Kadah—failure to consider relevant evidence

Kadah v. Canada (MCI), 2010 FC 1223

Issued: December 3, 2010

Presiding: Justice O’Keefe

For the Applicant: Michael F. Battista

For the Minister: Amy King

This case was a judicial review of a finding that the Applicant, a homosexual Arab Israeli, was not a refugee on the basis that there was sufficient state protection in Israel.

There was no question of the Applicant’s credibility, or that he had faced violent persecution. However, the Board found that Israeli law enforcement would have been willing and able to protect him, and the fact that he was rebuffed the only time he sought help was not a good enough reason for him to have not continued to seek help.

Justice O’Keefe recognized the presumption of state protection, particularly in democratic countries, but also notes that “…democracy alone does not ensure adequate state protection and the Board must consider the quality of the institutions providing that protection (see Katwaru v. Canada (Minister of Citizenship and Immigration) 2007 FC 612 at paragraph 21)” (para. 39).

While the Applicant’s single negative experience with he police was not sufficient to rebut the presumption of state protection, the Board had before it documentary evidence of similarly situated individuals who also were unable to access state protection. While the Board is presumed to have considered all evidence put before it, “where there is important material evidence that contradicts a factual finding of the Board, it must provide reasons why the contradictory evidence was not considered relevant or trustworthy” (para. 43). The Board stated that “‘there is no evidence to suggest that police are not responsive to or fail to investigate complaints by members of the Arab community’” (para. 45), when in fact there was “extensive documentary evidence before the Board regarding Israeli police violence and intolerance towards Arab Israelis and Palestinians” (para. 46). The Board also found that “‘there is no evidence of persecution in Israel based on sexual orientation and, in fact, there are specific laws prohibiting discrimination on such a basis’” (para. 47), which contradicted with the Board;s finding that the Applicant’s testimony of his experiences was credible, as well as documentary evidence of persecution (paras. 48-49).

JUDICIAL REVIEW GRANTED

Gurshomov–failure to consider relevant circumstances on deferral

Gurshomov v. Canada (MPSEP), 2010 FC 1212

Issued: December 1, 2010

Presiding: Justice Phelan

For the Applicant: Aviva Basman and Jennifer Egsgard, Refugee Law Office

For the Minister: Laden Shahrooz

The Applicant entered Canada with her husband and children in 2003. Their refugee claim was denied, and an H&C application was filed in May 2004 by the husband (para. 2). In 2008, the Applicant separated from her husband and filed and H&C in her own case. This H&C was denied in February 2009, concurrently with a PRRA denial. The Applicant understood that she had received a negative PRRA, but did not understand that the H&C was also denied (paras. 3-4).

Counsel and the Applicant checked the CIC case status website in April 2009 and it stated that there was an H&C pending. Since the husband’s H&C had been denied earlier that year, they took the status to mean that the Applicant’s H&C was still pending. Furthermore, they contacted CIC, and were told that the H&C was still pending and that progress required the payment of fees. As instructed, the fees were paid and further submissions were made on May 8, 2009, followed by additional submissions on May 28 and July 22, 2009 (paras. 5-6).

On July 24, 2009, the Applicant requested a deferral of removal on the basis of the “pending” H&C, which deferral was requested August 14, 2009 (para. 7).

Only on March 25, 2010 was the Applicant made aware of that the H&C had, in fact, been denied in February 2009—she was informed in the context of a removal itinerary (para. 8). She filed a third H&C and shortly thereafter requested another deferral, which was denied. The request was made in part on the risk to the Applicant and her children if returned to Israel where her abusive husband now lived. The Officer focussed on the ability of the children to adjust to the move, and did not address a custody order in favour of the Applicant nor the evidence that it would not be respected in Israel (paras. 9-12).

The Court noted the timeliness of filing and status of an H&C were relevant factors (para. 15). The Court stated that the Officer should have considered the circumstances of the late filing of the third H&C, as well as the fact that because of the miscommunication from CIC, the evidence on the personal risk to the Applicant, addressed only in the submissions which in fact post-dated the refusal, had not been considered (paras. 13-17). The Court held that this was an instance where the Officer failed to address relevant considerations (referring to Simoes) and where “special considerations” were also present (referring to Baron).

JUDICIAL REVIEW GRANTED

Huang–lack of procedural fairness in renewing a temporary residence/study permit

Huang v. Canada (MCI), 2010 FC 1217

Issued: December 2, 2010

Presiding: Justice Phelan

For the Applicant: Mario Bellissimo

For the Minister: Nicole Paduraru

The Applicant was a student from Taiwan who had been in Canada on temporary status since 1997 when he was 12 years old. The judicial review was of the denial of his most recent request for an extension of his temporary resident permit and study permit.

The Applicant had been under permit from 1997 until July 2005, when a request for extension was denied for the first time. Attempts to renew were made, one pursuant to a different quashing order, finally resulting in a renewal in May 2008 until October 2008. The Respondent asserted, but the evidence was not clear, that in May 2008 the Applicant was told that when that permit expired he would have to leave Canada and re-apply outside the country (paras. 2-4).

The Applicant was in fact granted another extension until August 2009, which was accompanied by a written warning that it was “expected” that he would leave Canada upon expiry, but making reference to re-application procedures both from inside and outside Canada. An extension request made before the expiry of that permit was denied, ostensibly because the Applicant had been told he must leave Canada twice and had not complied (paras. 5-6).

The Court found that the “reasons in this case are inadequate because of a) factual error, and b) non disclosure of a key rationale for the decision” (para. 13).

The Officer relied on the Applicant twice failing to comply with instructions to leave Canada, but the evidence did not establish the first caution, and the second “is of dubious nature” (paras. 14-16).

The Respondent Minister also sought to bolster the Officer’s reasons with an additional, and unsupportable rationale:

[18] Further, the “reasons” advanced by the Respondent were said to be contained in the FOSS notes. However, in reply to the Applicant’s affidavit in this matter, the Respondent filed an affidavit of the Officer which in part further explains the reasons for decision. This alone is improper but the Applicant was prepared to live with this procedural faux pas.

[19] The reason for the Applicant’s position is that the affidavit contains further reasons for the decision not previously disclosed. The most critical of which is the Officer’s assumption that the Applicant could leave Canada and reapply from another country – the U.S.

[20] Not only was this assumption or rationale not part of the “reasons”, it ignored the restriction on entry into the U.S. imposed on citizens of Taiwan, particularly those with no status in the outgoing country. This is not a simple case of swinging by Buffalo and dropping off one’s application. The Officer failed to consider that the Applicant would have to return to Taiwan and the consequences thereof.

The Court found that the precise nature of the breaches of procedural fairness did not need to be determined, since it was clear that there were such breaches (paras. 17 and 21).

The Applicant requested but was denied costs.

JUDICIAL REVIEW GRANTED

Kaur – failure to consider all evidence on H&C

Kaur v. Canada (Citizenship and Immigration), 2010 FC 805

The applicant was a widow in her seventies who had moved to Canada to be with her children after the death of her husband. The decision under review was to not grant her permanent residence from within Canada on H&C grounds.

In his reasons, the Officer had stated: “I do not believe that this person would suffer an unusual, undue or unwarranted inconvenience if she had to file her application for permanent residence from abroad as is provided for by the Canadian Immigration Act. The difficulties she will face will flow directly from her wish to remain illegally without the proper documentation in Canada; it is as simple as that.” (para. 17, emphasis added)

Justice Bedard relied on Hinzman v. Canada (Minister of Citizenship and Immigration), 2010 FCA 177 and found:

[18] The officer reached his conclusion on hardship on the basis of one consideration only: the hardship that she might suffer is the result of her own action. He did not address the question of whether the hardship would “have a disproportionate impact on the Applicant due to her personal circumstances”. I am of the view that the officer failed to address the Applicant’s personal circumstances which were central to her H&C application. The immigration officer has discretion as to the weight to be given to the personal circumstances raised by an applicant, but he cannot fail to have regard to the applicant’s personal circumstances.  

Furthermore, the Officer failed to provide adequate reasons.

Judge: Bedard

Date decided: August 5, 2010

Counsel: Andrea Snizynsky (for the applicant), Thi My Dung Tran (for the Minister)

Zemo – PRRA refusal errors on new evidence and no hearing

The applicant, a female former refugee claimant from Eritrea, made a pre-removal-risk-assessment application on the basis that she was a member of the Eritrean Liberation Front and a member of an unregistered church, and as such would be at risk if returned to Eritrea. Both grounds had previously been advanced and rejected. She also made a third, new argument, that she would be at risk as a returned refugee claimant.

The Officer rejected the evidence that the applicant was a member of an unregistered church, despite evidence submitted by the applicant:

[17] In the present circumstances and reading the decision as a whole, the Officer’s decision could only stand if the Applicant’s evidence of membership was not believed. There was more than sufficient evidence as to the risk to members of unregistered churches and there was sufficient evidence, if believed, to establish the Applicant’s membership in that type of church.

[18] Therefore, the Officer, having decided the issue on credibility, failed to consider whether a hearing should be held. The Applicant is not entitled per se to a hearing but the Minister is required to consider whether to have a hearing. In that respect there was an error of law because the Officer never turned her mind to that issue. …

The Officer also failed to properly consider the ground of being a returned refugee claimant, which was not raised before the RPD.

Judge: Phelan

Date decided: August 4, 2010

Counsel: Micheal Crane (applicant), Daniel Engel (Minister)

Diaz – refugee board fails in credibility analysis

Diaz v. Canada (Citizenship and Immigration), 2010 FC 797

In a case of a family from Colombia, Justice Zinn found that the RPD’s decision on negative credibility could not stand. The principal applicant testified that she could not be sure if the agents of persecution were FARC or a drug cartel, but this was not relevant to an assessment of risk under s. 97 (para. 19). The Board could have found her testimony regarding the murder of her husband’s co-worker to be not relevant, since she was not sure of the perpetrator, but the Board was wrong to call this “embellishment” (para. 20). The Board also made several straightforward factual errors, which while not reviewable in and of themselves, “cast some doubt on the thoroughness and accuracy of the Board’s assessment in its totality” (para 21). The Board focussed on whether or not FARC was targeting the applicants, to the exclusion of a complete analysis of the case and the risks. The Board also erred in finding there was an IFA to Colombia. Finally, the Board relied on cases and on the argument that the applicants were exposed to generalized risk, but failed to make an explicit finding of generalized risk.

Judge: Justice Zinn

Date decided: August 4, 2010

Counsel: Jack Davis for Applicants, Ladan Shahrooz for Minister.

Gingrich abuses history on Cordoba House issue

As carefully explained at Got Medieval:

Professor Newt's Distorted History Lesson

Newt Gingrich’s claims about how the proposed Cordoba House (or “Ground Zero Mosque” as it is often erroneously called) is named after a massive symbol of Muslim imperialism is so very, very wrong.

(Not mentioned in the post, although raised in the comments, is that the Cordoba mosque is currently a symbol of Christian imperialism, having been catherdralized after the Reconquista.)

Ladies and Gentlemen, Stephen Fry

A brilliant, brilliant commentary on gender identity and the Will/Jack debate by the always engaging Mr. Fry:

There was a time when polari and Julian and Sandy and limp-wristed mincing and winking innuendo were all that came between a certain kind of gay man and his pride, his self-respect and his ability to hold his head high in a hostile world. Read Quentin Crisp’s The Naked Civil Servant or watch John Hurt’s glorious portrayal. It is not the only way for a gay man to be, no one is saying it should be, but it is a wholly proper and acceptable manner (not to mention an often loveable and witty one) and to see it traduced with superiority by the very people who should be supporting and endorsing it sickens me.

Read the whole thing here.

Judge geeks out—AWESOMELY—in Gaiman v. Mcfarlane

From the always fantastic Hijinks Ensue, a fragment of today’s excellent comic:

Go see the whole thing: Let your geek gavel fly

Good news, if true: Israel to cooperate with UN probe

From the Beeb: Israel to co-operate with UN probe into Gaza flotilla

Three cheers for a strong judiciary

I was all prepared to get huffy when this came up on my RSS feeder:

Judging the judges

Is the Supreme Court becoming a threat to parliament?

The article is not anti-judge, as I’d feared, but rather about a strong (activist?) judiciary being a necessary bulwark against a strong executive and a weak legislature. I, of course, always prefer a strong judiciary (assuming they are also competent and just) because I have a deep-seated antipathy for tyranny of the majority and in the face of the decline of the upper houses, the judiciary remains our only chamber of sober second thought. Granted the nobility of the House of Lords has always struck me as quaintly outdated, but I am a firm supporter of the Double-E senate: equal and effective, yes, but certainly not elected. Because an elected Senate, like an elected judiciary, would simply be another tool of the majority and could not be depended upon to protect the minority, responsible as they would be to their constituents.

As for our senate, I’ve always felt it unfairly maligned. Sure it gets stacked be every sitting government, and granted it doesn’t do much in the way of making, as opposed to breaking laws, but it does important work in vetting legislation and studying it, so I don’t think it’s outlived its usefulness yet. On top of which, their decor is awesome:

Federal Court Key Quotes: Failure to Consider Evidence

Courtesy of Justice Russell in Champagne v. Canada (Citizenship and Immigration), 2009 FC 1204

[26] Not having regard for the totality of the evidence is an error of law. See Toro v. Canada (Minister of Employment and Immigration), [1981] 1 F.C. 652, [1980] F.C.J. No. 192. A claim in which the basic facts have been misconstrued should be set aside. Indeed, the Court has held that misconstruing evidence that forms the basis of the claim is a fundamental error. See Adamjee v. Canada (Minister of Citizenship Immigration), [1997] F.C.J. No. 1815. Moreover, a failure to mention facts that are a basis for the claim also constitutes a reviewable error. Fainshtein v. Canada(Minister of Citizenship and Immigration), [1995] F.C.J. No. 941. The Applicants cite and rely on many cases in which a decision has been set aside based on a misapprehension of the facts. See, for example, Mbiya v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1001 and Thambirasa v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 205.

Afanasyev - inadmissibility for espionage, no need for formal relief submissions

Afanasyev v. Canada (Citizenship and Immigration), 2010 FC 737

Decision by de Montigny granting judicial review of inadmissibility under s. 34 (and refusal to grant Ministerial relief under s. 34(2)).

The Applicant served in the Soviet military from 1985 to 1987, and reported on radio transmissions; he was declared inadmissible under 34(a) and (f), namely:

engaging in an act of espionage or an act of subversion against a democratic government, institution or process as they are understood in Canada;

…or being a member of an organisation that did so.

Justice de Montigny found that the officer’s findings on what, exactly, the Applicant did were problematic on multiple fronts. First, the officer cited both the CSIS explanation of what the Applicant allegedly did and the Applicant’s description, without dealing with discrepancies between the two accounts. Furthermore, the decision was predicated on the officer’s understanding of “espionage”, but nowhere is that understanding explained. (paras. 32-34)

Justice de Montigny also found that the officer failed to consider Ministerial relief under s. 34(2) on the sole ground that there were not formal, separate submission on relief; there had clearly been a request for relief to be considered, and there was relevant evidence on the record (paras. 38-42)

Singh (Yadwinder) - requirement for a passport to be landed

Singh v. Canada (Citizenship and Immigration), 2010 FC 757

Decision of Justice de Montigny. The Applicant sought declatory relief and mandamus, where Citizenship and Immigration Canada had refused to confirm his status as a permanent resident because he did not personally have his passport available. He did not have his passport because it had been seized (the Applicant had a receipt) and appeared to have been lost. The Applicant faced the following catch-22: without a passport he could not regularize his status, and without regularized status he could not obtain a new Indian passport (paras. 5-6). When he did obtain a passport, his clearances had expired. When he received new clearances, a new inadmissibility issue arose. The Applicant successfully argued that he should have been landed in 1998, and that subsequent issues could not therefore bar his landing.

Sandhu - skilled worker - officer must seek clarification

Sandhu v. Canada (Citizenship and Immigration), 2010 FC 759

A decision of Justice Mandamin allowing judicial review on a refusal of a skilled worker application by Canadian High Commission, New Delhi.

On the on hand, "a Visa Officer is not obliged to notify applicants of inadequacies in their applications" (para. 25)

However:

[33] When a Visa Officer has a doubt which has no foundation in the facts and the Applicant puts her best foot forward by submitting a complete application; the Officer should seek clarification to either substantiate or eliminate the doubt. Without seeking clarification, the Officer was in no position to do either.

Hinzman -- FCA Decision on H&C for war resisters

CanLII - 2010 FCA 177 (CanLII):

Key Quotation:

[39] My conclusion should not be seen as altering the discretion of
officers making decisions on section 25 applications, nor as giving the
appellants a “right to a particular outcome or to the application of a
particular legal test” (Suresh v. Canada (Minister of Citizenship and
Immigration), 2002 SCC 1 (CanLII), 2002 SCC 1; [2002] 1 S.C.R. 3).

[40] However, the H&C Officer had the duty to look at all of the
appellants’ personal circumstances, including Mr. Hinzman’s beliefs and
motivations, before determining if there were sufficient reasons to make a
positive H&C decision (ibidem, Chapter 5, section 11.3). She did not. Had
the Applications Judge addressed the appellants’ ground of complaint, as stated
at paragraph 57 of his Reasons, I am convinced that he would have concluded as I
do and found that the H&C decision was significantly flawed and therefore
unreasonable.

[41] Consequently, I propose to allow the appeal and,
rendering the judgment that the Federal Court ought to have rendered, I would
set aside the decision of the Officer denying the appellants’ H&C
application and I would refer the application back for redetermination by a
different officer in accordance with these reasons.

David Mitchell on burqas

If Britain decides to ban the burqa I might just start wearing one | Comment is free | The Observer

I love this man.

The CNN/Twitter/Hezbollah Debacle

CNN, Twitter and Why Hiding Journalists’ Opinions Is (Still) a Bad Idea - Tuned In - TIME.com

James Poniewozik has a good piece on this on his blog at TIME. My favourite part, though he doesn't pick up on it, is that when he queried CNN about their reasoning they said (and actually Nasr herself said):

It was an error of judgment for Octavia Nasr to write such a simplistic tweet about the death of Sayyed Mohammad Hussein Fadlallah.

Such a simplistic tweet? It was a tweet, for God's sake. 140 characters.

Anyway, that's leaving aside the whole problem of firing a journalist for expressing respect for a single newly-deceased leader of Hezbollah. The sooner the world accepts that both Hamas and Hezbollah are political entities that provide social services and back elected members of governments, the sooner they will have the momentum needed to end their violent activities. They, or perhaps more specifically the moderates within those parties, need an incentive to demilitarize. Having vapours every time they are mentioned in a non-terrorist capacity does not facilitate their rehabilitation.

Federal Court - Zaatreh v. Canada (Citizenship and Immigration)

Federal Court - Zaatreh v. Canada (Citizenship and Immigration)

Federal Court - Golbom v. Canada (Citizenship and Immigration)

Federal Court - Golbom v. Canada (Citizenship and Immigration)

Federal Court - Osegueda Garcia v. Canada (Citizenship and Immigration)

Federal Court - Osegueda Garcia v. Canada (Citizenship and Immigration)

Federal Court - Aguinaldo v. Canada (Citizenship and Immigration)

Federal Court - Aguinaldo v. Canada (Citizenship and Immigration)

July 2, 2010 - Parmar - positive JR on excessive demand, social services

Federal Court - Parmar v. Canada (Citizenship and Immigration)

Excellent news: Rangzieb Ahmed allowed to appeal

JURIST - Paper Chase: UK court allows appeal of terrorism charges based on torture claims

Afghan women imprisoned for "moral crimes"

"Enter the cells of the Badam Bagh prison in Kabul, Afghanistan, and what culprits will you find locked up inside? A 16-year old recipient of an unplanned marriage proposal, a pregnant wife irrationally accused of adultery, and a veiled old woman who just displayed a "bad attitude.""

"Bad attitudes" land Afghan women in jail | FP Passport

Amazing Church Sign Win

Church Sign Win - FAIL Blog: Epic Fail Funny Pictures and Funny Videos of Owned, Pwned and Fail Moments

Old but scary news--turning your cell into a bug is not sci-fi

FBI taps cell phone mic as eavesdropping tool - CNET News

Law School Study

Oh Marshall, coiner of my favourite phrase...

Hat-tip to Law Is Cool

Good collection of video and links on aid convoy attack from Boing Boing

The "flotilla video": Israeli troops storm boat with aid supplies bound for Gaza Strip - Boing Boing

I have the ears of a person half my age (well, 2-3 years younger)

Created by Oatmeal

BBC News - Deaths as Israeli forces storm Gaza aid ship

BBC News - Deaths as Israeli forces storm Gaza aid ship

Financial Times pulls striking Amnesty International ad

Financial Times chickens out, refuses to run Amnesty's anti-Shell Oil ad - Boing Boing

Worry

see more

Babies are not Mogwais

If there is one thing more annoying than the enormous strollers that seem to have become the norm, especially on the TTC, it is the huge clear vinyl tarps bunched up around them, adding to their already Hummer-analagous footprint. All of these infant-land-yachts have awnings anyway, so the oxygen tent\Hazmat containment system is NOT necessary. Babies don't melt if they get a little rain on them, people, and they are not mogwais.

DUH-duh, DUH-duh, DUH-duh

Most apocalyptic photo ever

From Astronomy Photo of the Day

It is just possible this shirt was designed for me

Kawaii Not: the webcomic for cute gone bad!

Dear Iceland: My feminism includes pasties

I was directed to this article by a friend on facebook: Iceland: the world's most feminist country |Life and style |The Guardian

And my first thought was: wait, what?*

Did the whole sex-positive movement skip Iceland? What about the personal liberties, the government has no place in our bedroom movement? Granted, sex-workers do seem to be the world's primary target for exploitation, but I was under the (apparently mistaken) impression that we had figured out a while ago that criminalizing sex work is not the way to go, because (a) some people like it and it's really none of our business, and (b) it makes a kabillion times more sense to regulate the industry so no one is getting exploited any more (or at least as few as possible as little as possible, since no government system is perfect).

Maybe I'm biased by my respect for Canadian sex columnist Sasha, a long-time advocate of sex-positivism and sex-workers rights, but this seems like a giant mistake to me, both in terms of principle and practical effect. And yet, the media appears to think this is entirely a plus in the empowerment of women column. While I obviously support the attempt to get the government behind efforts to end the exploitation of women, I vehemently oppose the state putting limits on sexual behaviours that do not hurt anyone else. Harm principle, anyone?

I smell disaster...

More news coverage indexed here: Iceland Bans Strip Clubs; What If The U.S. Did The Same?

* As an aside, I have long toyed with the idea of creating a Twitter feed or mini blog called "Wait, What?" that just includes links to randomness which elicit that reaction from me.

Frankly bizarre NP comment: Obama is "ruining America"

Oh National Post...you never fail to bring the crazy.

George Jonas: [Obama is] Ruining America — coolly, calmly and collectedly - Full Comment

Elevation

People who take elevators to OR ESPECIALLY FROM the 2nd floor during the busiest time of the day need to learn to use the stairs.

Blergh

Why is it that cough syrup tastes so incredibly heinous? Is it because they assume something that tastes like hell is less likely to become a street drug?

Or maybe it's the alcohol, menthol, D&C Red 33, FD&C Red 40, monoammonium glycyrrhizinate (which is some sort of licorice extract?), polyethylene glycol, sodium benzoate, sodium carboxymethyl-cellulose, sodium citrate, sodium cyclamate (gross!), sorbitol, or sucralose. Or the horrifying fake cherry flavor (although the Straight Dope claims there's a reason for that).

Oh, and BTW, the alcohol? I was not aware it was in there. I am allergic to alcohol (or at least as allergic as people get). And when I say alcohol allergy, I go straight from "Oh look, 0.05% fake wine" to alcohol poisoning.

Hard-hit Iraq city sees rise in birth defects

As reported by the Beeb here: BBC News - Disturbing story of Fallujah's birth defects

And more stories here: Google News

Now, it's possible--and this is certainly what's being hinted about--that there was some sort of bio-weapon used that is causing this. But I wouldn't be surprised if the regular weapons used by all sides don't have teratogenic properties.

The Definition

If war is diplomacy by other means, than an entirely puposive definition of terrorism can't work. If terrorism is just the use of violence to acheive a political end or send a message, then isn't all warfare terrorism? Would we prefer killing for the sole atavistic joy of bloodlust satisfied?

Similarly, tactics common to assymmetric warfare cannot make it terrorism. Guerilla warfare, even suicide bombings, are not per se terrorist, unless you're content to paint every national resistance movement ever with the same brush.

Therefore, it can only be the intentional targetting of non-combatants that makes a terrorist act.

My life in SCRABBLE

After a rather successful game of SCRABBLE on my iPod Nano on the bus home, I decided to check my stats.

Best word: 48 points…

JIHAD

*le huge sigh*

The problem of “privilege”

NB: I’ll say it throughout this post, but let me be perfectly clear: I am totally down with the concept of “privilege”, I just think the phrase is inexact, and that bothers me.

I was having a discussion last night with some friends/colleagues (frilleagues?) about—well, all sorts of sociological and philosophical things, and at one point, the conversation turned to “privilege”. We were the three of us similarly privileged, being well-educated females of similar economic standing (although one was a woman of colour and the other two, very much including myself, were the kind of hilariously culture-less blinding pale that may be unique to Canada).

I bring this up only to contextualize my standard negative reaction to the term “privilege”. Note that it is the term and not the concept that I find viscerally aggravating. I absolutely agree with the idea that we tend to internalize the dominance of the dominant group, especially as a member of that group, which brings with it assumptions of innocence, value, and correctness, etc etc.

My problem with the term is that it implies a number of things that I don’t think are necessarily true. It also fails to take into account elements of the underlying concept like its essential fluidity, and that there are types that are earned as well as types that are inherent or congenital.

Using myself as an example, I understand that I have been spared obstacles because I am white, because I speak the dominant language, and because I am in other ways a match with the “average” Canadian. I do not suffer any physical abnormalities or outwardly apparent physical or sensory difficulties which would mark me out as the “other” to members of the majority or the elite in my society, keeping in mind the context in which I live and work.

I have never experienced my sex or gender as in any way detracting from my experiences of life, although that may be a function of my age and lack of current interest in children. I know many other women have a different experience altogether.

At the same time, I have a number of objective social and physical characteristics which mean I have faced obstacles and barriers not experienced by my peers. I consider elements of my life, namely my education and my financial position, to have been things which I worked extremely, even desperately hard for.

Which causes a problem. On the one hand, I know that I would have faced more barriers if I came from a difference background (health, race, socio-economic, etc etc). On the other hand, I got where I am by the sweat of my brow; there was no silver spoon, and nothing was ever handed to me.

I think this is the root of my discomfort with the term “privilege”. It implies an advantage which implicitly detracts from my own efforts and struggles. So while I recognize that I fit into the concept of privilege, I find the term very troublesome indeed. Perhaps it is too late to develop another term, and in any event I have no idea what it would be. Socio-normative? Pretty sure that’s already taken. Plerumque-normative? From the Latin meaning for the most part, generally, commonly, mostly? Not-un-privileged? Homo-normative is too redundant, and xenophobic is too strong…so I will have to leave the nomenclature to the linguists.

Diplomatic problem surprisingly full of win

Pakistani ambassador rejected because his name is NSFW in Arabic | FP Passport

Another entry in my "weird/awesome traditional and customary law" collection

CBC News - Nova Scotia - Surfing etiquette's up in court

Asleep at the wheel?

CBC News - Toronto - TTC to investigate 'sleeping' fare collector

Okay, I'll start off with full disclosure: as someone with a sleeping disorder, it antagonizes me when people jump all over "laziness" as an explanation.

But that aside: the dude fell asleep.

He does a job which, like most service jobs, is probably super busy for a few minutes every shift, and brain-meltingly boring for the rest of the time. It's not an easy job, in the sense that he has to deal with people who are surly or confused (though I admit the actual "collecting" is probably not difficult). He probably works underground, where the air quality is awful. He can't get up and walk around when he gets sleepy. He can't start knocking back coffee at an obscene rate, because there's no coffee, and even if there was he has to consider not going to the washroom.

So, he nodded off.

No one was in danger. I'm sure he would have jerked awake, totally embarrassed, the minute someone approached the window or pressed the designated waiting area alarm. It was a mistake, an accident, an error, but it was hardly morally blameworthy and I don't think he deserved to be lambasted in the press or made the focus of such derision for it.

And as for Jason Wieler, the guy who snapped the photo? He posted it with some glib comment about how his tax dollars are being spent, and now claims he didn't want to get the employee in trouble. Well, guess what, Mr. Wieler: you did. And by the way, money has nothing to do with nodding off at your post, so your crack was meaningless. TTC collectors earn about $55k--not bad, but hardly the cause of the public transit crisis.

What Wieler should have done--what I hope to God most people would do--was to tap on the glass, not so much to see if the guy was alright (although that would be a concern) but to save a fellow wage-slave serious embarrassment. The same way you would tell a woman if her skirt was tucked into her pantyhose, or a man that he was trailing three feet of toilet paper, or a fellow passenger that the train was at the last stop.

This poor collector has become a scapegoat for the general public's anger at the TTC--which should be anger at the federal government's failure to properly fund the TTC. The collector made a small mistake of the kind which any of us could make at any time, and I think we need to let it go.

If you're a journalist, should you just let people die?

Rather obviously not, I would say. I think as a reporter you have a moral duty to make getting the story out your first priority, and a sort of "prime directive" not to influence the story. However, if you can help without doing that, I think you have a secondary moral duty to try. This is even more obvious in the case of a doctor, who has sworn an oath to care for people, should do so.

Why Sanjay Gupta did the right thing | FP Passport

Today in obvious news

CBC News - Ottawa - Harkat didn’t hide fake passport: lawyer

The fact the refugees use false passports because if they didn't, we'd prevent them from GETTING TO CANADA is one more in a long line of stuff we should not still have to litigate.