PART: Introduction

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In this paper, I propose to address the following two matters:

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First, the blanket assertion that the anti-Black racism in the Canadian society is “systemic”

 

Second, the federal government’s handling of anti-Black and other instances of racial discrimination

 

On the first matter, personally, I neither reject nor readily concede the existence of this type of discrimination as a general proposition on a national regional or provincial basis in the absence of valid and material evidence that can be generalised.

 

Accordingly, I want to address some of the key methodological issues that beset the nature and scope of the evidence relied upon to advance the conclusion that Canadians do engage in this type of behaviour.

 

General considerations

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A great deal of the data on which researchers rely to make their case that general systemic racism exists is published by Statistics Canada based on the data received by front line municipal governments, provincial and federal governments and agencies.

 

Most regretfully, this data is beset by all sorts of limitations and problems some of which I propose to illustrate below.

 

Proof of the existence of a particular type of systemic discrimination is based on the results of empirical studies conducted by researchers in academia and in a variety of organisations as well as researchers hired in connection with specific community projects in most cases funded    by the federal and provincial governments, some by private charitable organisations and in some by community groups with deep pockets.

 

The major methodological problem with the foregoing research can be summed up by analogy to an old saying concerning construction projects, namely: “Bricks don’t make a wall.”

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Drawing general conclusions as to the existence or absence of a particular type of discrimination based on a number of disparate studies where research teams use different sets of independent variables is a quite onerous, a tricky task full of pitfalls.

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Furthermore, the deficiencies of the primary sources of data, or the outright lack of it with respect to the same set of material independent variables that are hypothesised to be germane to the determination of the issue in particular cases, rob the researchers of the opportunity to generate cumulative data that is more reliable and informative than the sum of its parts.

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Point of departure

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My starting point is that murder is an odious act forbidden by one of the 10 Commandments and by related religious and moral precepts in almost all the religions. The murder of a citizen by the very people who are entrusted to insure his or her safety and to maintain peace and order is both odious and repugnant in the extreme.

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The recent public anger felt and expressed about anti-Black racism in Canada arose in the wake of the killing of George Floyd by police officers in Minneapolis, U.S. and the terrifying death of Regis Korchinski-Paquet who fell from the balcony of the 24th storey of an apartment, in the presence of members of the Toronto police.

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The anger was further fuelled by Stockwell Day’s recent statement during the CBC Toronto panel show Power and Politics that “…Canada is not a racist country and most Canadians are not racists. And our system, that always needs to be improved, is not systematically racist…”

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For his opinion, Mr. Day got bounced or resigned knowing that he was about to get bounced from his three well- paying jobs. One of the employers, Telus, appears to have taken exception to his denial as it became concerned about losing its younger customers, as some of whom phoned in to threaten it with cancelling their business unless something was done about Mr. Day’s utterances.

 

The second employer, a reputable large Canadian law firm, took further exception to the fact that the denial included the systemic nature of anti-Black racism on the basis that this was not consistent with the firm’s beliefs and values.

 

In the case of George Floyd, there is some prima facie evidence of the deliberate killing of the victim by a police officer seemingly aided and abetted by three other officers, although the outraged people will not know the full facts of the case until the case goes to trial, in order to render a final judgment.

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In the case of Regis Korchinski-Paquet, we know very few facts material to the case which is currently under investigation. Until the investigation is concluded and the facts are ascertained, there is no justification to engage in noisy agitated manifestations and to accuse Canadians of anything or self-flagellate about Canada’s systemic anti-Black racism.

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Since then, the RCMP conceded the existence of racism in the force in particular in the manner the law is enforced against Canada’s Indigenous peoples; a concession that became inevitable in the light of the recent killings of Indigenous persons in the Maritimes.

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On this issue, readers might be interested in an article by Heather MacDonald titled “The Myth of Systemic Police Racism” published on June 2, 2020 in the Wall Street Journal and draw their own conclusions. www.wsj.com › Opinion › Commentary

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Part II: The nature of anti-Black racism in the Canadian society

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Defining and distinguishing the terms “systematic” and “systemic”

      

The term systematic is often confused with the term systemic.

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The term systematic has been defined as describing “something that is thorough and intentional, methodical, or implemented according to a plan.”

 

The term systemic, on the other hand, has been defined as “describing something that happens, exists and affects the whole social system [or for that matter multiple social sub-systems] as opposed to a particular, topical issue. Some of the synonyms of the term are: system-wide, body-wide, complete, total, comprehensive and general although these terms are applicable regardless of the size of the system being studied. 

 

The Ontario Human Rights Commission (“OHRC”) describes “systemic discrimination” as patterns of behaviour, [formal and informal] policies, practices and [decision making processes  and organizational internal cultures] that are part of the structures of an organisation, and which create or perpetuate disadvantage for racialized persons.”. (This is my composite definition based on the Commission’s whole text on the matter under the heading of “Racism and racial discrimination: Systemic discrimination (Fact sheet) www.ohrc.on.ca

 

In matters dealing with race and on the issue as to whether a discriminatory practice is systemic or systematic or not, the Commission keys on another distinction between the two types of discrimination as follows: unlike systematic discrimination, “systemic racial discrimination [can result as well ] because of the unintended and often unconscious consequences of a discriminatory system.”

 

Personally, I find this characterisation of systemic discrimination difficult to accept at face value. By way of illustration, I find it difficult to imagine a situation where an organisation whose nature and purpose and commercial enterprises that ordinarily attract Black candidates can carry on for periods of time, let alone year-in and year-out, in the manner described above.  All the while receiving job applications from Black candidates and turning them all down, without anyone in the organisation asking probing questions or realising what is going on or, having realised it, keeping quiet about it even with close associates and/or with the immediate supervisors.

 

Based on my observations as litigation counsel and discussions with counsel involved in these types of cases, I am inclined to think that this kind of experience is proffered by experienced human resources staff and other senior personnel who have their wits about them.  They would fear being found out engaging in such behaviour and would seek to mitigate their case in the hope of reducing their exposure to monetary liability.  All this while seeking to protect their public image or reputation and mitigating the damage to them.

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While OHRC accepts or feigns to accept the existence of this type of discrimination, it carries on and with the evidence permitting proceeds to reach for the outcomes it would have reached otherwise.

 

I would have thought that where discrimination is not intended or is the unconscious consequence of a discriminatory system, the employer does not have the requisite men’s rea to breach the legal provisions forbidding such discrimination and consequently ought not to be liable to pay damages or compensation for being in that situation. Yet this is not the case. Systemic discrimination has become a strict liability breach of the law.

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The general framework of data collection, analysis and interpretation: Blacks and racist anti-Blacks

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These terms per se are analytically neither meaningful nor helpful where the discrimination is alleged to be systemic. They lack the kinds of specificity required to research systemic racial discrimination of members of the Black or for that matter of any other race based on the colour of their skin. The terms beg more questions than produce answers as well as comparable reliable data.

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In Canada, we do not have just Black citizens and inhabitants. We also have “Black peoples” such as the Blacks who hail from various countries in Africa and elsewhere; Blacks who are the descendants of slaves in the British North America and in U.S, each group endowed with their own distinct culture.

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To name some other independent variables: We have Blacks who are Christian, Muslim and Jewish; Blacks  and “Black peoples” who have lived in this country for a very long time and we have cohorts of Blacks who are first, second, third  generation immigrants; Blacks whose religious orientation is in conflict with the “so-called” Canadian values and those who do not experience such conflict; Blacks whose cultural  backgrounds make it very difficult  for them to adjust and adopt to the prevailing Canadian culture and practices in a whole host of areas of activity and/or integrate into the Canadian society and Blacks where this is not the case; we have Blacks who are educated and professionally trained and those who are unskilled or have limited schooling; Blacks who are refugees and illegal immigrants and Blacks who are legal immigrants who met Canada’s fairly stringent criteria of admissibility; Blacks who are racist and /or anti-Semites and Blacks who are neither; Blacks who do not care much about  folks who are white, brown (from India, Pakistan and some other countries),and others such as the Chinese, Japanese  or Koreans and may not care to work with them or for them and Blacks who respect them one and all and would work with or for them; Blacks who have criminal records and Blacks who don’t; Blacks who have poor employment performance records and cannot get job references and Blacks who have good performance records and have no trouble getting good references; Blacks who are single, separated, living common-law or divorced and Blacks who are married; Blacks who have children and those who do not; Blacks who are bilingual, unilingual or simply do not speak either French or English; Blacks who live in particular regions, in metropolitan areas, medium and small size cities and towns and Blacks who live in rural areas.

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With the appropriate modifications, such variables also come into play in researching systemic discrimination against other visible minorities and for that matter, non-visible minorities such as the French Canadians and the Jewish people. And of course, a whole set of independent variables also relate to non-racist and racist peoples.

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Unless the foregoing independent variables or groups of them are held constant, the resulting holus bolus unfavourable comparisons between the systemic racial discrimination of Blacks and members of specific Black peoples with members of other groups such as other visible and non-visible minorities beg more questions than they answer.

 

These propositions are equally applicable to those instances where researchers cannot test the validity of their findings by comparing their data to that of other researchers who focused on Black groups or peoples identified by different sets of variables to consider the matter of causation.

 

Consequently, global figures or percentages:

• are meaningless and can hardly be used to design effective policies, practices and action and research plans to identify and remedy the problem of racial systemic discrimination facing any particular race; and
   

• merely demand the establishment of research programs to pierce through the aggregate curtain and provide reliable specific data with which to examine the issue at hand for Blacks as well as the other visible and non-visible minorities, not to mention the rest of the population.
   

On this point, OHRC takes the position that, “Numerical data alone does not per se provide proof of systemic discrimination [or racism against Blacks]. However, it serves as an indicator or a “red flag” that there is a problem.” supra. However, since all ‘red flags” do not turn out to be actual problems, personally, I would substitute the conditional may be for OHRC’s’ a priori affirmative is.

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The overall objective is to determine whether anti-Black racial discrimination is global or exists only with respect to one or more groups of Blacks with specific characteristics with specific characteristics in specific fields or types of endeavour.

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Part III: What anti-Black racist systemic discrimination is not: The glib and indiscriminate attribution of systemic discrimination.

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I propose to demonstrate the validity of assertions made under the preceding sub-heading with the assertions made and conclusions drawn in an article by Graham Slaughter (CTVNews.ca titled Five charts that show what systemic racism looks like in Canada published on June 4th inst. in Stream CTV News for breaking news updates). https://www.ctvnews.ca/canada/five-charts-that-show-what-systemic-racism-looks-like-in-canada-1.4970352

 

In writing this article, Mr. Slaughter sought the assistance of Professor Andrea A. Davis, Chair of York University’s Department of humanities and co-ordinator of the university’s Black Canadian Studies Certificate program, to provide an academic perspective and presumably to corroborate his position. 

 

Professor Davis hails from Jamaica where she completed her undergraduate degree. She continued her studies at York University where she obtained both her Master’s degree and her doctorate. Her research interests are described as “Caribbean, African, American and Black Canadian literatures and theatre, African diaspora studies, Black cultural and feminist studies and youth studies”. She is a well-published senior academic who is currently engaged in a number of projects and writing scholarly papers. She is a member of the Black race.          For further particulars of her research projects and publications, see: Andrea A. Davis, York University at google chrome or at the website of the university.

 

The Charts

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By way of introduction, the curious thing common to the first three charts is that the comparisons are made solely among the Black population versus other visible minorities and non–visible minorities. What about the corresponding figures and rates for the rest of the population, i.e. the majority, whatever this term might mean nowadays in the Canadian context?

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The first chart: Annual total income

 

The first of the five charts in the article shows that the average total annual income of the Black population in Canada is less than that of the non-visible minorities.

 

As I pointed above, assuming that these statistics are adequate and derived from a methodologically sound data collection system that may be relied upon, the figures merely serve as an indicator, a “red flag” that point to the need to engage further investigation.

 

I highlighted the term “assuming” because, as I shall demonstrate below, in a number of instances, even statistics published by Statistics Canada raise methodological issues. 

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With all due respect, unfortunately Professor Davis did not remove the red flag with the comment:  

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“The reality  ...is that Black immigrants are up against a system that makes assumptions about them based on the colour of their skin …many Black immigrants face a tougher time getting hired because employers say they want someone with “’Canadian experience’”.  

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This bold statement begs answers to questions such as: How many? What percentage? Which of the particular group or groups identified above? With what characteristics? In which regions and settings? 

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Well, as a matter of fact, when I first arrived in Canada from Turkey in 1957, both I and many of my fellow immigrants who are not Black, spent quite a long time finding a job precisely because our job applications kept getting rejected on the very same ground that we did not have “Canadian experience” .  In my own case, this went on until one day upon getting the usual excuse I had the chutzpa to snap back and tell the interviewer: If you don’t give me the job how am I going to get Canadian experience? After remonstrating for my impertinence, he hired me for all of $25.00 a week for a 60 hour work week. I do not know if my Black brethren made, or would want to make such a scene!

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In the premises, unless and until it can be shown that the employers across various types of businesses in question who reject Black applicants on this ground, went on to hire non-Black applicants who also did not have such experience, surely there is no systemic discrimination or for that matter any discrimination.

 

Professor Davis went on to say:

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“Many of us have heard the stories of new immigrants who are doctors, who are doctors who can’t get jobs, engineers who are driving taxi cabs in Toronto. That sort of reincorporation into the labour force is harder for Black people because they can be weeded out because of the colour of their skin.”

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The facts which I acquired by talking to Canadians in a few professions such as medicine, nursing, architecture, confirmed that  many immigrants across Canada experience difficulties in obtaining the required professional accreditation before or upon their arrival, regardless the colour of their skin.  A good number of them ultimately manage to obtain the accreditation, over a period of time, by successfully completing the prescribed remedial studies and other pre-requisites and passing the prescribed examinations. 

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As I understand it, the reasons for this state of affairs include possibly, among others, one or more of the following: (a) the programs of study offered by some foreign universities are judged to be unsatisfactory; (b) likewise some foreign accreditation systems are also unsatisfactory or not credible; (c) some of the professional bodies that regulate the professions and their respective membership do not want increased competition regardless of the colour of the skin of the prospective competitors, and (d) particularly so, when the amount of work available in some of these professions, for the current membership at any period of time and for the upcoming graduates from Canadian universities, cannot justify more than, at best, a marginal increase in the number of practitioners.

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I consider Professor Davis’ argument that it is harder for Black people because they can be weeded out by reason of the colour of their skin to be speculative. My knowledge, based on observations and personal experience in immigrating to Canada, deems it more likely than not that prospective immigrants make their applications for admission to professional regulating bodies by mail from their countries of origin before, and often in order to decide whether or not to immigrate or after receiving the right to immigrate but before, departure. Consequently, the colour of their skin is a non-issue except, hypothetically, where the application provides this information or the person handling the application, rightly or wrongly, infers it.

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Finally, I very much doubt that, absent other factors prejudicial to one or more Black applicants, as this would also be the case for others, those who graduate from well-established universities, completed their professional training and received their accreditations in countries with a solid reputations, particularly if they are English speaking ones, would be refused an equal opportunity to receive the requisite accreditation.

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Second Chart: Unemployment

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This Chart shows the following comparative unemployment rates in Canada: 5.7% for other visible minorities, 7.3% for non-visible minorities and 12% for the “Black population”.

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One of Professor Davis’ explanations for this state of affairs is:

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“Some racialized groups are seen as more productive, harder working, smarter-” a good minority”, so they get absorbed far more quickly into mainstream than Black new immigrants.”

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In so far as  the ”new Black immigrants” are concerned, again, such terminology  must be read and considered in the light of variables such as those identified above under the heading of General framework of data collection, analysis  and interpretation.

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Absent the quantification of variables relevant to the problem, the Professor Davis’ explanation compares, or risks of comparing, apples and oranges.

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Furthermore, I find her explanation a peculiar one. Organisations, recruiters and more particularly those in business do not hire people because they are “seen” in a certain way. They hire people on the strength of their established record of quality performance at work in Canada and the reputation of the particular groups to which they belong as a whole.

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As the son of a small businessman both in Turkey and in Canada, I can testify to the fact that business owners, particularly those of small and medium enterprises, are conservative people who are not keen to waste time and money and experience aggravation by hiring the wrong person. Hence, they are most likely inclined to hire people with proven performance records in their type of business and/or in general.  

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Further, some of the decisions of Human Right Tribunals across the country make news and some hit the headlines. Potential employers read about these decisions in the newspapers and/ or hear about them from their business associates, friends and acquaintances.  Hence, how would and should potential employers of such enterprises deal with applicants of a particular minority after reading or hearing about a case decided by a provincial Human Rights Tribunal that awarded damages to a complainant who is member of this minority ,who in his job application provided misleading or false information about his qualifications? When the potential employer finds this out, he/she may very well refuse to consider his candidacy any further.

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The complainant’s explanation for this mischief in this particular case was that he was worried about or expected (I do not recall which) that the employer would reject his application on a discriminatory basis. (https://business.financialpost.com/opinion/ontario-human-rights-tribunal-orders-employer-to-pay-120000-in-damages-to-worker-it-didnt-even-hire)

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I do not think that potential employers or businessmen would bother to analyse the nitty gritty of the case related to the reasoning of the Tribunal in reaching its decision. Instead, it is most likely that the employer would avoid hiring applicants that belong to the same minority group, not only because they are liable to lie on their applications .More importantly, because they are liable to be litigious and at some point or another commence litigation against the employer as a result of which the employer may be found liable and ordered to pay whooping damages and costs.  In such cases, Human Rights Tribunals can be more seen to be propagating “systemic racism” as they, not the employer, appear to be rigging the system in favour of one side over the other. 

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Such a possibility together with the expenses that would be incurred to retain a lawyer to handle the matter, which starting with the filing of the original complaint with the Human Rights Commission, may drag on for a long time, would amount to a significant sum of money which organisations or businesses  could ill-afford.

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Often enough, discrimination occurs in the nitty gritty of the market place.

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Surely, to be considered legitimate, the values that lead us to fight systemic discrimination cannot, and ought not, be considered abstract in nature or absolute.  They must be reconciled with the practical realities on the ground, and unlike the foregoing case, risk-averse conduct ought not to be dismissed summarily or necessarily punished.

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In this connection, what about the Chinese, Korean, Japanese and East-Indian restaurants, where I have yet to come across a waiter or waitress or manager who is not of the same race or ethnicity? Are the owners of these establishments engaged in systemic or systematic discrimination? If not, why not? If yes, when was the last time any such case was formally taken before a Human Rights Tribunal?  

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Professor Davis’ statements beg the question as to why the Blacks are not seen the same way as these racialised groups of workers. If the question has been researched, Professor Davis does not refer to any of it to substantiate her assertions. 

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Political correctness would require me not to mention possibilities such as; (a) the poor work performance of some new immigrant Blacks, as  experienced by some employers, reverberates in the market place and/or, (b) some of them lack the specific knowledge, skills, aptitudes, as the case may be, to perform the jobs for which they apply and do not, as yet, have the opportunity to establish a compensatory reputation for being fast learners.

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I ignore Professor Davis’ reference to the racialised groups in question as being a “good minority”. As a member of a non-visible minority, I find the phrase objectionable. Stereotypes of this kind have been known to kindle or reinforce negative feelings about such minorities.

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The rest of Professor Davis’ generalised explanations with respect to this chart are in the article and reader has the opportunity to assess their relative merit.

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Third chart: Social stratification by income

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This chart shows the logical outcome of the first two charts, namely; that the proportion of population with low income status is 23% among the Black population; 20% among other visible minorities and 12.2% among the non-visible minority.

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The reader interested in the ideological perspective on this matter may wish to read the article of Edward Ring (author of the book American Greatness) titled Leftism, Not Racism, Destroys Black Upward Mobility, June 5 inst.tenesseestar.com and watch Andrew Klavan, speak about Black Americans Are Being Used as Pawns by the American Elite, www.youtube.com.

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Fourth Chart: Expectations for higher education

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This chart shows that according to the data published by Statistics Canada from the 2016 General Social Survey titled “Canadians at work and at home”, for the year 2015 that:

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• 93.9% of Black youth aged 15 to 25 said that they would like to get a bachelor’s degree or higher as compared to 82.4% of the corresponding age group in the rest of the population; and
   

• only 59.9% of Black youth thought that they could (that it was possible), while this figure was 78.8% for the corresponding group in the rest of the population.
   

Again this is a tricky comparison. A far more instructive comparison could have been obtained, minimally, by:
 

• further breaking down the Black group by some of the specific variables identified above which may bear on the subject;
   

• comparing these groups with the corresponding groups of other visible and non-visible minorities as well as with the corresponding segment of the majority with similar total annual income and a low income status, and
   

• finally, comparing the percentages of all the groups who felt they could [possible] or could not [not possible] secure such a degree, in relation to the percentages of those who actually secured it at some point and the ways in which they did, as for example by themselves, through affirmative action programs and/or financial support provided by third parties.
   

Fifth Chart: Hate crimes by motivation based on race or ethnicity

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The Chart shows that according to Statistics Canada’s Canadian Centre for Justice and Community Safety Statistics, Incident- based Uniform Crime Reporting Survey; Black Canadians are more likely than any other racial group to be the victims of hate crimes.

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This Chart is hardly relevant to the issue of systemic discrimination. This is so because the single or multiple offenders committing a particular hate crime are not committing it as members of an existing system or organisation with its own directing mind, but in their individual capacity. At all events, the statistics do not provide evidence that this is not the case.

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At all events, to put matters in some context, by way of critical evidence, the published statistics concerning hate crimes must, but fail to, provide minimally all of the following data:

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• the legal provision breached;
   

• the age, ethnic, racial and religious identities of the known assailants;
   

• the ethnic, racial and religious characteristics of the areas where the assailants live;
   

• the ethnic, racial and religious characteristics of the areas where the crime is committed;
   

• whether the police has had previous contacts with the assailants and the victims in connection with other crimes and hate crimesin particular;
   

• whether the assailants and the victims have had previous conflictual encounters of a criminal and non-criminal nature;
   

• whether or not hatred was the motivation and/or cause for these encounters;
   

• the criminal records of both the assailants and the victims;
   

• a concise butaccurate description of the facts of the crime, the cause(s) and the initiating, contributing and aggravating factors and most particularly those, if any, generated by behaviour of the victims. Here I am thinking of self-induced victimhood.
   

Quite aside from the foregoing limitations, police generated hate crime statistics are notoriously inadequate and fail to reflect the true state of affairs. In this regard, I refer the reader to Julian V. Roberts, Disproportionate Harm: Hate Crime in Canada** published by the Government of Canada which outlines the serious methodological problems that adversely affect the quality of these statistics, having to do with the:

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• problems of definition (2.1& 2.3);
   

• limitations on Official Hate Crime Statistics
  2.6.1-Unreported Crimes
  2.6.2 –Classification Problems
   

• [problems] with data sources (2.7).
   

See: Relationship between hate crime definitions and the sentencing Reform Bill (2.5);
See also: Derek. E. Janhevitch, Hate Crime in Canada: An Overview of Issues and Data Sources published by Statistics Canada, Integration and Analysis Program, Canadian Centre for Justice Statistics, 2001

** Further, the reader may wish to consult: Julian V. Roberts, Department of Criminology, and University of Ottawa Disproportionate Crime: Hate in Canada: An Analysis of Recent Statistics, Working Document, unedited, Department of Justice, Ottawa, 1995, WD1995-11e

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In the light of the foregoing methodological issues, I think it is imperative to revisit and address properly the foregoing matters.

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PART IV: Identity politics: A key barrier to improving the scope and quality of the statistics, policing and enforcement of hate crimes and their prosecution

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One need not go too far without wondering whether, and in what manner, identity politics plays out on the question of hate crimes.

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Well to begin with, such a crime cannot be prosecuted without the approval of the Attorney –General (A.G.) of the jurisdiction in which the hate crime is committed, regardless of the views to the contrary that may be held by the police and/ or the local Crown Prosecutor.

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The decisions to prosecute or not to prosecute hate crimes, and where possible to prosecute them without reference to the fact that the offence was motivated by hate, are politically quite sensitive issues - particularly in a country whose federal government incessantly preaches the virtues of multiculturalism, diversity and inclusion and contends that these are the strength of the Canadian society.

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Indeed, notwithstanding the legal theory and doctrine about the way Attorney-Generals must discharge their duties, the fact remains that the incumbents of that position are also politicians who must:

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• work in harmony with the government’s general orientations concerning matters pertaining to the handling of various minority groups, and
   

• periodically face the electorate and in particular the specific constituencies which the government of the day considers it important to keep on side, for a number of political reasons which concern domestic and/or international affairs.
   

Having never had the occasion to be involved in the prosecution of hate crimes, I hasten to state that the foregoing scenario is a hypothetical one, albeit one well worth exploring properly. Certainly, in my own practice of the law with the Federal Department of Justice, I have never experienced or observed a decision made by the successive Attorneys’ Generals under whom I laboured, to make such a tainted decision. This was illustrated in 2019 by the unflinching decision of the former Attorney General of Canada to proceed with the prosecution of SNC-Lavalin notwithstanding the political pressure to which she was subjected to reverse her decision.

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Yet, the Attorneys’ General guidelines to determine whether a case ought to proceed to trial as a hate crime are not in the public domain.

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For that matter nor are annual statistics concerning:

• the number of hate crime cases that ought to have been but were not prosecuted or were not prosecuted as hate crimes as a result of the A.G.’s decision; and
   

• police officers’ level of knowledge about hate crimes; their ethnic and racial identities; their cultural backgrounds and ideological orientations as well as the orientations of police departments and detachments where the officers are employed.
   

The need to secure such information was recently highlighted by an incident that occurred at the beginning of 2020 during a vigil in Toronto organised by Iranian regime loyalists.  They gathered to mourn the death of General Qassem Soleimani who was assassinated by U.S. armed forces as well as to defend and promote the Islamic Republic of Iran’s global terrorist activities. They also referred to the U.S as “terrorist” while the Toronto police officers looked on. Yet, when a journalist attending the event called the late general a “terrorist”, the police threatened to arrest him for saying so, presumably for failure to keep the peace.

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Nor should it come as a surprise that an unquantified percentage of police officers are most reluctant to investigate hate crimes, which they consider to be a waste of time when they could engage in tasks that would enhance their prospects of promotion. This would be the case particularly in those jurisdictions where the A.G is known not to be inclined to approve the prosecution of such offences or approve, with considerable restraint, those that are unlikely to make big headlines and those which, having made such headlines, renders moot the decision to prosecute.

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Given such lack of attention or care about this type of crime, it should not come as a surprise that while the overall numbers and rates of hate crimes keep rising, in absolute or relative terms, the vast majority of these crimes remain unsolved.

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The contest between the prosecution of hate crimes and the fundamental freedoms guaranteed in the Charter of Rights and Freedoms

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A key problem in determining whether or not a particular speech, piece of writing, book and other materials such as cartoons constitutes a hate crime arises in the light of some of the fundamental freedoms guaranteed under section 2 of the Charter of Rights and Freedoms and in particular under sub-section 2(b) albeit, subject to the limitation prescribed under section 1 of the Charter.

 

Section 2, inter alia: section 2(b) reads:

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2. Everyone has the following fundamental freedoms:

                (a) ……;

                (b) freedom of thought, belief of opinion and expression, including

                freedom of the press and other   media of communication;

                (c) …...; and

                (d)…...

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Section 1 of the Charter reads:

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1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in as free and democratic society.

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One such reasonable limit prescribed by law is the hate crime provisions of the Criminal Code.

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Notwithstanding section 1, with respect to crimes based on hate speech, those who demand respect for their freedoms under section 2(a)  argue, for example, that charges of hate crimes against Jews and Muslims are designed to suppress legitimate criticisms and public debates about the objectionable patterns of behaviour and the public utterances of Jews in Canada and in the State of Israel or Muslims in Canada and in predominantly Muslim countries, are oppressive, repulsive and breach Canadian values .

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Clearly, the decision as to whether to charge someone with a hate crime requires a delicate balancing act in order not to offend or alienate both those who are or would feel victimised by such crimes and those who argue that such charges breach Canadians’ freedoms under the Charter. 

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Preliminary conclusion

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In the light of the foregoing observations, I think it is imperative to revisit and address properly the issues and problems concerning the concept of systemic racial discrimination of the Black and other racial inhabitants of Canada on their own and on a comparative basis.

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In this regard, there is a pressing need to finance:

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• the design and implementation of a national properly integrated research strategy in co-ordination with provincial and municipal authorities and the agencies that generate statistical data; and
   

• conduct carefully planned and integrated, meaningful original research into these matters as well also to replicate valuable existing research in order to obtain comparable data on the same issue with different population groups and sub-groups.

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PART V: The federal government’s anti-racism strategy

 

A major illustration of identity politics is the federal government’s anti-racism strategy which curiously enough includes the definition of the term “Islamophobia” which has nothing to do with race.

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It’s a three year strategy that according to Pablo Rodriguez, Minister of Heritage, fulfils the key recommendations of the 2018 report of the Standing Committee on Canadian Heritage titled Racism and Religious Discrimination including Islamophobia in response to the Parliamentary motion M-103 which the Prime Minister rammed through the House of Commons after defeating the procedural motion of the Official Opposition who sought  to have the motion amended by inserting a precise definition of the term “Islamophobia” which the M.P who tabled the motion refused to do

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The strategy is set out in the government’s publication Building a Foundation for Change: Canada’s Anti-Racism Strategy 2019-2022 (“Strategy”).  This document needs to be read together with:

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• a document published contemporaneously by the Government of Canada titled Anti-Racism Action Program (“ARAP”); and
   

• the pre-existing Community Support, Multiculturalism and Anti-Racism Initiatives (CSMARI).

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The Anti-Racism Action Program is intended to help address barriers to employment, justice and social participation among Indigenous Peoples racialized communities and religious minorities ARAP will also prioritize projects that target online hate and promote digital literacy…”

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I suggest with some confidence based on empirically verifiable facts that this strategy enables the Prime Minister:

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      a) to further his agenda concerning the aboriginal peoples of Canada;
 

      b) to gain some time in addressing fully the problem of systemic racism against the Blacks, which has been in the headlines and on the streets causing tumultuous protests as a result of the deaths of the two Black peoples; and
 

      c) just as importantly, to hopefully enhance his chances of realising his long-obsessing goal of getting a seat at the United Nations Security Council at a time when the United Nations has shown great interest in aboriginal issues and the treatment of Black people and whose reports have taken issue with Canada with respect to matters concerning aboriginal rights and the issue of slavery.
 

As it turned out, Canada failed to get the seat.

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The research component of the strategy

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The nine- page Appendix of the 34 page report is titled Examples of Ongoing Initiatives that Contribute to Addressing Racism and Discrimination sets out a long list of projects while at the outset it emphasises the fact that the list is not comprehensive but rather a “sampling of these projects” without specifying whether the sampling is statistically representative of all the projects.

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The contents of the Appendix

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First, a very substantial percentage of all these projects focus:
 

• uniquely on the betterment of the aboriginal peoples of Canada by providing them with a wide variety of programs that will assist them in dealing with the various challenges they face; and
   

• on the betterment of the aboriginal peoples along with other groups such as the Black people whose members experience the same kinds of problems such as racial discrimination.

 

Second, the projects are set up to throw a wide net over a large variety of groups.  I am inclined to believe that most, if not all, of these projects are worthy endeavours that may do some good for all or some of their target populations, communities, selected groups and the individual members thereof.

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Third, regrettably, as I anticipated above, of the 42 projects described in the Appendix, only three of them touch upon the subjects of “developing or engaging in research”; “measurement” or “using evidence-based models” as an integral part of the project.

 

Only the fourth and potentially the most promising one announces the creation of a new Center for Gender, Diversity and Inclusion Statistics. The blurb further states that the Centre will maintain a public facing data hub to support evidence based policy development and decision-making. What this project will in fact deliver and cause others to deliver remains to be seen.

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Most regrettably and as I further anticipated Strategy ignores the need for a grand strategy designed to fix the serious, almost fatal, defects of the existing statistical data and data collection systems.  It does so in relation to random, systematic and systemic anti- Black racism and, for that matter, in relation to every other group whose members experience one or more of the three types of discrimination and are at the receiving end of hate crimes.

 

Such a strategy would have enabled us to study social problems of national or regional scope in a disciplined, intelligent and integrated fashion.

 

At the end of the day, Strategy issued or rather extended the current death warrant on framing a grand design towards the formulation, development and implementation of a national research strategy designed to generate comparable reliable, material and valid data with cumulative effect.

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Part VI: Looking forward

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The likelihood of improving the quality and scope of the police generated hate crimes data base, for example on the suggestions I made or for research being supported along the lines urged above, and are very slim.  This is so, and will remain that way as a result of the particular kind of crass and ignorant identity politics introduced by the government in 2015 and its ideologically less crass version of that which existed before.

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And I dare say that the chances of subsequent governments of different political stripes moving away from this politicisation are practically zero for the simple reasons that to deal otherwise with those minorities conditioned by this kind of politics would be electorally suicidal as well as highly divisive along regional and/or ethnic, religious, racial and possibly other lines. And such circumstances, in turn, may result in social agitation and unrest along and across these lines.

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Hence it is most unlikely that governments at all levels will:

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• fix all the serious shortcomings of the current hate crime statistics generated by police forces identified above;
   

• require the police to enlarge the scope of the data it collects by adding the items I identified; or
   

• for that matter, concede the urgency of conducting the kinds of research I described.
   

The fact of the matter is that, as to be expected, governments simply do not wish to be confronted with data or research results that may seriously impugn the validity and legitimacy of their policies and thus shatter their credibility.
 

For that matter, nor are governments anxious to fix or improve some data collection systems in those instances where  this may result in the disclosure of treacherous or discomforting facts which they suspect or fear and such facts of which they are already aware of, but wish to keep secret.

In the premises, the government will continue to fund projects of the safe kind such as those identified in the Annex of Strategy. While  the assessments of such projects will not brook the slightest admission of failure, their long term usefulness and impact , if any, will remain mostly, if not altogether, unknown.

 

The three monkeys

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It is then high time to open the eyes, to unblock the ears, to restore the tongues and to re-activate and repurpose the brains of the three monkeys to make sure that that the problem of anti-Black racism as indeed all race-based discrimination is dealt with more effectively than   has been the case to date.

 

 

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