Remarks by The Honourable R. Roy McMurtry Chief Justice of Ontario
April 19, 2007
I am indeed delighted to have been invited to address the annual dinner of the Urban Alliance. The Urban Alliance has played a vital role for many years in our community in the fight against racism and intolerance and in the promotion of respect for the individual and civility.
I would like to address you this evening in relation to issues of racism in the context of the administration of justice.
All of you who have gathered here this evening are obviously committed to your communities and I salute each and every one of you for your determination to make Ontario a better place to live, where we all can be truly proud to stand.
The reality of the diversity of our nation was really brought home to me in the early 1950’s when I worked for frontier college as a labourer teacher as an undergraduate at the University of Toronto. The job involved working on railway maintenance in remote parts of Canada ten hours a day, six days a week at hard labour with young immigrants who had recently arrived in Canada and teaching english during the evenings.
The pluralistic character of Toronto, Ontario and of Canada is, of course, fundamental facts of our nationhood and Canadians should take much pride in the fact that so many people of diverse racial, ethnic, cultural, and religious backgrounds have chosen and will continue to choose Canada as their home.
I have often stated that there are really two broad categories of Canadians, namely people like myself whom you might describe as Canadians by chance or accident, in that we were born here, and those Canadians who made the conscious and often difficult decision to choose Canada as their home. This choice often demanded great courage in facing the challenges of a different culture, language, and a sometimes hostile climate.
I therefore think more Canadians should reflect more frequently on the respect that is due to those who made that choice and who, in so doing, have helped make ours a truly remarkable country, despite our ongoing challenges.
However, it is most regrettable that this sense of respect is not shared by all of our citizens. Recent reports of the Canadian human rights commission have warned of an increase in racism in Canada. It is therefore required that each responsible citizen continue to commit himself or herself to strengthening the relatively fragile fabric of our pluralistic society. This is particularly important in times where there continues to be economic uncertainty for many of our fellow citizens despite the general economic prosperity. In such times, there are inevitably malevolent forces looking for scapegoats and which historically often focus on the newer, more vulnerable members of minorities whose cultures do not appear to fit the mainstream stereotype.
An occasion such as this provides an opportunity for us to reflect on the very term “race relations”. Why do I say that? For the simple reason that the very term “race relations” was not commonly employed and indeed generally avoided in Ontario as recently as twenty-five years ago. In this context, I recall visiting Britain as the Attorney General for Ontario. Part of my agenda was to investigate the initiatives undertaken in Britain in relation to the improvement of race relations. I was therefore a little surprised when the lord chancellor of the day said to me, “Mr. Attorney-General, in my view the best way to deal with race relations is not to talk about it”. That was an attitude not only prevalent in Britain but in Ontario as well.
This attitude was not founded on malice or even necessarily on gross insensitivity but was related to a traditional concern about self-fulfilling prophecies. It was, however, a major obstacle that had to be overcome. It would obviously be difficult to create a high level of community harmony if people were unwilling to face up to the issues. In any event, I subsequently became the chair of the first race relations committee of the Ontario cabinet.
We encouraged the creation of mayors’ committees on race relations throughout much of Ontario and as a result the various communities were encouraged to become involved in a meaningful way. A race relations division of the human rights commission was also created. On the law enforcement side, we gave special attention to the activities of such racist organizations as the western guard whose leaders were convicted and jailed. In an important case, the Court of Appeal agreed with our legal submissions that any assault that was motivated by racism should be treated more severely in sentencing. It was some years later before the Criminal Code of Canada was amended to reflect this principle.
I was able to persuade the Ontario cabinet that an official policy statement on race relations was required from the government of Ontario. The policy statement was developed and is still displayed in thousands of public places, including classrooms, throughout the province.
I was rather pleased that my activities and initiatives came to the attention of the Ku Klux Klan whose leader, visiting Toronto from Louisiana, delivered the following letter to my attorney general’s office:
This letter is in protest against your anti-white policies, which have been in direct opposition to the interests of the white Canadian population and indeed the white population of the North American continent.
Specifically, you have sought to destroy the sacred right of freedom of speech for white Canadians. Secondly, you have instructed your subordinates to apply the law unequally to white youths involved in racial incidents. Thirdly, you have betrayed your race and nation by your subservience to international Zionism and the state of Israel.
Take heed that your nefarious anti-white activities are being monitored and recorded by our international Klan movement. If you persist in your treacherous activities against the white race, I can assure you that there can only be grave consequences.
In the name of the white race
David Duke, Grand Wizard
While a climate of better understanding has developed in Ontario in recent years, there is still much work to be done, many challenges to be faced and much vigilance required.
At the same time, we must recognize that all the laws in the world and all the human rights codes, count for little if individual citizens are not prepared to make a personal commitment to tolerance, to understanding, and above all to fighting intolerance and bigotry at every opportunity.
My many years as a lawyer, Attorney General, and as Chief Justice of Ontario, have made plain for me this palpable truth: the law alone is not enough to protect those who are a different colour, or those who profess a different religion. The law will never be enough, by itself, because there is no legislature in the world capable of legislating ultimate principles. You cannot legislate to what degree a man must love his neighbour, nor even that he must not hate him. It is, I think, true of tolerance as it is of liberty, that, in the words of justice learned hand: “…it lies in the hearts of men and women; when it dies there, no constitution, no court, no law can save it; no constitution, no court, no law can even do much to help it; but while it is alive, it needs no constitution, no court and no law to save it”.
But merely because no law can stamp out discrimination, it is equally true that it will flourish the more for lack of any laws against its flourishing. And so I come to what I perceive to be the responsibility and challenge of the law — namely, to ensure that whatever prejudices may lie in the hearts of men and women, they are not translated into actions that offend the basic principle that except in self-defence it is wrong to hurt another person.
I am confident that our courts will continue to be committed to the re-examination and re-evaluation our institutions, practices, and procedures through the relatively new lens of multicultural fairness as illustrated by this passage from a decision of the supreme court of Canada:
Canada is not an insular, homogeneous society. It is enriched by the presence and contributions of citizens of many different races, nationalities and ethnic origins. The multicultural nature of Canadian society has been recognized in s. 27 of the Charter. Section 27 provides that the Charter itself is to be interpreted in a manner that is consistent with the preservation and enhancement of the multicultural heritage of Canadians. Yet our judges must be particularly sensitive to the need not only be fair but also to appear to all reasonable observers to be fair to all Canadians of every race, religion, nationality and ethnic origin.
In addition to their adjudicative function, courts at all levels have been hard at work administratively to ensure a more inclusive and sensitive justice system. Race relations training is now a major theme of judicial education. All courts in Ontario have societal issues committees which look at ways in which the courts can address the issue of racism and its perception in the context of the judges’ role in the administration of justice.
With respect to the composition of the bench, things are changing albeit at what may sometimes seem like a glacial pace. Even as recently as ten years ago, the number of women and minorities on the bench was minimal. Since then, the number of female appointments both federally and provincially has markedly increased. While there have been some minority appointments, their numbers still lag far behind what they should be if the judiciary is to become truly representative of our society.
However, with the increasing number of racial and cultural minorities in our law schools and in the profession, I am optimistic that in time the judiciary will come to truly reflect the diversity of the public which it serves. However, I also believe that it is crucial that this happen sooner rather than later because it is vital for all in our society, and most especially our young people, to witness minorities citizens excelling in every area of important human endeavour.
I would like to return more specifically to the subject of race relations in the broader community. As I stated earlier in my remarks, it was only twenty-five or thirty years ago that government and most in society were reluctant to talk about race relations. There appeared to be a widespread feeling that to talk about race relations would risk exacerbating or worsening racial tensions. This was clearly a very unhealthy situation and our current willingness to address these issues as a society has created a higher level of understanding.
In my view, the answers can only be provided by wide-spread community and individual commitment. I also recognize that the problems today are much more complex than the challenges that I faced, when I became the Attorney General for Ontario more than thirty years ago.
One of our major continuing challenges as a society in the fight for equality is the many employment barriers which still exist for our newer immigrants. These immigrants are more often than ever highly qualified professionals and business executives who do find equivalent employment in Canada very difficult. They have been encouraged to immigrate to Canada, with high expectations which are only two frequently disappointed. Many are lost to the United States where their skills are often more appreciated.
There is much rhetoric about the brain drain from Canada to the south because of higher salaries and lower taxes. It is therefore particularly both ironic and dismaying that a lack of equality of employment access has become a significant factor in the loss of some of our best minds.
All of us, as individuals, as corporations and governments therefore have a duty to create a level playing field for our newer immigrants if our nation is to continue to prosper and aspire to true greatness.
We also face the challenge of strengthening the unity of our country in all of its rich diversity. The past few years have been somewhat traumatic for Canadians as we reflect on the last referendum vote in quebec and the role of the bloc quebecois which demonstrates how cultural and linguistic differences possess the potential for division. Perhaps for too long, Canadians have taken our destiny for granted in assuming that one hundred and thirty-seven years of shared history and prosperity had somehow guaranteed a united and prosperous future. However, we are now beginning to realize that the future of no nation is guaranteed and that its individual citizens must strive to keep a nation united and strong. The simple fact is that the rich pluralism which gives Canada its special identity could lead to the break-up of the country if there is not a continuing concerted effort by all or at least the majority of our citizens to commit themselves to the strengthening our nation.
The continuing challenge for Canadians is therefore to accommodate our rich diversity in unity.
In conclusion, I am confident that Canada will continue to show the world new ways of achieving this goal. The drama is still continuing to unfold, and we cannot guess at its conclusion.
It is a drama of law, and of politics, and of commitment too. A commitment to something intangible – a spirit – something called Canada.
Let me end with the words of Professor Jacques Monet, a distinguished Canadian historian, and a Quebecois:
The challenge of brotherhood, of an experiment that bursts through the limits of nationalism to embrace men of diverse ways and diverse tongues, is what it means to be a Canadian. You see, it is not a question of economics or common sense; it is a question of the heart.