Diversity is on a collision course with bilingualism at Canada’s top court

2021/03/08 1 Comment

Tend to agree:

Should all Supreme Court of Canada judges — or at least the next one — be bilingual? Should the next vacancy go to a Black, brown or Indigenous jurist, whether they are bilingual or not, to reflect Canada’s population in all its diversity?

It’s a legal dilemma wrapped up in a language debate, tinged with electoral politics, and an existential question about what kind of country Canada is.

The Trudeau government has kicked off both.

On the same day it announced the launch of a search for an Ontario jurist to take the seat of soon-to-retire Justice Rosalie Abella, the Liberal government said it plans to put into law Prime Minister Justin Trudeau’s practice of appointing only “functionally bilingual” judges to the top court.

It was a campaign commitment, and with a whiff of a possible election in the air, Trudeau is ticking off political boxes.

But the “how?” he proposes to do it is less clear. And advocates of greater diversity say mandatory bilingualism will block many qualified candidates from being elevated to the Supreme Court.

Six months ago the Canadian Association of Black Lawyers wrote an open letter to the Trudeau government urging swifter action to address systemic anti-Black racism throughout the justice system and noting “only three Black judges have been appointed under the Trudeau-led government.”

Raphael Tachie, senior counsel for TD Financial Group and president of the association, in an interview said the top court should be a bilingual institution but the requirement “that each individual justice be bilingual disqualifies a lot of really qualified Black and racialized jurists that we think would be great appointments to the court.”

Many practising outside Quebec have not been exposed to French language or training, or “come to the language later on in life and might not always be as proficient as they ought to be. That’s the challenge,” he said, adding “I think the court can compensate for that,” using translators and interpretation. He urges Trudeau to look beyond the Ontario Court of Appeal to lower courts and the bar: “You need to elevate your talent,” he said.

Brad Regehr, the first Indigenous lawyer to lead the Canadian Bar Association, says the same is true for Indigenous candidates who “already face systemic barriers in terms of achieving that proficiency in official languages.” Regehr says it’s time for Trudeau to name someone who is Black, Indigenous or a person of colour to the Supreme Court.

A member of the Peter Ballantyne Cree Nation in Saskatchewan who lives and practices law in Winnipeg, Regehr argues that Canada is “not just a bijuridical state where there’s English common law and French civil law; Indigenous legal traditions form part of the law of Canada and that seems to be forgotten or ignored and the only way you’re going to get any perspective on that is by having an Indigenous judge.”

Both want Trudeau to walk his progressive talk, and do something concrete to promote reconciliation and diversity.

Right now, the Supreme Court of Canada is the only federally-appointed court that is exempt from the Official Languages Act which says all Canadians must be able to access services in federal courts in either English or French. In other words, it puts the onus on federal courts to provide bilingual services, not on prime ministers to appoint only bilingual judges. The Liberals propose to drop the exception.

Trudeau does not intend to change the Supreme Court Act which sets out the eligibility criteria for judicial appointments to the top court.

Rachel Rappaport, a spokesperson for Justice Minister David Lametti, says the bilingual services exemption for the Supreme Court “was never intended to be permanent.”

In 1988 Conservative justice minister Ray Hnatyshyn said during debates on the Official Languages Act that, “It is probably in the national interest at this time that we not put any constraints on the court in the way in which it does its business.” He said that “until we reach a more developed stage of bilingualism across the country,” governments should be able pick from among “the best people who are unilingual, in both languages.”

There have been at least 10 bills introduced over the past 10 years to require top judges be bilingual, according to Jean-Christophe Bédard-Rubin, a doctoral candidate at University of Toronto’s faculty of law. None has passed.

But unilingualism has had an impact, says Bédard-Rubin, who with a colleague has done the first empirical study of the impact of unilingualism on the Supreme Court’s operations. They analyzed cases from 1969 to 2013. In an interview, he said, “There tends to be a linguistic separation of labour at the Supreme Court.”

Despite access to interpreters and translation, anglophone judges “will sit more and write more in cases argued in English and francophone judges will sit more and write more on cases argued in French. And this is regardless of their areas of expertise,” he said. Unilingual judges are less assertive on cases argued in another language and litigants “might lose that expertise” where unilingual judges stand down or just “go with the flow.”

“The general picture that emerges is that language proficiency superimposes itself as another kind of legal specialization in the inner-working of the court,” he wrote.

There’s another twist. Some legal scholars suspect that the Liberals are trying to do through a back door (via the Official Languages Act) what they may not be able to do through the front door (via the Supreme Court Act): that is, rewrite the eligibility rules for judges. That’s because in 2014, the Supreme Court of Canada ruled Parliament “cannot unilaterally modify the composition or other essential features of the court,” saying it requires a constitutional amendment.

Gerard Kennedy, assistant professor in the faculty of law at the University of Manitoba, said it’s debatable whether making bilingualism mandatory is the kind of “essential” characteristic that is protected by the Constitution. And if the Liberals took that route, he said it would quickly become very divisive. “By amending the Official Languages Act, it draws less attention to it.”

But the government seems to have allowed itself some wiggle room — at least for the next appointment. There is one Ontario vacancy coming open on July 1, and another one within two years when Michael Moldaver will turn 75.

The languages law reform document states in drafting the change, the government is weighing the appointment of Indigenous judges to the Supreme Court of Canada along with case law on the court’s “composition and eligibility criteria.”

Meanwhile, the Liberals are using their plan it as a “political chip” as Bédard-Rubin calls it, part of a political strategy to paint the Conservatives as soft on bilingualism.

Trudeau challenged Conservative Leader Erin O’Toole outright in the Commons two weeks ago to commit to naming only bilingual judges on the top court, claiming Conservatives do “not support bilingualism in Canada.”

Conservative justice critic Rob Moore declined an interview request but in an email said, “Conservatives expect appointments to the Supreme Court of Canada are based on competency and legal excellence. Bilingualism or a commitment to learn or improve one’s French will also be a key principle in appointments to the Supreme Court for a future Conservative government.”

The NDP and the Bloc Québécois have long called for bilingual Supreme Court judges.

It’s not clear if the latest proposal will come to pass before a federal election, whenever it comes.

Source: ANALYSIS Diversity is on a collision course with bilingualism at Canada’s top court

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COVID-19: Ethnic Media Lessons from 2020 for an Inclusive Recovery

2021/03/08 Leave a comment

Useful and informative summary and report:

Multilingual International Research and Ethnic Media Services presents its year long research into ethnic media coverage on the COVID-19 pandemic in 2020 in the form of five articles. These articles were published or excerpted by New Canadian Media as a result of support from Canadian Heritage through its Digital Citizen Contribution Program. We would like to thank New Canadian Media for giving us the opportunity to write these pieces.

The white paper provides an overview of the lessons learned in 2020 from engaging with diverse communities in the fight against the COVID-19, which may useful in 2021 as the pandemic continues. In order to capture coverage needed to produce this white paper, we spent a year regularly monitoring over 800 ethnic media outlets across Canada in 30+ language groups.

The 30+ language groups/communities whose ethnic media we tracked include Arabic, Armenian, Bengali, Caribbean, Chinese (incl. Cantonese & Mandarin), Farsi, Filipino, German, Greek, Gujarati, Hindi, Italian, Japanese, Jewish, Korean, Muslim, Polish, Portuguese, Punjabi, Romanian, Russian, Serbian, Somali, South Asian, Spanish, Sri Lankan, Tamil, Turkish, Ukrainian, Urdu and Vietnamese.

The ethnic media outlets we tracked spanned the four mediums of print, web, radio and TV and were mostly based in the metropolitan areas of Vancouver, Edmonton, Calgary, Winnipeg, Toronto, Ottawa and Montreal. These urban centres attract the most immigrants each year, thus resulting in a concentration of ethnic media outlets in Canada’s most populated cities.

The actionable intelligence gained as a result of our ethnic media research provides insight into the impact of COVID-19 on newcomers and racialized communities, who have been some of the most affected by the pandemic. Out of the 1,130 translated ethnic media story summaries we produced in 2020 for this report, 169 were focused on mental health, 193 on the economic impact of COVID-19, 350 on immigration and 118 on the culture vs. economy debate as a cause of the prevalence of COVID-19.

 Our white paper is divided into five pieces, four written by MIREMS Editor-in-Chief Silke Reichrath and one by MIREMS President Andres Machalski. The following are brief abstracts:

 1) Media Representation of Newcomer Communities with High COVID-19 Rates

This channel is extremely influential in the fight against social media disinformation among newcomers. It shows these outlets fulfill a very real need to translate government and expert messaging into culturally and linguistically relevant formats and in adding information from the grassroots. This channel is extremely influential in the fight against social media disinformation among newcomers 

2) Mental Health and Domestic Violence in the Ethnic Media

Stigma around mental health challenges is still widespread in newcomer communities and many newcomers are not aware of available supports through community organizations and settlement service providers, especially now that programs have moved online. In this context, ethnic media have a significant role to play in raising awareness around mental health issues, the impacts of the pandemic on different segments of the population, and the services available to them.

3) Economic Impact of COVID-19 on Immigration Communities

The ethnic media have fulfilled a valuable role during the pandemic in keeping their audiences informed about the latest public health guidelines regarding business openings and closures, and about benefits and aid programs available from the three levels of government. These outlets have raised awareness in general about how the pandemic is affecting the national and local economy, have featured charitable initiatives by the community, and have encouraged community members to support local businesses by buying local, particularly from smaller businesses. Recovery is only a matter of time, and ethnic media can be expected to do their share in reflecting community concerns and advocating for equity in the rebuilding process.

 Ethnic media have been instrumental in highlighting community initiatives to counteract the pandemic spread and in giving voice to grassroots opinions. It shows these outlets fulfill a very real need to translate government and expert messaging into culturally and linguistically relevant formats and in adding information from the grassroots.

  4) COVID-19 Impact on Immigration – Analysis

Over the pandemic year of 2020, the ethnic media has been instrumental in reporting on and clarifying government policy, processes and programs. Ethnic media coverage focused on the impact of COVID on immigration levels, border closures and travel restrictions, visa extensions for temporary residents stranded in Canada, work permit regulations, farm worker rights and COVID safety protocols, COVID-related accommodations for international students, modifications to the Express Entry draws, and the guardian angel program for front-line care providers. The ethnic media also documented the unique challenges different migrant constituencies face, reflecting the lived experiences of the various newcomer communities.

5) The Role of Ethnic Media in the War Against Pandemic, Pandemonium, Poverty and Panic

The ethnic media undeniably exists and is part of the communications fabric of our society, but it is one that is often ignored, despite its key positioning as a conduit to and from diverse communities. These outlets are essential to the central position diverse communications will play in restoring the social cohesion needed to overcome not only the COVID-19 virus, but its fall out. Canadian corporate and government leaders need to recognize the ethnic media as a key asset in the fight against COVID-19, which is at the same time a fight against social disruption, poverty, and mental anguish.

Source: http://www.mirems.com/uploads/8/1/4/2/8142628/covid-19_-ethnic_media_lessons_from_2020-_white_paper.pdf

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The Bon Appétit and Reply All saga shows how far behind we still are in Australia

2021/03/06 Leave a comment

Interesting:

The editor of a well-known food publication resigns after numerous staff speak out about an alleged toxic work culture where people of colour are underpaid, underrepresented in senior roles and regularly face racism.

The team behind a wildly successful podcast decide to launch a new series investigating what happened. But halfway through the series the producers are themselves accused of contributing to a toxic work culture where people of colour are alleged to be underpaid, underrepresented in senior roles and regularly face racism. Key staff suddenly quit, the podcast is suspended, apologies are issued and everyone following the story is left dazed and confused.

Welcome to the Bon Appétit / Reply All saga.

What’s been playing out over the past few weeks and months is the culmination of a reckoning in US media workplaces that accelerated in the wake of last year’s Black Lives Matter protests. 

And it’s a reckoning that shows how far behind we still are here in Australia.

Bon Appétit, a monthly magazine published by media giant Condé Nast, has long been one of the most popular and influential food publications in the world. But it was in 2014, under the leadership of then editor Adam Rapoport that the outlet turbocharged its online presence and became a digital media powerhouse by creating fun, engaging and helpful cooking shows on YouTube, making stars out of staff who had largely remained behind the scenes.

When the pandemic hit and Americans were confined to their homes, the magazine’s YouTube channel had its biggest ever month, attracting a mammoth 77m views in March alone.

But just a few months later the magazine was rocked by a controversy that it’s still struggling to recover from.

The killing of George Floyd sparked global protests demanding racial justice, and the media was among the institutions put under the spotlight. In an Instagram post, Bon Appétit aligned itself with the Black Lives Matter movement but staff quickly accused the publication of hypocrisy, alleging they were subject to racism in the workplace.

Sohla El-Waylly, one of the most popular presenters on the magazine’s YouTube channel, accused the company of only paying its white staff for appearing in online videos. Condé Nast denied the allegations, but a number of senior staff said they would stop appearing on YouTube until pay equity concerns were addressed.

Like the US, Australia also has a deep history of structural racism embedded in our institutions

Then an image of Rapoport in brownface surfaced, leading to his resignation. Soon after, three other presenters, all people of colour, resigned. The magazine was in turmoil. A broader reckoning across the US media followed.

It was a strange thing to observe from Australia. Like the US, Australia also has a deep history of structural racism embedded in our institutions. But there was no comparative reckoning in our media organisations.

While the Bon Appétit drama was playing out in the US, the ABC’s flagship current affairs program featured an all-white panel discussing Black Lives Matter, the Melbourne Press Club elected an all-white board of 20 people, the most-read columnist in the country blamed the spread of Covid-19 on “multiculturalism”, the Age newspaper published an editorial asserting Australia did not have a history of slavery, and the list goes on.

While there have been some minor reforms in some of these areas, there was nothing like the wave of resignations and apologies we saw in the US.

Which brings us to Reply All. The podcast was founded by PJ Vogt and Alex Goldman in 2014 and described itself simply as “a show about the internet”.

In February the show shifted gears and announced it would be airing a new series called The Test Kitchen examining what happened at Bon Appétit, through exclusive interviews with former staff. The series was presented by Sruthi Pinnamaneni, a senior producer on Reply All.

The first episode of the series felt deeply cathartic. Pinnamaneni allowed those who had been marginalised, undervalued and mistreated to talk about their experiences on their terms. The series was accessible without being patronising. People of colour who had similar workplace experiences could relate, and white audiences could understand.

The “original sin”, as Pinnamaneni put it, was the decision by Rapoport to only hire white people in senior management roles. According to her, that decision is where the other problems – the racialised pay inequality, the everyday racism faced by staff – stemmed from.

It did occur to me that on that metric of an all-white leadership team, pretty much every news organisation in Australia deserved its own racism expose.

And that’s exactly what was being remarked upon in group chats across the country, full of journalists who worked at those organisations. I lost count of the number of people who messaged me saying that this exact story, the story being told on The Test Kitchen, could be done about their own media workplace. Many described it as triggering, and some said they didn’t even want to listen to avoid being re-traumatised over their own experiences.

After the second episode of The Test Kitchen aired, it was Reply All’s turn to face the music.

Eric Eddings, a former staffer at Gimlet, the company that produced Reply All, publicly accused Pinnamaneni and Vogt, one of the co-hosts of the show, of contributing to the same kind of toxic work culture that they were reporting on.

In particular, Eddings said that Pinnamaneni and Vogt had actively opposed efforts to form a union at the company, an organising push that was focused on pay inequality and mistreatment of staff who weren’t white.

Pinnamaneni and Vogt apologised and announced they were stepping away from the podcast.

Last week it was announced that the show had been suspended and no more episodes of The Test Kitchen would air. The show’s remaining original co-host, Goldman, said that the decision to make the series was a “systemic editorial failure”.

It was an extraordinary and abrupt conclusion to a story about two of the most popular and influential media organisations of their time.

While some listeners have applauded the apology from Goldman, others have interpreted the decision to cancel the series as a cop-out and pointed out that the former Bon Appétit staff who bravely told their stories publicly deserve better than an unfinished production subsumed by its own internal chaos.

In his apology, Goldman said Reply All should never have delved into this story. It’s an interesting question. There were clear warning signs that perhaps Reply All didn’t have the experience of self-awareness to undertake such a thorough examination of race.

In the first episode, Pinnamaneni admitted that it was only after the Black Lives Matter movement reignited last year that she understood for the first time how racism manifested in the workplace.

“If you’d asked [me] what does it mean to be an Indian woman in the workplace, I would’ve said it’s mostly fine,” she said. “Back then, I didn’t really want to think of my race as a disadvantage. Like I preferred to focus on how it actually helped me.”

It was a reminder that being a person of colour doesn’t automatically give you the authority or experience to explore complex racial dynamics, especially when as an Indian migrant to the US, she isn’t subject to the same kinds of oppression as the black colleagues who criticised her.

Reply All could have covered this story, but they couldn’t do it without acknowledging their own complicity and lack of self-awareness.

As depressing as elements of this saga have been, particularly the decision to not go ahead with finishing The Test Kitchen, it perhaps counterintuitively shows progress is being made. Powerful people in charge of influential institutions were forced to acknowledge their racism and apologise for it. Twice.

But looking on from here in Australia, I’m still waiting for the day our media organisations have enough staff who aren’t white to actually warrant a racism scandal

Source: The Bon Appétit and Reply All saga shows how far behind we still are in Australia

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Douglas Todd: The ‘diversity’ beat is full of surprises, often conservative

2021/03/06 Leave a comment

Todd’s personal reflections on his beat:

“Migration, diversity and spirituality writer.” That’s how my signatureblock describes my beat specialties.

The “diversity” tag draws some funny reactions. I once went on a radio talk show where the host joked about it. To him “diversity writer” sounded like liberal-virtue signalling — conjuring up the dream of people of diverse creeds and colours sitting around campfires singing Kumbaya in mutual harmony.

While I quite like the song Kumbaya, as well as the ideal of intercultural harmony, covering the diversity beat for decades has led to the discovery of scores of surprising ethno-religious realities. The diversity beat offers a great journalistic ride for anyone who is curious, since, after all, the word diversity means “a range of different things.”

Source: Douglas Todd: The ‘diversity’ beat is full of surprises, often conservative

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Women at risk of long-term work disruption as pandemic alters jobs market, RBC warns [also visible minorities and immigrants]

2021/03/05 Leave a comment

More on the “she-cession” and “imm-cession:”

Women in Canada are at risk of prolonged unemployment as the COVID-19 pandemic accelerates structural changes to the job market, RBC Economics warned Thursday.

The health crisis has dealt uneven blows to the labour market – and often, to the greater detriment of women. There’s been a substantial increase in the number of women who are jobless for six-plus months, while many have dropped out of the labour force entirely.

At the same time, the pandemic is forcing many companies to adopt new technologies sooner than planned, while some consumer spending habits may have shifted permanently, the RBC report said. That could spell trouble for jobs at risk of automation, and in particular, for the women who staff the service industries most affected by health restrictions.

“As we reopen, the economy is changing,” Dawn Desjardins, deputy chief economist at Royal Bank of Canada and one of the report’s authors, said in an interview. “We need all hands on deck … in trying to get people re-engaged” in the labour market.

Using data from Statistics Canada, RBC pointed to a handful of indicators where women are lagging, and where the recovery process could prove challenging.

For instance, employment for women earning less than $800 weekly was down nearly 30 per cent from February, 2020, while for men it fell 24 per cent. Women have also sustained roughly two-thirds of the job losses in the struggling hospitality sector.

As well, nearly 100,000 women aged 20-plus have dropped out of the labour force – meaning they aren’t working or searching for a job – while fewer than 10,000 men have done so. Young and racialized women, female immigrants and mothers are among those who have suffered outsized work disruptions.

“The longer these women are out of the labour force, the greater the risk of skills erosion, which could potentially hamper their ability to get rehired or to transition to different roles as the economy evolves,” the report said.

Ms. Desjardins and economist Carrie Freestone wrote that accessible and targeted training is needed to help displaced workers, and that digital skills are crucial.

Such efforts could be unveiled in the federal government’s spring budget. Ottawa has said it will spend up to $100-billion over three years in fiscal stimulus, to help with the recovery process. And in a mandate letter sent to Employment Minister Carla Qualtrough in January, Prime Minister Justin Trudeau called for “the largest investment in Canadian history in training for workers.”

Much like RBC, the Bank of Canada has flagged concerns over structural changes to the job market. In a recent speech, Governor Tiff Macklem said automation helps companies become more productive and creates new work opportunities. But the pandemic has sped up the transformation, and that comes with collateral damage.

“Some of the jobs that have been lost during the pandemic will not return,” Mr. Macklem said. “Many low-wage jobs have a high potential of being automated. And some jobs that are disproportionally held by women and youth, such as retail salesperson and cashier, are also the kinds of jobs where the pandemic has accelerated structural change.”

The RBC report also called for “more options” in affordable child care. “But it’s no solution if [low-earning mothers] don’t have jobs to return to.”

Ultimately, Ms. Desjardins said Canada should be working toward women participating in the labour force at the same rates as men. It’s a gap that predates the pandemic, but if closed would result in a much larger and dynamic economy.

“The idea of women participating at the same level as men in the labour market, and what that can add to our economy – it just makes that pie bigger,” she said.

Source: https://www.theglobeandmail.com/business/article-women-at-risk-of-prolonged-unemployment-rbc-warns/

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Ford government says it’s changing judicial appointments to promote diversity. Racialized lawyers accuse it of ‘power grab’

2021/03/04 Leave a comment

Of note. The annual reports by the Ontario Judicial Appointments Advisory Committee allow for assessment of these changes:

Organizations representing racialized lawyers have all come out against the Ontario government’s proposed changes to judicial appointments, which the attorney general says are partly needed to improve diversity on the bench. 

Major organizations representing Black, Asian, South Asian and Muslim lawyers told the Star they didn’t ask for these changes. They argue the new system will lead to the perception that the appointments of provincial court judges in Ontario is no longer an independent and impartial process and could allow for provincial governments to make patronage appointments. 

“We see this as a power grab dressed up in the very thin veneer of purported diversity,” said Nader Hasan, a member of the legal advocacy committee of the Canadian Muslim Lawyers Association. 

“Our view is that diversity and excellence are best preserved by maintaining the independence and integrity of the current process.” 

Added Raphael Tachie, president of the Canadian Association of Black Lawyers, “It’s challenging to read something that says, ‘We’re doing this to increase the diversity of the judiciary,’ when the equity-seeking groups didn’t ask for it.”

In an omnibus justice bill tabled at Queen’s Park last month, Attorney General Doug Downey proposed several changes to the way provincial court judges are appointed. 

It includes significant changes to Ontario’s Judicial Appointments Advisory Committee (JAAC), the independent panel of judges, lawyers and members of the public that vets judicial applicants and submits a ranked short list of at least two candidates to the attorney general. 

Under the proposed amendments, that shortlist would grow to at least six candidates. “It allows for a bigger look at what’s out there in terms of creating some diversity and creating more choice,” Downey told the Star when he tabled the bill. 

The attorney general could also reject the six-person shortlist and ask to see the names of the next six candidates, as he is currently permitted to do with the two-person shortlist. Downey says he has already asked the committee to provide shortlists with more than two names, and that this change merely formalizes that practice. 

Janani Shanmuganathan, a board member of the South Asian Bar Association, argues that allowing the attorney general more choice in who to appoint to the bench leaves room “for a partisan or patronage appointment — some sort of appointment based not on the selection criteria or on who is best fit for the job, but for other reasons.”

A spokesperson for Downey maintained that the proposed changes reflect feedback received from lawyers and “justice-sector partners” and will ensure the appointments process remains non-partisan. 

“We believe it is responsible to update the system to help Ontario’s bench better reflect the evolving diversity of the province’s communities,” Nicko Vavassis said in an email. 

Another proposed change would mean the three legal organizations with representatives on the committee — the Law Society of Ontario, the Ontario Bar Association and the Federation of Ontario Law Associations — would no longer pick their own representatives, but would submit a shortlist of candidates for the attorney general to choose from.

“That will allow us to manage balance and diversity on the committee itself as well,” Downey told the Star last month. 

The attorney general already picks the seven community members on the 13-person committee.

Legal groups representing racialized lawyers say improving diversity on the bench is a laudable goal, but say they struggle to see how the government’s more significant changes would accomplish that. 

“Is there a problem with diversity on the JAAC itself? I don’t think there is. No one has complained there is an issue,” said Emily Lam, chair of the advocacy and policy committee and board member at the Federation of Asian Canadian Lawyers. 

“The irony is Mr. Downey himself has described JAAC as the gold standard, so why does he need these changes?” Lam said. 

“The concern is that this is actually for partisan purposes, and I think that transparency and fairness call for a discussion to be had by Mr. Downey with stakeholders and the public before taking any further steps.” 

The Federation of Ontario Law Associations said it did not receive much of an explanation from Downey for the proposed change to selection of committee members. 

“It has been suggested that it might be to achieve some greater diversity; however, given that the (attorney general) appoints the majority of the committee and the fact that our bench is quite diverse, it does not appear that we have an issue in this regard,” federation chair Bill Woodward said in an email. 

“This change gives the appearance of allowing the (attorney general) to have even greater control over the composition of the JAAC.” 

The Law Society of Ontario and the Ontario Bar Association have not objected to the proposed changes, and told the Star that they support a system that produces diverse judges. 

Source: https://www.thestar.com/politics/provincial/2021/03/02/ford-government-says-its-changing-judicial-appointments-to-promote-diversity-racialized-lawyers-accuse-it-of-power-grab.html

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Blogging break this week

2021/03/02 Leave a comment

Laptop repair

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Public Service Disaggregated Data for Visible Minorities and Indigenous peoples, Citizenship status

2021/03/01 Leave a comment

Over the past few months, I have been analyzing the various datasets breaking down public service employment and employee survey data by the individual visible minority and Indigenous groups.

The three articles, What new disaggregated data tells us about federal public service diversity (Policy Options, October 2020), What the Public Service Employee Survey breakdowns of visible minority and other groups tell us about diversity and inclusion (The Hill Times, November 2020) and Diversity and Inclusion: Public Service Hirings, Promotions and Separations (The Hill Times, March 2021) allow for a more comprehensive view of visible minority and Indigenous groups in the federal public service. Moreover, recent Public Service Commission studies analyzing recruitment of employment equity groups add an important element to discussions on public service staffing and recruitment practices.

Much of the debate and discussions have understandably focussed on Blacks in the public service. Yet public service data indicates that their situation is not unique in terms of representation, hirings and promotions and the employee satisfaction, with many commonalities with the other groups. A more granular analysis within each occupational group (i.e., comparing representation at each level by occupational group, as some departments are conducting, may very well provide such evidence).

Key findings are:

  • Overall EE analysis shows considerable variation among the different visible minority and Indigenous groups
  • Visible minorities
    • Correlation between lower educational attainment and representation for most groups save Chinese
    • Overall under-representation common to most groups
    • Blacks, West Asian/Arab small over-representation
    • EX: All groups under-represented save Japanese with Filipino, Latin American and Blacks having the largest gaps
    • Hirings: Hirings of visible minorities have increased for all groups in most occupational groups save for technical and administrative support. Hirings at the EX level have increase for Black, Chinese, South Asian/East Indian and West Asian/Arab, with other groups showing no increase.
    • Promotions: While promotions have increased marginally for virtually all groups at the agregate level, promotions by occupational category provide a mixed picture, with most groups and most occupational categories experiencing a marginal decline in promotions.
  • Indigenous peoples
    • First Nations under-represented, Métis and Inuit over-represented
    • Hirings: While hirings at the EX level have increased slightly, this is less the case for the other occupational categories. Hirings of Métis have increased the most in the operational category, hirings of First Nations the most in the technical category, while hirings of Inuit the most at the EX level.
    • Promotions: A marginal decline across all Indigenous groups and occupational
  • Harassment/Discrimination experiences vary
    • Harassment: Japanese report the most as do First Nations and Métis, Chinese and Filipino least satisfied with resolution as is the case with Métis
    • Discrimination; Blacks report the most, but all groups encounter discrimination on the basis of race, ethnic origin or colour. Black, Japanese and Latin American least satisfied with resolution. All Indigenous groups report having been discriminated against, mainly based on race or ethnic origin, with Métis also least satisfied with resolution

The recent PSC Audit of Employment Equity Representation in Recruitment provides some interesting data and analysis of the staffing process and how the different employment equity groups, and visible minority largest sub-groups, fare at each of the five stages in the staffing process: job application, automated screening, organizational screening, assessment and appointment (FY 2016-17 data).

The most significant stages were organizational screening and assessment where most filtering took place as shown in the table below:

The next table breaks down visible minorities by the largest groups:

As noted in the audit, Blacks have the largest decrease in representation at all stages save for appointment, with a non-negligible being screened out by automatic screening. Chinese are screened out more by organizational screening whereas West Asian and South Asian are more likely to be screened in as the assessment stage.

The audit provides the following explanation for visible minority groups. Overall, visible minority women have higher success rates than visible minority men at the organizational screening and assessment stages. Visible minorities screened out at the organizational screening stage due to citizenship status (Canadian citizens are given preference over non-citizens) and experience qualifications. Those with public service work experience were more likely to be screened in at this stage but overall “experienced less success than their counterparts regardless of whether or not they had federal public service experience.”

At the assessment stage, visible minorities were less successful when written tests were used, particularly the case for Black candidates.

A separate PSC report addresses the Citizenship of applicants and external appointments. While Canadian citizens have a hiring preference, the share of non-citizen applicants has risen from 9.4 percent in 2015-16 to 14.5 percent in 2018-19, with the share of hires has increased to 2.5 percent from 1.5 percent over the same period

Non-citizen visible minority applicants account for 22.9 percent of all visible minority applicants, for non-visible minorities, the share is only 12.1 percent.

The table below contrasts applicants and appointments by citizenship status for the past four years. For Canadian citizens, the percentage of applicants and appointments are comparable, for Permanent Residents and others, appointments are significantly greater than applicants suggesting that citizenship may be less of a barrier than commonly believed.

Visible minority Canadian citizens represented 17.2 percent of all applicants and 19.5 percent of all hires (2018-19).

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The Campaign to Cancel Wokeness: How the right is trying to censor critical race theory.

2021/02/27 Leave a comment

Worth reading:

It’s something of a truism, particularly on the right, that conservatives have claimed the mantle of free speech from an intolerant left that is afraid to engage with uncomfortable ideas. Every embarrassing example of woke overreach — each ill-considered school board decision or high-profile campus meltdown— fuels this perception.

Yet when it comes to outright government censorship, it is the right that’s on the offense. Critical race theory, the intellectual tradition undergirding concepts like white privilege and microaggressions, is often blamed for fomenting what critics call cancel culture. And so, around America and even overseas, people who don’t like cancel culture are on an ironic quest to cancel the promotion of critical race theory in public forums.

In September, Donald Trump’s Office of Management and Budget ordered federal agencies to “begin to identify all contracts or other agency spending related to any training on ‘critical race theory,’” which it described as “un-American propaganda.”

A month later, the conservative government in Britain declared some uses of critical race theory in education illegal. “We do not want teachers to teach their white pupils about white privilege and inherited racial guilt,” said the Tory equalities minister, Kemi Badenoch. “Any school which teaches these elements of critical race theory, or which promotes partisan political views such as defunding the police without offering a balanced treatment of opposing views, is breaking the law.”

Some in France took up the fight as well. “French politicians, high-profile intellectuals and journalists are warning that progressive American ideas — specifically on race, gender, post-colonialism — are undermining their society,” Norimitsu Onishi reported in The New York Times. (This is quite a reversal from the days when American conservatives warned darkly about subversive French theory.)

Once Joe Biden became president, he undid Trump’s critical race theory ban, but lawmakers in several states have proposed their own prohibitions. An Arkansas legislator introduced a pair of bills, one banning the teaching of The Times’s 1619 Project curriculum, and the other nixing classes, events and activities that encourage “division between, resentment of, or social justice for” specific groups of people. “What is not appropriate is being able to theorize, use, specifically, critical race theory,” the bills’ sponsor told The Arkansas Democrat Gazette.

Republicans in West Virginia and Oklahoma have introduced bills banning schools and, in West Virginia’s case, state contractors from promoting “divisive concepts,” including claims that “the United States is fundamentally racist or sexist.” A New Hampshire Republican also proposed a “divisive concepts” ban, saying in a hearing, “This bill addresses something called critical race theory.”

Kimberlé Crenshaw, a pioneering legal scholar who teaches at both U.C.L.A. and Columbia, has watched with alarm the attempts to suppress an entire intellectual movement. It was Crenshaw who came up with the name “critical race theory” when organizing a workshop in 1989. (She also coined the term “intersectionality.”) “The commitment to free speech seems to dissipate when the people who are being gagged are folks who are demanding racial justice,” she told me.

Many of the intellectual currents that would become critical race theory emerged in the 1970s out of disappointment with the incomplete work of the civil rights movement, and cohered among radical law professors in the 1980s.

The movement was ahead of its time; one of its central insights, that racism is structural rather than just a matter of interpersonal bigotry, is now conventional wisdom, at least on the left. It had concrete practical applications, leading, for example, to legal arguments that housing laws or employment criteria could be racist in practice even if they weren’t racist in intent.

Parts of the critical race theory tradition are in tension with liberalism, particularly when it comes to issues like free speech. Richard Delgado, a key figure in the movement, has argued that people should be able to sue those who utter racist slurs. Others have played a large role in crafting campus speech codes.

There’s plenty here for people committed to broad free speech protections to dispute. I’m persuaded by the essay Henry Louis Gates Jr. wrote in the 1990s challenging the movement’s stance on the first amendment. “To remove the very formation of our identities from the messy realm of contestation and debate is an elemental, not incidental, truncation of the ideal of public discourse,” he wrote.

Disagreeing with certain ideas, however, is very different from anathematizing the collective work of a host of paradigm-shifting thinkers. Gates’s article was effective because he took the scholarly work he engaged with seriously. “The critical race theorists must be credited with helping to reinvigorate the debate about freedom of expression; even if not ultimately persuaded to join them, the civil libertarian will be much further along for having listened to their arguments and examples,” he wrote.

But the right, for all its chest-beating about the value of entertaining dangerous notions, is rarely interested in debating the tenets of critical race theory. It wants to eradicate them from public institutions.

“Critical race theory is a grave threat to the American way of life,” Christopher Rufo, director of the Center on Wealth and Poverty at the Discovery Institute, a conservative think tank once known for pushing an updated form of creationism in public schools, wrote in January.

Rufo’s been leading the conservative charge against critical race theory. Last year, during an appearance on Tucker Carlson’s Fox News show, he called on Trump to issue an executive order abolishing “critical race theory trainings from the federal government.” The next day, he told me, the White House chief of staff, Mark Meadows, called him and asked for his help putting an order together.

Last month, Rufo announced a “new coalition of legal foundations and private attorneys that will wage relentless legal warfare against race theory in America’s institutions.” A number of House and Senate offices, he told me, are working on their own anti-critical race theory bills, though none are likely to go anywhere as long as Biden is president.

As Rufo sees it, critical race theory is a revolutionary program that replaces the Marxist categories of the bourgeois and the proletariat with racial groups, justifying discrimination against those deemed racial oppressors. His goal, ultimately, is to get the Supreme Court to rule that school and workplace trainings based on the doctrines of critical race theory violate the 1964 Civil Rights Act.

This inversion, casting anti-racist activists as the real racists, is familiar to Ian Haney López, a law professor at the University of California, Berkeley, who specializes in critical race theory. “There’s a rhetoric of reaction which seeks to claim that it’s defending these higher values, which, perversely, often are the very values it’s traducing,” he said. “Whether that’s ‘In the name of free speech we’re going to persecute, we’re going to launch investigations into particular forms of speech’ or — and I think this is equally perverse — ‘In the name of fighting racism, we’re going to launch investigations into those scholars who are most serious about studying the complex forms that racism takes.’”

Rufo insists there are no free speech implications to what he’s trying to do. “You have the freedom of speech as an individual, of course, but you don’t have the kind of entitlement to perpetuate that speech through public agencies,” he said.

This sounds, ironically, a lot like the arguments people on the left make about de-platforming right-wingers. To Crenshaw, attempts to ban critical race theory vindicate some of the movement’s skepticism about free speech orthodoxy, showing that there were never transcendent principles at play.

When people defend offensive speech, she said, they’re often really defending “the substance of what the speech is — because if it was really about free speech, then this censorship, people would be howling to the high heavens.” If it was really about free speech, they should be.

Source: https://www.nytimes.com/2021/02/26/opinion/speech-racism-academia.html

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What role do unions have in addressing systemic racism?

2021/02/27 Leave a comment

Article tries to do too much by discussing police unions and public servant unions. Issues are quite different and it is a mistake to conflate the two:

Reported cases of abuse and murder of people from visible minority groups at the hands of police forces across Canada persist today. Yet, by and large, Canadian police unions have been opposing or watering down efforts to address discriminatory policing practices and unbridled growth in police funding for years. Since 1999, even during times of budget cuts and cutbacks on social expenditure, there’s been a steady increase in real expenditure on policing over the past three decades, according to Statistics Canada.

Last year, unions across Canada issued statements against racism. In October 2020, the Canadian Labour Congress (CLC) exhorted unions to join the fight to defund police. The CLC argues that defunding the police would strengthen long-underfunded social service and public service sectors, as well as help in the fight against racism and violence in policing communities.

Right now, there’s an opportunity to make the goal of defunding the police part of union negotiations and the work of the broader Canadian labour movement – and we should seize it. Before that happens, however, unions must look inward. They should ask themselves: What can we in the labour movement do to address the power of police unions and associations? What steps can we take to address structural racism within institutions across Canada?

Unions and structural racism

In Canada, the wage gap in the highly unionized public sector is smaller than in the mostly non-unionized private sector. According to research published by Canadian professors Gerald Hunt and David Rayside, unions here have been more responsive than their American counterparts on issues of equity. Indeed, they have some of the largest settlements on equity in the country, and the Public Service Alliance of Canada (PSAC) is currently supporting a class action lawsuit to address systemic discrimination in the public sector.

That said, data shows that the wage gap between visible minorities and white Canadians in unions persists over generations in Canada. A recent study published in International Migration Review examines the ability of newly arrived non-white immigrants to access union jobs and the impact of unionization on their earnings. The study’s findings are disturbing because not only do non-white immigrants have less access to union jobs, the positive impact of unionization on earnings is somewhat lower for new non-white immigrants than for new white immigrants. The study concludes that unionization does not contribute to reducing the earnings gap of new non-white immigrants relative to white immigrants and native-born Canadians of any background. We need to expand this kind of research to other marginalized and visible minority communities, such as First Nations, and then work on addressing the aforementioned gaps.

A more difficult problem to address is how we root out the structural injustices that are now normalized in collective bargaining agreements, grievance-handling and other union processes. The wage gap between unionized visible minority members and unionized white male members is much smaller than the gap between all visible minority workers and white workers – but it still exists. There are also other issues, such as access to what are considered better positions for members with more seniority, who tend to bedisproportionately white, as well as the preponderance of visible minorities in precarious work that’s sometimes contracted out by public sector employers.

In the United Kingdom, the Trades Union Congress (TUC) launched an anti-racist task force,  which has done work that’s worth emulating in Canada. TUC is compiling decades of research conducted by U.K.-based unions, as well as researchers and analysts, to promote more effective anti-racism work within these unions. It’s also been surveying union membersto ask about discrimination at work, looking at structural racism in union practices and perception, as well as why sometimes cases go unreported. Now that London has declared its city hall to be an anti-racist organization, TUC will leverage its work to develop policies and make this declaration a reality.

As policy-makers, the most difficult question for any union to answer is what to do when marginalized communities report that members are complicit in practices that are racist. When it comes to complaints about individual members, unions have a duty to represent those individuals during the grievance process, but as Public Service Alliance of Canada (PSAC) points out, that doesn’t mean the union must represent the individual over the needs of the collective or those of marginalized communities. Union-bargaining agents and stewards must be reminded of this when they defend reprehensible behaviour.

Carceral unions and the labour movement

Since police and corrections officers first sought recognition as bargaining agents, they faced widespread opposition from different stakeholders. Many governments and businesses felt that police forces, which are an essential service to maintain law and order, shouldn’t be allowed to organize and withhold their labour to demand improvements to their work conditions.

Meanwhile, social justice and workers’ rights activists who faced repression and violence from police organized to keep them out of labour federations (for the most part, police associations and unions aren’t affiliated with the Canadian Labour Congress, except in the few cases where police forces chose to be represented by larger public sector unions).

An important aspect of demanding justice for visible minorities is demanding justice in policing. How do we influence the actions of police unions and their members? How do we stop them from obstructing efforts to change discriminatory police practices and create oversight? Is there any way they can become partners in the effort to defund police?

Currently, there are movements in Canada to demand the expulsion of police and correctional officers from unions affiliated with the larger labour federations, such as PSAC and the Canadian Union of Public Employees (CUPE). But this gesture, if made, would be largely symbolic because the lion’s share of police unions aren’t part of Canada’s labour federations.  Indeed, many call themselves associations and bargain outside of the labour movement. If expelled, the correctional officers and police in unions affiliated with the labour federations could easily form powerful independent bodies or join the majority non-affiliated police associations. Currently, the Ontario Public Service Employees Union (OPSEU) is facing a campaign by its member correctional officers to disaffiliate and create an independent corrections-only association.

As Ryan Hayes points out in Briarpatch Magazine, “In the United States, along with the call to expel police unions from the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO), policy analysts have made the case for barring police associations from the right to collectively bargain. Others have called for limiting the scope of their bargaining to strictly wages and benefits.” But how will restricting the power of police officers to organize prevent the prison industrial complex from growing and further influencing policy, and disproportionately imprisoning racialized people? The right to bargain collectively is a universal right, not limited by ideology, so won’t attempts to curtail it set a dangerous precedent?

There are many union members who have been leading and coming out in support of movements against racism. However, many join as volunteers without bringing their local union or the larger labour movement along. In 2020, deaths at the hands of police in Canada and the United States made the call for defunding the police more urgent. The fact that the Canadian Labour Congress has issued a statement saying that unions should join the fight to defund the police is an opportunity. This statement is an opening for us, the progressive union members, the majority of whom work in the public sector, to bring the force of our locals and our unions to the fight against police violence.

If defunding police is officially adopted as a part of a union’s work, unions could bring staff resources, relationships with politicians and their staff, intimate knowledge of how to lobby and move different political bureaucracies to the movement. If the movement for racial justice successfully defunds police, it would grow long underfunded social service and public service sectors and budgets again, which makes economic sense for our locals and unions.

Successfully dismantling structural racism in police unions and in our work as unions more broadly will take sustained effort. Last year, many Canadian unions made important statements and launched renewed efforts toward these goals, but we must be willing to commit to making them a reality.

Source: What role do unions have in addressing systemic racism?

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