["Race," Rights & the Law in the Supreme Court of Canada: Historical Case Studies]
Walker, James W., Andrew, Edward, Journal of Canadian Studies
These fine books on aspects of law and criminality support the platitude that crime does not pay -- except for lawyers, criminologists and insurance companies. Canadian criminals put in more time in jail per dollar stolen in other countries, although these statistics predate the conviction of Alan Eagleson. Another statistic, even less likely to stir patriotic pride, is that Canadian youth, as Bernard Schissel points out, have the highest per capita rate of incarceration of any country in the world.
If crime rates in Canada have dropped off in recent years, corresponding to the diminishing ratio of youth in the Canadian population, we still have a lot more lawyers. Prior to the Charter of Rights and Freedoms, Canadians had less than half as many lawyers per capita as the Americans but now we approach two-thirds of the American ratio (Law and Markets 77-81) creating "the danger of supply-driven and socially harmful increases in litigation" (85). Virtually, all of the contributors to Law and Markets bemoan Canada's increasing litigiousness; none defend the very quality that brought one of Canada's most honoured citizens to jail. The Fraser Institute has brought together an interesting volume that seems to bear the message of Adam Egoyan's movie The Sweet Hereafter; namely, that lawyers as ambulance-chasers are bad news. Law and Markets is concerned not with corporate criminality but with the prospect that enterprising lawyers, instigating class action suits on contingency fees, will be able to dupe civil juries, and cut into profit margins. Indeed, Richard Hazelton, the CEO of Dow Corning which filed for bankruptcy because of the silicone breast implant suit, tells a cautionary tale for Canadian businesspeople.
Contributors point out that jurors lack competence to assess the scientific and technical evidence about toxic emissions, risks to health, the relationship of causality and legal accountability; prejudices about dioxin spills may skew assessment of the personal injury caused by the spillage. The one exception to the anti-litigation view of the 17 contributors to Law and Markets is Mark Mattson, an environmental litigator, who argues convincingly that the Canadian Environmental Protection Act needs radical revision or abolition. Mattson argues that the federal government should either enforce environmental standards or leave private litigators like himself to engage in civil ligation against environmental polluters. Mattson recommends that public interest groups and their lawyers split the fine levied on the offending corporations or municipalities (135). While Mattson may conform to the Fraser Institute's policy on deregulation -- "It is government intervention that stands in the way of a public right to protect community resources" (136) -- his proposals would encourage litigation, diminish shareholder profits and raise citizens' taxes. If the aim of Canadian economic regulation is, as Konrad von Finckenstein puts it, "user-friendly regulation," we are led to conclude that deregulation and user-friendly regulation are not the same thing. If the conflicting interests of Richard Hazelton and Mark Mattson reveal the current contradictions of capitalism, we might also note that the provinces geographically and ideologically closest to the Fraser Institute (British Columbia and Alberta) are the most litigious, while New Brunswick are Newfoundland are least litigious (158-9).
An exciting challenge for the Fraser Institute would be to take on the human rights legislation that emerged after the Second World War, arising from a combination of anti-Nazi principle, Keynesian welfarism and acceptance of wartime control of goods and services in the public interest. Since human rights codes abridge several common law rights, of property and contract, specifically the right of business to discriminate in favour of preferred employees, buyers, tenants and customers, the Institute's views on James Walker's compelling account of the role of human rights legislation in limiting racism in the Canadian marketplace would be illuminating.
"Race," Rights and the Law in the Supreme Court of Canada is a wonderful book. It is methodically self-aware, eschewing the teleology of Whig history -- moralistically judging the past by the light of current mores -- and the causalities of Marxian history -- the reduction of political effects to underlying socio-economic causes -- in favour of Michel Foucault's genealogy and Clifford Geertz's thick description. Foucault and Geertz, Walker claims, highlight the contingency and complexity of the phenomena historians describe. (The other theoretically impressive work, Ericson and Haggerty's Policing the Risk Society, also elaborates Foucault's methods and themes, as well as those of the Canadian philosopher, Ian Hacking. Foucault makes guest appearances in Schissel's Blaming Children, Strange and Loo's Making Good and various contributors to Challenging the Public/Private Divide: Feminism, Law and Public Policy.) While Walker's book is of enormous interest to historians, lawyers and political scientists, all Canadians could learn from it. Perhaps an enterprising publisher will ask Professor Walker to write a high school textbook in history, social studies or law (as Strange and Loo have written for an undergraduate market).
Walker starts with polls comparing Canadians' image of themselves as tolerant and Americans' image of themselves as independent minded. Walker does not draw the obvious conclusion, namely, that all surveys of values or idealized self-images are distorted. If the American self-image of independent mindedness is highly questionable -- when you've seen one independent individualist, you've seen 'em all -- the Canadian self-image of racial tolerance is plain wrong. While more Canadian high school students could identify the Underground Railroad than John A. Macdonald or the date of Confederation (3), Walker shows that Canadians have been, and continue to be, intolerant on racial matters.
Walker examines four Supreme Court judgments upholding legislation barring Quong Wing from hiring white waitresses in his Chinese restaurant in Moose Jaw in 1912, upholding the right of the York Tavern in Montreal to refuse service to Fred Christie, an African-Canadian in 1936, striking down the Beach O'Pines restrictive covenant prohibiting a Jew, Bernard Wolf, from buying land in Ontario in 1950, and upholding racist immigration regulations barring Harry Singh, a Trinidadian of Indian ancestry, from obtaining Canadian citizenship in 1954. Supreme Court judges not only reflected social mores but participated in the construction of race as a legal category, and indirectly, after the Second World War, in softening racist attitudes against visible minorities (except perhaps for immigration policy).
The cumulative series of anti-Asian legislation in western Canada was a response to the desire for cheap Chinese labour, particularily in the construction of the C.P.R; general fears about 30 percent of BC's population in the 1800s being Chinese, apprehension about the imbalance of male over female Chinese, and specific fears of white competitors in the restaurant and laundry business, came together in the demand for protection of white female employees from Chinese employers. When protective regulation for female labour was just beginning, the Female Labour Act responded to trade unionist and feminist reformers demands. It prohibited Chinese employers from hiring white women (BC included Native Canadians in its restrictions). Walker dismisses (55, 107-8) claims that incidents of Chinese attacking white women precipitated this legislation. Quong Wing appealed his conviction for hiring two white women, Mabel Hopham and Nellie Lane; the defence claimed that a Chinese race (as distinct from a place of birth, a nationality, a language) is indeterminate, that Quong Wing's birth in Hong Kong and naturalization within Canada qualified him as a British subject with the rights of any other British subject. The Saskatchewan Supreme Court upheld the legality of Quong Wing's conviction, and the Supreme Court of Canada confirmed the constitutionality of the Female Labour Act, with only one jurist on each court disclaiming the justice of the act.
Fred Christie, a black hockey fan, with two friends (one black and one white), were refused service in 1936 by the York Tavern operating on the ground floor of the Montreal Forum. Three years later, after Christie won his case at the Quebec Superior Court but had it overturned by the Court of King's Bench and then the Supreme Court of Canada ruled against Christie, this remarkable man moved to the United States. Despite Canada's pride in having been the end of the underground railway, white Canadians have been particularly unwelcoming to African Canadians. About 3,000 black slaves existed in Canada from 1628 until their emancipation early in the nineteenth century; the first free black community in Canada were Loyalists. For a century, thousands of black Americans attempted to find refuge in Canada only to find frigidity more than climatic. African Canadians had uneven success in using the courts to obtain access to commercial entertainments and recreations. The principles at stake appeared to be the right of businessmen to operate businesses as they saw fit (or the right to refuse customers) versus the common law stipulation that innkeepers were required to serve travellers in order to keep their license as innkeepers. Justice Philippe Demers ruled that the York Tavern was like an inn and refused to hear testimony that refusing black Canadians service was a common custom across Canada. Four of five judges at King's Bench, however, disagreed that a tavern, like an inn, was obliged to serve the public and the Supreme Court of Canada, with one dissenting voice, upheld the rights of commerce over the obligation to the public and the right of African Canadians to be free from racial insult.
During the Second, as in the First World War, African Canadians volunteering to serve their country were told they were not welcome. Thus "the Supreme Court's 1939 refusal to enforce integration in a simple tavern can be recognized as consistent with Canadian morality at that time" (169). Just after the war, Mrs Viola Desmond, a black Haligonian, travelled to New Glasgow and attempted to purchase a seat in the downstairs section of the Roseland Cinema. When Mrs Desmond was told she would have to sit in the balcony, she refused and the manager called upon the police to remove her. Although small, Mrs Desmond compelled the law enforcement officer to injure her knee and hip and lost a shoe and her purse while he removed her to a police station. The next morning, Mrs Desmond was fined $20 for defrauding Nova Scotia of one cent (the difference in the amusement tax between downstairs and the balcony) and was ordered to pay costs to the manager of the Roseland Cinema. The fine and costs were sustained in two subsequent appeals.
Ontario's Fair Accommodations Practises Act in 1954 forbade racial discrimination in public places and other provinces followed suit in the subsequent decade. The Quebec Hotels Act of 1963 forbade insults to people such as Fred Christie.
Canadian anti-Semitism was vicious, but even with the intensified racism of the 1930s, and though Jews were never a majority in any Canadian riding, Canadian Jews were elected in constituencies in Montreal, Toronto and Winnipeg. Jewish legislators pioneered human rights legislation in Manitoba, Ontario and Quebec (193). In 1934, Marcus Hyman persuaded the Bracken Conservative government of Manitoba to amend the Libel Act to include racial and religious libel; not followed elsewhere until 1970. During the Second World War, Joseph Salsberg pushed the Drew government in Ontario to pass the Racial Discrimination Act. The labour movement supported human rights legislation and the removal of restrictive covenants from the sale of property. The victory of the Workers Educational Association, and its general secretary Drummond Wren, in striking down a restrictive covenant in East York set a progressive precedent for American courts to find property covenants to be invalid. In 1947, the CCF government in Saskatchewan enacted a Bill of Rights prohibiting discrimination in the lease, rent or sale of property. A prolonged legal battle, however, was necessary for Bernard Wolf to be able to purchase a property owned by Annie Noble at the Beach O'Pines estate.
Harry Singh's chief supporters in his attempt to buck racist immigration regulations were members of the Toronto Labour Committee for Human Rights, founded in 1947 by the Jewish Labour Committee of Canada and supported by the Ontario Federation of Labour and the Canadian Congress of Labour. (Before the war, the labour movement, and most Canadians, endeavoured to restrict non-European immigration into Canada.) Andrew Brewin argued that the definition of Asian as a race or ethnic group is indeterminate and particularly inappropriate for a Trinidadian British subject such as Harry Singh. The common sense of the Supreme Court judges in 1955, however, ruled the Canadian immigration regulations sufficiently clear in their intention to keep the Harry Singhs out of Canada. Subsequent reformulations of immigration regulations removed the language of race but not the reality of discriminatory selection of immigrants to Canada.
Walker contests the common view that the Canadian Supreme Court had been passivist in contrast to the activist American Supreme Court. He points out that Canadian judges deliberated upon the social and moral bearing of a judicial decision (317) and concludes that, just because the Supreme Court did not actively advance our current concern with human rights, it would be wrong to say that the Supreme Court did not actively participate in shaping Canada's history. Although a minority of judges upheld the dignity of racial minorities, marginalized groups could not expect justice from the common law until human rights legislation was enacted in the postwar period. "When change in the law occurred, it was not because a reforming judge decided to break with tradition, but when the social dynamic within which the law existed underwent a shift" (319).
Human rights in Canada, while professedly universal and inherent, are the product of a historical conjuncture of anti-Nazism and an interventionist state. "Rights are what the law says they are, and the law on this point changed dramatically" (320-1). In short, human rights are historical not natural rights; they are created by positive enactments, not inherent in human nature. Historically contingent, legislation enshrining human rights may disappear in the same way that it has so recently appeared.
My only criticism of this thoughtful account of race it is that it does not differentiate national minorities (conquered peoples such as the First Nations and Quebecois) from immigrants to Canada. If the latter usually wish to be integrated into mainstream Canada, and now have a right not to be subject to racial discrimination, First Nations and Quebecois should have a right not to be integrated into white anglophone Canada. Professor Walker tends to consider Aboriginal Canadians as just another instance of an oppressed "race" in Canada (24-6, 28-30, 328-33) and tends to be more apprehensive than I that group rights, or constitutionally recognized rights for First Nations and Quebecois, may undermine human rights legislation and promote racialized attitudes in Canadians (340-44). If I would disagree with some of Walker's assumptions and apprehensions, I think no Canadian can afford to be ignorant of the contents of Walker's important study.
Dorothy Harley Eber has written a fascinating account of the Supreme Court of the Northeast Territories, concentrating on various cases that came before Mr Justice J.H. Sissons. Images of Justice is enhanced by marvellous reproductions of Inuit sculpture, collected by Sissons and housed in the Yellowknife Courthouse which, together with court records, provide a glimpse into Inuit perspectives on crime and punishment. A sculpture of a small penitential man standing before a bench with a rifle on it confronting a large, seated, severe and kindly man (Sissons) holding forth a book was a gift to Mr Justice Sissons from the defendant after Sissons' first trial. Sissons travelled by airplane to the communities where crimes took place and attempted in his judgments to balance Native custom and white law, with respect to hunting practices, assisted suicide cases that came to Sisson's court when the assistant was not on good terms with the dead, infanticide, adoption, barter of children and statutory rape.
Prior to the coming of whites, a formal system of justice might have existed, composed of the council of elders and powerful men who administered justice when the hunting camps assembled for purposes of trade (15-16). Very little is known, however, of its procedures formal or informal, community sanctioned executions or banishment. Violent crime among the Inuit is well above national averages, attributable to high unemployment, drugs and alcohol (28). Problems of administering justice in the vast expanse of the north stem not only from the culture clash between Inuit and white but also from interpreting the 11 official languages of the Northwest Territories and selecting a jury of one's peers. The new territory of Nunavut will have its own justice system as part of the Canadian justice system. Eber makes the case that Mr Justice Sissons was an important figure bridging the old and the new, giving Inuit confidence that white law would respect the people's way of life and preparing the way for jurors, police, legislators, lawyers and judges. Whatever the future might bring, Images of Justice provides a remarkable portrait of crime and punishment on the frontier of the Canadian justice system.
Mounties, Moose and Moonshine is also concerned with the relationship of law and custom in outport communities. Norman Okihiro, with his training as a sociologist and his marriage to an outport Newfoundlander, combines the advantages of insider and outsider; his attachment to a way of life is balanced by sociological detachment. The theme of Okihiro's study is the RCMP's attempt to repress the production and sale of moonshine, or distilled alcohol, and fisheries officials' and game wardens' attempts to stop poaching or enforce conservation policy. Okihiro agrees with John McMullan and David Perrier's conclusion, in Crimes, Laws and Communities, that poaching is inherent to Atlantic Canada's community life (although Okihiro's outport poaching is for subsistence, while the latter deal with Nova Scotian "business poaching"). His study also confirms Spiertz and Wiber's studies of woodlots in New Brunswick and fisheries in the Maritime provinces and northeastern U.S. fisheries with respect to the tension between private property and common property. Mounties, Moose and Moonshine could have more useful maps and the comment that outports are "closer to London than Vancouver or Los Angeles" (5) might have been more striking if Okihiro could have written "closer to London than Montreal."
Outport communities use the land and sea as the commons for firewood, timber for residential construction, berry picking, hunting and fishing, regardless of the formal title to the property. Traditional outport communities maintained social order without regular law enforcement or formal government services; policing, firefighting, education, social services, road building were provided by the outport residents. Rugged self-sufficiency, Okihiro notes (x) is combined "with a deference bordering on servility" to plant owners and merchants who employ them and to the professionals who directed their bodily and spiritual health.
Okihiro does not compare outport communities with aboriginal communities when he asserts "Social order is maintained, perhaps more than in any other region of North America, through informal channels, by the people themselves" (7). Law enforcement is felt as an outside imposition on local customs, within a context of high unemployment, poverty, alcohol consumption, firearms and the sense of nature as common property. What Okihiro writes about outport residents -- "interaction patterns stressing egalitarianism and non-aggression, a rigid sexual division of labour, effective informal methods of social control, and values supporting a pluralistic foraging adaptation, hard work and mutual help" (17) -- could be compared to many First Nations communities. "This tendency for people to spend whatever disposable income they have, rather than save it, has its foundation in the traditional ability of outport families to be economically self-sufficient, either individually or collectively through mutual help from kin and friends, and consequent freedom from fear about the provision of the basic necessities of life" (13).
Newfoundland has a low crime rate by Canadian and even Maritime standards. The knowledge that outport residents have of one another, and the mutual expectations of socially approved conduct, constitute a moral community that stands less in need of external policing than do urban centres. Part of the reason for the low crime rate, however, including a surprisingly low level of spousal assault (given the unemployment, moonshine and ready-to-hand firearms), is that reporting a criminal act to the police violates community norms and is interpreted as "an act of interpersonal aggression that can have severe social consequences" (68). Only when neighbours, kin, local notables such as the resident minister, have failed to deal with violence or theft are the police called in. Provincial crime statistics rose sharply after 1982 when the RCMP began to lay charges for spousal assault regardless of the victim's wishes (116).
With the decline of Newfoundland's fisheries, new forest conservation regulations, the promotion of game hunting for tourists, local custom clashed with state regulation. Widespread unemployment fueled the production and consumption of illegal alcohol. The RCMP brought its heavy hand to bear on local communities, searching without warrant the houses of entire villages for poached moose and caribou. Game wardens and fishery officials are less feared; usually local themselves, game wardens tend not to be heavy-handed or they would be subject to the moral community; their routines are known by local poachers and their control evaded. As subsistence in the outports becomes more difficult, traditional subsistence activities such as hunting, fishing and tree cutting are criminalized; the Newfoundland government uses the Mounties to reserve natural resources to the corporate elite. What Okihiro calls the crimes of the powerful (chapter 9) produce the punishment of the weak.
Geographically and ideologically far removed from the Fraser Institute, John McMullan and Stephen Smith refer to environmental contamination by Cape Breton's steel industry as "state-corporate crime." Since, however Besco, Dosco and Sysco had the complicity or consent of local residents, trade unions, politicians and civil servants, McMullen and Smith conclude that their illegal contamination of the environment was not so much governed by corporate profitability as "by job creation projects, transfer payment politics, regional cultural interests or population demographics" (86).
McMullan and Perrier believe that "business poaching" in Nova Scotia waters will flourish until uniformity in recording and integration in exchange relationships is achieved (56). Fisheries officials lack the technical resources, the moral authority, the regulations to protect the commons; bribery is unnecessary to secure immunity from prosecution (51-55). John McMullan and Peter Swan examine the role of arson in the economy of small business in Nova Scotia. Most arsons, they conclude, burn the arsonist's rather than others' property; they are motivated by the desire to avoid loss or risk in uncertain sections of the economy, or pass on the risk to insurance companies. Arson, McMullan and Swan assert (26-7), is widely tolerated and even seen to be a victimless crime, integral to the economy of a region suffering high bankruptcy rates, vulnerability to recession or high interest and mortgage rates: "It has deep roots and a future as assured as the province's continued underdevelopment and deindustrialization" (27). McMullan, Perrier, Smith and Swan thus draw attention to exceptions to the salutary rule that crime does not pay. Moreover, they, and Okihiro, raise questions about the meaning of a crime rate, the extent to which people are charged with crimes, the conditions under which crimes are reported, the role of the state in criminalizing customary activities and in providing uneven enforcement of its regulations.
Andrew McNaughton points out that New Brunswick woodlot owners bemoan both government red tape and the absence of laws regulating forest management practices on private forest land. Federal budget cuts for subsidies for planting, trimming, boundary line maintenance and trail construction have limited investments in forestry because woodlot owners are unwilling to invest in the improvement of a resource that may not be harvested within the owner's lifetime. MacNaughton denies that subsidies promote inefficiency and dependency; rather, government subsidies empower woodlot owners and employ individuals usefully in a renewable resource. Patricia Clay discusses the tension in fisheries between state landing quotas and customary fishing territories and fishermen's unwillingness to comply with quota regulations they see as incoherent or unfair. Fishermen's preference for spatial measures to quotas is because this way they would be assigned to communities rather than, to individuals with the possibility of outside control disrupting the life of fishing communities (139). Melanie Wiber and John Kearney examine quotas in Canadian dairies and fisheries, or the contested issue of the distribution of management, exclusion and alienation rights. Their discussion of the complex rules governing quota ownership as private property and as state leases contributes to our understanding of the widespread evasion of catch quotas in Newfoundland and Nova Scotia. Resource management requires a balancing or blending of common and private property, with regulations tailored to the particular circumstances of the region and resource, rather than procedures deducible from notions of private property and voluntary contracts. Spiertz and Wiber argue for legal pluralism or a shift of emphasis away from uniform rules to the complex interaction between private, state and common property, the differing practices or modes of harvesting resources and the power relationships or politics engendering laws concerning resource management.
Blaming Children: Youth Crimes, Moral Panics and the Politics of Hate is written with such moral passion that it made me feel, not for the first time, like a curmudgeon and contrarian, and, for the first time, sympathetic to the Reform party's position on youth crime. I would agree with Bernard Schissel that the right-wing focus on young offenders diverts attention from the causes of crime (youth unemployment, unchallenging but stressful work, part-time and poorly paid labour, inadequate child care and education, cuts to the welfare state and the like) and constructs a moral community within an individualized market society: "We are not like those degenerate youth." Schissel chronicles the construction of moral panics or myths about youth crime in MacLean's, Alberta Report, Western Report, Saskatoon StarPhoenix, the Winnipeg Free Press and The Globe and Mail. The targets of the mobilized and marketed collective indignation "were marginalized, inner city, ethnically identifiable youth" (59). Alberta Report gave publicity to an American study that concluded that "A 50 per cent increase in the monthly dollar value of welfare benefits led to a 117 per cent increase in the crime rate among young black men"(67). Schissel asserts that, contrary to opinions trumpeted in the mass media, "a large body of research ... suggests that kids in the poorer parts of urban areas do not necessarily commit more crimes than their wealthier counterparts, but that they do get arrested, tried and convicted to greater degrees" (70). Further, "street youths are not typically from broken families or single-parent families; the majority are from two-parent nuclear or extended families" (101).
The dramatic increase in the youth crime rate, as a result of the Young Offenders Act was largely due to changing methods of reporting crime and the increased use of formal law rather than sanctions at schools or sites other than courts, and to the inclusion of 17- and 18-year-olds in youth court. Schissel does not tell us how much of the increase is attributable to these factors and so we cannot really distinguish the myths from the realities of youth crime; what we know is that the Young Offenders Act drove up crime rates. Schlissel supports the Young Offenders Act but thinks it must be supplemented by "a kinder world for youth"; he favours Aboriginal healing circles but wishes to remove the punitive element (banishment, reparation and rehabilitation) from sentencing circles: "Such noble initiatives, especially when applied to youth, must necessarily dispense with issues of guilt and reparation and focus on issues of human rights (including physical, psychological and social needs), privacy, mutual respect, optimism and the disappearance of the authority/obedience dyad" (119). High schools that focus "on spirituality and not on religion" (125), where the individuality of the student is recognized as prior to common educational standards and where "punishment and the use of authority are replaced with mutual student-teacher input and mutual reflection" (126), are promising alternatives to Canada's world-setting rate of youth incarceration.
I wonder how I would have understood such kindly rhetoric when I was a young punk who did not think I had anything to learn from old geeks. I might have thought Schissel forgets the fun of youth crime or the excitement of tribal loyalties and warfare. I might have thought that loving children is a sappy alternative to blaming children and that dispensing with responsibility for my guilty and glorious acts is treating me as a kid, manipulating me. If the previous remarks express scepticism about Schissel's project, let me conclude with a story that supports the spirit of his book.
The great Canadian carver, artist and writer, Bill Reid, had a troubled youth. But because a number of people saw in him something other than a young offender, he was able to stay out of jail and, when successful, took a bunch of Aboriginal kids off the streets and trained them in Native arts and crafts. Reid's stature as a human was as great as his stature as an artist; Canadians have lost someone who made a difference to the quality of life in Canada.
Carolyn Strange and Tina Loo's Making Good: Law and Moral Regulation in Canada, 1867-1939 examines the role of law in making Canadians good citizens, workers, churchgoers, wives and mothers, husbands and providers. This readable book looks at governmental attempts to promote efficiency and hygiene, to construct a civic identity and to repress subversion and violence. These attempts may be connected, but are not reducible, to the forging of moral virtues. According to George Grant, conservatives and socialists are willing to use the state for moral purposes -- the construction of good citizens -- while liberals are ideologically indisposed to doing so; the liberal state does not define the good life; its function is limited to securing individual rights and providing fairness or an equal opportunity for individuals to pursue their own personal life plans. Strange and Loo are historians, not political theorists, but they seem to espouse an anarchist or liberal debunking of the role of the state as an agent of moral reform. (Liberalism is just anarchism for the rich and police for the poor). One would like to ask them when the Canadian state was acting legitimately according to liberal standards -- for example, protecting the civil and welfare rights of Canadians -- and when it is acting inappropriately, according to Millian liberalism and Foucaultian anarchism -- for example, when in engages in a moral crusade. It might be inappropriate to ask historians to make distinctions between the liberal purpose of protecting rights and the illiberal aim of inculcating morality. Strange and Loo, however, make moral and political judgments in their historical narrative and hence it is permissible to ask them to make the grounds of these judgments more explicit. For example, in commenting on attempts to regulate venereal disease in Canada, Strange and Loo write, "A less coercive (and more effective) means of fighting sexually transmitted diseases would have been to allow the manufacture and sale of condoms, but this was not to be in Canada"(92). More complex judgments are embedded in the statement, "The success of the Mounties in Canadianizing the West without the degree of bloodshed that characterizes the American experience has produced the impression that the Canadian state was the pre-eminent moral agent in the early national period" (16). Was it appropriate for the Canadian state to attempt to construct a national identity distinct from the American? If not, was state paternalism justified if indeed it did succeed in minimizing bloodshed? Did the temperance efforts to limit liquor sales in the West impinge upon the rights of white merchants and Aboriginal customers? If the Canadian state was illiberal and paternalist in this regard, why do Strange and Loo moralize as follows: "Unscrupulous liquor peddlers, both Canadian and American, none the less bootlegged alcohol onto reserves, caring about nothing but their profits"(75)? Making Good appears to be a moralistic plea against moralism.
Strange and Loo portray the penitentiary system as an attempt to reform prisoners' characters, to discipline them to become industrious Christian workers. None the less, "the public resisted prison labour because it was unfair competition" (24). (I would like to know who "the public" were -- employers or labourers?) As a result, "as a radical experiment in reform, the penitentiary ended up being a new way to punish" (24). Would moral reform be preferable to punishing crimes?
Strange and Loo devote a powerful part of their book to the Indian Act and the Department of Indian Affairs goal of "transforming the character of all aboriginals, by protecting, civilizing, and assimilating the 'savages' to Anglo-Canadian norms." (25). This section of Making Good is a valuable complement to Walker's study of law and race in Canada. The Indian Act located the First Nations on reserves and encouraged farming within them rather than hunting and fishing. If Aboriginals cultivated the land successfully, they were given title to their land and the right to vote. Children were educated in small boarding schools for younger children and larger industrial schools for older students; they were streamed on gender lines, with boys learning a trade and girls learning cooking, sewing and cleaning. As Strange and Loo demonstrate, the Department of Indian Affairs in some cases succeeded in "civilizing" the First Nations. A number of Indian farmers succeeded so well that, in threatening white farmers, the Department of Indian Affairs (DIA), from 1889 to 1897, introduced a series of measures designed to restrict Native production; the acreage Plains Indians could have under production was reduced and the cultivation of commercially valuable cereal crops limited (46). Thus the DIA turned Plains Indians back into subsistence peasants, cultivating root crops. "Like the plains farmers, graduates of industrial schools often succeeded beyond expectations, thereby eliciting complaints from Euro-Canadians who feared competition in a tight labour market" (47). From 1896, the DIA shifted the curriculum away from academic subjects. The unhistorical question remains: was the civilizing mission of the DIA inherently flawed, or was the racism that blocked the civilizing mission responsible for the lamentable failure of the DIA?
The Canadian state, in partnership with the churches, passed legislation designed to produce sober, disciplined workers and chaste and obedient wives and mothers with Sabbatarian legislation, campaigns against prostitution, venereal disease and the demon rum, against white slavery and the yellow peril (75-78). After the First World War, the Department of Immigration, and worthies like Charlotte Whitton and Emily Murphy, became intent on Canadianizing the nation, instilling bourgeois, Christian and democratic sentiments (usually correlated with pinky grey complexions). During the Great Depression, governments targeted left-wing groups as seditious conspirators but not the KKK and neo-Nazi parties in Ontario and Quebec. "At relief offices all over country, Canada's prisoners of starvation were guaranteed to get their fill of moralizing, if nothing else" (143).
With a decline in the welfare state, we may expect a decline in moral regulation in Canada; the supply of moral character will be governed by market demand. The self-regulating market society, however, which permits any capitalist acts between adults, has always been supplemented by a moral police for the vicious classes not deemed capable of self-regulation. The Reform party wants economic deregulation and moral reregulation, a sensible ideal for a society divided into those who are managed and those who do manage.
Susan Boyd has edited Challenging the Public/Private Divide and has written an interesting piece on Judy Tyabji, a person who has done more to challenge the public/private divide than anyone except Jerry Springer. After her public love affair with Gordon Wilson, Tyabji lost custody of her children to her boringly stable husband, Kim Sandana, and appeared on the Oprah Winfrey show to plead her case. Professor Boyd has taken up her case, as an example of the difficulty of professional women (like Marcia Clark, the prosecutor in the Simpson case) maintaining custody of their children after a marital mishap. Boyd points out that Tyabji provided more emotional warmth than Sandana who bowled (or some such male activity) on his nights off work. The general principle that the cards are stacked against women with a public career rather than the specific injustice towards Tyabji seems to be the point of Boyd's absorbing story.
Judith Mossoff and Jenny Millbank examine the difficulties emotionally unstable mothers and lesbians have in obtaining child custody. Millbank comes closest of the 13 writers in Challenging the Public/Private Divide to championing a right to privacy against "the long lingering gaze of the law." Although bourgeois rights of privacy are a central aspect of feminist doctrine, most contributors to this volume take abortion rights for granted and concentrate their fire on the privatization of the welfare state. Pat Armstrong, Katherine Techtsoonian, Claire Young and Marlee Kline show how the privatization of care, or the decline of the welfare state, falls disproportionately on the women. The theoretical debate between liberal rights discourse and welfare utilitarianism is not broached. Nor is there any suggestion that the solemn complement of the right to choose position is that motherhood and child care become a private, not a public matter. Fiona Kay points out that the number of professional women has risen sharply in recent decades but their career paths are limited by their disproportionate share of child care responsibilities, which give their male peers a competitive edge in the rat race, although perhaps not in the human race. At the other end of the class scale, homework in garment manufacturing is ably discussed by Amanda Araba Ocran. Since public day care is a low priority these days, one may see a growing trend to homework, from on-line professionals to unskilled, unorganized labour, where women can combine their part-time, ill-paid labour with their unpaid child care responsibilities. Perhaps the most theoretically interesting chapter is Nita Iyer's. Iyer argues that since maternity benefits correspond to earnings and derive from unemployment insurance, the women who benefit are the mothers who need it least; women who work in temporary, seasonal or unstable employment situations, often women of colour and Aboriginal women, are ineligible for maternity benefits. Maternity benefits exacerbate the discrimination and oppression of marginized women. Iyer's call for a socialized maternity benefit for all female workers (177) runs counter to the current consensus that motherhood is a private choice and responsibility.
Liberal feminism accords well with the needs of capitalist accumulation. The family wage, upon which the old-fashioned ideal of the male provider and the female homemaker was constructed, was an unprofitable expense; it restricted the fluidity of the labour market by limiting the pool of the semi-employed. By increasing "the industrial reserve army," the entry of women has lowered wage rates and enhanced capital or the command over labour. As Pat Armstrong points out (44), since the 1960s, the value of male wages relative to prices has declined and "has decreased more rapidly in recent years"(44). Less than 20 per cent of Canadian households are dependent upon one male income earner; women now earn 30 per cent of the family income. The female-dominated sector is relatively poorly paid. Since 1975, the number of part-time jobs has doubled; most of these positions are filled by women (46). Women are more likely than men to do paid work at home. Homework is particularly useful for capital since such labour is not unionized, without the benefits and protection of factory or office work and also removes the need for public daycare. Capitalism has successfully challenged the public/private divide by subordinating both the public realm and the domestic realm to the imperatives of global competition, drawing liberal feminism in its wake and leaving socialist feminists in academic lifeboats baying at the receding horizon.
Policing the Risk Society is a thoughtful depiction of totalitarian capitalism. Richard Ericson and Kevin Haggerty begin their excellent study with the proposition that "the police pervade contemporary social life"(3). Canadians can rest assured, however, that we do not live in a police state because police forces are just the errand boys of the banks and insurance companies (221-39). Totalitarian capitalism operates by "civic privatism" or the withdrawal from public engagement into privatized lifestyles. "The greater the privacy, the greater the need for surveillance mechanisms to produce the knowledge necessary to trust people in otherwise anonymous institutional transactions" (6). Banks, credit agencies and insurance companies coordinate their activities through the police who "pay for credit information in some cases, though they receive special treatment from the providers. For instance, the police buy memberships in credit bureaus in order to obtain routine computerized access to employment histories, credit account details, risk ratings, and information on others who have made credit inquiries about particular individuals or businesses" (204).
The police gather information from a staggering number of sources including public and private organizations. Our identity and individuality is determined by the boxed categories (age, sex, marital status, ethnicity, etc.) that the police and insurance companies file into computers. (If one does not think one's identity constructed by the computerized classifications of the police and insurance companies, then one can add a few more categories to those relevant to assessing one as a credit risk, an insurance risk, a threat to property and society.) "The computer terminal in the patrol car is a time-and motion study that never ends"(10).
If police forces are at the centre of surveillance, information gathering, and risk management, they are not autonomous agents of social control: "the law of insurance contracts, and police brokerages of knowledge of risk to the insurance industry, are much more significant in preventing and regulating burglaries than are criminal law and punishment" (11). Indeed, "the main concern in the recording of burglaries is good risk management data for insurance purposes" (50). (I had suspected this before reading Policing the Risk Society and do not report burglaries, since insurance companies rip me off more than thieves with escalating rates for claims -- perhaps another reason for distrusting crime rates.) Ericson and Haggerty are so bold as to describe policing and criminal justice, or the surveillance, categorization and disciplining of Canadians, as a function of actuarial science (52-66).
If the police serve insurance and credit agencies, they help to define who we are, "by busying themselves with efforts to eradicate or rehabilitate those they despise" (77). By declaring a war on crime, against drug barons, Hell's Angels or ethnic youth, the police give us, as Nils Christie puts it, "suitable enemies" in terms of which we constitute ourselves as a moral community. Because of panic about youth crime, distinctions between teachers and cops blur as they pool information about risky kids (268-9).
The police play their part in establishing lines of communication with multicultural Canada:
police officers sat on the committees and boards of the following organizations: the immigrant aid society, the Catholic immigration society, the South Asian women's centre, the community college, the suicide prevention program, the suicide information and education centre, the aboriginal urban affairs committee, the board of education, the committee against racial and religious discrimination, the aboriginal health association, the property development project committee, the government cultural heritage unit, the board of aboriginal alcohol recovery centres, the board of the aboriginal friendship centres, the board of the aboriginal awareness committees, the committee on race relations and cross cultural understanding, the foundation for youth, the youth minority achievement program, the Sikh youth development peer support project, the association for young immigrants, the committee of the secretary of state, human rights educational council, the committee for good citizenship, the association for multicultural education, the society for intercultural education, training and research, and the metis child and family services agency.
I quote at such length for the reader to comprehend the routine reach of the police when managing the risk of multicultural Canada.
Occupied with routine information gathering and recording and subject to hierarchical surveillance and discipline, policemen's lot is not a happy one. Cornering bearers of high-risk profiles in cyberspace may appeal more to computer nerds than to the "real men" who have hitherto staffed police forces. While computer technology enhances surveillance of civilians, it also limits coffee drinking and donut eating time: "Every keystroke on the keyboard also 'types' the police officer in terms of the quality and quantity of his or her knowledge production and thereby disciplines the officer as a useful worker, without the need for direct supervisory intervention" (432). Police reluctance to become part of a system of totalitarian surveillance and risk management may be our only salvation.
Policing the Risk Society is an excellent elaboration of the work of Michel Foucault and Ian Hacking. Ericson and Haggerty write "Risk society is fuelled by surveillance, by the routine production of knowledge of populations useful for their administration. Surveillance provides biopower, the power to make biographical profiles of human populations to determine what is probable and possible for them"(?). Their book is a compelling account of Canada as a totalitarian society; Richard Ericson, however, seems to have worked with police forces for two and a half decades without, I hope, being targeted for police persecution and having his insurance policies cancelled. Nevertheless, it is very much to be hoped that Ericson either does not have close readers among the police-insurance mafia or that he makes sufficient money from Policing the Risk Society to buy electronic counter-intrusive technologies: "The better-off are able to purchase risk technologies that meet their needs and provide security against the risks they have helped to produce"(451).…
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Publication information: Article title: ["Race," Rights & the Law in the Supreme Court of Canada: Historical Case Studies]. Contributors: Walker, James W. - Author, Andrew, Edward - Author. Journal title: Journal of Canadian Studies. Volume: 34. Issue: 1 Publication date: Spring 1999. Page number: 184. © Trent University Fall 1996. Provided by ProQuest LLC. All Rights Reserved.