RSS FeedDiscrimination at the University of Ottawa?
Khalid Aba-Alkhail, Manal AlSaigh, and Waleed Alghaithy, three physicians from Saudi Arabia, have filed a lawsuit against the University of Ottawa for over $150 million dollars. The doctors were enrolled in postgraduate medical education programs at the university, where they claimed the experienced discrimination and harassment resulting in the termination of their enrollment.
UofO Student Appeal Centre director Mireille Gervais appears to support the plaintiffs,
I’ve seen some of the evidence that supports the claim, and I am continuously in shock to see how far the university’s misbehaviour and egregious behaviour in this case has gone. There’s documented evidence to support the fact that there really was a conspiracy toward these students.
The university however released a statement yesterday denying the allegations. The CBC reports that the university spokesperson stated,
…the university “denies all allegations of wrongdoing made in the suit. The claims are entirely false, and the university will be vigorously defending itself against this suit, and defending the quality and the integrity of its medical education programs.”
The statement goes on to say that the faculty of medicine “has been welcoming foreign medical students for more than 30 years, and boasts one of the largest numbers of foreign residents and fellows in Canada, the majority of whom have successfully achieved the required academic standards for graduation.”
“We take pride in our diversity and high standards, and believe that they contribute to our excellence,” the university said.
The plaintiff’s Statement of Claim, which is over 120 pages long and was filed on November 24, 2011, is below.
ABA-ALKHAIL Et Al vs University of Ottawa Et Al
Update
A reader contacted us to provide the following materials. Although the veracity of the emails cannot be vouched for directly, the related motion is confirmed as an actual reported decision:
Neuroleaks Decision + materials
Constructive dismissal
Recently, I consulted a client who was in a conflict with a few co-workers. Let’s call him Jack. My client told me they did not like him. Jack received emails accusing him of poor communication skills and mistakes in the performance of his work duties. Jack convinced me that the accusations were groundless. He believed his co-workers wanted him to quit so they could help their friend take his place. He thought it was bullying and wanted it to stop. Jack’s bosses didn’t help him much. But none of the bosses took part in or condoned the criticisms. One of them did ask Jack’s co-workers to tone it down, and the tension went down a little for a while. Still, Jack felt uncomfortable at work.
Jack talked to me because he clearly wanted one of two things: a complete end to what he thought was bullying or termination of his employment with a fair severance package. He was willing to leave if his employer paid him enough.
Usually, if you quit your job, you cannot expect any good-bye package. Employers must pay terminated employees if they are dismissed not if they leave voluntarily. The amount depends on such things as how long you worked there, how much you made, what your job was, how you were originally hired, etc. If the employer fires you for a good reason, it doesn’t have to pay you anything. Good reasons can include lying, stealing, punching someone in the face, or failing to stop doing something wrong but less serious after several warnings. This is called dismissal for cause. If there is no “cause” for dismissal, you must get either an early notice of dismissal or whatever you would have earned during the period after such notice if they want to let you go right away.
But what if you did nothing wrong, but your job becomes unbearable? Sometimes in cases like that, you can quit and still expect a payment as if the employer terminated you without cause. When your employer changes a fundamental term of your job without your agreement, the law recognizes your right to quit and keep your pay for a certain while (or get it all at once). This is called constructive dismissal. The basic rule is a fundamental term of your job must be at stake and you must not agree to its change. Cutting your pay, demoting, taking all responsibility from you, cutting off your access to basic tools you need to do your job, demanding that you work completely new hours, serious harassment—all of those things may be constructive dismissal.
I told Jack that he probably didn’t yet have a case for constructive dismissal. A couple of sarcastic emails belittling his communication skills and a few times when he though he was intentionally set up for failure did not justify the risk of litigation. If Jack accused his employer of constructive dismissal and sued, he would definitely lose his job, but his success in getting a good package through the courts was far from guaranteed. The only assured payout was my legal fees. I recommended to wait and gather more evidence, and yes, to bear up. Law is a powerful, blunt, and expensive tool, and often it expects some degree of stoicism. That’s why it’s important to consult a lawyer before taking any drastic steps at work. We may actually prevent useless litigation.
Pulat Yunusov is a Toronto litigation lawyer.
(Post sponsored by AdviceScene)
Ryan Venables – Case Comment: UFCW Local 401 v. Old Dutch Foods [2009] ALRBD No. 56.
Follow the case comment link to the full case comment done by Ryan Venables
Ontario Prostitution Laws Struck
I have to admit that when I first heard on AM980 that Justice Susan Himel stuck the prostitution laws for Ontario, I was a bit dismayed. Many people who think of prostitution think of the typical “street-walker” on the corner soliciting “john’s” for a quickie in the back of a pickup, and (hopefully) getting arrested in a COPS style raid.
Now that I’ve had a little opportunity to digest the news, here is what I think. Although a quick caveat, I have not read the actual decision.
First off. What is a common bawdy-house?
s. 197
“common bawdy-house” means a place that is (a) kept or occupied, or (b) resorted to by one or more persons
for the purpose of prostitution or the practice of acts of indecency;
Second, what are the relevant prostitution laws in for Canada?
s. 210. (1) Every one who keeps a common bawdy-house is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.
(2) Every one who
- is an inmate of a common bawdy-house,
- is found, without lawful excuse, in a common bawdy-house, or
- as owner, landlord, lessor, tenant, occupier, agent or otherwise having charge or control of any place, knowingly permits the place or any part thereof to be let or used for the purposes of a common bawdy-house, is guilty of an offence punishable on summary conviction
212. (1) Every one who
(a) procures, attempts to procure or solicits a person to have illicit sexual intercourse with another person, whether in or out of Canada,
(b) inveigles or entices a person who is not a prostitute to a common bawdy-house for the purpose of illicit sexual intercourse or prosti- tution,
(c) knowingly conceals a person in a com- mon bawdy-house,
(d) procures or attempts to procure a person to become, whether in or out of Canada, a prostitute,
(e) procures or attempts to procure a person to leave the usual place of abode of that per- son in Canada, if that place is not a common bawdy-house, with intent that the person may become an inmate or frequenter of a common bawdy-house, whether in or out of Canada,
(f) on the arrival of a person in Canada, di- rects or causes that person to be directed or takes or causes that person to be taken, to a common bawdy-house,
(g) procures a person to enter or leave Cana- da, for the purpose of prostitution,
(h) for the purposes of gain, exercises con- trol, direction or influence over the move- ments of a person in such manner as to show that he is aiding, abetting or compelling that person to engage in or carry on prostitution with any person or generally,
(i) applies or administers to a person or cau- ses that person to take any drug, intoxicating liquor, matter or thing with intent to stupefy or overpower that person in order thereby to enable any person to have illicit sexual inter- course with that person, or
(j) lives wholly or in part on the avails of prostitution of another person,
is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.
213. (1) Every person who in a public place or in any place open to public view
(a) stops or attempts to stop any motor vehi- cle,
(b) impedes the free flow of pedestrian or vehicular traffic or ingress to or egress from premises adjacent to that place, or
(c) stops or attempts to stop any person or in any manner communicates or attempts to communicate with any person
for the purpose of engaging in prostitution or of obtaining the sexual services of a prostitute is guilty of an offence punishable on summary conviction.
(2) In this section, “public place” includes any place to which the public have access as of right or by invitation, express or implied, and any motor vehicle located in a public place or in any place open to public view.
Okay, with the logistics out of the way, lets look at my opinion. I am glad to see that Justice Himel reserved judgement for 30 days to allow for an opportunity for the Provincial Crown to appeal, which is what they did the very next day. From my understanding Justice Himel’s reasoning, in agreement with the litigants Terri-Lynn Bedford, Valerie Scott, and Amy Lebovitch, indicated that the laws needed to be struck from the Canadian Criminal Code because they created real safety concerns for current sex-trade workers. The Globe and Mail article indicated “in her [Justice Himel] 131-page ruling which took her a year to produce, Judge Himel found that laws set up to protect prostitutes actually endanger their safety, forcing them to furtively engage in hasty transactions conducted in shady locations.” The rationale behind this is now sex-trade workers will be able to get off of the street and into what was “formerly” known as a common bawdy-house which in their opinion would be a controlled environment that would allow for protection from predators such as Robert Pickton.
Additionally, it is hoped (by the litigants) that this will also move the sex-trade indoors and remove some of the visible signs that are currently on display.
Well, I have to admit that in my policing career I did not have the opportunity to enforce Canada’s prostitution laws on any “street-walkers,” I can say that the trade is flourishing in illegal massage parlours and strip clubs. I do not agree with the rationale that this law will protect sex-trade workers from potential Robert Pickton’s for a couple simple reasons:
1. Massage Parlours and strip clubs have notoriously been areas were the solicitation of sex is an ongoing “problem” and striking these laws down does nothing to curb the problem. If anything, it can put the “girls” in more jeopardy as massage parlours and strip clubs are generally owned by individual members of organized crime factions – specifically Outlaw Motorcycle Gangs like the Hells Angels. As I see it if sex acts become legal and are able to be performed in strip clubs and massage parlours, we are feeding the “girls” to the MOST dangerous criminal elements in society.
2. It believed that girls who currently walk the streets will be able to obtain protection in the safety of massage clubs or other “brothel” type establishments. While this is laudable on its thought, in practicality it does not work. The girls who (again in my opinion) walk the street are generally addicted to drugs, have mental health concerns, and have turned to the streets because there is nowhere else for them to go. The people who would start up a potential brothel or massage parlour generally pass over the girls who are older, not “attractive” enough, and have drug and mental health issues. Where will the protection be for these sex-trade workers?
3. Where will the protection be against unfair labour practises? In all seriousness, will they unionize? How is this going to be monitored, will they be taxed? Will by-laws be involved?
Additionally, evidence presented urged Judge Himel to also reflect on the fact that prostitution is inherently degrading and unhealthy, and should not be encouraged as a “career choice” for young women through a slack legal regime. With all due respect to the learned Justice Himel, I do not think any 6 year old girl dreams about the nitty gritty of “Pretty Woman.”
One misleading inaccuracy in the article includes: Several cities – including Toronto, Victoria, Windsor, Calgary and Edmonton – charge fees to licence body-rub establishments despite the general understanding that many sell sexual services. While they do in fact license “body-rub” establishments, they are not (as the article would lead you to believe) licensing massage parlours for sexual services. What they are licensing is a massage establishment which begins and ends at the massage.
In the end, SHOULD these laws be struck, I suspect it will be many years before this makes its way through the Ontario Court of Appeal and then on to the Supreme Court of Canada. However, once this legal drama makes its way through its appeal process, in the end if it is struck from our laws (which for the record, I do not believe it should be – see above) there are other issues and areas of law (Administrative Law, Employment/Labour Law, Municipal Law…etc) that will need immediate addressing.
The Donkey and the Carrot: Why Law May Not Be So “Cool” After All
For the class of 2013 (or 2014 in my case), the end of summer signals the beginning of law school. Buoyed by hopes of success and spurred by the prospect of good paying jobs at the end of it all (or the metaphorical carrot on a stick), many of us are getting ready to settle in and start what will no doubt be a challenging but personally fulfilling year. In the same spirit, I eagerly packed my bags and headed to Montreal propelled by the well wishes of friends and family members. “You’ll do great,” they said. “There’s a B curve at McGill.” I replied. “Don’t worry about it,” they said. For months I had been complaining about paying tuition (side note: I know McGill’s Faculty of Law has one of the lowest tuitions in Canada. Don’t stone me…), and I was saddled with my own fears and apprehensions. But my friends and family reassured me: “It’ll all be worth it in the end.” “Go out and make those big bucks,” they said. So I pranced off to law school.
Shortly upon my arrival, I was in the McGill bookstore looking for my law textbooks when I randomly ran into and finally met fellow Law is Cool contributor Siena Anstis. We lamented over the dollars that we would inevitably have to shell out in the next few weeks, but Sienna reminded me that, “It will all pay off in the end. That’s what I keep telling myself anyway…”
A few days later, I went back to the bookstore to purchase my first set of law textbooks (yes, they are so heavy that I will have to buy them in instalments). There, I bumped into another fellow 1L. Although we exchanged no words, our countenances did the talking as we exchanged depressed glances, and I made my way to the cashier to pay for my textbooks. At the cash, I let out a heavy sigh, still decrying the amount of money that these textbooks were going to cost me. The cashier replied, “Don’t worry. You’ll make it all back by the end of [law school].”
If I had a dollar for the number of times I was told that…
Most of us are going to law school with the ulterior motive of making some “good money” (admit it…) at the end of it all. No one pays upwards of $60 000 for the heck of it. After all, many of us go to law school desperately hoping that the stereotype rings true: “lawyers are stinking rich, or at least can live comfortably” and “job prospects abound for those with a law degree.” However, as if to add insult to injury, the following excerpt from a blog post puts the stereotype into question:
The Real Value of a Legal Education
By John Farmer Jr.
America’s law schools begin the 2010-2011 academic year facing one of the greatest challenges to legal education since the rise of the modern law school at the end of the 19th century.
On one hand, the job market for law school graduates has rarely been worse than the past two years, and the class of 2011 is facing an equally daunting paucity of opportunities. As The Star-Ledger reported last week, some recent law school alumni who have had a difficult time navigating the job market have become embittered, claiming that the legal academy induced them to borrow large amounts of money by dangling a career prospect that has proven illusory.
On the other hand, interest in legal education has never been higher. Record numbers of qualified college graduates are applying to law schools, which are not hesitating to enroll them. This, in turn, led some members of the bar, meeting recently at the American Bar Association convention in San Francisco, to question the motivation of the law schools. How, they wonder, can they continue to admit thousands of students when their career prospects are so uncertain?
The struggles of recent law school alumni, coupled with the apprehensions of the bar, should give pause to those of us who are involved in educating the next generation of lawyers. …
In the short term, students should embark upon a legal education with their eyes open; the job market is difficult, and likely to remain so. Legal education is not, as the comments of some would suggest, an entitlement program.
…In retrospect, we were spoiled by the prosperity of the large law firms, and the easy career pipeline and high salaries they offered. Tuitions could be raised without fear of compromising the students’ futures; the debt students were forced to incur would be easy to manage with the high salaries recent graduates were commanding. As a consequence, many law schools became “cash cows” supporting programs in their larger university communities. The focus shifted to revenue; economic issues came to dominate.
But the real value of legal education is not, and never has been, primarily economic. It’s not about money; it’s about freedom.
Legal education gives students what 99.9 percent of humanity yearns for but is denied: control over one’s own life….”
I can’t help but wonder, however, how much control one can exert over one’s life when one is broke and thus at the mercy of loans, the leviathan that is the state and the monster that is capitalism. We all know that job prospects for new law grads are not as great as they used to be (to say the least) – after all, there’ve been numerous posts and articles about this subject on numerous law blogs and sites. But what am I to expect as a law graduate in 2014? This year alone was one of the worst for articling students… Can we – should we – expect better in a few years? If so, there are no worries. If not, however, it would behove the class of 2013 to start law school with, not only the end, but reality in mind.
Society? It lied to me. My friends and family? Maybe they were wrong. It is quite possible that law school will not pay off in the end, or at least not without some elbow grease and elapsed time. The reality is that, in some ways, many of us law students will be like donkeys with that illusive (or, depending on how you think of it, elusive) carrot dangling in front of us – motivated to work because of and for the carrot but forever running after something we may never realistically obtain.
Blawg Review #278
Blawg Review is a blog carnival that rotates to a different law site every week, usually emphasizing a specific theme. Last week’s review was by R. David Donoghue.
August 23 is the “International Day for the Remembrance of the Slave Trade and its Abolition,” established in 1997 by the United Nations Educational, Scientific and Cultural Organization (UNESCO) during the 29th session of the General Conference (Volume 1).
The purpose of the day is to examine:
- the historical study of the causes and workings of the transatlantic slave trade,
- the clarification of the consequences and interactions to which it gave rise, and
- the contribution of the project to the establishment of a culture of tolerance and peaceful coexistence between races and peoples.
This year UNESCO has developed a documentary for this day Slave Routes: A Global Vision.
A companion document has has been released with the film, and will be referred to periodically throughout this post.
The Causes and Workings of Transatlantic Slavery
The origins of the Transatlantic slave route go back to the Iberian wars, between the Christian and Muslim kingdoms of Spain and Portugal. Both sides engaged in the enslavement of captives of war. As Slave Routes notes, the institution of slavery existed well before the Transatlantic route, both internally within Africa and to the Near East. But something different began with the European enslavement of Africans from the 15th c. onwards.
The first known African slaves sold in markets of recognizable European states was in Lisbon, Portugal in 1441, obtained from what is now Mauritania. The Portuguese had good reason for attempting to circumvent the Atlas Mountains and raiding the West African coast. In 1086 a black African dynasty originating from this area known as Al-Murabitun (Almoravids in English) provided military support and temporarily halted the expanse of the Christians. Soon after, Pope Alexander II provided the papal standard (vexillum sancti Petri) and an indulgence to the Christians in the conflict in 1063, making it officially a holy war that would culminate centuries later in the Spanish Inquisition.
The motivation for European slavery of Africans was therefore initially military, as an extension of the Western Crusades known as La Reconquista, or the reconquest of the Iberian peninsula by the Christians. In reality this term was probably too broad and an exaggeration, as many of the diverse peoples in the Muslim kingdoms of Spain and Portugal included native Iberians who had adopted the Islamic faith.
A permanent Portuguese fort was established at Arguin in 1448, and the 1452 Dum Diversas papal bull of Pope Nicholas V specifically authorized Alfonso V of Portugal,
…full and free permission to invade, search out, capture, and subjugate the Saracens and pagans and any other unbelievers and enemies of Christ wherever they may be… and to reduce their persons to perpetual slavery.
This established the basis for a racialized slavery, hereby unknown to Africa or any region engaging in African slave trade. As the motivations for slavery shifted from military goals to economic incentives, sheer greed resulted in a complete and utter destruction of African civilization and society. This is what made the Transatlantic slavery exceptionally devastating and worthy of particular scrutiny.
Web resources on the subject are expanding, archiving historic documents for amateur historians looking to deepen their knowledge on the subject. J.L. Bell has a post on Boston 1775 announcing American Slavery Debate, a new database of primary source documents.
Marco Randazza thinks slavery would be a pretty good alternative to some judicial punishments out there.
In some ways we’re all a slave to something. Those of us starting out in our legal careers are often a slave to the billable hour, or a slave to making partner. Norm Pattis is eying some of the pro bono work big firms are doing and wondering if they can spare him a partnership. Ronda Muir gives some tips to young lawyers on how to be a better lawyer by improving specific behaviours. Social media might boost a career, but Adrian Dayton cautions on a guest post at Above the Law that it takes time and dedication to get true returns.
If we don’t make it seems like we’re all likely to move back in with our parents. Stephanie West-Allen discusses these millennials on IdeaLawg. Scott Greenfield just sort of bashes them. Jordan Furlong thinks law firms should pay more attention to a workplace trend:
…a daydream about the courage to quit a job that treats you with less respect than you deserve… As Daniel Gross explains in a Newsweek commentary, “the poor labour market and workers’ antagonism toward employers and customers are actually connected”
Slavery means different things to different people. James T. Harris quotes Alan Keyes, who describes the experience of slavery as a guarantee of shelter, clothing and a job. “Socialism,” and Obama, is a form of slavery, if you buy the Keyes line that government-dominated largess is an infringement on freedom. Blunt Politics gives us more black Republicans who claim that real freedom comes through independence from the state, which they liken to the slave plantation,
This is not the land of guarantee, it’s the land of opportunity… but when you say racism is the problem, you put the power for your future in someone else’s hand.
My take is that the modern descendants of slaves are more likely to find guaranteed food, shelter and clothing in prison. The U.S. has the highest incarceration rate in the world, and African-Americans are disproportionately affected for a variety of reasons. I always wonder why Keyes doesn’t talk more about that, because it seems like race is the problem. Or part of it, at least. If nothing else it makes confidence and belief in the system difficult for minorities in the U.S. Abdul Hakim-Shabazz has his own doubts about police on the Indiana Law Blog after the David Bisard case, where an intoxicated on-duty officer struck and killed a biker and somehow had the charges dropped.
Law enforcement is not always right. James Morton thinks Col. Patrick Parrish is wrong about Omar Khadr. Confessions are only valid if they are free and voluntary. Threats of gang rape in prison usually vitiate that consent.
Eric Lipman reminds us about Terry Nichols in prison, not notable for being African-American, but rather for his role in the Oklahoma City bombing. Seems he’s not too happy with his food in prison due to the lack of insoluble fibre which doesn’t give him regular bowel movements. Seems the judge doesn’t give a…
Consequences and Interactions of Transatlantic Slavery
The most immediate consequence of the Transatlantic slavery was the dominance of European powers in the world. Western civilization as we know it today would not be possible without the hundreds of years of free labour, and the continued exploitation of natural and human resources. Operation Black Vote said,
The UK reaped huge profits for the despicable trade financing the developments associated with the industrial revolution. Britain made unprecedented profits and benefited enormously for the bloody trade. The legacy of racism remains with us some 400 years later.
Transatlantic slavery also created a system of oppression that places people of European ancestry on a higher level in a hierarchy maintained by what Slave Routes refers to as europhilia, ethnophobia and endophobia. It resulted in a far greater polarization of cultures in the world, as those attempting to restructure this hierarchy or seeking independence through an anti-colonial stance invariably adopted a counter-European philosophy. We see this pattern not just across Africa, but all of the colonized world, including the Middle East, across Asia, and Latin America.
August 23 was selected by UNESCO because it corresponded with the Haitian revolution, a major landmark in the resistance against colonialism and slavery. Slave Routes points out,
In the United States, the North America historian, Herbert Aptheker, has estimated that approximately 250 acts of sedition in all were organized by Afro-Americans to free themselves from slavery during the history of that “particular institution” in that country.
These revolts existed throughout the Caribbean and the Americas, and were a far more compelling reason for abolitionism than any humanitarian or compassionate grounds. For more on the Haitian revolution and slave revolts, see Blawg Review #249.
Although the direct domination of the developed world by European powers has largely ceased, the exploitative relationship continues to this day and is a major source of civil unrest and political tensions in the world today.
I came across this poster the other day on Queen Street West stating that “Slavery wasn’t abolished in 1834,”
It’s an advertisement from The Body Shop, who have raised over a million dollars to fight sex trafficking through partnerships with ECPAT USA (End Child Prostitution and Trafficking) and The Somaly Mam Foundation. The greatest consumers of modern sex trafficking continues to be wealthy European and North American citizens.
The Morning Quickie shares a review of Not Natasha, a photo book documenting the lives of survivors of sexual slavery in Moldova.
The key thesis behind Siddarth Kara and Devin T Stewart’s Sex Trafficking: Inside the Business of Modern Slavery is not that different from the Transatlantic slavery,
…the enormity and pervasiveness of global sex trafficking is driven by the ability to generate immense profits at almost no real risk.
They suggest the most effective way to address the profitability of modern slavery is to elevate the risk.
Not For Sale | Cambodia from Not For Sale Campaign on Vimeo.
Michael Platzer of the U.N.’s Center for International Crime Prevention said,
…200 million people are victims of contemporary forms of slavery. Most aren’t prostitutes, of course, but children in sweatshops, domestic workers, migrants. During four centuries, 12 million people were believed to be involved in the slave trade between Africa and the New World. The 200 million — and many of course are women who are trafficked for sex — is a current figure. It’s happening now. Today.
The Not for Sale Campaign has a slavery map tracking incidents near you revealed largely through law enforcement. The campaign focuses on more than just sexual slavery, and in their 2010 “Stop Paying for Slavery Tour” uses supply chain monitoring programs and looks at various forms of exploitation and economic dependence that result in a de facto rather than de juris forms of slavery.
Or as Jason Mustian recently put it,
Ron Soodalter at the Huffington Post talks about The Slave Next Door, and reaffirms that slavery is alive and well today. He’s calling for California to pass the Transparency in Supply Chains Act. A Heart for Justice reviews the same book.
Bruce Reilly visits the Modern Slavery Museum focusing on agricultural workers. Actually, the museum visited him, because it’s on wheels,
Farmworkers in this country have been the most exploited group of folks since the Abolition in slavery in 1865. As one farm owner puts it, “Before, we used to own the workers. Now we just rent ‘em.”
Faces of Slavery from David Hepburn on Vimeo.
Those interested in learning more might want to attend the Global Forum on Human Trafficking in Yorba Linda, CA on Oct. 14-15, or a number of workshops being held in the UK by UCL.
My Fight Planet gives us an edited version of highlights from “Fight Traffic,” a Mixed Marital Arts (MMA) event raising funds to abolish slavery and human trafficking. Maybe we can do something like that over here, because MMA fights are coming to Ontario.
Not all sports are so philanthropic. Tom Kirkendall is following the Roger Clemens case. Meanwhile, Howard Wasserman is cheering speech at the Sports Law Blog. Lilian Edwards comments on the case of the anonymous star of BBC’s racing show Top Gear trying to reveal his true name to cash in on an autobiography. (Sorry, no hockey here this time).
A Culture of Tolerance and Peaceful Coexistence between Races and Peoples
Michael Lynk, one of my former profs at UWO and currently Associate Dean, has the 2009 Rand Memorial Lecture on SSRN, Labour Law and the New Inequality. The premise behind the paper is that poor labour practices that stem from global inequity leads to instability and civil strife, limiting both social capabilities economic potential of these communities. UNESCO is currently mobilizing a response for the Pakistan floods, an issue of global concern to avoid radicalization, militancy and religious extremism in the region.
An obvious prerequisite for the horrors of Transatlantic slavery was the development of racial ideology. Slave Routes notes one of the major obstacles to political independence in Latin America was persistent and divisive racial ideologies. The Human Genome Project and countless scientific studies in recent years indicate the biological impossibility of human “races,” yet the resurgence of eugenics around the world is quite disturbing.
But genes can be used in good ways too. The Innocence Project announces that after 30 years DNA evidence has proven a Virginia man is innocent of rape charges due to the pro bono work of lawyers at Wilmer Cutler Pickering Hale and Dorr LLP. Another recent exoneree, Michael Anthony Green, wants to become a paralegal to help others wrongfully accused.
Speaking of wrongfully accused, Christine Corcos reports that Wikileaks founder Julian Assange was charged in Sweden for rape and molestation charges. Not so quick though, seems those charges were dropped in a hurry. Other charges of espionage against Assange are contemplated by Kenneth Anderson, but Julian Ku on Opinio Juris says in true spy form that they have to catch him first.
The most effective approach to peaceful coexistence might simply be for people to get to know and understand each other, a variation of the contact hypothesis used in sociology. But sociologists know that contact alone is not enough.
Eugene Volokh thinks Islamophobia is not quite irrational, citing a Time article indicating 46% of Americans believe Islam is more likely to encourage violence than other religions. Maybe, after several centuries of slavery and colonialism justified through religious practices, to restore some balance or equilibrium in global power. But sometimes, as Simon Fodden points out on Slaw, patience can be just as effective in the face of intolerance.
Volokh does note however that the accommodation laws invoked by many American Muslims today were intended for all religions and have primarily benefited Christians. And although Islamophobia is not a typical form of racism, it does rely on classic Social Darwinism thought.
By the way, Obama is not a Muslim, even though his middle name is Hussein (Can we get over this already?).
Slave Routes rejects the premise that racism is based on xenophobia or ignorance,
Racism can be defined as a process of suppression of the human being, based on socially selected phenotypical traits. This system classifies people according to their external physical characteristics and establishes a hierarchy of groups. In the long run, one of those groups defined as the superior race and the others are placed in inferior positions on the scale. Racism, therefore, is not a product of ignorance, the result of fear or concern over the ‘other’ or a natural phenomenon. [emphasis added]
Racism is more than a word, according to Marco Randazza. One word by a Dr. Schlessinger is what a lot of people are talking about right now. I’ll let you guess the word, but Norm Pattis weighs in too. One of his readers doesn’t agree though,
That someone as smart as yourself would join the oh so ignorant and completely off base “young black men say nigga, why can’t an old white woman say nigger?” team I hope speaks only to a generational divide and a complete lack of understanding of the context in which nigga is used and that it is a different word than nigger.
Where we do typically see racism manifested today is with immigration. Kevin Johnson at the Immigration Prof Blog discusses the 14th Amendment, which gives citizenship to the children of immigrants born in the U.S. Instead of repealing it, the real solution he proposes is immigration reform. Daniel Cubias points out how difficult it is to repeal an Amendment, and the unlikelihood of it happening, while J.E. Robertson considers it an attack on all Americans. Hegemomy notes that repealing the 14th Amendment used to be the talk of the fringe-right, and calls it the rise of the “Old South.” They heavy-handed tactics used in places like Arizona inevitably spill over into the general population, as evidenced by a case presented to us by Scott Greenfield.
What is needed is for group to have meaningful interaction with each other in a shared space and common goals to overcome deeply ingrained stereotypes and prejudices. It’s very difficult to hate others when you have extensive and nuanced encounters with a group that demonstrate the diversity found within them. For example, Martha Minow raises concerns that charter schools in the U.S. have the potential to create self-segregation.
Maybe that’s what the opponents of a new community center in lower Manhattan are really afraid of, that others won’t harbour the same hatred and animosity towards other that they do. Originally Park51 was appropriately called Cordoba House, invoking the city in Spain that was once a Muslim capital of a flowering multicultural and multi-religious literary civilization, extinguished by the same movement that led to the Transatlantic slavery.
Or maybe, as Jon Stewart suggests, Fox News is a terrorist command center (see here in Canada). Randazza doesn’t have much to say about it, aside from invoking through Sam Seder bull-size helpings of Terry Nichols’ favorite prison past-time:
Daniel Luban just calls it “The New Anti-Semitism,”
While activists like Pam Geller have led the anti-mosque campaign and the broader demonization of Muslims that has accompanied it, leaders like Abe Foxman have acquiesced in it. In doing so they risk providing an ugly and ironic illustration of the extent of Jewish assimilation in 21st-century America. We know that Jews can grow up to be senators and Supreme Court justices. Let’s not also discover that they can grow up to incite a pogrom.
It was through Cordoba that toothpaste and under-arm deodorant were introduced to Western Europe, and where literary works were translated freely between Arabic, Hebrew, Latin and Greek. It was in Cordoba that the Golden Age of Judaism flourished, giving birth to rabbinic scholars such as Maimonides.
Despite being one of the most tolerant and inclusive societies on Earth today, and all the lofty constitutional and human rights ideals, the United States has yet to accomplish the same culture of tolerance and coexistence that once briefly existed – in Cordoba.
Perhaps that’s something though we can all aspire to in Park51, if we’re willing to open our minds to it.
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Charon QC has his own little law review going on, and Jordan Furlong has six for the road. Next week’s Blawg Review is by Mirriam Seddiq, a criminal defence and immigration lawyer who posts on Not Guilty. Blawg Review has information about next week’s host, and instructions how to get your blawg posts reviewed in upcoming issues.
Privacy Issues in the Workplace
Women in the Legal Profession
It’s 2010. Twenty-eight years ago, Canadian lawyers helped draft the Canadian Charter of Rights and Freedoms, guaranteeing, among other things, gender equality before and under the law. Canadian lawyers have also drafted provincial and federal human rights acts, and each of the law societies’ professional regulations, all of which prohibit public, non-governmental gender discrimination.
But like the old saying goes, “If you see smoke, don’t forget to check the fire station.”
Last year some classmates and I researched the issue of gender inequality in the legal profession. We were saddened to find that it does indeed exist, though it appears to be on a belated decline.
We interviewed two law professors at the University of Windsor on the issue. Here’s what they had to say:
To get involved in this important issue in Ontario, check out the Women’s Law Association of Ontario (WLAO), which has been “Speaking out for Women Lawyers Since 1919″. Or, help spread awareness and ideas online here, here, here, here or elsewhere.
And yes, “don’t forget to check the fire station” is not actually an old saying. However, once you abandon tradition you can find meaning in lots of new places.
The Infamous Box #4
Criminal record checks are increasingly being used to screen job applicants, and can hurt your prospects of getting a job.
But should a recent speeding ticket (not a criminal offence) that puts you in the database allow an officer to check an ambiguous box that neither confirms nor denies the presence of a criminal record?
The Times Colonist reports,
The “may or may not exist” category — box No. 4 — is ticked when an applicant’s name turns up in police records for a wide range of reasons. Perhaps it was last year’s speeding ticket. It could be for being questioned by police about your barking dog or the fact someone noted your car’s plates while it was in the area of a crime being committed.
The B.C. Civil Liberties Association has long-standing concerns about criminal-record checks, said spokeswoman Micheal Vonn.
“We hear various stories about the infamous ‘box No. 4,’ and we are increasingly concerned, because not only has the amount of criminal-record checks increased but so has the amount of data that police are collecting.
“We understand there are very, very few guidelines and there are inconsistencies,” said Vonn, adding that what gets noted on a police database is often not verifiable.
“In the [fourth] box I have found, in assisting complainants, things that are so shocking and detrimental and prejudicial to their employment, such as police conjecture as to their mental health.”
The Life and Times of Ivan C. Rand
From Volume III, Issue II of Amicus Curiae, Western Law’s Student Paper
Canada was a different place before Trudeaumania swept the nation, and the man we know as Ivan Rand, founding Dean of this law school and former Justice of the Supreme Court of Canada, was a product of his times. It would be easy to dismiss Dean Rand as an intolerant bigot, but as William Kaplan explained to an audience at Western Law on Nov. 11, [2009,] Rand was complicated character.
“Canadian judicial biography has been, with a few exceptions, mostly uncritical and largely celebratory, written by unabashed admirers,” Kaplan writes in his new book, Canadian Maverick – The Life and Times of Ivan C. Rand. “To my great surprise, this book turned out to be different.”
Ivan Rand was born and raised in the Maritimes and graduated from Harvard Law in 1912. It was his exposure to the American Bill of Rights that, according to Kaplan, differentiated Rand from other Canadian lawyers. And it’s Justice Rand’s decisions as a Justice of the Supreme Court that make his legal legacy so difficult to reconcile with his private views, which have been largely hidden until now.
By 1951, the court in Noble v. Alley assessed a restrictive covenant against selling property in the Grand Bend area to Jews, blacks, or those with “coloured race or blood.” It was Justice Rand who interrupted oral submissions by the respondent saying,“If Albert Einstein and Arthur Rubinstein purchased cottages there, the property values would increase, and the association should be honoured to have them as neighbours.”
Despite his position on restrictive covenants in this case, he was a member of two restrictive clubs that excluded Jews. He defended the right of Communists to hold elected positions, and famously opposed the internment of Japanese citizens, all the while refusing to meet his sister’s Acadian husband for 30 years because of his background.
“It’s this hypocrisy – because he did know better – that ultimately leads me to conclude: first-rate mind, third rate temperament,” said Kaplan, noting that the most influential judges are rarely collegial consensus builders. “Not such a bad combination.”
What, if anything, changed during his lifetime?
Kaplan suggests that Rand’s exposure to Jews in the Palestine Mandate may have led him to develop a more favourable impression of Jews. Rand was impressed by the largely secular, often highly educated and industrious, and was sometimes even disdainful of the religious establishment of the Holy Land. He believed that rational law could resolve all human conflict, and was a social engineer at heart.
Robert Mackay, one of Rand’s colleagues at Western who would eventually succeed him as Dean, recalls Rand’s rants against Jews and people with ethnic names that ended with a vowel: “Rand would declare he had enough of them.”
Yet he continued to donate to Hebrew University in Jerusalem for the rest of his life. A forest in Israel was named after him, and he would tour the country receiving awards.
So what is Rand’s legacy for this school?
Kaplan tellingly notes, “Almost all of his great civil libertarian decisions reversed the actions of state authorities in Quebec.” Mackay explained, “Rand had to decide who he hated more – the French-Canadian Roman Catholics, or Jehovah’s Witnesses.”
Rand believed that ethics could not be taught – either you had them or you didn’t. Western is now known as a pioneer in legal ethics education.
The Ivan Rand window in the Moot Court Room looms menacingly above all those who dare try their hand at advocacy. Rand himself believed that mock trials courts were entertaining, but not educational. He preferred his old 1909 Harvard law texts for the students.
Rand felt that women were good as solicitors but did not have the fortitude for criminal law, a notion that would not bode well for our classes in which women outnumber men , the legal aid clinic, or our struggling criminal law program.
Dean Rand defied utilitarian economics by taking surplus budgets and returning them to the university, much to the chagrin of his staff. He abandoned the administration of the law school only months after its opening to attend to a coal crisis in Cape Breton.
Yet the students loved him.
The Rand formula, where workers pay union dues irrespective of membership, is still one of the hallmark characteristics of Canadian labour law. One of Rand’s recommendations (which was never adopted) was that unions be recognized as legal entities that could sue and be sued [directly, and not through agents]. Another was abolishing picketing altogether.
Overall, Kaplan describes Rand’s own hand at labour relations as nothing less than “disastrous,” with nearly every stakeholder and political party expressing strong criticism. “Reforming labour law,” Kaplan said, “is best done incrementally.”
As our own Dean Holloway acknowledges, “it’s difficult to write fairly about Ivan Rand… What emerges is a picture of a principled man, who thought deeply about the best way to enhance the standards of this profession.”
Kaplan suggests that what makes Rand impressive is his ability to draw bright lines between his public and private life, especially when on the Court. And for a man whose vision in many ways may have been ahead of his time, perhaps that is the most we can ask for.
Union Rights for Agricultural Workers in Ontario
For the first time in Canadian legal history, arguments relating to the plight of Canada’s migrant workers will be heard at the Supreme Court of Canada on December 17th, 2009. The Intervention brought jointly by Justicia for Migrant Workers (J4MW) and the Industrial Accidents Victims Group of Ontario (IAVGO) will be heard as part of Fraser v Attorney General of Ontario, which relates to the right to organize and bargain collectively for Ontario’s 100,000 agricultural workers.
J4MW and IAVGO will highlight the particular experiences of migrant workers and how their rights are being violated under the following sections of the Canadian Charter of Rights and Freedoms:
Section 1 (The Right to Guaranteed Freedoms)
Section 2.d (The Right to Freedom of Association)
Section 15 (The Right to Equality under the Charter)
From their factum [para 9-11]:
The Respondents have identified the social, political and economic profile of agricultural workers in Ontario. Specifically, they are described as “a large foreign migrant work force that is legally restricted to working in agriculture;” many of whom are “non-white immigrants who have recently arrived in Canada;” and who perform the “fourth most dangerous job in Ontario.”
The Interveners further submit that this Court must recognize the intersecting enumerated and analogous grounds of race, gender, disability and citizenship that underlie the occupational status of many agricultural workers – a status that supports conditions for their continued marginalization in Canada, and restrains their enjoyment of essential freedoms. That is, “agricultural workers” are not solely identified as a group because they work in a particular sector in the Canadian economy; they are also identified by immutable characteristics, that is, by the persons they are.
The Interveners further submit that “agricultural worker,” itself, is an immutable characteristic because of its roots in, and proliferation of, indentured servitude. Such proliferation is seen in the structures of the federal Seasonal Agricultural Worker Program (SAWP) and other Temporary Foreign Worker Programs (TFWP) and, by extension, the agricultural industry. The essential dignity interests of migrant agricultural workers are undermined by the severe inequality and exploitation perpetuated by these structures. They are subject to stereotyping that limit the kind of work they are permitted to do in Canada.
Pay Equity: Did the Ignatieff Liberals Vote Against “a basic human right”?
Yesterday, Michael Ignatieff stated that pay equity is “a basic human right” and blasted the Conservatives who “[...] very clearly used their 2009 budget to impose their ideological opposition to pay equity for Canadian women.” I have to agree with Ignatieff on both counts.
Last year, I wrote a research paper for my Poverty Law class at Robson Hall (“Canadian Pay Equity Regimes in Context: Evaluating the effectiveness of pay equity dispute resolution mechanisms and remedies”) in which I compared the pay equity regimes of every jurisdiction in Canada. In particular, I was interested in access to effective remedies for women being paid less than men for work of equal value. In general, pay equity legislation only protects public sector workers, not workers in the private sector (although Ontario and Quebec also extend pay equity protection to some private sector employees). Most provinces and the federal government employ a legislative regime in which women may file a pay equity complaint either through a human rights commission or a dedicated pay equity commission.
The only exceptions to this type of legislative framework are the three western provinces: British Columbia, Alberta, and Saskatchewan. Saskatchewan and British Columbia have both adopted equity frameworks – essentially government policies that require public sector employers to implement some form of pay equity through the collective bargaining process. Alberta is the only jurisdiction in Canada that has no pay equity protections whatsoever. Alberta, like British Columbia, does require that workers receive the same pay for “the same or substantially similar work” (the wording of the legislation in British Columbia is “similar or substantially similar work”). However, this does not constitute pay equity, as such. Pay equity requires equal pay for work of equal value, even if the specific job classes are substantially different. In other words, pay equity looks at the value of the work being performed, not the similarity of job descriptions.
The budgetary measure to which Ignatieff is referring in his statement is a provision of Federal Budget 2009, which promises to eliminate the role of the Canadian Human Rights Commission and Canadian Human Rights Tribunal in the federal pay equity regime. Instead, the government promises to integrate pay equity more closely with the collective bargaining process in order to “ensure that the employer and bargaining agents are jointly responsible and accountable for negotiating salaries that are fair and equitable to all employees.” Ostensibly, the government’s rationale is that the current system is “a lengthy, costly and adversarial process”; however, as Ignatieff indicated in his statement, there is reason to believe that the Conservatives’ real motivation is an ideological opposition to pay equity as such.
It is first of all worth pointing out that the government’s characterization of the current complaint-based regime is not altogether inaccurate. In fact, many of the early pay equity cases involving large public sector employers took years or even decades to resolve (see e.g. Bell Canada v. C.E.P., [1998] F.C.J. No. 1609 (Fed. C.A.), rev’g (1998), 143 F.T.R. 81 (Fed. Ct. TD), leave to appeal to S.C.C. refused, 27063 (July 8, 1999)). However, it would be wrong to conclude that a complaint-based mechanism for pay equity can’t work in practice, as I argued in my paper:
One of the lessons thus far has been that many of the delays in the current regimes relate to difficulty in understanding and implementing the complex technical requirements of job comparison. This issue can and should be addressed in a number of different ways. First, the highly technical and specialized nature of pay equity befits a specialized administrative apparatus including a binding tribunal that is institutionally separate from other human rights and labour bodies. The Pay Equity Office, Commission, and Tribunal model championed in Ontario and Québec is promising in that it recognizes and affirms the sui generis nature of pay equity within the corpus of human rights and labour laws. Decision makers within that apparatus will therefore be better equipped to apply the technical requirements of pay equity in a more expedient manner. The second (and related) point is that pay equity commissions should be sufficiently staffed and resourced so as to better assist non-unionized workers in bringing a complaint against their employer.
In any event, even if we were to conclude that a complaint-based model in unworkable, the collective bargaining alternative is even worse. Again, quoting from my paper:
The most glaring gap in pay equity law is the jurisdictional gap. While most jurisdictions in this country have implemented some form of pay equity legislation, scores of Canadian women enjoy no pay equity protection at law. This includes those provinces in which internal government policy affords only remote administrative law challenges to women in segregated jobs. Female workers in Alberta have no legal recourse to obtain a remedy for violations of their human rights in respect of equal pay for work of equal value.
The complete lack of legal protection for workers in these jurisdictions does not sit well with the characterization of pay equity as a human right. Indeed, the complete omission of any protection for pay equity in Alberta undermines the universality of human rights. Yet even among jurisdictions that have enacted legally-enforceable pay equity laws, the scope of the legislation has generally been limited to the public sector. Ontario and Québec stand alone in providing any pay equity protection to women in the private sector. Again, this limitation in scope to is a curious departure from the characterization of equal pay for work of equal value as a human right rather than as a policy decision.
The ultimate shortcoming of current pay equity regimes is not the principle of equal pay for work of equal value, but the lack of access to effective and timely remedies. While the complaint-based tribunal system suffers from many glaring flaws, the relegation of pay equity away from tribunals and into the collective bargaining process represents a major retrenchment of women’s legal right to a pay equity remedy. In this sense, I would argue that Ignatieff’s position against the measures outlined in Budget 2009 is the correct one. I would go even further, though, by establishing a dedicated pay equity commission and extending the legislation to cover federally-regulated private sector workers.
My one and only criticism of Ignatieff here is that the Liberals voted in favour of Budget 2009! Clearly, voting in favour of a federal budget does not imply endorsement or consent to each and every line of the budget. For example, the NDP‘s support of a ways and means motion in September does not imply that party’s support for every line of the motion, so much as their desire for trade-offs in respect of employment insurance. For every vote in the House of Commons, politicians must engage in a cost-benefit analysis to determine whether the good parts of a bill outweigh the bad parts. A great deal of horse trading goes on between all of the political parties, and this is not necessarily a bad thing.
However, a major point of contrast between the NDP and the Liberals is that the NDP has consistently maintained the position that human rights are non-negotiable. That is, while the New Democrats will make policy concessions within the legitimate set of options available to government, they will not endorse any bill that undermines fundamental human rights. This explains, for example, the difference between how the New Democrats and Liberals have voted on same-sex marriage legislation in the past (the New Democrats voted unanimously for same-sex marriage, save for one MP who was ousted from the party in consequence; several Liberal MPs voted against same-sex marriage).
To the extent that equal pay for work of equal value is a human right (and Michael Ignatieff seems to think that it is), doesn’t it follow that the Liberals voted in favour of against, in Ignatieff’s words, “a basic human right”? If so, what does this say about the Liberals’ attitude in respect of the universality of human rights? It seems to me that the undermining basic human rights appears to be a deal-breaker for New Democrats, whereas the Liberals are willing to vote in against human rights where it suits their purposes.
On the other hand, maybe I’m just grumpy from studying too much for my exams. In any event, Ignatieff’s change of heart on the federal pay equity regime is a welcome change.
