Module 1: Introduction to Justice in Canada

In order to engage in a critical examination of justice, we need to have some fodder for discussion. Something we can test our ideas on. For this class, we will use the backdrop of Canada to test our discussion of justice. This then begs the question, what is Canada? There is a dominant narrative that Canada is a country of diversity, multiculturalism, and peace. A country of nature and beauty. This narrative is rooted in a selected reading of history that emphasizes the arrival of European settlers, who established a nation that extended ‘A Mari usque ad Mare’; or to translate Canada’s official motto into English, ‘from sea to sea’. A nation that was carved out of a northern and inhospitable land. This is a story of the English, the French, and the Indigenous peoples through whom the state of Canada was established. It is the story of a country forged by grand projects like a national railway rather than revolution like the neighbours to the south. But it is not defined by pacifism. It includes the heroism and sacrifice displayed in Vimy Ridge or Passchendaele.

It is also the story of a relatively young state playing a ‘good international citizen’ role in the world, ‘punching above its weight’ on issues of human rights and multilateralism. This has led to Canada being perceived as the 2^nd best country in the world to live according to the 2017 U.S. News & World Report. At home, this narrative highlights the legal entrenchment of diversity and inclusivity achieved through the Constitution and most notably the Charter of Rights and Freedoms. This part of the story highlights the achievements of same-sex marriage and women’s reproductive rights. And for all of this, people like former President Barack Obama argue that ‘the world needs more Canada’. But believing this narrative unquestionably ignores the darker side of Canadian history. If we are seeking to move ever closer to becoming a ‘good society’, we need to apply our ability to think critically. We need to confront issues of justice, and perhaps more importantly injustice, in our history and contemporary society. We need to ask questions about recognizing and addressing past wrongs. We need to ask questions of who is benefiting and who is not from contemporary political, economic, and social structures. We need to question the ‘maple washed’ history that is the dominant narrative taught in schools and portrayed in the media. This module will open this discussion by introducing the dominant narrative, looking at some historical examples that questions this narrative, and finally asks some questions of contemporary political, economic, and social structures in Canada.

The Canada that is described in many textbooks and that is dominant in media both at home and abroad is a very crafted narrative. This is not unique to Canada. It is common to all states, organizations, and even individuals. It is the face that actors want to show to the world. The modern Canadian narrative is relatively young. Prior to World War Two, the story of Canada was largely focused inwards. It is constituted by stories of taming a wild and inhospitable land. It details a history of political tension and eventual compromise between the French and British settlers as well as with the First Nations. It highlights the ‘founding fathers’, most notably Sir John A. Macdonald and Sir George-Etienne Cartier, and the process of Confederation.

It was a process of building a nation via a railway and negotiations with the colonial metropole in London. There are tales of heroism at Vimy Ridge in the First World War, where the four divisions of the Canadian Corps fought as one for the first time. However, it was the Second World War where the modern narrative of Canada began to form. For the first time, the Canadian Government exercise foreign policy independence, declaring war on its own, a week after the UK and France had done so. The scale of the Canadian commitment to the war effort in material and manpower was foundational to the Canadian identity. Over a million men and women served in the war. That is almost one in ten with nearly 44,000 casualties. At the end of the war, Canada had the third-largest navy in the world and the fourth largest air force. Canadian diplomats were active if not determinative in the formation of post-war institutions, particularly the United Nations (UN) and the North Atlantic Treaty Organization (NATO). Canadians fought in a UN force during the Korean War and exerted leadership in opposing French and British imperialism during the 1956 Suez Crisis.

This would mark the start of the ‘golden era’ of Canadian foreign policy defined by Liberal Internationalism. This narrative includes the internalization of ‘Canada as a Peacekeeper’ role, opposition to Apartheid South Africa, and supporting international initiatives like the Anti-personnel Landmine ban, the creation of the International Criminal Court, and perhaps most notably the ‘Responsibility to Protect’. At home, the narrative of Canada was influenced by this internationalism. Canadians have struggled with processing the question of who ‘Canada’ is. The period between the 1960s and the 1980s was significant in Canadian identity building. In 1965, the Canadian flag as we know it became official, with the Maple Leaf becoming the country’s symbol. In the 1960s, the idea of multiculturalism gained currency and became official policy in 1971. Between 1960 and 1978, debates waxed and waned on bringing home the Constitution.

The first referendum on Quebec sovereignty-association in 1980 created a window of opportunity for the Trudeau Government to patriate the Constitution with the addition of the Charter of Rights and Freedoms. The Charter enshrines individual rights and freedoms of Canadians in the Supreme Court of Canada.

From this, a domestic narrative has evolved that Canada is a country of discussion, compromise, and consensus-building. Canada is posited to be a country where diversity is a strength, where people have hyphenated identities as English-Canadian, French-Canadian, Chinese-Canadian, Indo-Canadian, et cetera. Canada is described as a cultural mosaic juxtaposed with the American melting pot. What has taken hold is a form of Canadian exceptionalism, a narrative imbued of humble superiority, of smug politeness. This narrative is supported by evidence as demonstrated by the statistics compiled by Macleans magazine for the country’s sesquicentennial. In 2017, US News & World Report ranked Canada number one in terms of quality of life. Canada ranks 8^th on the Global Peace Index. According to researchers at McMaster University, Canadian’s reputation for politeness holds true even in the most uncivil of formats, Twitter. According to the Legatum Prosperity Index, Canadians have the 2^nd best access to individual freedoms. Canada scores relatively high on measures of social mobility, immigrant integration, and gender equality. Health care and other social services, while lagging behind some European states, positively shines when compared to the US. The Canadian primary education system consistently ranks in the top 10 in the world and was 4^th in the last assessment in 2015. Moreover, according to the OECD, Canada ranks highly on the percentage of Canadians with advanced degrees. A Pew Research study argues Canada is the 3^rd most LGBTQ-friendly country in the world. Vancouver, Montreal, Ottawa, and Toronto all rank in the top 25 most liveable cities in the world according to the 2017 Mercer list. Further, the BBC has declared Toronto the most diverse city in the world. The OECD Better Life Index ranks Canadian air and water quality significantly better than comparative developed states. All of these statistics support a narrative of Canada as a ‘good society’ and hints at Canada being a ‘just society’.

The dominant narrative of Canada paints a rosy picture. As we have seen, it is portrayed as a country of diversity, inclusion, and peace. To its greatest boosters, Canada is the ‘city on the hill’, a model to be exported to the world. This is a position supported by a 2017 Ipsos Poll which puts Canada at the top of the list of countries exerting the most positive influence in the world. However, this crafted narrative adroitly avoids some darker aspects of Canadian history. Like all countries, there are a number of damning and even shocking examples of injustice in Canadian history. For example, in Alberta between 1929 and 1972, thousands of people ‘deemed mentally deficient or otherwise genetically inferior’ were sterilized as part of an official eugenics program.

Another example is the Chinese ‘head tax’ instituted in 1885. Chinese nationals were singled out to pay, first, 50$, and then 100$, and finally 500$ for each person wanting to come to Canada. It was put in place to discourage Chinese immigration and specifically intended to slow family reunification for the more than 15,000 Chinese immigrants that had undertaken dangerous work on the construction of the Canadian Pacific Railway between 1881 and 1885.

We could also discuss the forcible relocation of three Inuit communities from Northern Quebec to the harsh climates of the high Arctic in 1953 and 1956, undertaken to strengthen Canada’s claims of Arctic sovereignty.

Or there is the glaring fact that prior to 1929, women were not considered ‘persons’ under the law. It would take the advocacy of the ‘Famous Five’ to push the question through to the Privy Council in 1929 for women to be legally considered ‘persons’.

Another example is the indefinite imprisonment of Everett Klippert in 1965 as a ‘dangerous sex offender’ because he admitted to being gay. These, and many other examples, are all worthy of deep examination. However, we will look at two historical issues that question the overly rosy narrative of Canada: the residential school system and the internment of Japanese Canadians.

In 1942, the Government of Prime Minister Mackenzie King enacted the War Measures Act, interring 22,000 ethnic Japanese, many of whom were born in Canada. The justification for this move was national security, ostensibly to avoid a potential ‘5^th column’ in Canada’s war against Japan. Although it should be noted that all investigations into the reality of ‘enemies at home’ were found to be baseless. Some chose hard labour, building roads/railways or working on sugar beet farms. But the majority were relocated to government camps or abandoned mining towns in BC’s Slocan Valley. The camps to which they were sent were harsh, crowded, lacked basic necessities such as running water and electricity.

Adding insult to injury, the government confiscated their property and possessions in order to pay for their own internment. At the end of the War in 1945, the internees were given the choice of resettling outside of BC or signing up for voluntary repatriation to Japan without restitution for seized assets. Most chose to move east but Ottawa did begin the process of involuntarily deporting up to 10,000 Japanese Canadians. In the face of domestic opposition, PM Mackenzie King did relent but upwards of 4,000 people were sent back to Japan. It wasn’t until 1949 that Japanese Canadians were allowed to return to the West Coast. In the 1960s, the attitude of the Government of Canada began to shift. Prime Minister St Laurent had stated in 1961 that the forcible internment of the Japanese was the right decision.

However, by 1964, Prime Minister Pearson would argue this was a black mark against Canada’s principled position and tradition of supporting human rights.

Finally, in 1988 the Mulroney Government offered the surviving individuals affected by the internment an official apology and 21,000$. This Japanese internment affair was a product of an officially sanctioned anti-Asian racism, rooted most deeply in BC but prevalent in Canadian society. In sentiments that echo some contemporary global immigration debates, the white settler population in Canada saw Asian immigration as a threat to their jobs and quality of life. Asians were denied access to unions and were forced to take less desirable jobs for less pay. They were denied the right to vote, the right to hold public office, and the right to work as public servants. In 1887 and 1907, Asian neighbourhoods in Vancouver were subject to violent anti-Asian riots.

Various restrictive anti-Asian immigration policies had been imposed such as the previously mentioned ‘head tax’ imposed to curb immigration from China in 1885 or the 1907 Order-in-Council which banned Indian immigrants. An informal agreement was reached with the Japanese government to slow immigration in 1907 as well. Restrictions against Asians began to wane at the end of the 1940s with Chinese and South Asian Canadians gaining the right to vote in 1947 and Japanese Canadians in 1949. However, while legal obstacles might have been removed, more informal obstacles have remained and are far more difficult to overcome. For example, polling in 1994 indicated a majority of Canadians believed immigration was too high, specifically identifying visible minorities including Asians. In 2017 polls indicate 26% of Canadians still believe immigration levels are too high. Before applying this history to a discussion of Canada as a ‘good’ or ‘just’ country, let us look at one more example, the history of the residential school system.

Residential schools were a product of collaboration between Christian churches and the Canadian government. Their purpose was to assimilate Indigenous children into the European settler culture. While the earliest schools were established by the Récollets and later the Jesuits in New France between 1620 and 1680, these early efforts were largely unsuccessful due to the enduring autonomy of First Nations. However, beginning in the 1830s, Roman Catholic, Methodist, and Anglican residential schools became more firmly entrenched. Following Confederation in 1867 and the implementation of the Indian Act, the education of Indigenous children became a responsibility of the Federal Government. Many First Nations initially welcomed access to this European education as a means to provide their children with greater opportunity in the increasingly settler-dominated economy. While these Christian-run schools did work with the government to provide some economic-based skills, they also, and many argue primarily, sought to convert Indigenous children and aggressively assimilate them into Canadian society. It was believed that children were more receptive to such assimilation than adults. The residential school system began in earnest in 1883 with the establishment of three industrial schools in the prairies.

At the height of the program in the 1930s, there were over 80 residential schools, primarily located in the western provinces and territories but also in northern Ontario and Québec. In total, there were 130 schools in every province and territory with the exception of Newfoundland, New Brunswick, and Prince Edward Island. These schools were church-run, government-funded, and focused on an industrial education – not quite what the First Nations had envisaged in the 1870s.

As many Indigenous children did not live in communities with access to day schools, they were forced to live in boarding or residential schools. Students at these schools had few opportunities to return home. Communication with family back home was strictly conducted in English even though most family members couldn’t read. Most students lived at the school for 10 months of the year and some lived there all year. Life at these residential schools was harsh. The practice of Indigenous traditions and language was strongly discouraged. Punishment for disobeying the rules was severe. Living conditions were abysmal, food sub-standard, clothing inadequate, and emotional, physical, and sexual abuse were common. Moreover, in a few cases, it has been documented Indigenous children were used for experimentation, like nutritional experiments performed on malnourished Indigenous children in the 1940s and 50s without parental consent. Many children resisted assimilation, refusing to cooperate with authority figures, and many others tried to run away. In total, approximately 150,000 children went through the residential school system and many died. The number of deaths attributed to disease due to malnourishment, from abuse as well as from exposure to the elements when trying to run away is impossible to count. The Truth and Reconciliation Commission documented 3,200 deaths but the head of the commission, Justice Murray Sinclair, argues it is more likely closer to 6,000 and perhaps much more. This maltreatment and these deaths pose a striking condemnation of the residential school system. But perhaps its most pernicious influence has been how the residential school system broke familial bonds, contributing to intergenerational trauma. Children grew up without knowing their traditions, without pride in themselves and in their people. Parents lived with forced separation from their children and the implication that they were unfit to raise them. Residential school survivors often lacked the role models of what it meant to be a father, mother, brother, or sister. This absence of traditional structures and role models in combination with abuse and internalization of shame has severely undermined the ability to heal in many communities. This in turn has contributed to the intergenerational impact of residential schools. In the next section, we will look at contemporary issues with the Canadian narrative, including some of which have been a result of such intergenerational trauma.

In section one of this module, we looked at the crafted narrative of Canada. In section two we looked at two prominent historical examples which question this narrative. In trying to reconcile these two narratives, some have argued that the darker aspects of Canada’s past are just that – the past. That while we need to recognize and address past wrongs, this is now the country of the Charter of Rights and Freedoms, of diversity, and inclusion. That racism and inequality do exist, but that these are not the dominant values of the majority of contemporary Canadians. In this section, we will assess indicators of equality in contemporary Canadian society. At the broadest level, equality can be measured by the distribution of wealth in society. Since the 1980s, income inequality has risen in Canada. The two richest billionaires now control more wealth than the bottom 30% of Canadians, roughly 33 billion dollars. The richest thirty-three men in Canada own 112 billion dollars. Between 1988 and 2011, the poorest 10% of Canadians only saw their average incomes increase by 65$. The average increase of the top 1% on the other hand has been 11,800$.

However, these measures of inequality do not tell the whole story since inequality impacts different segments of society in different ways. In Canada, it matters if you are white or a person of colour, a man or a woman, or even the city/province where you were born. Let us take gender for example. Canada may have a gender-balanced cabinet because, as Prime Minister Justin Trudeau argued, “it’s 2015”.

But all of those 33 richest Canadians are men. In the workplace, women still face significant barriers to equity. Full-time working women’s yearly earnings are 74.2 cents for every dollar made by full-time working men. When accounting for differentials in working hours, that gap is still 87.9 cents for every dollar made by men.

A glass ceiling between middle management and upper management is still apparent in Canada with only 12% of women holding seats on TSX-listed companies. Further, only 29% of these companies have at least one female director. Inaccessible child care exacerbates the problem since women are disproportionately responsible for child-rearing. Other societal measurements also highlight gender inequality. In terms of political representation, 2015 was a record for Canada with 88 women being elected to Parliament. But this still only represents 26% of total seats. Women are also more susceptible to gender-based violence with women accounting for 56% of all violent victimization and young women are 1.9 times more likely to be victimized than young men. Beyond gender, another vector of inequality is geography. If you are born in central AB, southern SK, southwestern ONT, or urban centers like Vancouver, Calgary, and Toronto, it is statistically probable you will exceed the income of your parents. Whereas, if you are born in places like MB, excluding Winnipeg, coastal BC, and more remote communities it is more likely you will fail to do so. Another indicator of inequality is ethnicity and especially being a visible minority. In 2016, 22% of Canadians identified as being a visible minority. The total income of visible minorities is on average 26% lower than non-visible minorities. The situation is more problematic for recent immigrants who make on average 37% less. According to an Ipsos poll in 2017, 25% of Canadians say they experienced racism which is an 8% increase since 2005. However, the same poll shows that more Canadians believe that racism is less of a systemic problem.

The juxtaposition between these two data points, to a degree, highlights the disconnect between how the majority of Canadians understand the national narrative and the prevalence of inequality and injustice in Canada.

However, the most damning statistics pertain to the quality of life for the Indigenous peoples in Canada. For example, Indigenous peoples in Canada earn 60% of the national average median income. Compared to the national average, Indigenous people are: 2.1 times more likely to be unemployed; 6.1 times more likely to be murdered; 10 timed more likely to be incarcerated; 2.7 times more likely to drop out of school. Infant mortality rates are 2.3 times the national average. However, perhaps, the most disheartening statistics surround the suicide rate in First Nations communities. Suicide and self-inflicted injury is the number one cause of death for First Nation’s people under the age of 44. In 2016, on the Attawapiskat First Nation Reserve, 11 people tried to commit suicide in one night. This was on top of the 100 attempts made over the previous 10 months. And Attawapiskat is neither unique nor alone. In the Pimicikamak Cree Nation community in northern Manitoba, six people had committed suicide over 3 months and more than 150 were on suicide watch. On the whole, young indigenous men are 10 times more likely to commit suicide than their non-indigenous counterparts and for young indigenous women, it is a staggering 21 times more likely.

This last statistic highlights the importance of intersectionality. As discussed earlier, gender is a vector of inequality for all Canadians. But it is even more prevalent if you are female and a person of colour. For example, take the statistics surrounding the case of Murdered and Missing Indigenous Women. Between 1980 and 2012, nearly 1200 women and girls have been officially identified as murdered or missing. Indigenous women’s groups place this number at over 4000. Indigenous women are 3.5 times more likely to be victims of violence and their homicide rate is 7 times the rate of non-indigenous women. Indigenous women also face higher rates of poverty, unemployment, and access to social services. These statistics are deeply tragic. Explanations that seek to understand such tragedy point to issues of racism, underfunding of First Nation schools, health and public services, as well as the condition of so many First Nation reserves. For example, when the Guardian newspaper interviewed a 16-year-old Indigenous girl named Katrina, she said she has contemplated suicide. She spoke of the stigma attached to being aboriginal, that people called her a ‘freeloader’ and a ‘dirty Indian’. She felt she was being judged for being Indigenous. In terms of the underfunding of education and social services, it is argued such practices have created a fertile environment for the tragic outcomes discussed above. For example, TD Bank argues the government has under-funded on-reserve education, where they only get 70 cents for every dollar spent on non-indigenous schools. This has resulted in on-reserve high schools lagging an average of two grades compared to their urban counterparts. Similarly, government reports have recognized chronic underfunding for on-reserve social services and health care. Without comparable investment in education, health care, and social services, how are First Nation children expected to overcome barriers to success that are on average much more significant than faced by non-indigenous children? Take, for example, the reserves themselves with many in desperate conditions. More than 100 First Nation reserves lack appropriate housing, electricity, or running water. Of these communities, 90% are on a boil water advisory. These statistics mean that a large proportion of Indigenous people are living in conditions of abject poverty. The question is, how can these statistics be reconciled, if at all, with the narrative of Canada as a ‘good’ and ‘just’ society?

This course seeks to explore issues of justice and injustice in politics and law. In order to do this in a meaningful way, we need to think deeply about the practical implications of these issues. One means to do this is to look at what is happening here in Canada. To this end, this module has introduced three different ways to look at Canadian society and whether Canada is a ‘good society’ and a ‘just society’. The dominant narrative is of ‘Canadian exceptionalism’, of this being a country of diversity and inclusion. That this is a model to be emulated. However, historical examples of Canada’s residential school system or of Japanese internment camps suggest a counter-narrative that questions this position. When we look at contemporary statistics on life in Canada, more questions are raised. These statistics raise questions of income inequality, gender inequality, and most tragically, the state of life for many Indigenous peoples living in Canada. All three sections of this module tell ‘a’ truth. There is truth for some Canadians that this is an exceptional country that has done exceptional things. There is also truth in that there are deeply troubling aspects to Canadian history. And there is also truth in the argument that the dominant narrative of Canadian exceptionalism is not being experienced equally by all the peoples in Canada. As we go forward in this course, these questions will provide a tangible backdrop to discuss ‘what is justice’ and ‘what is injustice’ in politics and law.

The dominant narrative of Canada is constituted by stories of taming a wild and inhospitable land. It details a history of political tension and eventual compromise between the French and British settlers as well as with the First Nations. It was a process of building a nation via a railway and negotiations with the colonial metropole in London. It is a narrative of Canada coming of age in the Second World War. Of a small but internationalist state. At home, the Canadian narrative embraces diversity, inclusivity, and dialogue over debate.

All states have a dominant narrative. This narrative often excludes things that highlight shameful practices. But if we ignore our shameful historical practices, we cannot honestly discuss what is a just society. If we do not take ownership of our past, we cannot be stewards of our future. We may repeat past mistakes, or we may try to live up to an idealised vision that is unattainable. For Canada, the internment of Japanese Canadians and the history of residential schools are examples of shameful historical practices. If we do not account for them, we cannot move forward on building a just and ‘good society’

Following Confederation in 1867 and the passing of the Indian Act, the Canadian government became responsible for First Nation education. What emerged was a system of church-run, government-funded industrial schools. Since many First Nation children did not live in proximity to day schools, up 15,000 children would have to relocate and live in what would be later called residential schools. However, the intention of the schools went beyond offering education. They sought to aggressively assimilate children into the settler state. The government felt this was a means to address the ‘Indian problem’. The practice of Indigenous traditions and language were strongly discouraged. Punishment for disobeying the rules was severe. Living conditions were abysmal, food sub-standard, clothing inadequate, and emotional, physical, and sexual abuse were common. In total, approximately 150,000 children went through the residential school system and upwards of 6,000 children died in the process.

Income inequality is an important measure of justice in society. It can tell us about how wealth is distributed in society. It can tell us how changes to policy impact that distribution. But it also important to look at how different segments of society are impacted by other forms of inequality. For example, it is one thing to see the curve of wealth distribution in the country. But it is another to look at how gender or ethnicity is determinative in what part of the curve people find themselves on.

Intersectionality refers to the cumulative impact of the interconnected aspects of humanity. For example, it is one thing to be poor. It is another to be poor and a woman. It is still another to be a poor woman who is also a person of color. These are different configurations which will be determinative of how one experiences social structures. It is important to note that each of these characteristics are intrinsic to the person and define how they may experience different types and levels of injustice and oppression.