Monday, February 29, 2016

"Because it's 2015 !" Does Not Include the Right of African-Canadians to Equality - Why ?

     When Prime Minister Justin Trudeau was asked about his gender-equal cabinet he proudly proclaimed "because it's 2015" - signaling that the times have changed. Gone are the days when cabinets were dominated by men.  Mr. Trudeau's cabinet appeared sensitive to every group in the Canadian Mosaic except for African-Canadians.  Not a single person of African-Canadian background was appointed to Mr. Trudeau's cabinet.

     The mainstream media and the usual learned pundits were silent on this omission.  The burning question is why.  Why is it that such an obvious omission as excluding African-Canadians from representation in the Trudeau cabinet is capable of being unnewsworthy in 2015 ?  The simple answer is because our law permits it.  Rather than establish and promote a consistent jurisprudence in the area of racial discrimination and equality for all our law appears to be be content with a selective and piece-meal approach to adjudicating these issues in a manner that perpetuates this exclusion.  In the final analysis a society's laws generally reflect and mirror the society's values and ideals.

     The threat and social stigma of being branded a racist in Canadian society would appear to take precedence over the actualization of equality for African-Canadians.  Public pronouncements and announcements that suggest that "we are not racist" are the preferred antidote to combating this social ill.  Indeed, it is not uncommon for both individuals and institutions to shrug-off discriminatory conduct on their part with the allegation that the recipient of their inappropriate conduct is accusing them of racism.   Again, why is that ?  Where does this approach come from ?

     One source for this approach is the development or absence of development of our laws in this area. Although the elected legislatures in Canada have passed legislation prohibiting racial discrimination,  the adoption of the public policy articulated in these legislative enactments have not been well-received by the courts.  I have two sound reasons for this criticism.  Firstly, it must be recognized and acknowledged that these rights are not common law rights but are rights which arise from statutory enactments which our law makers have had to enact on account of the historical failure of the common law to address the issue.  Secondly, these rights must be adjudicated not from a common law perspective but from a perspective grounded in the jurisprudence flowing from the statutory bodies established to address them.  The call for direct evidence to support a finding of racial discrimination in 2015 is tantamount to the historical call for corroboration of a woman's claim of sexual assault.

     As Morden J.A. recognized in R  v.  Brown 2003 Canli 52142 (ONCA):  [44]  A racial profiling claim could rarely be proven by direct evidence.  This would involve an admission by a police officer that he or she was influenced by racial stereotypes in the exercise of his or her discretion to stop a motorist.  Accordingly, if racial profiling is to be proven it must be done by inference from circumstantial evidence.  This simple statement is true of all manifestations of racial discrimination - be it in the criminal justice system or in the workplace.

     However, this analysis is not applied when it comes to the adjudication of these rights - i.e. the right to be free against discrimination and harassment on the basis of race under the Code - with respect to the employment context.  In Johnson  v.  General Motors 2013 ONCA 502 the Court of Appeal overturned a trial judge's finding of constructive dismissal of an African-Canadian employee on the basis of racial discrimination finding, among other grounds, that there was no direct evidence of racism towards him by anyone. The following excerpts from the court's reasons in Johnson supra illustrate my point with respect to what appears to be an improperly weighted interest in the possible damage to the reputation of the perpetrator flowing from such allegations:

[4]   An allegation of discriminatory treatment in the workplace due to racism is a serious claim that implicates the reputational and employment interests of the claimant, as well as those of the alleged perpetrators.  It can also affect the dignity, self-worth and health of both the alleged victim and those accused of racist conduct.  An allegation of this type can reverberate for many years afte the incident or incidents in question, with potentially long-term consequences for call concerned.

[5]   No less serious are judicial findings of racially-motivated conduct in the workplace and a poisoned work environment due to racism.  Judicial consideration of an allegation of constructive dismissal based on alleged racism in the workplace requires careful scrutiny of and balanced attention to all the evidence relating to the allegation in order to determine whether it is more likely than not that the alleged racism occurred.

     There are countless legal points which I could raise about the manner in which the Johnson supra case was decided but that is not the subject of my post today on the close of what has come to be known as Black History Month.  My point is merely to highlight what I see as the answer to the question raised above.  In Johnson supra the legal obligation on the employer to provide a place which is free of discrimination and harassment is not mentioned in the decision.  Johnson's beef at the end of the day is that his employer failed to protect him from racial discrimination which resulted in an authorizied medical leave of absence and consequently amounted to constructive dismissal. The approach in Johnson supra is to be contrasted to Bannister  v.  General Motors where a longtime supervisor's dismissal for cause was upheld on the basis of the supervisor's failure to uphold the employer's anti-harassment policy. Here the court clearly recognized that the employer had a statutory duty to provide a harassment free workplace and that if the supervisor was involved in such conduct then he was not carrying out his managerial duty.  Poor Mr. Johnson was carrying his managerial training duties and Mr. Markov would not report to him.  The employer suspended Mr. Markov for five days only to later rescind it.  The trial judge found that "GM was "instrumental in having , Markov's 5 day period of suspension over-turned in an effort to influence contractual negotiations" with the union. He accepted Johnson's assertion that, in so doing, GM "traded away Johnson's human rights as a bargaining chip."

     The problem of racial discrimination against African-Canadians in Canada is beyond the status of requiring any further study.  Let us stop pretending that it requires more study and or it is a perception held by African-Canadians only.  It is 2015 - the notion that racial discrimination can only be proven by direct evidence is as outdated as the notion that she "asked for it."  Inequality in the workplace and in the courts transcends into inequality for African-Canadians everywhere in Canadian society.  We can do better as a society.  Let's try harder.  It's 2016 for God's sake !


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