. Context, used thirty-six times, is all. The purpose of reasons for judgment is to clarify the law. If the Court were doing its work properly its reasons would bring clarity to the vague language of the Charter so that governments and people would know what to make of it. But that would limit the Court's freedom to do as it pleases.
The Immigration and Refugee Protection Act was passed in 2001 when we had already had almost 20 years experience with the Charter. The drafters and Parliament must have supposed that it would withstand Charter challenges. Several Federal Court judges dismissed Charter challenges. But it should have surprised no one that the Supreme Court, unanimously, had at the Immigration and Refugee Protection Act. The Charter licences it to do what it likes. We cannot know what it may like until we ask it. And its power would atrophy if not used. So it was predictable that the Court would do something, but predictable also that it would do nothing radical. The judges are not a bunch of radicals, whatever Stephen Harper may think. They are just nine fairly ordinary lawyers enjoying extraordinary eminence and power.
Most laws are effective because people know them and follow them. Occasionally the courts are drawn in to enforce them on the recalcitrant or sort out confusions but, while the authority of the courts is fundamental to the authority of the law, the courts remain largely in the background. The Charter is different. Its effect and reach result precisely from our not knowing what the courts may make of it, the readiness of people to find whatever they like in it, and the readiness of the Supreme Court to give it to them.
There is unusually little in the reasons on the facts and the proceedings that brought the appeals before the Court. For a full understanding of the appeals it is necessary to refer to some of the 46 reported Federal Court decisions running to about a thousand pages of reasons that the three appellants have generated.
The Court heard 15 intervenors; Amnesty International, Canadian Arab Federation etc., etc.. The practice of welcoming intervenors presents the Court as a public forum where all have their say. It is a false picture. In the end only the Court has its say and the intervenors did not represent all opinions but basically lined up with the appellants. The most impertinent intervenor was "University of Toronto, Faculty of Law — International Human Rights Clinic and Human Rights Watch", a clique of specially unctuous law professors, condescending to offer their learning to the Court knowing that they had already infested it with their annointed students serving as judges' clerks.
The underlying problem in all these cases is that the purpose of the impugned provisions of the Immigration and Refugee Protection Act is simply to get dangerous people out of the country but Charkaoui, Almrei and Harkat can all argue that they risk torture if sent back where they came from. The Minister can issue an opinion that the danger to the security of Canada justifies removal to a country where there is a risk of torture but in the case of Almrei such opinions have repeatedly been quashed by the Federal Court. We are left in a quandary. The Supreme Court has no better idea how to get out of it than the government does.
Thursday, February 1, 2007
EMINENT CANADIANS The Dictionary of Canadian Biography Volume XV 1921-1930
Dictionary of Canadian Biography
Volume XV 1921-1930
Ramsay Cook and Réal Bélanger editors
University of Toronto Press
1266 pages, $125.00 hardback
ISBN: 0-8020-9087-7
It is forty years since the first volume of the Dictionary of Canadian Biography was published. The continuation of the massive project has in latter years been a struggle. The imaginative bequest of birdseed millionaire James Nicholson, which made it possible, conservatively invested in times of high inflation, was inadequate to keep it going. Granting bodies did not always give it the priority it deserved. The first twelve volumes came out at about a two year clip up to 1990. The last three have taken fifteen years.
Money has been found for a CD-ROM of the first fourteen volumes, which has been distributed to schools and libraries across the country. Those volumes are also available free online, with a selection from this volume and samples as far ahead as the projected volume XXII - Rocket Richard, who died in 2000 - at http://www.biographi.ca. These searchable digital media are a wonderful resource, but they raise a question whether the printed volumes should continue to be published. This sleek tome says yes.
Twelve hundred hardbound pages are not for the beach or bed. But for those with access to the books, the CD-ROM or the website will seem just a handy index. Who would want to read 8800 words on Alexander Graham Bell on screen or would want to waste toner and paper on printing them out. Except for researchers, the shorter entries are best come upon turning the pages rather than on some Boolean basis. The geographical and occupational indexes and cross-referencing in the books are the best guides to dipping in. The Dictionary of Canadian Biography is Canada's finest and most important work of reference and history. We must hope that the pace of publication picks up, bringing us up to date by the 2020s.
Modern and post-modern historiography and the growth of the academic industry put new strains on the project. A dictionary of biography must be faithful to the logic of its project. It is a book of lives, which must be selected for their eminence, for their role in our history. It cannot be great man history. 600 great Canadians did not die in the third decade of the 20th century. Neither can it be a random sample of 600 Canadians who died in that decade about whom enough information survives to write a few hundred words. Modern historians may have distinguished careers with many publications hardly naming any people besides other academics they rely on or disagree with. But theirs is another endeavour. The compilers of a dictionary of biography must believe in the importance of individual lives in history, and not just as samples or representative cases, but in themselves.
And Volume XV includes many eminent lives. Bell is the most famous but there are also poet Bliss Carman (a brief entry, perhaps because of his long residence in the United States), longtime Quebec Premier Lomer Gouin, opera diva Emma Albani, painter James Wilson Morrice, CPR magnates Lord Shaughnessy and Lord Mount Stephen and banker and Maecenas Sir Edmund Walker.
The grounds for inclusion of many others are open to question. About Alikomiak nothing is known save that he murdered another Inuit and two white men and was hanged for the crimes. Consequently the entry for Alikomiak is a conspectus of relations between the Inuit and white authorities in the far north but not a biography. Jeanne Anctil was one of the first formal teachers of household science in Quebec. The entry for her, twice as long as that for former Governor General Lord Lansdowne, is a history of the teaching of household science in Quebec with passing references to Anctil.
Anne Quinlan, a catholic school teacher in New Brunswick in the late 19th century, is given a proper biography. But it does not appear what distinguishes her from perhaps hundreds of other teachers about whom enough is known to write about 900 words. Is she included as a representative or has the entry failed to explain her importance?
It is often difficult to descry just how important many of the lives treated were. The Dictionary has evidently been influenced by the keenness of post-modern historiography for digging up the putatively marginalised and making forced claims for them. That, and the sheer scholastic growth of Canadian historiography, in which more and more obscure topics are researched, feed back into the Dictionary's massive collaborative effort. Academics will naturally feel that people they have spent much time researching merit inclusion whatever the generalist or general reader may think.
The format and writing of the entries is often unhelpful. Generally, after the subject's name, there is an occupation. This should be a pointer to the subject's importance. But Charles Augustus Semlin is described as "teacher, miner, packer, hotel owner, rancher, politician, and school trustee". This is simply confusing. Semlin is in because he was briefly Premier of British Columbia. We may want to read about his other activities, but we should be told where we are heading. You might expect "politician" to trump all other occupations but you would be wrong. George Weston, "baker, businessman, and politician" is not in because he served four years as a Toronto alderman but because he founded the eponymous company, the parent of Loblaws.
If it is not always clear why some people are in, who may wrongly be out? Perhaps another school teacher, or a plumber, but I could not say. In Canadian art it is easy to find upwards of a dozen painters represented in the National Gallery, staples of the auction market and noted in the histories, but absent from the Dictionary. Frederick Arthur Verner is perhaps the most eminent. He is in The Canadian Encyclopedia. If Verner did not make the cut, many of the farmers, soldiers, teachers and the rest who did must be far more eminent than from their entries appears.
As the Dictionary moves into more recent times the challenge of selection becomes greater. For the decade 1851-1860, covered by Volume VIII, there were perhaps 70% fewer Canadians dying. The surviving sources are still less and roughly adhere to lives in proportion to their eminence. A right to fifteen minutes of fame had not been established by the 1920s but it was the heyday of newspapers and magazines and the chances of anyone getting noticed by a newspaper or getting a story or poem published were far higher than they are today. Many entries on obscurer lives are able to quote fulsome tributes in the local press and cite several magazine contributions.
The compiling of the Dictionary is a massive undertaking and the editorial team have evidently worked hard and intelligently at their task. But they could be stricter with the contributors. The writing could be crisper. In his biography of Alexander Graham Bell Lawrence Surtees writes: "In 1867 tragedy struck the family,...when Aleck's younger brother...died of tuberculosis." It would not be unfeeling to leave readers to judge for themselves the impact of the death.
There is a frequent vagueness, unsettling in a work extensively grounded in primary sources. Nurse Sibella Barrington "may have been influenced", "would have gone", "is credited with", all in 150 words. Other entries repeatedly use "reportedly" (Emma Albani, for whom the sources should be rich) leaving us to wonder who reported and why, if the source was reliable, whatever was reported is not simply stated as fact.
The standard format for an entry in a dictionary of biography, established in the Dictionary of National Biography in the late 19th century, is a straightforward account of the life followed by an appreciation, assessment of reputation and description of appearance, manner and character. This is generally followed in the Dictionary but some entries begin with strong claims for their subject, which are not always supported by what follows. H. V. Nelles calls Sir Adam Beck "the Prometheus of Canadian politics in the first quarter of the 20th century" in an effusive appreciation at the beginning of his life of Beck, but ends describing a raging authoritarian running a shambolic Ontario Hydro as a personal fiefdom with, no doubt, the best intentions. By the time Nelles was writing in his penultimate sentence that Ontario Hydro "had become an Ontario institution that would outlive changing governments and passing ideologies," it was in ruins.
We cannot get close enough to many of the subjects to make realistic claims about them. Lee Gibson says of Sir James Aikins "His strong work ethic and assiduous attention to detail were recognised in his election as a bencher of the Law Society of Manitoba in May 1880." Was Aikin's election as a bencher evidence in itself of his "work ethic". Was that notoriously the only basis on which benchers were elected? Is it recorded that that was the key to his election? Likely he was no slacker, but as a prominent, well-connected Winnipeg lawyer, his father in Macdonald's cabinet, might he not have been elected if he had been? An appreciation of the subjects' characters is wanted so far as it is possible. Dry details of life and career would be tedious. As tedious as bland encomiums.
The Dictionary of National Biography was largely written by independent scholars and men of letters, vanished breeds. With few exceptions, the contributors to the Dictionary of Canadian Biography are academics. Theory and special pleading for academic interests intrude. Marjorie Pickthall by Barbara Godard is only half biography and half defensively feminist critical study concluding with praise for Pickthall's "ability to construct the poetic process in female-centred forms."
Many of the subjects are presented as representative or typical. Missionary Jessie Munro "was typical of the hundreds of single, well-educated, middle class, and small-town women who pursued careers as missionaries in late 19th and early 20th century Canada." Logger and farmer William Henry Curran "typifies the resourceful 19th-century wanderer who did nothing outstanding, yet persevered and left an imprint in the form of numerous descendants. He exemplifies the generation of men who arrived in British Columbia during the gold rush of 1858–65...."
Despite the Dictionary's scholarly foundations, some entries raise too many questions. Janet Kennedy Smith, described as "servant, diarist, and alleged murder victim", was at the centre of a sensational case in Vancouver in 1924 involving anti-Chinese racism. Scott Kerwin quotes from Smith's diary. But the extent and history of the diary are not explained and the references give no clue as to where the diary is or whether Kerwin was able to consult an original copy.
Susan Marsden in her entry on Sganism Sm'oogit writes, without reserve, qualification or explanation, that "northwest coast peoples reincarnate within their own lineage....The biography of Sganism Sm'oogit then is that of countless generations of individuals...." By her account Sganism Sm'oogit has no place in this volume as he is still alive.
Any book will reflect the culture of its time. The new Oxford Dictionary of National Biography published in 2004 is a very different work from the Dictionary of National Biography of a century before. It was excoriated for factual errors and the editors replied that with computers it was easily corrected. The first two volumes of the Dictionary of Canadian Biography have been reprinted with corrections. But we are not likely to see a wholesale revision of the Dictionary of Canadian Biography, though no doubt the selection and treatment of lives in the early volumes would be different if they were done today.
The Dictionary of Canadian Biography should strive to be a work for long time. When we come to the volumes dealing with the recently deceased, the challenge of selection and objective treatment will be daunting. The editors will have to be true to their magnificent project.
Volume XV 1921-1930
Ramsay Cook and Réal Bélanger editors
University of Toronto Press
1266 pages, $125.00 hardback
ISBN: 0-8020-9087-7
It is forty years since the first volume of the Dictionary of Canadian Biography was published. The continuation of the massive project has in latter years been a struggle. The imaginative bequest of birdseed millionaire James Nicholson, which made it possible, conservatively invested in times of high inflation, was inadequate to keep it going. Granting bodies did not always give it the priority it deserved. The first twelve volumes came out at about a two year clip up to 1990. The last three have taken fifteen years.
Money has been found for a CD-ROM of the first fourteen volumes, which has been distributed to schools and libraries across the country. Those volumes are also available free online, with a selection from this volume and samples as far ahead as the projected volume XXII - Rocket Richard, who died in 2000 - at http://www.biographi.ca. These searchable digital media are a wonderful resource, but they raise a question whether the printed volumes should continue to be published. This sleek tome says yes.
Twelve hundred hardbound pages are not for the beach or bed. But for those with access to the books, the CD-ROM or the website will seem just a handy index. Who would want to read 8800 words on Alexander Graham Bell on screen or would want to waste toner and paper on printing them out. Except for researchers, the shorter entries are best come upon turning the pages rather than on some Boolean basis. The geographical and occupational indexes and cross-referencing in the books are the best guides to dipping in. The Dictionary of Canadian Biography is Canada's finest and most important work of reference and history. We must hope that the pace of publication picks up, bringing us up to date by the 2020s.
Modern and post-modern historiography and the growth of the academic industry put new strains on the project. A dictionary of biography must be faithful to the logic of its project. It is a book of lives, which must be selected for their eminence, for their role in our history. It cannot be great man history. 600 great Canadians did not die in the third decade of the 20th century. Neither can it be a random sample of 600 Canadians who died in that decade about whom enough information survives to write a few hundred words. Modern historians may have distinguished careers with many publications hardly naming any people besides other academics they rely on or disagree with. But theirs is another endeavour. The compilers of a dictionary of biography must believe in the importance of individual lives in history, and not just as samples or representative cases, but in themselves.
And Volume XV includes many eminent lives. Bell is the most famous but there are also poet Bliss Carman (a brief entry, perhaps because of his long residence in the United States), longtime Quebec Premier Lomer Gouin, opera diva Emma Albani, painter James Wilson Morrice, CPR magnates Lord Shaughnessy and Lord Mount Stephen and banker and Maecenas Sir Edmund Walker.
The grounds for inclusion of many others are open to question. About Alikomiak nothing is known save that he murdered another Inuit and two white men and was hanged for the crimes. Consequently the entry for Alikomiak is a conspectus of relations between the Inuit and white authorities in the far north but not a biography. Jeanne Anctil was one of the first formal teachers of household science in Quebec. The entry for her, twice as long as that for former Governor General Lord Lansdowne, is a history of the teaching of household science in Quebec with passing references to Anctil.
Anne Quinlan, a catholic school teacher in New Brunswick in the late 19th century, is given a proper biography. But it does not appear what distinguishes her from perhaps hundreds of other teachers about whom enough is known to write about 900 words. Is she included as a representative or has the entry failed to explain her importance?
It is often difficult to descry just how important many of the lives treated were. The Dictionary has evidently been influenced by the keenness of post-modern historiography for digging up the putatively marginalised and making forced claims for them. That, and the sheer scholastic growth of Canadian historiography, in which more and more obscure topics are researched, feed back into the Dictionary's massive collaborative effort. Academics will naturally feel that people they have spent much time researching merit inclusion whatever the generalist or general reader may think.
The format and writing of the entries is often unhelpful. Generally, after the subject's name, there is an occupation. This should be a pointer to the subject's importance. But Charles Augustus Semlin is described as "teacher, miner, packer, hotel owner, rancher, politician, and school trustee". This is simply confusing. Semlin is in because he was briefly Premier of British Columbia. We may want to read about his other activities, but we should be told where we are heading. You might expect "politician" to trump all other occupations but you would be wrong. George Weston, "baker, businessman, and politician" is not in because he served four years as a Toronto alderman but because he founded the eponymous company, the parent of Loblaws.
If it is not always clear why some people are in, who may wrongly be out? Perhaps another school teacher, or a plumber, but I could not say. In Canadian art it is easy to find upwards of a dozen painters represented in the National Gallery, staples of the auction market and noted in the histories, but absent from the Dictionary. Frederick Arthur Verner is perhaps the most eminent. He is in The Canadian Encyclopedia. If Verner did not make the cut, many of the farmers, soldiers, teachers and the rest who did must be far more eminent than from their entries appears.
As the Dictionary moves into more recent times the challenge of selection becomes greater. For the decade 1851-1860, covered by Volume VIII, there were perhaps 70% fewer Canadians dying. The surviving sources are still less and roughly adhere to lives in proportion to their eminence. A right to fifteen minutes of fame had not been established by the 1920s but it was the heyday of newspapers and magazines and the chances of anyone getting noticed by a newspaper or getting a story or poem published were far higher than they are today. Many entries on obscurer lives are able to quote fulsome tributes in the local press and cite several magazine contributions.
The compiling of the Dictionary is a massive undertaking and the editorial team have evidently worked hard and intelligently at their task. But they could be stricter with the contributors. The writing could be crisper. In his biography of Alexander Graham Bell Lawrence Surtees writes: "In 1867 tragedy struck the family,...when Aleck's younger brother...died of tuberculosis." It would not be unfeeling to leave readers to judge for themselves the impact of the death.
There is a frequent vagueness, unsettling in a work extensively grounded in primary sources. Nurse Sibella Barrington "may have been influenced", "would have gone", "is credited with", all in 150 words. Other entries repeatedly use "reportedly" (Emma Albani, for whom the sources should be rich) leaving us to wonder who reported and why, if the source was reliable, whatever was reported is not simply stated as fact.
The standard format for an entry in a dictionary of biography, established in the Dictionary of National Biography in the late 19th century, is a straightforward account of the life followed by an appreciation, assessment of reputation and description of appearance, manner and character. This is generally followed in the Dictionary but some entries begin with strong claims for their subject, which are not always supported by what follows. H. V. Nelles calls Sir Adam Beck "the Prometheus of Canadian politics in the first quarter of the 20th century" in an effusive appreciation at the beginning of his life of Beck, but ends describing a raging authoritarian running a shambolic Ontario Hydro as a personal fiefdom with, no doubt, the best intentions. By the time Nelles was writing in his penultimate sentence that Ontario Hydro "had become an Ontario institution that would outlive changing governments and passing ideologies," it was in ruins.
We cannot get close enough to many of the subjects to make realistic claims about them. Lee Gibson says of Sir James Aikins "His strong work ethic and assiduous attention to detail were recognised in his election as a bencher of the Law Society of Manitoba in May 1880." Was Aikin's election as a bencher evidence in itself of his "work ethic". Was that notoriously the only basis on which benchers were elected? Is it recorded that that was the key to his election? Likely he was no slacker, but as a prominent, well-connected Winnipeg lawyer, his father in Macdonald's cabinet, might he not have been elected if he had been? An appreciation of the subjects' characters is wanted so far as it is possible. Dry details of life and career would be tedious. As tedious as bland encomiums.
The Dictionary of National Biography was largely written by independent scholars and men of letters, vanished breeds. With few exceptions, the contributors to the Dictionary of Canadian Biography are academics. Theory and special pleading for academic interests intrude. Marjorie Pickthall by Barbara Godard is only half biography and half defensively feminist critical study concluding with praise for Pickthall's "ability to construct the poetic process in female-centred forms."
Many of the subjects are presented as representative or typical. Missionary Jessie Munro "was typical of the hundreds of single, well-educated, middle class, and small-town women who pursued careers as missionaries in late 19th and early 20th century Canada." Logger and farmer William Henry Curran "typifies the resourceful 19th-century wanderer who did nothing outstanding, yet persevered and left an imprint in the form of numerous descendants. He exemplifies the generation of men who arrived in British Columbia during the gold rush of 1858–65...."
Despite the Dictionary's scholarly foundations, some entries raise too many questions. Janet Kennedy Smith, described as "servant, diarist, and alleged murder victim", was at the centre of a sensational case in Vancouver in 1924 involving anti-Chinese racism. Scott Kerwin quotes from Smith's diary. But the extent and history of the diary are not explained and the references give no clue as to where the diary is or whether Kerwin was able to consult an original copy.
Susan Marsden in her entry on Sganism Sm'oogit writes, without reserve, qualification or explanation, that "northwest coast peoples reincarnate within their own lineage....The biography of Sganism Sm'oogit then is that of countless generations of individuals...." By her account Sganism Sm'oogit has no place in this volume as he is still alive.
Any book will reflect the culture of its time. The new Oxford Dictionary of National Biography published in 2004 is a very different work from the Dictionary of National Biography of a century before. It was excoriated for factual errors and the editors replied that with computers it was easily corrected. The first two volumes of the Dictionary of Canadian Biography have been reprinted with corrections. But we are not likely to see a wholesale revision of the Dictionary of Canadian Biography, though no doubt the selection and treatment of lives in the early volumes would be different if they were done today.
The Dictionary of Canadian Biography should strive to be a work for long time. When we come to the volumes dealing with the recently deceased, the challenge of selection and objective treatment will be daunting. The editors will have to be true to their magnificent project.
Friday, September 1, 2006
THE PHONEY REVOLUTION John Ibbitson's Dream
September 1, 2006,
Books in Canada
The Polite Revolution
Perfecting the Canadian Dream
by John Ibbitson
McClelland & Stewart
ISBN: 0-7710-4351-1
John Ibbitson is the Ottawa columnist for The Globe and Mail. It is he writes "the best job in Canadian journalism". He has published or had produced several works of fiction and history and plays. He is bright, thoughtful, industrious and imaginative. And now he has written a silly book.
The Polite Revolution covers a lot. It is not an inside story of contemporary politics scooped from off the record sources such as Peter Newman used to write. There is little in it that an obsessive newspaper reader might not have picked up. It is rather an extended column, an excited and rather rambling argument about where Canada stood in 2005 and where it is and should be heading.
The theme is stated in the opening sentence: "Sometime, not long ago, while no one was watching, Canada became the world's most successful country." Ibbitson argues that Canada's exceptionally diverse population, with a high number of immigrants from a wide range of countries, living peacefully and prosperously together, makes us a model to which the whole world will aspire but that only Canada can fully realise. He advocates greatly increased levels of immigration because "the more the better" as he sees it and, it must seem, to assure that the Old Canada is finished off and the Polite Revolution secure.
Canada has changed enormously in the last 40 years. It could fairly be said that there has been a revolution, or revolutions. But much change, social, technological, cultural and economic, has been in common with the developed world, if not the whole world. And the immigration of recent decades is nothing new to Canada. Proportionally and in absolute terms the immigration of early in the last century that settled the prairies was much greater: 1913, when over 400,000 immigrants arrived, is still the peak year.
Ibbitson stresses that recent immigration has created visible minorities while past immigration was practically all white. Past immigration, in his optic, did not, after a generation or two of assimilation, produce diversity, the pride and joy of the New Canada. But the trip from Ukraine to Saskatchewan in 1900 was arguably greater than the one from Somalia to Toronto in 2000. Why is the colour of people's skin so very important in the 21st century?
What has changed is that in 1900 Canada was something, the Old Canada whose passing Ibbitson celebrates, and immigrants had a sense of something to which, after struggle, they could belong. Between the adoption of the Maple Leaf flag and the end of the Centennial of Confederation it was decided that the Old Canada must go and a New Canada be made up. This was the phoney revolution. It was phoney because those who intended it and advanced it regularly denied what they were doing. But mostly it was phoney because it rested on ideas that were false representations of Canada's history, reality and possibilities and those who promoted them often did not believe in them.
The phoney revolution has been so successful that even a bright fellow with a sense of history like John Ibbitson has been taken in by it. But finally it is a failure because, however successfully it destroys Old Canada, it cannot replace it with anything real.
So we are diverse. But there is no WE. The population of the Canadian territory is diverse, but each element in that population making up our official diversity is as homogeneous as it pleases. The whole is less than the sum of its parts.
Canada has produced a small cottage industry in the political philosophy of multiculturalism but understanding of the multicultural problematic has been little advanced. Where are we headed between preserving scores of closed ethnic chauvinisms observing a casual truce on Canada's neutral territory and freeing individuals under a cultureless civic nationalism to live as postmoderns adopting cultural elements as they choose cuisines or music? Ibbitson does not know. He loves diversity but observes that people like to live with their own kind and does not seem to mind. He cheers the prospect of mongrelisation through intermarriage, even foreseeing the disappearance of distinct First Nations through intermarriage. But this suggests a melting pot and a fading of diversity. He fears assimilation and praises integration not explaining how they can be distinguished.
Ibbitson was over the moon on the appointment of Michaëlle Jean as Governor General. He hailed her as "our postnationalist future" dismissing concerns about her loyalty to Canada. She and her French husband were "the cosmopolitan, polyglot and outward-looking Canada of today". Shortly before his panegyric he wrote in this book that Haitians in Montreal knew nothing of Papineau. They know of Toussaint. But "the price of a truly cosmopolitan society" he writes "is ahistoricism - an absence of collective cultural memory". He accepts this with "a regretful sigh". What will be left then for the youth of 2050 with Haitian, Cree, Chinese and Irish grandparents? Four memories or none? These are deep waters and Ibbitson barely skims the surface. That is the Canadian way, the phoney way: enthusiasm for the superficial.
There is an economic value to immigration. But Ibbitson never makes clear whether maximising the economic product of the Canadian territory or the wealth of the average Canadian is his goal. These distinct goals would indicate different immigration policies.
Ibbitson, however, is after something beyond mere prosperity. He thinks Canada is simply wonderful and going to be wonderfuller still. There is a strain of callow boosterism in his book that makes way too much of Yann Martel, Margaret MacMillan and Arcade Fire. GET REAL! For a country of the population, prosperity and security of Canada our achievements are disappointing. Consider only the achievements of the Australian, and even New Zealand, film industries compared to English Canada's.
As for "Canada's gift to the world" our wonderful cities (Ibbitson is perfervidly urban), it is hard to believe Ibbitson has ever been abroad he is so wide eyed at them. His one foreign positing was Washington, which may make Ottawa seem cosy, but Ibbitson does not seem to have overcome being born in Gravenhurst. In his bleak picture of rural Canada he alleges "casual racism, sexism, and homophobia [go] without saying in the Central Ontario counties and districts between the Ottawa River and Georgian Bay". Gravenhurst is at the west end of this rural idiocy.
Ibbitson claims that Canada is unique not only in the scope of its immigration but in its success in avoiding racial conflict and other social problems. He implies that multiculturalism achieved this without sparing a thought for the Old Canada that peacefully took in millions of immigrants before it was officially extinguished for recidivist bigotry, racism, homogeneity and dullness. He points to recent tensions in France, the Netherlands and elsewhere in Europe and implies it can't happen here. What these events show is that diversity is not special to Canada but widespread in the developed world and not without its problems. It is simply too soon to tell whether Canada can avoid serious trouble or European countries can not. It would be foolish, but very Canadian, to be smug.
Ibbitson's emphasis is on why we should want millions to immigrate to Canada. But why should they want to come here? For the bars on Toronto's College Street? For the Montreal music scene?
There will always be a billion or so destitute people in the world who would like to come to Canada for the welfare. They are not likely to come because they have not heard of Canada or are too poor to be able to get here. Third world immigration has been largely from what in those countries constitute the middle classes. Ibbitson does not touch on the morality of our stripping such countries of their skilled workers and professionals. But immigration is always from poor or stagnant countries to rich or booming countries. Immigration from Western Europe dried up as those countries reached North American levels of prosperity. New immigration from Central and Eastern Europe has not amounted to much and will probably dry up. China and India are now booming. In the medium term a young Chinese or Indian would probably do best to stay put.
Before the 21st century that Ibbitson claims for it is over Canada may be way down the list of the world's most prosperous countries. It is foreseeable that the kind of immigration Ibbitson wants is coming to an end. Some people of any degree of prosperity and skill will want to go to the United States as long as it is top nation. But the only way for Canada to find the millions that Ibbitson wants may be to take people without skills, illiterate in their own language and far more remote in culture and understanding than any we have known before.
Though the wonderful New Canada of massive immigration is Ibbitson's overarching theme, much of the book deals with problems the country faces in always excited and often hectoring tones. Successful though it is, Canada must shape up. So, we need to do something about health care, basically try everything and see what works.
And Ibbitson has fallen for the democratic reform vogue but is too polite to say what exactly should be done suggesting Cranks' Assemblies on the model of the British Columbia Citizens' Assembly on Electoral Reform should be empowered to work their own revolutions on our political institutions. His one concrete suggestion is lowering the voting age, a fatuous idea that will not be made safe by beefing up civics and history courses. And what history should be taught? He concedes it is a problem.
Ibbitson's discussion is at times wonkish, there is frequent talk of "tax points", and often commonplace. In a discussion of defence and foreign policy (more spending on defence, more foreign aid) he even suggests a useful Canadian initiative: a Canadian Institute for Democracy to advise other countries how to be like us. Though, as he thinks our democracy needs radical reform but is not sure what, what can he think we have to offer?
This in a chapter headed "Making Canada Matter". A keen decentralist Ibbitson would leave Ottawa with little to do beyond defence and foreign policy. The blank New Canada must cut a figure in the world. It is an extension of the vanity foreign policy of the Liberals with a dangerous new aspect as the days of Boy Scout peacekeeping recede. It looks alarmingly like the age old pursuit of relief from domestic political trouble in foreign adventures. Ibbitson hailed Stephen Harper's trip to Afghanistan, seduced by the Tories' sinister patriotism agenda. But how can a postnationalist be patriotic? By being phoney. It is the New Canadian way.
Ibbitson so wants to think well of Canada, so loves it even, but cannot make sense of it. Phoniness entraps our best and brightest.
The Polite Revolution
Perfecting the Canadian Dream
by John Ibbitson
McClelland & Stewart
ISBN: 0-7710-4351-1
John Ibbitson is the Ottawa columnist for The Globe and Mail. It is he writes "the best job in Canadian journalism". He has published or had produced several works of fiction and history and plays. He is bright, thoughtful, industrious and imaginative. And now he has written a silly book.
The Polite Revolution covers a lot. It is not an inside story of contemporary politics scooped from off the record sources such as Peter Newman used to write. There is little in it that an obsessive newspaper reader might not have picked up. It is rather an extended column, an excited and rather rambling argument about where Canada stood in 2005 and where it is and should be heading.
The theme is stated in the opening sentence: "Sometime, not long ago, while no one was watching, Canada became the world's most successful country." Ibbitson argues that Canada's exceptionally diverse population, with a high number of immigrants from a wide range of countries, living peacefully and prosperously together, makes us a model to which the whole world will aspire but that only Canada can fully realise. He advocates greatly increased levels of immigration because "the more the better" as he sees it and, it must seem, to assure that the Old Canada is finished off and the Polite Revolution secure.
Canada has changed enormously in the last 40 years. It could fairly be said that there has been a revolution, or revolutions. But much change, social, technological, cultural and economic, has been in common with the developed world, if not the whole world. And the immigration of recent decades is nothing new to Canada. Proportionally and in absolute terms the immigration of early in the last century that settled the prairies was much greater: 1913, when over 400,000 immigrants arrived, is still the peak year.
Ibbitson stresses that recent immigration has created visible minorities while past immigration was practically all white. Past immigration, in his optic, did not, after a generation or two of assimilation, produce diversity, the pride and joy of the New Canada. But the trip from Ukraine to Saskatchewan in 1900 was arguably greater than the one from Somalia to Toronto in 2000. Why is the colour of people's skin so very important in the 21st century?
What has changed is that in 1900 Canada was something, the Old Canada whose passing Ibbitson celebrates, and immigrants had a sense of something to which, after struggle, they could belong. Between the adoption of the Maple Leaf flag and the end of the Centennial of Confederation it was decided that the Old Canada must go and a New Canada be made up. This was the phoney revolution. It was phoney because those who intended it and advanced it regularly denied what they were doing. But mostly it was phoney because it rested on ideas that were false representations of Canada's history, reality and possibilities and those who promoted them often did not believe in them.
The phoney revolution has been so successful that even a bright fellow with a sense of history like John Ibbitson has been taken in by it. But finally it is a failure because, however successfully it destroys Old Canada, it cannot replace it with anything real.
So we are diverse. But there is no WE. The population of the Canadian territory is diverse, but each element in that population making up our official diversity is as homogeneous as it pleases. The whole is less than the sum of its parts.
Canada has produced a small cottage industry in the political philosophy of multiculturalism but understanding of the multicultural problematic has been little advanced. Where are we headed between preserving scores of closed ethnic chauvinisms observing a casual truce on Canada's neutral territory and freeing individuals under a cultureless civic nationalism to live as postmoderns adopting cultural elements as they choose cuisines or music? Ibbitson does not know. He loves diversity but observes that people like to live with their own kind and does not seem to mind. He cheers the prospect of mongrelisation through intermarriage, even foreseeing the disappearance of distinct First Nations through intermarriage. But this suggests a melting pot and a fading of diversity. He fears assimilation and praises integration not explaining how they can be distinguished.
Ibbitson was over the moon on the appointment of Michaëlle Jean as Governor General. He hailed her as "our postnationalist future" dismissing concerns about her loyalty to Canada. She and her French husband were "the cosmopolitan, polyglot and outward-looking Canada of today". Shortly before his panegyric he wrote in this book that Haitians in Montreal knew nothing of Papineau. They know of Toussaint. But "the price of a truly cosmopolitan society" he writes "is ahistoricism - an absence of collective cultural memory". He accepts this with "a regretful sigh". What will be left then for the youth of 2050 with Haitian, Cree, Chinese and Irish grandparents? Four memories or none? These are deep waters and Ibbitson barely skims the surface. That is the Canadian way, the phoney way: enthusiasm for the superficial.
There is an economic value to immigration. But Ibbitson never makes clear whether maximising the economic product of the Canadian territory or the wealth of the average Canadian is his goal. These distinct goals would indicate different immigration policies.
Ibbitson, however, is after something beyond mere prosperity. He thinks Canada is simply wonderful and going to be wonderfuller still. There is a strain of callow boosterism in his book that makes way too much of Yann Martel, Margaret MacMillan and Arcade Fire. GET REAL! For a country of the population, prosperity and security of Canada our achievements are disappointing. Consider only the achievements of the Australian, and even New Zealand, film industries compared to English Canada's.
As for "Canada's gift to the world" our wonderful cities (Ibbitson is perfervidly urban), it is hard to believe Ibbitson has ever been abroad he is so wide eyed at them. His one foreign positing was Washington, which may make Ottawa seem cosy, but Ibbitson does not seem to have overcome being born in Gravenhurst. In his bleak picture of rural Canada he alleges "casual racism, sexism, and homophobia [go] without saying in the Central Ontario counties and districts between the Ottawa River and Georgian Bay". Gravenhurst is at the west end of this rural idiocy.
Ibbitson claims that Canada is unique not only in the scope of its immigration but in its success in avoiding racial conflict and other social problems. He implies that multiculturalism achieved this without sparing a thought for the Old Canada that peacefully took in millions of immigrants before it was officially extinguished for recidivist bigotry, racism, homogeneity and dullness. He points to recent tensions in France, the Netherlands and elsewhere in Europe and implies it can't happen here. What these events show is that diversity is not special to Canada but widespread in the developed world and not without its problems. It is simply too soon to tell whether Canada can avoid serious trouble or European countries can not. It would be foolish, but very Canadian, to be smug.
Ibbitson's emphasis is on why we should want millions to immigrate to Canada. But why should they want to come here? For the bars on Toronto's College Street? For the Montreal music scene?
There will always be a billion or so destitute people in the world who would like to come to Canada for the welfare. They are not likely to come because they have not heard of Canada or are too poor to be able to get here. Third world immigration has been largely from what in those countries constitute the middle classes. Ibbitson does not touch on the morality of our stripping such countries of their skilled workers and professionals. But immigration is always from poor or stagnant countries to rich or booming countries. Immigration from Western Europe dried up as those countries reached North American levels of prosperity. New immigration from Central and Eastern Europe has not amounted to much and will probably dry up. China and India are now booming. In the medium term a young Chinese or Indian would probably do best to stay put.
Before the 21st century that Ibbitson claims for it is over Canada may be way down the list of the world's most prosperous countries. It is foreseeable that the kind of immigration Ibbitson wants is coming to an end. Some people of any degree of prosperity and skill will want to go to the United States as long as it is top nation. But the only way for Canada to find the millions that Ibbitson wants may be to take people without skills, illiterate in their own language and far more remote in culture and understanding than any we have known before.
Though the wonderful New Canada of massive immigration is Ibbitson's overarching theme, much of the book deals with problems the country faces in always excited and often hectoring tones. Successful though it is, Canada must shape up. So, we need to do something about health care, basically try everything and see what works.
And Ibbitson has fallen for the democratic reform vogue but is too polite to say what exactly should be done suggesting Cranks' Assemblies on the model of the British Columbia Citizens' Assembly on Electoral Reform should be empowered to work their own revolutions on our political institutions. His one concrete suggestion is lowering the voting age, a fatuous idea that will not be made safe by beefing up civics and history courses. And what history should be taught? He concedes it is a problem.
Ibbitson's discussion is at times wonkish, there is frequent talk of "tax points", and often commonplace. In a discussion of defence and foreign policy (more spending on defence, more foreign aid) he even suggests a useful Canadian initiative: a Canadian Institute for Democracy to advise other countries how to be like us. Though, as he thinks our democracy needs radical reform but is not sure what, what can he think we have to offer?
This in a chapter headed "Making Canada Matter". A keen decentralist Ibbitson would leave Ottawa with little to do beyond defence and foreign policy. The blank New Canada must cut a figure in the world. It is an extension of the vanity foreign policy of the Liberals with a dangerous new aspect as the days of Boy Scout peacekeeping recede. It looks alarmingly like the age old pursuit of relief from domestic political trouble in foreign adventures. Ibbitson hailed Stephen Harper's trip to Afghanistan, seduced by the Tories' sinister patriotism agenda. But how can a postnationalist be patriotic? By being phoney. It is the New Canadian way.
Ibbitson so wants to think well of Canada, so loves it even, but cannot make sense of it. Phoniness entraps our best and brightest.
Friday, March 3, 2006
The Supreme Court of Canada and the Righteous Kirpan - Multani v. Commission Scolaire Marguerite-Bourgeoys
The Supreme Court's unanimous decision in Multani v. Commission scolaire Marguerite-Bourgeoys that Sikh boys have a Charter
right to wear kirpans, carefully wrapped, to school comes as no
surprise. The kirpan has already won in school boards, courts and human
rights commissions across the country. It was accepted that Multani's orthodox Sikhism required him to wear a kirpan at all times.
The Quebec school board that forbad twelve year old Gurbaj Multani to
wear his kirpan to school had no evidence that the wearing of kirpans
had led to any injury in schools. The case was practically moot.
Multani has been wearing his kirpan to a private school for years. The
Supreme Court could have disposed of the case in a few pages. But the
court has given us almost twenty thousand words and has said some
curious things.
The judges engaged in a heated scholastic debate over whether the case should be decided on the basis of constitutional or administrative law. The majority struck down the decision of the school board as they would have struck down an Act of Parliament. Having decided that Multani's right to freedom of religion had been infringed the judges considered whether the infringement was a reasonable limit under Section 1 of the Charter using the language of "pressing and substantial", "proportionality" "rational connection" and "minimal impairment" under which they cloak their preferences. Justices Deschamps and Abella were obscurely adamant that the case should have been treated as the review of an administrative decision in which no law was challenged while admitting that no administrative decision could be allowed to infringe Charter rights. Legal scholars who have written millions of words on the largely meaningless "pressing and substantial", "proportionality" "rational connection" and "minimal impairment" analysis will want to write at length on the Deschamps and Abella reasons but it is impossible to see that it could make a blind bit of difference to how any case might be decided or what a lawyer should advise a client to do.
Justice Lebel chipped in two thousand words to say he did not know what to make of the issue raised by Justices Deschamps and Abella and commend flexible reasoning. In doing so he wrote "Case law developed over 20 years or more [since Charter cases reached the courts] can no doubt be used to support any opinion or position." You bet it can. So much for all the ink spilled in an effort to explain what it all means.
The school board tried plausibly to argue that the wearing of kirpans would poison the school environment as a symbol of violence sending a message that using force is the way to assert rights. The court accepted the evidence of a Sikh chaplain that a kirpan is not a weapon and indeed that "kirpan" means mercy, kindness and honour. But it went farther and held that the school board's argument was "disrespectful to believers in the Sikh religion and does not take into account Canadian values based on multiculturalism." Political correctness rules in the Supreme Court. Counsel have been warned. The court will hear no argument a religion might find disrespectful.
The court held that the infringement of Multani's freedom of religion was not trivial or insignificant because it deprived him of the right to attend public school. But no one was arguing that the right to attend public school was trivial or insignificant. The question was how important the wearing of a kirpan is to an orthodox Sikh. The case was maintained all the way to the Supreme Court and obviously a large body of Sikhs think the wearing of a kirpan is very important but must the court simply take their say so? Is everything a religion promotes of such importance as to trump any secular considerations? To answer that question the court would have to attempt a critical understanding of religion. The court was not prepared, probably not able, to do so. Perhaps it is afraid of seeming disrespectful.
The court was very rough with the school board's argument that students would feel it unfair that Sikhs got to wear kirpans while they could not bring knives to school and some students resent Muslim women being allowed to wear the chador when they are not allowed to wear caps or scarves. "To equate a religious obligation such as wearing the chador with the desire of certain students to wear caps is indicative of a simplistic view of freedom of religion that is incompatible with the Canadian Charter." The court accused the school board of thinking teaching geometry (requiring the use of possibly dangerous compasses) and playing baseball (caps) were more important than accommodating Multani's religious beliefs.
The court sternly enjoined schools to indoctrinate students in respect for all religions, multiculturalism and diversity. Are these "values" not a kind of religion? And what of the good old-fashioned atheists who think all religions are vicious tosh? Must they be indoctrinated in respect for religion by teachers whose own beliefs may not run much farther than Oprah's angels.
Religious freedom is come to this. We are not free to believe in any, or no, religion but must believe in them all.
The judges engaged in a heated scholastic debate over whether the case should be decided on the basis of constitutional or administrative law. The majority struck down the decision of the school board as they would have struck down an Act of Parliament. Having decided that Multani's right to freedom of religion had been infringed the judges considered whether the infringement was a reasonable limit under Section 1 of the Charter using the language of "pressing and substantial", "proportionality" "rational connection" and "minimal impairment" under which they cloak their preferences. Justices Deschamps and Abella were obscurely adamant that the case should have been treated as the review of an administrative decision in which no law was challenged while admitting that no administrative decision could be allowed to infringe Charter rights. Legal scholars who have written millions of words on the largely meaningless "pressing and substantial", "proportionality" "rational connection" and "minimal impairment" analysis will want to write at length on the Deschamps and Abella reasons but it is impossible to see that it could make a blind bit of difference to how any case might be decided or what a lawyer should advise a client to do.
Justice Lebel chipped in two thousand words to say he did not know what to make of the issue raised by Justices Deschamps and Abella and commend flexible reasoning. In doing so he wrote "Case law developed over 20 years or more [since Charter cases reached the courts] can no doubt be used to support any opinion or position." You bet it can. So much for all the ink spilled in an effort to explain what it all means.
The school board tried plausibly to argue that the wearing of kirpans would poison the school environment as a symbol of violence sending a message that using force is the way to assert rights. The court accepted the evidence of a Sikh chaplain that a kirpan is not a weapon and indeed that "kirpan" means mercy, kindness and honour. But it went farther and held that the school board's argument was "disrespectful to believers in the Sikh religion and does not take into account Canadian values based on multiculturalism." Political correctness rules in the Supreme Court. Counsel have been warned. The court will hear no argument a religion might find disrespectful.
The court held that the infringement of Multani's freedom of religion was not trivial or insignificant because it deprived him of the right to attend public school. But no one was arguing that the right to attend public school was trivial or insignificant. The question was how important the wearing of a kirpan is to an orthodox Sikh. The case was maintained all the way to the Supreme Court and obviously a large body of Sikhs think the wearing of a kirpan is very important but must the court simply take their say so? Is everything a religion promotes of such importance as to trump any secular considerations? To answer that question the court would have to attempt a critical understanding of religion. The court was not prepared, probably not able, to do so. Perhaps it is afraid of seeming disrespectful.
The court was very rough with the school board's argument that students would feel it unfair that Sikhs got to wear kirpans while they could not bring knives to school and some students resent Muslim women being allowed to wear the chador when they are not allowed to wear caps or scarves. "To equate a religious obligation such as wearing the chador with the desire of certain students to wear caps is indicative of a simplistic view of freedom of religion that is incompatible with the Canadian Charter." The court accused the school board of thinking teaching geometry (requiring the use of possibly dangerous compasses) and playing baseball (caps) were more important than accommodating Multani's religious beliefs.
The court sternly enjoined schools to indoctrinate students in respect for all religions, multiculturalism and diversity. Are these "values" not a kind of religion? And what of the good old-fashioned atheists who think all religions are vicious tosh? Must they be indoctrinated in respect for religion by teachers whose own beliefs may not run much farther than Oprah's angels.
Religious freedom is come to this. We are not free to believe in any, or no, religion but must believe in them all.
Wednesday, March 1, 2006
THE COLD WAR FROM BEGINNING TO END Igor Gouzenko to Vladimir Putin
March 1, 2006, Books in Canada
How the Cold War Began
The Gouzenko Affair and the Hunt for Soviet Spies
by Amy Knight
McLelland & Stewart
368 pages, $36.99 cloth
ISBN: 0-7710-9577-5
Kremlin Rising
Vladimir Putin's Russia and the End of Revolution
by Peter Baker and Susan Glasser
Scribner
464 pages, $37.95 cloth
ISBN: 0-7432-6431-2
Spying is a necessarily murky subject. Much that happened was never recorded. Records used code names. Those who knew are dead or their memories failing. Political and patriotic biases are strong. As strong are individual biases: wanting to tell a good story, to claim a discovery, to be a know it all, to make money. In reading spy stories we must keep a level head and hold fast to common sense.
Most of How the Cold War Began is a retelling of the story of Igor Gouzenko: his defection, his revelations, the consequent investigations and prosecutions, the public and political reactions, his life in Canada and his background in Russia. The retelling is informed by the partial, in both senses of the word, release of Soviet and Western archives and all that has been written about Gouzenko in the last sixty years. But there are no revelations.
It is an interesting story, well enough told, but familar to many Canadians. Capsule summaries of Canadian history and politics betray that Knight aims for an international readership. The book's title signals a larger ambition, which spoils it. The Cold War did not begin with Gouzenko's revelations or the hunt for Soviet spies. Amy Knight does not seriously attempt to argue that it did. She uses the Gouzenko story, and other stories only tenuously related to it, to present a pretty conventional anti-anti-communist argument.
No very important information was passed to the Soviets by the people whose activities Gouzenko revealed. The government overreacted and trampled on civil liberties through the Royal Commission set up to investigate Gouzenko's revelations. Gouzenko was a difficult character. Press reaction was often sensational. All this is true. But it is not all that matters.
Knight seems at times to be suggesting that Mackenzie King's idea of having a friendly word with Stalin, who he thought knew nothing of the spying, (and for whom he had conceived, though they never met, an admiration almost as high as that he had for Hitler when he met him in 1937,) and covering up the affair would have been the best response. Then there might have been no Cold War?
Canada was rather a backwater and there was not a lot of valuable information for Soviet agents to pick up. It may be because it was a backwater that Gouzenko's bosses at the Soviet Embassy were lax enough to let him escape with a pile of secret documents. But if Soviet espionage in Canada had gone undetected, as it might well have without Gouzenko's defection, it could have become a serious problem.
The Star Chamber nature of the Royal Commission on Espionage was attacked at the time by the CCF and the Tories, the Toronto Star and the Globe and Mail. It was and is indefensible, but it may at least have satisfied Canadians that the matter had been thoroughly investigated, leading to a relatively relaxed attitude in Canada, as compared with the United States, to the communist menace. Several of those charged in the affair were acquitted and there seem to have been no wrongful convictions.
Knight has written books on the KGB and its successors, Beria and Kirov and knows what the Soviet Union was. But her knowledge seems to have been sidelined in her analysis of Soviet spying and Western reaction to it. Communists are idealists, at worst naive. Anti-communists are rabid and engage in witch hunts. Why were there anti-communists? Was it just motiveless malice? Or opportunistic demagoguery (Joe McCarthy)? Or reactionary, counter-revolutionary, imperialistic capitalism?
Well, the Soviet Union was a brutal tightly closed dictatorship that had aligned itself with Hitler in 1939, was gobbling up or subjugating its neighbours and spewed out defamatory propaganda against its wartime allies. It expected and often got from foreign communists blind loyalty. Comintern communists were different from other left-wingers, whether Trotskyist communists, socialists or social-democrats. They did what Moscow told them to do. They sometimes kept their party membership secret or were asked not to join but to work for the cause outside the party. Anti-communist anxiety was a natural and reasonable reaction. It was practically intended by the communists.
Of course politicians, the press and the public got carried away and many blameless people suffered as a result. But the proper response to hysterical anti-communism was not anti-anti-communism but reasoned anti-communism. Knight persistently strains to exonerate suspects, extenuate disloyalty and disparage those hunting for spies. She is indulgent to the frequently heard apology for Soviet spies that they only thought they were helping an ally. But they knew they were making unauthorised disclosures to the Soviets and there were reasons why our alliance with them was not as open as our alliance with Britain and the United States. It was not for the spies to set the rules.
She is very hard on Gouzenko. While admitting that there is no evidence of it, she insinuates that he was in contact with the RCMP before his defection. She is reluctant to allow that he could sincerely have chosen freedom. He was keen for money and spendthrift but an ordinary career was impossible for him. He wanted to be acknowledged as a hero but was forced to live in obscurity. But why should he not have been impressed, not just by the prosperity of Canada, but by its freedom and repelled by spying on an ally? He seems always to have testified truthfully, not exaggerating what he knew.
Knight is one of what is now a minority who are not persuaded that Alger Hiss was guilty. She makes much of the various reporting of Gouzenko having said that a Soviet spy was "an assistant to an Assistant Secretary of State under [United States Secretary of State Edward] Stettinius" or "an Assistant to Stettinius". This is the tenuous link of Gouzenko with the Alger Hiss case. But Hiss was famously brought down by Whittaker Chambers and Gouzenko can neither be blamed for nor credited with his fall.
Knight also reviews the case of Herbert Norman, the Canadian Ambassador to Egypt who committed suicide in Cairo in March 1957 while a United States Senate Subcommittee was reviewing old allegations that he had communist links. Gouzenko had mentioned a Norman but maintained it was a Norman Freed. Notwithstanding, Gouzenko's reference added fuel to suspicions of Herbert Norman. But Norman was cleared by an External Affairs review and at the time of his death was at the top of his profession. His suicide, like most suicides, will never be explained, but neither shame for a life of treason nor, Knight's choice, the stress of hounded innocence seems a likely explanation. Knight has nothing to add to his story. Norman is simply presented as a victim of Gouzenko.
Having spent much of her book belittling the threat of Soviet spying Knight says towards the end that Gouzenko's defection created a crisis at Moscow's spy headquarters. Why, one wonders, if they were not up to much? She goes on to describe a KGB built up after the crisis that attracted the best and the brightest of the Soviet Union. She writes a paean to the KGB while reporting that still today it remains an object of Russian pride.
Judging from Peter Baker and Susan Glasser's Kremlin Rising Russia has not got in Vladimir Putin its best and brightest. Baker and Glasser were the Washington Post bureau chiefs in Moscow from 2001 to 2004. Their book is an account of what they learned about Russia in those years. It covers the Moscow theatre siege of 2002, the parliamentary and presidential elections of 2003 and 2004 respectively and, most compellingly, the slaughter of schoolchildren at Beslan in 2004. There are also accounts of how people live, the army, the poor health of Russians and much besides. It is thoroughly researched, with over forty pages of endnotes, but not free of the forced drama and personal storytelling of "good magazine writing". A March like every one we have ever known becomes "a grim March that was neither winter nor spring".
There is hardly a page of Kremlin Rising that could have been written during the Cold War. If Baker and Glasser had tried they would have been kicked out of the Soviet Union, if not locked up as spies. Today foreign reporters can go almost anywhere and speak to almost anyone, if often off the record.
This is indeed progress. The openness of Russia in contrast to the secrecy of the Soviet Union, perhaps more than its reduced state and the abandonment of Cold War hostility, has dispelled fear.
There are still secrets and there is still paranoia. Baker and Glasser do not seem to be able to confirm or deny the story that the 1999 Moscow apartment bombings, which killed hundreds and were blamed on Chechen terrorists, were the work of the FSB, the KGB's successor.
High oil prices and an end to the chaotic gyrations of the Yeltsin years have brought relatively good times to Russia. But politically the last few years have seen a consolidation of Putin's power, the establishment of strict state control over television, the management of democracy and attacks on oligarchs who presented a political challenge. Democracy is not thriving in Russia. Putin avoids the word. He seems to have no agenda but his own power. The state's role in the economy has increased only because Mikhail Khodorkovsky was a political threat. Putin had an undistinguished career in the KGB and emerged as Yeltsin's successor it seems by chance and insinuating himself in the right places at the right time. He has no discernible ideology or policy inclinations and may be out of his depth in government, having the native shrewdness to take and keep power but no idea what to do with it. His failure in the Kursk disaster looked like not having a clue.
While Baker and Glasser present a bleak picture of Russia they do not attempt to look into the future. Putin may remain president for quite some considerable length of time or the new establishment of old KGB hands he has gathered around him may tell him he has had his fun and produce another strongman, abler, more sinister, both or neither. Economics, the agony of Chechnya or demographics may lead to crisis and change. But Kremlin Rising does not refer to a new threat in the East. It is the power of the Kremlin in Russia not Russia's power in the world that has risen.
Putin's thuggishness, evident in the gas dispute with Ukraine, will require firm handling. Russia will remain a worry. That the successors of the men who ran Gouzenko in 1945 can build a prosperous and peaceful Russia seems unlikely. But the Cold War is over. It ended where it began: in Moscow.
Friday, February 3, 2006
The Supreme Cout of Canada: RIGHTEOUS BIAS GRATUITOUS REMARKS - Canada (Human Rights Commission) v. Canadian Airlines International
The reasons for judgment in Canada (Human Rights Commission) v. Canadian Airlines International Ltd. released by the Supreme Court of Canada on January 26 are questionable on three grounds.
The case concerned the reach of equal pay legislation. The Canadian Human Rights Act declares that the payment of different wages to male and female employees in the same "establishment" for work of equal value is a discriminatory practice. The broader the interpretation of "establishment" the broader the reach of the legislation. The court adopted a broad interpretation.
The Air Canada flight attendants union launched a complaint in November 1991 claiming that the airline discriminated in the wages it paid flight attendants. Air Canada argued that the flight attendants were not employed in the same "establishment" as the mechanics and pilots with whom the union sought to compare the value of their work and their pay and a Human Rights Tribunal agreed. The union asked the Federal Court to review the Tribunal's decision but that court would not overturn it. On appeal to the Federal Court of Appeal the Tribunal's decision was overturned and the matter sent back for a hearing into whether the flight attendants were paid less for work of equal value. Air Canada appealed that decision to the Supreme Court. The appeal was heard last October. The Supreme Court dismissed Air Canada's appeal.
The Canadian Human Rights Act does not define "establishment". Air Canada argued that as flight attendants, pilots and mechanics had had separate collective agreements governing their pay for 60 years they were not in the same establishment within the meaning of the Act. Finding that "flight attendants, mechanics and pilots all work in the core business of Air Canada, that personnel and compensation issues are under the direction of the central human resources division of Air Canada, that general corporate human resources policies apply to all three groups, and that a single committee within Air Canada is responsible for coordinating the process of negotiating collective agreements with all three bargaining units" the court rejected Air Canada's argument.
The court held that "establishment" could not be held to mean "collective bargaining unit" as Air Canada was implicitly arguing. As it would have been easy for the legislation to define "establishment" as "collective bargaining unit" and the breadth of collective bargaining units is to some degree under an employer's influence and could thus be used to circumvent the legislation the court was so far right. But the court's reasons practically identify "establishment" with employer and if that is what parliament meant it would have said it.
1. The case was decided on the principle, for which some precedent was found in earlier Supreme Court decisions, that human rights legislation should be interpreted so as to give it the broadest possible reach. This is plainly wrong. Only a blinkered court could fail to recognise that an interpretation supposed to strengthen human rights is in fact an interpretation that strengthens government power, which in all other contexts the courts will only do when plainly required by legislation. Human rights legislation, however justified it may be, subjects decisions that would otherwise be freely made to review and direction by government. Where legislatures think it is required the courts should strictly enforce it. They should not attempt to give it any broader reach than a strict reading requires.
2. In giving its reasons the court indulged in a bit of the gratuitous editorialising that courts are more and more prone to. It expressed regret that Air Canada had resisted the definition of "establishment" that the court had just adopted "for almost 15 years, creating enormous expense for itself and the public, and intolerable delay in wage equity, should the flight attendants ultimately succeed." Air Canada had a perfect right to raise the issue, twice successfully, and, if the 15 years it took to decide it is regrettable, the courts, who have complete control of their proceedings, should look to themselves.
3. The court's reasons were jointly written by Rosalie Abella and Louis Lebel. Abella, though famously appointed a judge at the age of 29, spent much of her time after that as variously Ontario Human Rights Commissioner, head of the Ontario Labour Relations Board and running a Royal Commission on Equality in Employment in Ontario. In the last capacity she modestly notes in her Who's Who entry that she "created the term and concept of employment equity". On the issue of pay equity there is no question of a reasonable apprehension of bias in Abella. There is a well know bias. Had Abella any past links with the parties she would have had to recuse herself because of a reasonable apprehension of a bias she might well have been able to overcome. On this issue there could never have been any question how she would decide the case. Air Canada never had a hope. Whether the decision was right or wrong, that is regrettable.
The case concerned the reach of equal pay legislation. The Canadian Human Rights Act declares that the payment of different wages to male and female employees in the same "establishment" for work of equal value is a discriminatory practice. The broader the interpretation of "establishment" the broader the reach of the legislation. The court adopted a broad interpretation.
The Air Canada flight attendants union launched a complaint in November 1991 claiming that the airline discriminated in the wages it paid flight attendants. Air Canada argued that the flight attendants were not employed in the same "establishment" as the mechanics and pilots with whom the union sought to compare the value of their work and their pay and a Human Rights Tribunal agreed. The union asked the Federal Court to review the Tribunal's decision but that court would not overturn it. On appeal to the Federal Court of Appeal the Tribunal's decision was overturned and the matter sent back for a hearing into whether the flight attendants were paid less for work of equal value. Air Canada appealed that decision to the Supreme Court. The appeal was heard last October. The Supreme Court dismissed Air Canada's appeal.
The Canadian Human Rights Act does not define "establishment". Air Canada argued that as flight attendants, pilots and mechanics had had separate collective agreements governing their pay for 60 years they were not in the same establishment within the meaning of the Act. Finding that "flight attendants, mechanics and pilots all work in the core business of Air Canada, that personnel and compensation issues are under the direction of the central human resources division of Air Canada, that general corporate human resources policies apply to all three groups, and that a single committee within Air Canada is responsible for coordinating the process of negotiating collective agreements with all three bargaining units" the court rejected Air Canada's argument.
The court held that "establishment" could not be held to mean "collective bargaining unit" as Air Canada was implicitly arguing. As it would have been easy for the legislation to define "establishment" as "collective bargaining unit" and the breadth of collective bargaining units is to some degree under an employer's influence and could thus be used to circumvent the legislation the court was so far right. But the court's reasons practically identify "establishment" with employer and if that is what parliament meant it would have said it.
1. The case was decided on the principle, for which some precedent was found in earlier Supreme Court decisions, that human rights legislation should be interpreted so as to give it the broadest possible reach. This is plainly wrong. Only a blinkered court could fail to recognise that an interpretation supposed to strengthen human rights is in fact an interpretation that strengthens government power, which in all other contexts the courts will only do when plainly required by legislation. Human rights legislation, however justified it may be, subjects decisions that would otherwise be freely made to review and direction by government. Where legislatures think it is required the courts should strictly enforce it. They should not attempt to give it any broader reach than a strict reading requires.
2. In giving its reasons the court indulged in a bit of the gratuitous editorialising that courts are more and more prone to. It expressed regret that Air Canada had resisted the definition of "establishment" that the court had just adopted "for almost 15 years, creating enormous expense for itself and the public, and intolerable delay in wage equity, should the flight attendants ultimately succeed." Air Canada had a perfect right to raise the issue, twice successfully, and, if the 15 years it took to decide it is regrettable, the courts, who have complete control of their proceedings, should look to themselves.
3. The court's reasons were jointly written by Rosalie Abella and Louis Lebel. Abella, though famously appointed a judge at the age of 29, spent much of her time after that as variously Ontario Human Rights Commissioner, head of the Ontario Labour Relations Board and running a Royal Commission on Equality in Employment in Ontario. In the last capacity she modestly notes in her Who's Who entry that she "created the term and concept of employment equity". On the issue of pay equity there is no question of a reasonable apprehension of bias in Abella. There is a well know bias. Had Abella any past links with the parties she would have had to recuse herself because of a reasonable apprehension of a bias she might well have been able to overcome. On this issue there could never have been any question how she would decide the case. Air Canada never had a hope. Whether the decision was right or wrong, that is regrettable.
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