For Want of a Mask…. (Apologies to Anon) and No, Despite Biden et al, the Language and Guidelines, It Isn’t Over

In the anonymous poem “For Want of a Nail“, a kingdom was lost. Now, I wouldn’t argue that a failure to wear a mask would result in the loss of the country. But I am going to argue that the failure to wear masks inside, even outside in crowds and when speaking at a close distance from someone, is prolonging the Covid-19 pandemic. Because despite all the government lack of action, maskless crowds (even of medical professionals), talk of the pandemic in the past tense to the contrary, we are still in the pandemic.

Wearing a mask is one of the easiest protections against becoming infected with Covid-19. (“Masks are one of the most effective individual public health measures that we can use to protect ourselves and others from COVID-19.”) This is particularly true when everyone in a conversation or situation is wearing a mask. And it is even more true when they are wearing well-fitted masks experts recognize as most effective, such as an N95 mask. Despite this, apart from a few exceptions, governments and most institutions have now decided that it’s up to each individual whether to wear a mask, regardless of circumstances.

And so, we see few masks in any given context, unless they are required. Ontario hospitals still require people to wear a mask — and people do. Grocery stores are no longer subject to mandatory mask protections — and in my experience, while some customers do wear masks, many do not, and in some stores, almost no or no staff wear masks. We see photos of politicians, celebrities and other “famous” people interacting with each other, sometimes with a few people, sometime in a crowd, and no one is wearing a mask. The fact is, mask wearing is pretty much done, except by individuals who worry they will be ridiculed, “judged” or treated as if they are “paranoid” aboutCovid-19.

In this post, I follow the narrative of mask wearing and expectations, mandatory and otherwise, and the language around mask-wearing and the pandemic itself. That narrative has evolved from official warnings against mask wearing to legal requirements to wearing masks to the dropping of those requirements in most contexts, and from criticism of those who wouldn’t wear masks when they were expected to to language more or less making excuses for those who do. Masks are no longer “strongly recommended”; emphasis is now on “choice” and “respect for choice”, whether someone wears a mask or not. (Although the government of Canada recognizes the value of wearing masks, it also emphasizes that doing so or not is a “choice”: “Remember to be kind, understanding and respectful of people’s personal choices.“) One of the most notorious messages appears on posters in the New York MTA (transit authority): it says “yes” to wearing a mask or not and indicates that even if you decide to wear a mask, it doesn’t matter how (the image of a face with a mask right across the middle says “you do you”.

How is this narrative connected to the situation we find ourselves in today, where government has abandoned its duty to promote the health of the population, hospitals are in crisis, Covid-19 levels are high, the expectation is that “everyone will get Covid-19” people are reinfected, we really only have to worry (if at all) about particularly vulnerable people, and “long-Covid” is a medically recognized condition?

In the beginning …

In the earliest days of Covid-19, health officials encouraged us not to wear a mask. Two years ago, Canada’s Chief Public Health Officer of Health advised people who were symptomatic or who had been in close contact with someone with Covid they should wear a mask; otherwise, there were several reasons not to wear a mask. Prioritizing health care workers, the false sense of confidence wearing a mask might provide and the increased face touching that results were three reasons. As the CBC reported on March 31, 2020, “‘Putting a mask on an asymptomatic person is not beneficial, obviously, if you’re not infected,’ Tam said”. Even then, there was criticism of this advice. For example, in the same CBC story, the director of the Institute of Applied Health Research at the University of Birmingham in the U.K., pointed out that asymptomatic people might in fact be infected. And some countries had already imposed mask mandates in a range of circumstances.

(Personal Note: I had no interest in wearing a mask in these early days and was happy to go along with the “official” line. I was careful about being around people, didn’t know anyone who had contracted Covid-19, but did cancel an eye appointment. And this takes us to the next stage.)

How quickly things change…in both directions

Before we knew it, we were in lockdown, beginning in Ontario and elsewhere in March 2020. By May 2020, Theresa Tam was telling us that it was a good idea to wear a mask. By then, a crucial difference between Covid-19 and other viruses had become evident: asymptomatic or pre-symptomatic people might actually be infected. Covid-19 symptoms could take three or so days to emerge after infection. We were already in so-called “lockdowns” and isolation; we already knew that we should keep a distance of six feet from each other. But now masks became a more significant tool in the fight against Covid. We didn’t pay much attention to the kind of mask, though: cloth masks were fine, disposable masks better. Eventually, that morphed into advice to wear KN or N95 masks, definitely not cloth and preferably not just medical masks (although hospitals and other medical facilities sometimes insist this is what you wear when you enter their premises.

(Personal Note: When I started to cover my face, I wore a bandana and then for a long time, a blue 3-ply disposable mask [these were too big for my face]. Now I wear an N95 mask, one of an appropriate size. The only time I don’t wear a mask outside is when I go for a walk or the odd occasion when I’ve eaten or had a coffee outside.)

By July 2020, provinces and territories and cities enacted mandatory mask requirements in indoor public spaces (see, Toronto, for example). These mandates lasted into 2022; in Ontario, with some exceptions, they were eliminated in March of this year.

The removal of the mask mandates occurred at what some would consider the most inopportune time: when people were gathering in crowds at concerts, when almost no one was bothering about maintaining distance in any context. Many people, if not most, live in a delusion of “normality”. And they are encouraged to do so by governments across Canada and elsewhere. Required isolation periods are low, or non-existent. For example, isolation is not mandatory in Nova Scotia: feel free to walk abroad, although not in crowded places, spreading the disease; however, you should wear a mask and fill out a form that provides information about your condition. In Ontario, once they apparently have no more symptoms, kids should return to school and workers to the workplace, preferably wearing a mask for 10 days after symptoms started (“doing the following [wear a mask and avoid high risk settings] can provide extra protection against the spread of COVID-19 and other respiratory viruses circulating in the community“).

Advice from authorities …

The Acting Medical Office of Health for Haldimand-Norfolk Health Unit tweeted at the end of May:

The pandemic is coming to its end.

As a frontline physician, I saw horrendous things: hopelessness and heartlessness wrought both by the virus but also by our, at times, counterproductive restrictions.

Today, I am grateful that these are (almost) all over.

Tweet, May 28, 2022

Last September, almost a year ago, the CBC reported that “Haldimand-Norfolk looks at ways to walk back medical officer of health appointment” because he “used social media to criticize COVID-19 public health measures and say he’d sooner give his kids COVID-19 than a Happy Meal”. In fact, the story explains that members of the health unit (Haldimand-Norfolk council) had mixed views of Strauss.

Strauss may be particularly obvious in his views, but Dr. Kieran Moore, Ontario’s Chief Medical Officer of Health has also diminished the importance of protections against transmission of the virus, emphasizing the level of vaccination in Ontario.

The messaging around mask wearing is best described as corntradictory and weasily. The TCC’s policy is a good example: it states that masks are “mandatory when travelling on the TCC, with some exceptions”, but then goes on to assure people it “will not be enforcing the use of masks”. However, see here where the TTC said it would not have a mask mandate after June 11th, but strongly recommended wearing masks. Similarly, Dr. Kieran Moore, Ontario’s Chief Medical Officer of Health, announced the government will not impose a mask mandate, but “strongly recommended” people wear masks. There’s no need for a mandate, “mainly because Ontarians continue to wear masks despite a mandate. We’re cautious. We’re careful. We’re kinda considerate to each other. And I continue to see masking even outdoors walking on streets in Toronto“. Anyone entering a grocery store knows we can’t count on individuals to decide to wear masks.

Detour …

This has been a quick run through of the changing nature of mask requirements from discouragement to requirements to decide for yourself. However, the picture is, of course, not as simple as even that description. First, it cannot be ignored that the shifting on whether it is a good idea to wear a mask had an effect on the trust level granted public health officials. This ignores the need to adjust advice on the basis of emerging knowledge and experience, but it (although it was not alone in doing so by any means) helped to spawn among a minority — a loud minority– an ongoing resistance not only to wearing masks, but other protections governments imposed. I won’t go into detail about these developments; I have written about some of them previously, as well as other Covid-19 developments [see Slaw posts here, here, here, here, here, here, here, here, here, here and here, among others]. I also think it important to say that governments have made mistakes, even when they are doing what is desirable in my view, ensuring public health protections. Government approaches have required us to suspend judgement and have more faith than we might otherwise accord government action.

(Personal Note: I suspended judgement more than I normally would, but I do believe that Canadian governments, with some exceptions at different points in the pandemic, did try to promote an effective response to the pandemic — at least, until the last months. While I believe changing circumstances should result in changes in approach, in my view, elimination of just about all protections at once (in most contexts) is an abdication of responsibility. I’ve written about this on a previous post on this blog [Racing Towards Normal .. What Are They Thinking?“, February 13, 2022]).)

Changing attitudes and language….

Throughout the mask mandate stage of the pandemic, the onus was on those who refused to wear a mask to explain why. During this period (specifically July 2020), the premier of Ontario, Doug Ford, called anti-mask protesters “absolutely irresponsible” and “reckless”. Some people were simply prepared to give others the benefit of the doubt and assume there was a good reason they couldn’t wear a mask. But in fact, there were very few reasons why someone couldn’t wear a mask.

The real problem lay with those who loudly objected and engaged in protests against mask wearing. Mandatory masks are a denial of freedom, said some, while others claimed they didn’t work or that Covid-19 was a hoax (and therefore objected to all protections). (See several stories: a Vox story from the US from August 2020; a Star article about a Barrie protest in May 2021; and a piece about an organized group camping on Parliament Hill from July to at least September 2020.) The new Conservative Party of Canada leader aligned himself with these scofflaws and opponents of pandemic protections during the so-called “freedom convoy” and has continued to do so; in June, he tabled a bill to prohibit all covid vaccine mandates.

As we adapt to “living with Covid”, as the mantra goes, wearing a mask is a “choice”: no one is stopping you wearing a mask, except perhaps by implicit negative judgements (so far, at least). And we’ ‘re told we should respect the choices of those who wear masks and those who don’t. Have respect for everyone’s choice. When mask mandates were dropped, the language used was that health authorities “strongly recommended” wearing a mask (see, for example, the City of Toronto‘s advice “to wear a mask if you feel it is the right choice for you, based on your level of risk”.). But even then, the emphasis is on protecting the vulnerable, as the City says.

Ontario’s Medical Officer of Health said on June 8, 2022, “While masking requirements are expiring, organizations may implement their own policies. Ontarians should continue to wear a mask if they feel it is right for them, are at high risk for severe illness, recovering from COVID-19, have symptoms of the virus or are a close contact of someone with COVID-19.” This, he said, is because “we have made significant progress in the fight against COVID-19”. Determining whether wearing a mask is “right for them” is a difficult decision for people to make, since the province does not provide satisfactory data on the extent of Covid-19 in the community. As others have said, “we are on our own”. (For a recent story on the new “guidelines”, see here where the CMOH justifies the loose guidelines on “[o]ur collective efforts [that] are helping us move away from a crisis phase to a more sustainable approach to the long-term management of COVID-19”.)

Wearing a mask is often attributed to “fear”, rather than a safe practice that can help protect the wearer and others, vulnerable or not. Only if we test positive for Covid-19 do we know whether we have it. Otherwise, we could have it at almost any time without knowing it and therefore potentially infect another person who, even on the basis that mask-wearing and other protections are to protect persons with applicable disabilities, could infect someone who is vulnerable. Of course, there is no guarantee that masks will prevent infection, but if everyone was wearing one, the spread would be reduced.

One of the most outrageous commentaries about mask wearing appears in a column by Robyn Urback in The Globe and Mail, “Boycotting Canadian Blood Services for ending its mask mandate is illogical“. It illustrates how far we have come from the mask heyday.

On July 25th, Canadian Blood Services (“CBS”) announced it would no longer require donors (or it appears, although it is not clear, employees) to wear masks. In an amazing about face (pun intended), CBC states on its website, “Although no longer required, masks are known to help curb the spread of COVID- 19 and are welcome in our environments and available to anyone who chooses to wear them.”  In the usual contradictory language, it tells donors, “Thank you doing your part to limit the spread of COVID-19 and for respecting each person’s choice to wear a mask or practice physical distancing. ”

It has also eliminated physical distancing, except for “encouraging” people to physically distance. On its website, the CBS explains that its employees and volunteers are vaccinated (meaning?) but that donors do not have to be (although “we strongly encourage donors to be fully vaccinated before entering a collections event”).

CBS explained that “the decision was made in light of the fact that the majority of Canadians are fully vaccinated and that COVID-19 illnesses now tend to be ‘far less severe in most cases.'” (CTV news) However, CBS’s decision resulted in pushback (see here and here, for example). “Fully vaccinated” tends to mean two doses of vaccine, but not necessarily boosters. If people got two doses during the initial efforts to vaccinate the population, they are of little value by now.

CBS is calling for donors, saying they have few blood supplies on hand (a spokeswoman says “collections have been steadily decreasing since July 1” in a Globe and Mail interview. Why? Well, the spokeswoman gives several reasons: “ongoing illness and isolation requirements related to COVID-19, heat-related weather issues and the return of pre-pandemic activities and summer travel that have left many people with less time to donate are all factors contributing to the situation”. Notably, she doesn’t mention the removal of CBC’s mask mandate.

Robin Urback blames those who have announced they will not donate because of the removal of the mask mandate. They have cancelled appointments or have not made appointments when they otherwise would have. This, says Urback, is an example of how “over the course of the pandemic … we’ve collectively lost sight of the forest for the trees”. She thinks CBS’s “calculation” that “it is better to marginally increase the risk of COVID-19 transmission at donor centres (making these centres as risky as grocery stores or movie theatres) than to maintain the status quo of critically low blood supplies” (the low supplies were presumably the reason CBS removed its mask mandate, hoping to bring into the centres those who have declined to give blood because they had to wear a mask).

It is “illogical” to boycott CBS because it has removed its mask mandate, she asserts, since people can still wear a mask if they want to do so:

Some regular donors who were otherwise willing to have a needle stuck in their arms and have about 450 millilitres of blood depleted from their bodies for about 10 minutes are now unwilling to take on the risk of entering a room where the risk of contracting COVID-19 is roughly as high as in a Shoppers Drug Mart.

She places the onus on those who have decided not to donate because of the removal of the mandate: “hopefully they will see that the overall harm caused by denying Canadians of their donations will be more significant that the slightly increased risk of contracting COVID-19”.

There are several problems with Urback’s argument. First, it assumes that other environments are properly without mask mandates. Second, accepting the end of mask mandates in grocery stores, it is different to move around in a grocery store than it is to sit still in a blood collective centre. (I agree cinemas are closer in that people are sitting still, probably next to strangers, but again, why was the mask mandate removed?). Of course, people can wear a mask if they want. At least so far, they are not prohibited, although I wouldn’t be surprised if they were — so as not to embarrass, upset or show disrespect towards those who aren’t wearing masks. Importantly, one way masking is nowhere near as effective as when everyone is wearing masks.

Finally, Urback makes a big error in saying that donors would be giving blood “for about 10 minutes”. As a former blood donor (my reason for no longer giving blood has nothing to do with Covid-19), I can say that it takes far longer than that to donate. First, it may be necessary to line up, even if one has an appointment (perhaps this changed with CBS’s more responsive changes to Covid, but I expect it will returen). It is necessary to confirm personal information and be tested for one’s level of iron. The donor is than required to complete a questionnaire (sitting alone, but in a small area where others have sat probably immediately before) and to have that reviewed by a registered nurse, who also checks the donor’s arms for signs of drug use. Then it’s waiting (usually) for an empty cot. CBC says the donation itself takes 8-10 minutes; however, in my experience, it can easily take a bit longer (if it takes too long, the RN stops the process). The donor is then strongly encouraged to have juice or coffee and a cookie and sit for about 10 or 15 minutes.

Urback’s opinion thus rests on a faulty premise. Her criticism of donors who have decided not to donate because of the removal of the mask mandate is, in my view, appalling and is an example of why the pandemic wears on. Why shouldn’t the onus be on those who won’t give blood because they have to wear a mask to do so; why don’t they show some public interest?

And let’s stop pretending … the pandemic is still taking a toll now and who knows about the future ….

Masks are not a panacea. However, widespread masking can help reduce the spread of the coronavirus and with lower community spread, people can participate in the activities they want to engage in — indoor restaurants, concerts, parties, conferences, attending sports events — with less risk. In-person school will be safer.

I don’t argue masks are the complete answer. They are particularly effective in preventing transmission, though, as vaccinations are not. However, their effectiveness is of course enhanced as part of a suite of protections: proper ventilation, high vaccination rates, including boosters and presumably the new vaccine targeting the Omicron variant, isolating for longer than the five days now required in some jurisdictions, among others. Lower community spread leaves less room for the development of new variants. Keeping vaccinations current at this point will not, it seems, prevent infection, but it will mean the cases are milder for most people. Masks complement the vaccines because they are directed at reducing transmission in the first place.

And reducing infections is important. We know that people can become reinfected and more than once. Vaccines do not provide immunity. Nor do infections. And it seems that reinfections can lead to more serious effects. From being viewed sceptically, “long-Covid” is now recognized as a real condition with a myriad of possible symptoms. And it can result even from mild cases. Thus preventing infection to the extent possible is crucial.

But why worry about masks, the pandemic is over, isn’t it? …

It turns out the bête noir of chief medical officers, the Haldimand-Norfolk chief medical officer, was merely ahead of his time. New Brunswick Minister of Social Development announced that the province was “no longer in the pandemic”; after pushback, a press release revised this to say, “in pandemic lockdown”. But this language is not so far off what we’re seeing more and more often. And possibly the biggest influence of them all, particularly (but I fear no longer only) in the United States, President Biden has declared the pandemic “over” (although we still have “problems with Covid”). His reasoning seems to be based on the fact that no one was wearing a mask at the auto show where he was being interviewed. (More on this below.)

In The Globe and Mail stories on TIFF, which made the most of its in-person festival, used language suggesting the pandemic is more or less over. In a story on the peacock leanings of male stars, the trend towards designers and colourful outfits for men is explained by an editor for a “trend forecaster” as the desire of men “‘[c]oming out of the pandemic'” for self-expression. Another writer, telling us about “TIFF’S coolest canapés”, explains that these bite-size morsels are gaining a “resurgence” now that “COVID paranoia is waning” (although he qualifies that by asking, “it is waning, isn’t it?”). Are we meant to take from that phrasing that being concerned about Covid makes us paranoid?

Given that he writes about movies for The Globe and Mail, perhaps it’s not surprising that Barry Hertz, for example, considers that he is able to make that determination, saying, “Whether we’re out of the woods or not today seems to be a matter of perspective – I’ll place myself firmly in the ‘post-pandemic’ camp – but it is safe to say that TIFF is preparing an 11-day celebration that screams, with mask-free vigour, ‘comeback.'”

In other words, there is nothing objective about whether there is still a pandemic but rather it’s how people view it and where they want to be on the continuum. And while we’re at it, why not laud not wearing masks in crowds?

Those claiming that the pandemic is “over” rarely, if ever, rely on objective scientific evidence. Rather, as one review of the matter states,

“It’s over when people decide that it’s over. … And most people seem to have decided it’s over,” said John Barry, author of “The Great Influenza,” a history of the 1918 Spanish flu.

Most of the experts who spoke with STAT echoed a version of Barry’s remarks: In some respects, the pandemic is over when people stop taking measures to protect themselves, when they stop following advice about how to lower their risk, when they resume pre-pandemic behavior.

STAT, Is the Covid-19 pandemic over? The answer is more art than science

The reality is that the pandemic is not over. Acting as if it is does not make it so. And it leaves us open to even more virulent strains of the coronavirus. (See commentary by experts in this Globe and Mail story.) As André Picard has written, “We are in that cognitively dissonant time now when COVID-19 is still very much a medical threat, but has been deemed to be over, politically and socially” (emphasis added).

The STAT article cites another expert who explains that there are two ways of considering the question: “by looking at what the disease is doing to humans physically and psychologically”. Psychologically, many people are finished with the pandemic, they are fed up with it and they act as if it is over, as if things are “back to normal”. Physically, however, it is more complicated: difficult though it is to measure some of the criteria (the number of reliable positive tests, for example), since governments have abandoned attempts to do so, deaths do rise, schools appear to be rife with Covid cases (although who really knows), “mild” is often a misnomer and long-Covid may be more extensive than any official figures indicate. Furthermore, we do not knows whether there will be more serious variants (it seems there will be if the UK experience is any indication). (See, for example, Canadian Press story here.)

As André Picard, writing in The Globe and Mail about The Lancet Commission’s report on the world’s response to Covid-19 says, “wishful thinking doesn’t end a pandemic. Neither does denial, or no longer caring about who is harmed.” (And if there’s any doubt about how well governments have done over the life of Covid-19, Picard summarizes the report as giving them “a big fat F grade“.}

Conclusion: Back to masks …

So here we are: increasingly language, implicit and explicit, indeed, very direct language, reflects a belief that we are finished with the pandemic. Yet there are still a significant number of cases (probably more than official figures tell us because few records are kept), cases may be mild, but not necessarily so, people are dying in high numbers, Covid lingers or leads to other conditions affecting major organs, we haven’t been through a full cycle of when new variants appear. All this is troublesome, though, and most people seem prepared to get together in large groups without masks, and there is fear among those who still have concerns that statements from someone like the President of the United States (and possibly the World Health Organization, which is giving hints that we’re near the end), may make people even less likely to get vaccinations. “Official” guidance gives people permission to go to work or school while still infected (but without symptoms and wearing masks — but there is no enforcement).

Yet one of the easiest ways to prevent transmission, one just about everyone can satisfy — which then prevents not only mild but serious illness and long-term Covid conditions, never mind death — is to wear a mask when inside. But why would “ordinary people” wear masks when they see doctors at conferences, UN members, presidents and prime ministers, Westminster Abbey guests and on and on, maskless. Why the resistance? (Ah, yes, “freedom, freedom, freedom.) And so, for a want of a mask — who knows who and what we might lose?

Racing Towards Normal…What are They Thinking?

Globally, a number of jurisdictions are throwing off Covid-19 protections as quickly as they can. In Canada, several provinces are moving forward in haste to remove vaccine mandates, capacity limits and masks, for example. Ontario is one of the slower ones, although the Chief Medical Officer’s recent announcement suggests Ontario is joining the lemmings. While some people are welcoming these opportunities to pretend that spring 2020 never happened, others are concerned about just what the ramifications might be. Count me in as one of the latter: ready to make some changes, but recognizing we need to be ready for surprises.

Furthermore, medical experts and politicians need to make these decisions based on the reality of Covid-19, not on the demands of those demanding “freedom” without understanding what that means. Sadly, those upending the rule of law appear to be having an impact on the latter.

In September 2020, I started to write a post on the “rhythm” of Covid-19, its ups and downs: “As we have seen, covid-19 has a foreseeable rhythm: initial identification, small increase followed by significant increases in cases and deaths, lockdowns and other measures, a serious decline in cases, opening up, a renewed surge and reluctant responses.”

And even then, I noted another trend: “There appears to be another cadence, too, however: the decline in the sense of community that turns slowly into atomism, except in this case it has not returned to community. The pandemic has become a victim of those who disassociate from society, joining like-minded antagonists of science and caring.” This is even more true today.

Much has changed since September 2020. We have effective vaccinations, with a high number of Canadians doubly vaccinated (about 83% over five years old), but fewer who have also had a booster shot (about 52% over 18). While for a while the vaccinations were effective in preventing infection, that is no longer the case; they remain effective, however, in minimizing the need for hospital care, including ICU, and death. Vaccines are the most significant development since the pandemic started.

We can no longer track the number of cases because there is little official testing. We can track the number of people in hospital (again including in ICU) and the number who have died. For most parts of Canada, these last two numbers are decreasing (commentators talk about declining cases — but by what measure?). But even these stats are being complicated: who goes to hospital because they have covid? who is found to have covid when tested when they go to hospital for another reason? who becomes infected in hospital?

Increasingly, people are becoming fed up and frustrated with covid restrictions — we might rather call them protections — especially since the message has been “everyone will get Omicron”. Governments are purporting to respond to the data when they begin to drop protections or announce they’ll be doing so soon. But it’s hard to avoid that they’re responding to restlessness in the population and to the illegal blockades in Ottawa and Windsor, Ontario and Coutts, Alberta.

They are racing towards the finish as if they can decide when Covid is finished, not only the protections against it,.

But as epidemiologists, other healthcare experts and people like me say, ” you may be done with Covid, but Covid isn’t done with you”. Yet it is also true that “we can’t keep going on like this”. So what’s the answer? I lack the expertise to give THE answer — no one seems to to be able to do that, in fact, but certainly some can get a lot closer than I can — but there are some things I’d like to see.

Two bottom lines (they’re very close together!) for me are that mask requirements continue for inside places, such as grocery stores, theatres and similar places, and people isolate after contracting Covid-19. Jason Kenney has removed mask requirements for school students (but not for staff and bus drivers) and has also eliminated the authority of school boards to impose mask requirements. School board administrators considered this might be too hasty. He’s also announced he’ll deny municipal authorities the right to impose mask requirements, a turnaround from previously (when he apparently thought municipalities had a better handle on local conditions). An echo of Governor Ron De Santis of Florida?

Saskatchewan will end masking at the end of February, along with self-isolating when infected with Covid-19. Other provinces have developed short timelines for removing or relaxing restrictions.

The goal is to act as if Covid-19 is not a threat, although certainly we’ll hear “it’s still with us” even while these protections are being removed. And there’s no question that at some point, various requirements must be abandoned. I’m not ready to trust those premiers whose readiness to eliminate requirements last summer (with the clarion call that Alberta “is open for business”), after which they saw large increases in cases. In Saskatchewan, that meant sending patients to Ontario, taking advantage of Ontario’s more cautious approach.

There are no easy answers and all through the pandemic, we’ve seen different provinces take different approaches. And one can be critical of different efforts to bring a cudgel to bear on Covid — no single approach has worked and the closing/reopenings are frustrating and economically harmful to businesses relying on regular customers, such as restaurants. It’s especially easy to be critical in retrospect, but I shudder to think what would have happened during the beginning, until we had vaccines, with Alpha and Delta if we hadn’t been restricted in our movements, including distancing, or been required to isolate. Vaccines were crucial against Delta, but are more limited against Omicron and presumably the new subvariant emerging from Omicron, which is even more transmissible than Omicron (although we don’t seem to have heard too much more about that).

We are where we are now, though. What we know is that people who are vaccinated — even with the booster — can both become infected and can transmit the virus. We also know that unvaccinated people are more likely to end up in hospital or the ICU or to die than those who are vaccinated. This doesn’t mean vaccinated people can’t also suffer more serious consequences depending on their personal conditions. We also know that being infected doesn’t result in immunity, since people are becoming infection more than once (“reinfected”).

And, significantly, it is not unusual that people who get mild Covid may end up with long-Covid. I recall early on that medical professionals questioned the occasional claim of having being infected twice or having long-term effects, but now there seems no doubt that both are not only possible but frequent. People infected with Alpha or Delta, who have been relying on so-called “natural immunity” rather than becoming vaccinated, are apparently particularly vulnerable to being infected with Omicron because their natural immunity has waned.

Finally, it seems the newest variant (although it doesn’t yet have a Greek name, which may be significant in terms of its prevalence) is more transmissible than Omicron, which is more transmissible than Delta (it has replaced Delta, of course). In short, it’s easier to catch it. This is especially true now we’re returning to “normal” (if “normal” included a variant of Covid-19, which has been described as as transmissible as measles, which requires 94% of the population to be immune to eliminate it).

Even I (characterized by a friend as the most cautious person they know — I think they meant as far as Covid-19 is concerned) recognize eventually we will resume life more or less as normal, getting regularly vaccinated for Covid-19 as we do for the flu (or I hope most of us will). Possibly, from time to time, it will be necessary to take particular protective actions because a new more virulent strain emerges. We have dealt with this kind of thing before. Not least, when there is a particularly bad strain of the flu, congregate living places where older people reside effectively lock-down, with meals in the residents’ rooms and no visitors.

The issue is, what do we do in the meantime?

Three general principles can guide us:

  • minimize the chance of infection and severe consequences of infection, while also minimizing restrictions;
  • not doing things that can be seen to risk unnecessary infection; and
  • not handing over decision-making to lawless hostage-takers.

Continuing Protections/Minimizing Disruption and Frustration

One important protection is wearing masks inside, yet there is an eagerness of authorities to remove mask mandates. Of course, we are free to wear a mask if we want to, but masks are most effective when everyone in a group (or two people together) are wearing them. Wearing a mask is an easy thing to do and does not have high cost implications (as closing businesses do, or even capacity limits). It is somewhat uncomfortable, however, and without a mandate, I expect we’ll soon see many people ditching their masks.

Minimizing the risk of infections appears to require at the very least discouraging large crowds, if controlling capacity is no longer seen as feasible. Reluctantly, I wonder whether we should continue with capacity limits in restaurants where people remove masks and sit for some time.

I do, however, think it’s probably time to eliminate the vaccine passports. They worked when vaccinated people were highly unlikely to get infected or to transmit the virus, while unvaccinated were more likely to do both. The passports allowed businesses, such as restaurants and museums to open while at the same time allowing people who were vaccinated to enjoy greater societal interaction. A reassessment of traveller policies is also in order.

At this point, it is almost inevitable that new or continued protections will frustrate people. Those opposed will be loud and aggressive. Protections need to be as minimal as possible to still be effective. Politicians need to acknowledge frustration, respond to the concerns of those who want to do the right thing, and develop signposts for when protections will change, subject to unforeseen developments (such as an entirely new and dangerous variant). The signposts are not dates, but measures reflective of the most accurate state of Covid-19.

Not Taking Steps Likely to Lead to Infections

I hope Fraser Valley hospitals change their plan to place people with Covid who are asymptomatic or mildly symptomatic and people without Covid (who are vaccinated) in the same room (even distanced). There are exceptions, such as a high-risk condition of the patient without Covid. The biggest irony is that the patient with Covid would only be placed in a room with a non-infected patient who is fully-vaccinated. It appears, if I understand it correctly, that the hospitals will protect unvaccinated patients. I hope no other health authority follows suit.

But it is also important politicans not take premature steps in order to increase their popularity. We have seen elsewhere how “getting back to normal” results in paying a price.

Everyday we hear of “famous” people who have contracted Covid-19, usually mild cases to be sure, but why is this? No doubt because of the high transmissibility of Omicron, but also because people are living life as they did before the pandemic: mixing with people without masks. Perhaps they and those around them have been tested and perhaps not. Prince Charles is a perfect example: he is, by all accounts, doubly-vaccinated with a booster and has already had the virus and thus some immunity; yet he has become reinfected after being out and about with many people and with no one wearing a mask, as photos show. On my Twitter account, I see a number of people I follow announce they have Covid — just mild symptoms, mind you. One thing we do not know is how many people will have long-Covid. Of course, we also see people famous for their anti-vaccination diatribes dying of Covid.

These announcements, at least about “mild” symptoms, are part and parcel of the normalizing of Covid: “everyone” is getting it and “anyone” can get it: it’s not a big deal. But everyone doesn’t get mild Covid and even mild Covid can apparently have long-term effects.

Responding to Lawless Hostage-Takers

What is most disturbing now is how certain politicians are plainly pandering to the illegal demonstrators in Ottawa and Coutts in particular. Pierre Poilievre has declared himself “proud of the truckers”. Scott Moe, Premier of Saskatchewan, saying he has heard those who will be at Saskatchewan border crossings, has announced the province will remove all Covid-19 protections by the end of February. He and Jason Kenny have adopted the language of the “Freedom Convoy”, referring to the end of restrictions on people’s freedom. Jason Kenny tweeted, “Alberta will not continue to damage people’s lives and violate their rights and freedoms indefinitely. We’ve just got to learn to move forward.” Of course, people have had negative experiences because of the need to take restrictions: loss of business and other income, sometimes closing businesses, mental stress, children out of school and so on. But the adoption of this language is a clear statement of catering to those who have evidenced little undertanding of why these protections have existed and who are part of a larger attack on our institutions.

Many, many people in Canada have followed restrictions because they care about their own health and the health of others. Is there room for criticism? Yes. Might some protections be reconsidered? Yes. I hope, though, that the answers to these questions aren’t found in shameful toadying to those with the loudest voices and the most ill-conceived selfish tactics premised on harming others.

When is Discrimination not Discrimination?

Questioning on the federal election English-language debate has given rise to controversy about Quebec’s Bills 21 and 96. (I note I did not watch the debate, but see that several reports of the question and response are similar to each other.) In this post, I’m focusing on Bill 21.

Shachi Kurl, the moderator, asked Bloc Québécois Leader Yves-François Blanchet the following question:

“You denied that Quebec has problems with racism, yet you defend legislation such as Bills 96 and 21, which marginalize religious minorities, anglophones and allophones. Quebec is recognized as a distinct society, but for those outside the province, please help them understand why your party also supports these discriminatory laws.”

CBC Online

By way of “preamble”, my own predisposition is for a secular society, one in which not only is there not an official religion, but one in which religion does not enter official public life. Although not a principle of Canadian life, I believe in the separation of church and state. Yet I believe Bill 21, An Act respecting the laicity of the State, is discriminatory. And I believe that Quebec does recognize that it is (or there is a strong case that it is) it would not have used overrides of the Canadian and Quebec Charters. (Bill 21 is a convenient label, since it has now been enacted.)

I’ve written two Slaw posts on Bill 21. In a post on April 27th of this year, I wrote how Bill 21’s use of section 33 of the Canadian Charter of Rights and Freedoms legitimated prejudice (see “Challenging Bill 21: The Decision on Section 3 of the Charter (Among Other Things“). This post discussed Hak v. Attorney General of Quebec, which determined challenges to Bill 21. In an earlier post, on May 21, 2019 (“Religion and the Law: ‘Respect” or Denial“), I contrasted the relationship between the law and religious belief as reflected in two contexts: the Ontario Court of Appeal decision in Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario and Bill 21 .

To return to the impact of the debate question, the response was immediately a vehement condemnation from the BQ leader and from the Premier of Quebec, François Legault. Blanchet replied, “‘Those laws are not about discrimination. They are about the values of Quebec.'” And the next day the Premier announced, “‘To claim that protecting the French language is discriminatory or racist is ridiculous,'” and stated he would not “apologize for defending our language, our values, our powers. It is my duty as premier of Quebec.'” He further maintained that Bill 21 had nothing to do with the rest of Canada. (All quotations from CBC Online.) The Quebec National Assembly called for an apology for the “hostility” shown to Quebec by the question.

In addition, at the debate and subsequently, the three major federal leaders, Prime Minister Trudeau, Erin O’Toole and Jagmeet Singh, weighed in, criticizing the question and maintaining the consortium of media broadcasters responsible for running the debate had to apologize. Trudeau’s and O’Toole’s comments reflected the perspective of Quebec, claiming in different ways that the question was insulting to Quebeckers. However, Singh’s comment took a slightly different angle: “’It’s a mistake to imply that only one province has a problem with systemic racism when it’s a problem everywhere in Canada,’ he said in an e-mail statement on Wednesday. ‘Implying that it’s only in one province hurts the work being done to fight systemic racism.’” (The Globe and Mail here.)

Let me say up front that I fail to see how Bill 21 is not discriminatory, on religious and gender grounds. And I do not see how describing it as reflecting Quebec’s values does not nevertheless make it discriminatory or, worded differently, automatically make it non-discriminatory.

Bill 21 prohibits public sector workers, such as teachers, police officers, legal aid lawyers and others, from wearing religious symbols and clothing, visible or non-visible, such as crosses, turbans, hijabs or headscarves (headscarves, I note, may be worn by both Muslim and Jewish women, although the former have been the focus of critics of the law) or kippahs. It is discriminatory because it specifically targets people whose religion requires them to wear a symbol or a type of clothing and because it disproportionately affects women who wear Muslim dress.

A religious symbol, within the meaning of this section, is any object, including clothing, a symbol, jewellery, an adornment, an accessory or headwear, that

(1) is worn in connection with a religious conviction or belief; or

(2) is reasonably considered as referring to a religious affiliation.

An Act respecting the laicity of the State, Section 6

Note that the “clothing, symbol, jewellery, adornment, accessory or headwear” does not actually have to reflect the wearer’s belief; it is enough that other people think it does. (According to Quebec’s Minister of Justice, as ccited by Justice Blanchard in Hak, Bill 21’s prohibition does not encompass beards or wedding rings.)

Perhaps ironically (or not, depending on one’s point of view), Bill 21 explains that “[t]he laicity of the State is based on the following principles”: these are not only two that reflect the underlying premise of Bill 21 (“the separation of State and religions” and “the religious neutrality of the State”, but also “the equality of all citizens” and “freedom of conscience and freedom of religion”. Its Preamble also states, “the Québec nation attaches importance to the equality of women and men”.

Some commentators justify the prohibitions in Bill 21 by casting back to the dominance of the Roman Catholic Church in Quebec and, following the throwing off this yoke, the desire not to repeat religious expression in public life. Others have argued that for people of particular religious beliefs, especially those who have immigrated from countries where religion was oppressive, being served by people wearing religious symbols might be intimidating.

Mario Polèse, for instance, asks why requiring civil servants not to display their religious beliefs is any different from requiring them to not to display their political convictions. He quotes another commentator, Boucar Diouf, in providing examples of the need to show that civil servants (at least outwardly, one might add) are not prejudicial: “’How would an immigrant of Palestinian origin, contesting a conviction, feel in front of a judge wearing a kippah? Inversely, how would a young driver wearing a kippah feel faced with a policewoman wearing a hijab who just gave him a ticket?’” Polèse ends his opinion by saying he would allow “female teachers keep their hijabs”. (See “Quebec’s Bill 21: Is there room for more than one view of religion in Canada?” here.) (I note that Google’s translation of Diouf’s La Presse article adds the adjective “questionable”: “a questionable ticket” [see here]).

The main reason for Bill 21 is that a secular society does not allow religious expression in association with the state. Public servants, on this view, represent the state. This argument would be stronger if the state required people to wear religious symbols rather than allowing a wide range of them.

However justified Bill 21 may be, however, doesn’t change the fact that it is discriminatory. We try to avoid saying certain treatment is discriminatory in different contexts. Thus affirmative action programs under section 15(2) of the Canadian Charter of Rights and Freedoms avoids saying these programs are discriminatory against majority groups; rather, the guarantee of equality (treatment without discrimination) under section 15(1) “does not preclude” them. This is a way of justifying the different treatment of a particular group because that treatment is required to help remedy inequality.

The Quebec government and National Assembly were not prepared to justify the denial of people’s religious expression. They immunized Bill 21 in two ways: they made it immune from the Canadian Charter’s freedom of religion and equality rights (and other not clearly applicable provisions) through application of the section 33 override; and they included a provision that sections 1 to 38 of the Quebec Charter of Human Rights and Freedoms would not apply. Furthermore, Bill 21 amends the Quebec Charter. It adds the following in the Preamble: “Whereas the Québec nation considers State laicity to be of fundamental importance”. And it amends section 9.1 to add the term “State laicity” after “democratic values” so that it now reads as follows: “In exercising his fundamental freedoms and rights, a person shall maintain a proper regard for democratic values, State laicity, public order and the general well-being of the citizens of Québec.”

As a result of these provisions, the judge determining the challenge to Bill 21 under the Canadian and Quebec Charters was unable to act on his finding that the Act is discriminatory. (He did find it operative in a limited way that is difficult to sustain.) In Hak, as I explained in my April 27th Slaw post, Justice Blanchard did not mince words in expressing his views of Bill 21:

[68] There is no doubt that [Bill] 21 has serious and negative consequences for all people who wear religious symbols in public. In general, on the one hand, all those who hold a job covered by [Bill] 21 find themselves stuck in their current position since they cannot change it under penalty of losing the benefit of the anticipation clause, unless [they] decide to no longer wear religious symbols in public.

[ 69 ] On the other hand, all these people who aspire to one of these jobs find themselves faced with the following dilemma: either they act according to their soul and conscience, in this case their beliefs, or else they work in the profession of their choice. It is easy to understand that this is a cruel consequence which dehumanizes the people concerned.

[ 70 ] For many, the legislator sends the explicit message that their faith and the way they practice it do not matter and that it does not carry the same dignity or require the same protection on the part of the State. For them, [Bill] 21 postulates that there is something fundamentally wrong or harmful with religious practices, especially some of them, and that the public must be warned. Thus, it conveys an explicitly exclusive message to people who are told that they cannot participate fully in the public institutions of the State only because of their intimate convictions.

A secular state may take different routes to establish its bona fides. It may implement the concept of “religious neutrality” in related ways.

The state may take a “hands-off” approach to religion, permitting all forms of religious expression (except where it contravenes other significant requirements and then it would be limited only to the extent necessary), but not assisting or promoting it. It would neither favour a “state religion” nor would it prohibit, on the one hand, or promote, on the other, any kind of religious practice or expression. Or it could take the view that Quebec has adopted: to deny the expression of religion in certain contexts; it would be neutral because it would not permit any form of religious expression in those contexts. (One might argue on this view that denying the right to wear symbols or clothing of a particular religion and not others is what would be discriminatory.)

However, there is a significant difference between promoting activity, religious or otherwise, and permitting it to function without aligning it with the state. In the case of public servants wearing religious symbols, in allowing the expression of all religious symbols (as opposed, say, to mounting a cross on the wall of the government office where service is provided) or no religious symbols, the state is acting neutrally. And because it is not aligned with any particular religion, it is consistent with a secular state.

Query whether providing a room for prayers would change this equation. I think there is an argument that it would. Here the state is acting in a positive manner. Query whether allowing men to work separately from women because the religion demands it. This would also require positive action by the state, would be discriminatory and would, I’d argue, not be consistent with state secularism.

Assume, though, that a secular state really does require the absence of personal religious expression because the very presence of the religious symbol or clothing links back to the state. As does any restriction on religious expression, such as requiring photos on drivers’ licences, even though for a certain religious group this is a contravention of their religious belief, it must be justified. It is recognized as discriminatory or a breach of freedom of religion, but that is not the end of the story: there may be significant state or public interests that justify the restriction (or not). (See the 4-3 Supreme Court of Canada decision in Alberta v. Hutterian Brethren of Wilson Colony upholding this requirement.)

Certain restrictions on religious expression may also have discriminatory effects on other grounds, in the case of Bill 21, it is argued, on the basis of gender because of the number of women wearing Muslim headscarves or hijab, especially in schools (see, for example, the Canadian Women’s Foundation written statement on Bill 21 here).

State justification of the prohibition would have to show that the significance of having no religious presence in the public sector workplaces, even though the state is otherwise passive in simply permitting it, is greater than the need for people for whom the religious expression is important to their beliefs to make a choice between their employment and their religious expression. (In a slightly different context, a Sikh doctor did make the “hardest thing [he] ever did”: he shaved his beard in order to wear a mask to treat Covid-19 patients [see McGill Reporter here]. Of course, under Bill 21, his turban would otherwise pose a problem, not his beard, and, one hopes, this will be, or was, temporary.)

This is not an impossible case to make. But it could be somewhat messy. It is not clear the extent to which some of the wearing of religious symbols and clothing is actually a religious tenet, but a cultural practice, for example, or whether the wearing of a particular symbol or clothing is a requirement for some sects of the same religion and not for others. To what extent is it something that is considered more significant in some contexts than in others, with the workplace being a discretionary option? There are no simple answers to these questions and the answers that do exist very from religion to religion, sect to sect. This, presumably, would be worse than the blanket denial, if the state is insistent on denial.

Thus the route taken by Quebec is in an important respect the easiest route: remove Bill 21’s prohibition from a difficult justification or from failure of justification. (And, it must be said, from decision-making by a Supreme Court that Quebec would likely see as lacking understanding of Quebec.) And so the answer: apply section 33 of the Canadian Charter and override and amend the Quebec Charter. Doing so, however, is a tacit acknowledgement that the law does discriminate.

I look across the border — and my heart breaks


I first started writing this post early in June (here it is June 17th – somehow life fills up even when you’re in self-isolation and think you’re doing nothing), about a week after George Floyd’s murder in Minneapolis as a result of a police knee on his neck for some 8 minutes and 46 seconds. I had the post in mind for a while and the administration’s actions finally undid my lethargy and drove me to write it. But once more or less finished, it no longer seemed relevant in the face of the continuing protests and the springing up of acknowledgements of systemic racism and promises to reform (and even a few actual actions in that direction) by a wide range of institutions. So I let the post sit. But I realize that the reason I drafted the post remains extant. So here it is. Here I’m “looking across the border” at the destruction of America’s constitutional institutions by the Trump administration and the Republican Senate, not at the demonstrations (to which I refer) and which cannot be considered absent reference to Canada’s own situation.

The Post

My family, my parents, my four year old sister and I, spent nearly eight unpleasant days crossing the Atlantic Ocean, emigrating to Canada from England in 1956. I was eight years old, forced to leave my home, even if with my family, and forced to leave behind the toys to which I had become most attached (particularly “Bear”, a bruin, who stood on his four paws who was probably smaller than he appears in my memory, but still too big to bring with us). What happened after we landed is another story, one I’m not telling here, except for the close relationship I subsequently developed with the idea of the United States of America, a conceptual impression comprised of hope and disappointment, progress and regression, commitment to civil rights and real-life echoes of times that should be past, all at the same time. Some of that idea was manifested in reality, but some of it was never really true.

And so my response to America has always been an ambivalent one, just as the relationship with my birth country, England, and my adopted country, Canada, has been. All of them have made me happy, sad and angry at different times. In Canada, my anger, my desire to make what I thought of as a good country overall, better, led me to activism. As far as the United States is concerned, a jumble of pleasurable holidays, enriching scholarly conferences and exciting political developments, on the one hand, and of shameful and unworthy actions, by individuals and groups and government actors, on the other, has complicated my response.

Even now, as the country appears to be sliding further into an autocracy, the past few weeks have leavened that perception. And yet it is hard to avoid the conclusion that these two developments are proceeding on parallel tracks, occasionally intersecting, travelling towards a showdown where only one — the testing of the fibre of democracy and the fighters against injustice — will triumph, at least in the short term. Those seeking to unravel the institutions that have made the United States a better place are in it for the long term – they have much to lose if they lose. Those energized, as have others before them, by an egregious wrong must maintain momentum over a very long period and must bring others with power with them or, having achieved some new progress, may dissipate, ready to rise again . Living through the ebb and flow of progressive change long ago planted the seed of cynicism, even while it has also lifted me.

Since 2016 and increasingly so, however, I look towards that complicated country and feel sadness. Anger, yes, but sadness that a place that carried promise, however, imperfectly, is risking reaching the end of its own democratic experiment.

Let me wax nostalgic for a while. The first vacation my family took, after coming to Canada, sometime in the first year after we arrived, as I recall, was a visit with my dad’s uncle and his family in Dearborn, Michigan. Uncle Tom had left the UK to come to the United States, although “fleeing” might have been a better term, since he had a price on his head, having served as a Black and Tan in Ireland, at least according to my dad who revelled in family storytelling. The Hughes family was lovely to us and the younger American Hugheses (their older son had a family of his own by then) and my mother kept in touch for quite some time, but eventually the connection lapsed.

That was my first introduction to the United States and from then on my life in one way or another was loosely intertwined, personally, academically, and politically. Travelling began with that trip to Michigan and later family trips took us to Boston, New York City, Washington, D.C. We went by bus or train because we didn’t have a car when I was growing up. Of course, when we visited Niagara Falls, we crossed over to the American side, including with visitors from England. It was so easy in those days.

I recall in high school (or was it grade 8) going to the Albright-Knox Art Gallery in Buffalo, for a youngster developing a (casual) interest in art a wondrous opportunity. Our grade 12 history teacher took us to New York City, ostensibly to visit the United Nations, but she also had us accompany her to Greenwich Village to listen to jazz. As I dawdled behind everyone else, I suddenly felt a hand on my arm, which dropped when someone else chortled, “she’s not worth it”. At the Metropolitan Museum of Art, I spent the little money I had ($5.00 — it seemed a lot and I guess it was for me, since it would be $35 now), on a replica of a small and lively Greek horse, possibly bronze? possibly from the 6th C. BC? (I’ve lost the box with the information), which sits on a shelf in my living room today.

Much later my companion and I took the turns and curves on the Pacific Coast Highway, stayed in a little rooftop cabin in San Francisco with a view of Fisherman’s Wharf (no doubt very different 30 years ago from how I see it described now filled with “schlocky tourist shops, overpriced and underwhelming restaurants, buskers in your face”), spent Canadian Thanksgiving in Vermont at an Inn where they served us all to a Canadian Thanksgiving dinner, made short trips to New York, Boston, Chicago (enjoyed for the first time since I’d attended a political science conference many years before) and again, Washington, DC. Two week driving trips in the east, down to Savannah, Georgia and Charlotte, North Carolina, and thereabouts and to Santa Fe and back were all memorable. On the trip to Santa Fe, for example, a couple at the next table told us about the early morning trip balloon festival outside Albuquerque, where we walked around the huge baskets as the balloonists inflate the balloons and the burners light up as the sun rises.

We’ll never forget the terrifying drive across the mountains during an early blizzard as we circled home from Santa Fe through Wyoming, arriving at the Holiday Inn at about 10 pm, about 5 hours after we expected to, only to have a state trooper come up behind us and check the back of the pick-up truck we were driving because they’d received a call about a truck with a Canadian licence plate with an out of season deer in the back; we figured some hunters who had been at the same gas station and convenience store we had reached coming out of the blizzard had called in illegal hunting, helpfully reporting our licence plate: a prank? that’s the best explanation, so let’s leave it at that. One look and the trooper knew it wasn’t us (if it was anyone). One way to relieve tension!

When I was muddling through a major dilemma in my life, I spend two fall weeks at Goose Rocks Beach in Maine, in the off season, running on the beach every day and cycling to the only place nearby that was still serving dinner. And we enjoyed wonderful big New Year and Labour Day parties with our friends in Ohio who lived on a large property in a log house that made you forget they resided in a subdivision — breakfast and dinner nearly always led us to discussions about US politics (as did their trips to Toronto), although the prospect of a Trump presidency brought us to agreement, albeit perhaps for different reasons. Sadly, our male friend, Doug, died suddenly a few years ago; we keep in touch with Linda who called us recently to check in during the pandemic, which is no respecter of borders.

Back to earlier days and a different connection with the US. By 1968 I was in university and then and later as I began teaching university myself, first in political science and then in law, I took for granted that some of my scholarly work would take place or begin at conferences in the United States. And so they did. In fact, I considered moving there to teach political science. At one interview, a southern gentleman faculty member asked whether I had participated marches — and what I was marching about; I was not surprised to not get that job for several reasons, not least of which they wanted someone to teach American politics! The other interview was at a small liberal arts college in upstate New York and I might have gone there had I been offered the position (I still have the letter that in a most over complimentary way explained they had not received the funding to hire or they would have offered me the position — the road not taken or, more accurately, not offered).

I had the good fortune to exchange ideas with American (and other) academics when I crossed the border to make several presentations during the years I was Chair in Women and Law at UNB Law. The Gender Issues in Higher Education Conference in Vermont in 1995, the Making and Unmaking History Conference at the University of Southern California, the Women and Law Conference in San Francisco and the Institute for Women’s Policy Research in Washington, D.C., all in 1998, and the Feminism and Law Summer Workshop at Cornell in 1999, all of which enriched my work through collaboration with US colleagues.

The trips and conferences make it seem as if my only sense of the US was very much consistent with a pleasant life, but of course this was only part of the picture. Amidst all this have been the events that painted a darker picture and always floated as an undertone to the good times.

By the late sixties, my interest in politics had blossomed both in Canada and the US. I became a “Kennedy kid”, not so unusual, I think, for my generation. All of us worried we were at the edge of nuclear war during the Cuban Missile Crisis (I shudder to think what the outcome might have been had the crisis occurred today), a time of tension and fear that rivals any event since. I came out of my physics exam in November 1963 to learn that President Kennedy had been assassinated and spent the weekend immersed in the coverage, unusual in those days for being continuous. I was watching when Jack Ruby shot Lee Harvey Oswald. And less than five years later, the shootings of Dr. Martin Luther King Jr. in April 1968 and Robert Kennedy in June (the anniversary of whose death has just occurred as I write this and as the BlackLivesMatter demonstrations fill the news). I was just short of 20 years old and I felt as if the world had ended. And in some ways maybe it had, since Richard Nixon won the election in 1968. Marching against the VietNam and (first) Iraq wars, closely keeping track of the fight against abortion rights and reproductive choice more generally, including the bombing of abortion clinics, the constant efforts by states to water down the impact of Roe v. Wade that continue today.

And all along, both before my own interest and long after it, have been the ongoing injustices against Black Americans. I can remember sitting in my family’s living room with my grandmother watching demonstrations and riots and Gran asking me, “what do these n…..s want?” The killing of Medgar Evers, a black civil rights leader, about this time in June, 1963, by a member of the White Citizens’ Council in Jackson, Mississippi and the murders of four young girls in a church bombing in the same year; the abduction and killing of three civil rights workers in Mississippi as part of the 1964 summer voter registration drive that followed the murder of Evers (one white man was convicted in 2005); and others, including many whose killers were either never found or otherwise escaped justice. (A list of black and white men and women and children killed from 1955 to 1968 by white supremacists can be found on the Southern Poverty Law Center website.)

As for the police — and national guard — brutality against demonstrators protesting, in the immediate the death of George Floyd and in the longer term, the killings of so many Black men and women and children in the United States, it is not the first time we’ve seen it. Seared in my mind are the images of the police using dogs and water cannon against Vietnam War demonstrators during the 1968 Democratic Convention, described by a senator on the Convention floor as “Gestapo tactics”. The police attacked tv commentators, seen on television. The shootings of students by the Ohio National Guard, killing four, at Kent State in May of 1970 during anti-Vietnam War demonstrations, and eleven days later the killing of two students, one a high school student, at Jackson State University in Mississippi, during violent demonstrations. That and more have also been part of the history of America in my lifetime.

And to today. We’ve been here before. I should be clear that I’m not implying that this is only a “United States problem” because of course it is not. Canada has its own history, but that is not what I’m writing about here. In fact, it is not really the history of police and white supremacists’ treatment of Black people in the United States that I’m writing about. I refer to it because knowledge of this, too, along with vacations, scholarly conferences and political interest marks “my” relationship with the United States. And while I was disappointed that a woman with the potential to become the first female president had been unsuccessful in the primaries, so does the election of the first Black president, a thing of joy and excitement. Yet touted as evidence of a post-racial America — it was never that — Barack Obama’s election was, it seems, too much for too many Americans to bear (including Donald Trump who hounded him with the “birtherism” lie), providing in a certain way an impetus, among others, for the eventual emergence of a president who is a throwback to an America of many years before when life was, for those who support him, more clearly defined.

Disappointed though I might have been in 2008, at least initially, how much more devastating was the Electoral College win that gave Donald Trump the presidency over once again, a woman who looked as if she would be president and who did win the majority of votes. (And again, while not the subject of this post, the 2016 election was a reminder of the vexed shape of gender politics.)

Transcending all of this, mixed though it is, what breaks my heart is seeing the United States decline into autocracy. It was obvious that Donald Trump was going to be a president with no respect for institutions that stood guard over the presidency, no respect for other people, no respect for truth, no self-control, no regard for anything or anyone other than himself. But how much worse he has been than that. And more than one man, who might have been contained, who might have been removed, is the sight of American institutions peopled by men — and women — of dishonour in thrall to him and their own pursuit of power and privilege and the pursuit of the disadvantage of others.

It is not only that the president of the United States acts impulsively, on the basis of personal hurt (whether acts directed at individuals or at domestic or international governments); lacks knowledge about the institutions of government and of the norms and practices that are intended to protect democratic governance and does not care to know; surrounds himself with enablers and others who, like him, seek only personal benefit from decisions; governs only to please those Americans who believe themselves to be aggrieved and who sense in him a kindred spirit whose outlook on the world is controlled by his pathetic sense of grievance; while hugging the Stars and Stripes, carries the metaphorical banner of those who brazenly wield torches and guns in pursuit of supremacist and fascist ideologies, who have sought effectively to overturn a state government by force; lacks a moral compass, empathy or compassion; tears apart international alliances yet cozies up to autocrats; brings troops into the streets to abuse peaceful protesters; cynically uses religion in pursuit of support from those who rely on their religious beliefs to bar the equality of others; not only incompetently but also cavalierly botches the response to the coronavirus pandemic; and flaunts his disregard of the rule of law and specific laws.

He is all these things and he is a president who through ignorance, deceit, callousness, avoidance of penalties to come and with the backing of those who align with his goals and benefit from him — including the other institutions that should provide some equilibrium — seeks to destroy the fabric that contained the hope, if not always the realization, of a better nation because otherwise that fabric would destroy him.

These last few weeks, though, have provided the president with the opportunity to display his insistence on the exercise of power, a naked commitment to using militia to destroy those who oppose him and what he represents. His brazen and provocative decisions to hold his first rally in some time in Tulsa, Oklahoma, famous for a 1921 race massacre and his nominating convention in Jacksonville, Florida, where 60 years ago, Blacks participating in a lunch counter sit-in were chased through the streets with ax handles and baseball bats by white segregationists led by the Ku klux Klan are frightening evidence that he intends to continue on the same path.

(Only considerable pushback made him change the date of his rally from Juneteenth, a date commemorating the end of slavery. And Trump’s nomination acceptance speech, to be given on the 60th anniversary of the ax handle riot, has been moved to Jacksonville from Charlotte because the governor of North Carolina, where most of the convention will occur, refused to agree to waive coronavirus precautions.)

Other ways of dealing with everything that is wrong with this presidency have failed. The November election looms. Already, vote suppression has made it clear that a democratic means to returning the United States to a different path is no sure thing. And Trump’s behaviour has not unreasonably raised concerns that even if he loses, he will not easily leave the White House.

One day historians will be able to explain how America reached the state it has reached now and how this state became its way of being. We watch it happen daily, yet it is hard to credit how feeble the institutional checks and the institutions of democracy are, how easily dismantled or ignored. It is hard now to untangle the morass of ongoing conduct that has led the country here.

As I watch the demonstrations and, indeed, the efforts of some segments of American society (and Canadian) to trip over themselves to respond to the allegations of systemic racism, I feel some hope. The demonstrations are more diverse than the many that preceded them, the responses coming from many different sources, including apparently entrenched institutions, and in some cases they have provided the opportunity to register voters. Yet these responses do not come from those who have been dismantling the structures of governance, who have been acting cruelly and deceptively. On the contrary.

And so, despite some hope, my overwhelming response to all that has occurred quickly and unrelentingly, throughout the very few years since 2016, remains the sadness that comes with a broken heart.

Something I’ve confirmed through the pandemic

As we move through this overwhelming coronavirus pandemic, I have learned a number of things. But one self-absorbed reality I’ve realized — or perhaps confirmed is more accurate — is that I am really quite dull and boring.

I’m not a social media maven, limiting myself to Twitter, but through that (and sometimes through old-school newsprint) I do see what those entrenched at home do to fill time or to convince themselves this time at home is not wasted. I find that I don’t need to cook new dishes, take up a new hobby or prepare short displays of my talents (first, I’d have to discover them). I have no urge to imitate a painting. I’m not looking for this “self-time” to broaden my horizons. I’m not attracted to Zoom cocktail parties. In fact, I’m doing pretty much what I’ve been doing for the last few years. This in itself is proof of how boring I am.

At one time in my life, I baked bread, made soups, cooked a variety of dishes, made jams and pickles and sewed my own clothes; I’ve painted unpainted furniture (never done pottery or taken dance classes). I marched to protest laws against abortion and the Vietnam War, spoke at Take Back the Night rallies, had a wide circle of friends (mostly women, but some men), wrote real articles on a range of topics, travelled to make presentations, had the pleasure of running along rivers in many countries, as well as cities in Canada, held a few relatively responsible jobs and generally had a busy life. That gradually narrowed, but not completely.

After finishing (more than) full-time work nearly four and a half years ago, I spent a busy year, the activities of which petered out. Although perhaps “petered out” is not quite the right phrase: maybe stopped completely is a better way to describe it. (Hard not to internalize that message!)

Finding myself with a great deal of time, I mused about volunteer work, but couldn’t decide what it should be — what could I do that would be of any help to others and did I have to prove I could do it before I actually started? If so, it would be a high hurdle. I made a list of what need to be cleared in the house: I didn’t want to have to do it when I move or want leave it for someone else. Can’t see that much has been accomplished there.

I’d enjoy lunch now and again with a friend, maybe go to the AGO or museum or to a movie. I started to post regularly on (a legal blog) and started this blog, all my own, totally amenable to whatever I want to write about (exhibit A being this post). Anyone can see posts are few and far between.

The Shaw and Stratford Festivals were a highlight of life before I finished my full-time contributions to the legal sphere and have continued to be afterwards. And I devoted myself to my garden when seasons and weather permitted. Fortunate to live near a park, and in earlier lives, near rivers, ravines and running paths, I’ve run (not that everyone recognizes that’s what I’m doing) for years. And even that meagre list sounds fuller than my hours were.

And so six weeks ago, while many people’s lives changed, mine did not — at least, not much. Lunches have been replaced by emails and phone calls, inadequately, of course. I’m able to go out walking (running is less fun when you’re dodging people walking or cycling towards you). I read (but not really much more as I did before, which I find quite shocking). Stratford has called it a day for this year, but the Shaw keeps hoping, although I doubt I’ll venture there even if it mounts the plays I’ve booked.

I’ll be gardening soon, although I’m not sure yet how much of that there’ll be to do. Do I want to whisk through a garden centre the way I do through the grocery store? Will I be willing to whisk through a garden centre rather than order plants on line? I ordered books online for the first time a couple of weeks ago (browsing through bookstores is one of my pleasures), and that went well, but plants are a different breed: who knows whether dessicated begonias will show up at the door?

I should state clearly that I’m very lucky during this time. It’s true age makes me vulnerable to more serious consequences if the coronavirus catches me. I don’t discount that.

However, my dull and boring life is somewhat of a luxury now. I’m grateful that I have the good fotune (so far) to escape the worries impinging on so many Canadians’ lives. And while age makes me more vulnerable, it also has made my life easier. I think of the employees who are now unemployed and who may or may not have a job when “this is all over”. I think of those trying to scrape together the money to pay rent or the mortgage.

I definitely think about those living in long-term care homes and similar congregate settings whose lives have been sacrificed because we haven’t been willing to fund social care adequately. I think about inmates crowded together. I think about the people who are homeless. And I think of the women who are not alone, but live in fear of the person they live with.

I think of the caregivers who are on the front lines of treating patients with COVID-19. I think of those who work in “essential services” so that I can buy groceries or others can travel to their essential businesses.

I think of two parents working remotely glad to have work but who also have kids to care for and for whom they must organize their “schooldays” — and then I think how much worse for the single parent, more likely than not a woman, who might be fortunate to be working, but is also trying to care for children. And how they are all in their apartments or houses nearly all the time. I think of the parents in the park near me whose toddler started running towards the playground, only to burst into tears when told “you can’t go there, it’s against the rules”.

I live in a comfortable house and, like others, my investments are down, but I don’t need them to live on. Someone said to me, “this has told us whether we really want to be with the people we’re with” and the answer for me to that is, “definitely yes”. He and I are dealing with this together, mutually supportive of each other.

Okay, I’m not a complete philistine. I listen on Twitter to the short pieces Yo Yo Ma plays. But my attention is primarily still drawn to the awful state of affairs south of the border (I always play the Randy Rainbow videos); I keep up with news on coronavirus developments; and I think about whether I’ll be willing to leave my stay-at-home life when more and more opens up. Because the life I led before the pandemic pretty much describes the one we’re supposed to be leading right now, staying at home.

Truth to tell, dull and boring seems pretty lucky to me right now, as far as things go.

Physical Separation Etiquette in the Time of COVID-19: Walking in the Park

There’s a large park near me. And so I’m fortunate, along with many others in the area, to be able to go out for a walk every day (or just about). And people are, generally speaking, very conscious of the need for physical separation. This park makes it easy most of the time, since its paths are wide — they meet the six feet/two metre distance requirement. And more people than usual are still smiling, nodding or saying hello as they walk by, or so it seems to me. But inevitably, not everybody seems to realize how easy it is to accommodate one another. So, a short primer on the etiquette that makes physical separation easier might be helpful.

“Etiquette” is different from the “rules” we’re meant to live by these days: it shouldn’t be rigid, but it is intended to make life more comfortable and easier. I start with a couple of general guidelines that making walking or running through the park or on roads without sidewalks easier for everyone all the time. To get to the park near me, I go down a street with a sidewalk (here someone needs to walk out into the road if we intend to observe two metres and people do) onto a road with no sidewalks.

When I was a kid we learned a little rhyme to remember to “walk facing traffic all the while”. We wouldn’t use this rhyme today (or for many years now), but its imagery was effective. Following it means you will see the traffic coming towards you as it comes. Too bad that many people never learned this guideline or a reasonable facsimile or have forgotten, because many people, it seems to me, walk in the same direction as traffic.

Now, let’s step away from the road into the park. The guideline changes and whatever signs there are indicate we should stay to the right.

These guidelines are pretty simple, really, although granted they make shifting gears as you move from road to park necessary. They make walking and running even in the best of times that much easier. No guessing about moving to avoid the person coming towards you on the “wrong” side.

Back to the time of COVID-19. Right now, there are not many people walking in the park. I expect this will change as the weather warms up and we have more bright sunny days. As of today, park amenities have been “locked down”. In the next few days, I imagine we’ll see more playgrounds, dog parks and so on with fencing or just “caution” tape around with notices to “STAY OUT”. And this has happened because people have used these spots to congregate rather than maintain physical distancing. So as more people crowd the green areas, still open, the risk that they will not respect physical distancing will become greater. Perhaps, realistically, it will become impossible, but let’s not assume we will get to that.


  • Try to keep to the appropriate side of the road, if there aren’t sidewalks or to the right side of the path;
  • as you approach another person, make it clear you intend to keep your distance; if necessary, that might mean stepping off the path if it’s not very wide and if that’s possible;
  • walk over to the other side of the path if someone is sitting on a bench near the park;
  • don’t go up to someone with a dog because you want to talk about or pet the dog (this probably breaks the physical distancing rule, anyway);
  • don’t stand in the middle of the path;
  • if you happen to meet friends and want to talk, step off to the side of the path, if you can, and keep six feet from each other while you chat (and if you can’t, perhaps accept you just need to phone each other);
  • make sure your kids understand the need for distance (and kids from different families shouldn’t be out together), whether they are with you or not;
  • if you’re on a bike, remember people may be moving about more often than usual;

Everything on my etiquette list is based on a real situation, all of which could be avoided and even if not “wrong” means someone isn’t quite as responsive to those around them as they could be. Here are a few examples of when people, not callously, possibly carelessly, maybe inconsiderately, have made physical distancing just that little bit more difficult to satisfy.

  • four kids, around 10 or 12, skateboarding together. We know kids are not immune from the coronavirus, although they may not be as susceptible as older people to its effects. Kids have died, though, and they are carriers. So, apart from almost knocking down a toddler who started wondering into the middle of the path, these kids, especially if they were “just” friends, should not have been speeding along and taking up the path.
  • ahead of me I could see a little group standing in the middle of the path with their dogs. I did not reach them, but a fellow on the other side had passed them. He exclaimed, “and then there’s the dog convention back there“.
  • overheard passing two people who were obviously friends, one with a dog: dogless friend says, “I read that the problem with walking dogs is people come up to pet them and don’t keep social distance“. Next day, of course: I pass a couple with a dog when a guy walks right up to them to talk about the dog.
  • walking along the path, I see two people standing at the side of the path when it would be easy to step off onto a grassy area; obviously, they were with their kids who had taken off for a point of interest nearby. The two of them had put their bikes off the path, but stood there themselves, making it a bit more difficult when two people walking in opposite directions both came close to them.
  • the park is a favourite of cyclists who, unbeknownst to the rest of us, have rented it for their practice sessions as they prepare for the Tour de France (okay, this ticks me off at the best of times!). Not unusual for them to whoosh past without any warning. The other day, walking along a path, I make sure I step over to the other side when someone is sitting on a bench next to where I would be walking. Just as I turn back to the right side of the path, before I could see behind me, a speedster races past. Not ideal.
  • Back to the road without pavements. Two people walking towards me on the same side as the traffic. I’m walking facing traffic. It’s obvious they don’t plan on moving, so with a quick look behind me, I make sure there’s nothing or no one behind me and go out into the road (other way not really feasible) — just then a car comes up behind me and one is coming the other way. So we have a little conglomeration of two people, me and two cars uneasily close to each other.

None of these situations is major. But they all happened when there were not many people out taking the air. The park paths will get busier and, as I said above, perhaps we’ll be prevented from enjoying our brief respites in one of Toronto’s wonderful green spaces if the pandemic gets worse — or if people, as they did with the playgrounds, don’t take care in using the parks’ green areas.

So the “etiquette of park walking” (or running or cycling) is thoughtfulness that is considerate of how everyone is trying to do the right thing: the physical distancing that is crucial to keeping ourselves and others free from the virus as best we can. It makes it easier for all of to do that. Of course, we all forget or are distracted, but the reality is in this time of COVID-19, walking in the park may take a little more thought than it usually does. We owe it to each other.

I Wish Id Known About the Apostrophe Protection Societys Existence Before It’s Demise

I read the other day in the National Post that John Richards is ending the life of the Apostrophe Protection Society’s website. As I’m (“I am”) sure’s (“sure is”) true of many people, I had no idea this society existed. But I wish I had known. The use of the apostrophe seems to be one of those things that just don’t (“do not”) matter anymore. (Mr. Richards is considering dedicating his time to the proper use of the comma. I’m (“I am”) wondering whether he’d (“he would”) put a comma after “matter” in the preceding sentence.)

Also like many people, as it turns out, I decided to check out the Society’s website, only to find it suspended (substitute “find it’s [it has] been suspended”) for “find it suspended”), reduced to the following message:

The Apostrophe Protection Society

3rd December 2019 valid until 31st December 2019

John Richards has announced the he is closing the Apostophe Protection Society.

Since the announcement, this site has had a 600-fold increase in traffic, which is proving expensive. So we have decided to close it until the New Year.

When it returns, Webmaster John Hale intends to keep the site running for a few more years.

Sorry, and thank you for your interest.

We will be back soon!

How many of us will rush back to the Society’s website in the new year: my guess is not many, it’s (it is) the sort of thing we have to be reminded of (if I hadn’t [had not] added this bit, I would’ve [you know what I might’ve put here, right?] ended the sentence with a preposition, something I’m sure would have rightly agitated Mr. Richardson). (With this detour to prepositional use, I feel compelled to cite Winston Churchill’s witty put-down of a bureaucrat’s efforts to avoid ending sentences with a preposition, an effort that can seem very burdensome: “This is the kind of pedantry up with which I will not put!” [Thank you to Paul Russell in the National Post who was in turn citing Seymour Hamilton.])

There are several specific aspects of apostrophe use or non-use, whichever applies, that particularly irk me. One is mixing up “it’s” (the contraction of it is) and “its” (the possessive). At first you’d see this annoyance from time to time, but by the time I was seeing it in the national newspapers, I figured it was the end more or less and I started blaming autocorrect (maybe the person who developed the algorithm for spelling couldn’t use “it’s” [it is] and “its” (very nice on as it is) correctly. Or maybe it’s (it is) not the result of an algorithm at all, I really have no idea.

The second incorrect use of the apostrophe is when it is used in signage when it shouldn’t be and when it isn’t used where it should be. The National Post article about the end of the Society — or maybe it’s not the end, after all, we’ll see — was illustrated by the Tim Hortons sign, which doesn’t use an apostrophe. Of course, at one time Tim Horton owned Tim Horton’s, it belonged to him (who owns that donut shop? I think it’s Tim Horton’s). In this case, it may be that while the heritage aspect of the name is lost, it actually is more correct as it is now, since it now owned by an international restaurant conglomerate. Fun fact: it was once owned by Wendy’s, which still uses an apostrophe.

Street names often have an apostrophe because they start as a track to someone’s property. For example, Brown’s Line, near where I live, links Lakeshore Boulevard to Highway 427. It sometimes appears as “Brown’s Line” and sometimes as “Browns Line”. Curious about its (possessive) origin, I checked Google (here is a different issue: as with Xerox, Google has become so prevalent that one now sees it spelled “google” or “Google”, regardless of whether it is used as a noun or a verb). Back to Brown’s Line: it seems that Joseph Brown was the first permanent settler in the area, owning a farm reached by a dirt track called, you guessed it, “Brown’s Line” (the “line” belonging to Brown) and the name continues to apply to the busy and longer street (see here). You often see “Brown’s Line”, but you also see “Browns Line”, the latter appearing on the highway directional sign.

Indeed, one sees whole towns caught up in the apostrophe quandry. I came across a story about Bright’s (or Brights) Cove in southwest Ontario. Both versions appear in different places and according to the story, there are strong feelings among the townspeople about which is correct.

One sees quite a few homemade signs that use apostrophes incorrectly and it seem churlish to be critical of those, but professional and expensive signs are another matter. Still, if the person or business that arranged for the sign doesn’t care, who else will? Perhaps there are others grumbling as they point these professional signs out, but I confess that I’ve never heard anyone, although it might be that my own exasperated sighs (my own cavils as some would have it – that’s [that is] “cavils”, not “cavil’s”) might have drowned them out as I passed.

The National Post’s (not “National Posts”) article contains some examples of incorrect apostrophe usage that the Society’s website identifies (I’m guessing it still does, we just can’t see them right now). “Fans” of the website have submitted these: “a café advertising ‘light bite’s,’ a warehouse offering storage for ‘boat’s’ and ‘car’s,’ and a restaurant selling ‘snow pea’s’. It’s true that usually we know what is meant, whether there is an apostrophe or not and I’m sure most people would think it very technical if a reader of the warehouse sign asks, “boat what?” or “car what” – what part or attribute of boats and cars will this warehouse store?

A few years ago, Robert Fulford wrote a lovely column on the apostrophe in the National Post (interestingly included in the Entertainment section [I believe my capitalization is correct here, but perhaps not) in which he referenced Mr. Richardson. He mentions that some individuals “who go about armed with thick-nibbed pens and markers so that they can correct advertising signs that contain the most widespread apostrophe errors, the culture-eroding, literacy-destroying blunders” that are quite common. I rather liked his allusion to “a cartoon in which a weeping young woman says, ‘I was willing to overlook his comma abuse but when he started misplacing his apostrophes, I knew it was over.'”

Another column reminds us about “Mother’s Day”, which, as the column suggests, should refer to all mothers. It should, but another way of looking at it might have been that it is a day to celebrate one’s own mother (“My mother’s day”). Of course, if this was ever the case, it certainly doesn’t wash now when it is quite common to have more than one mother.

Russell Smith in a column in The Globe and Mail now eight years old (oh, dear, apostophe on years or not?) writes about the complexity of apostrophic use based on the Globe‘s style guide. I was surprised at his description of the use of the mark with proper names ending in “s”; he explains the Globe‘s approach, as well as his own “vague” memory, that it depends on whether the name was one syllable or more. My own memory is that is depends on whether the name ends in a soft “s” or hard “s” or “z”, although I’ve never found that rule easy to apply, so that I’m relieved I might be wrong. (It is worth noting that Russell’s column has a little caveat note indicating that the information in it (probably about the Globe‘s style guide, as Russell refers to it – or should it really be Globe style guide”, Globe being descriptive?) is eight years old (no use of an apostrophe on “years”) and may no longer be “current”. On this point, see How to Use Apostrophes by Scribendi, which makes the whole thing seem complicated indeed! (As is too often the case, one refers to online sources without knowing whether they’re authoritative, but it certainly seems as if it is.)

Enough on what appears to be a losing tussle (saying how I feel as gently as I can) arising from the incorrect use of apostrophes (no ‘, just a simple plural). There are other struggles to undertake, such as the dangling modifier or participle, something Marcus Gee says is “driving him up the wall”. Me too. It usually doesn’t take much to get it right: a quick review of the sentence tells the writer whether the person or object in the modifier is the subject of the main part of the sentence. But as Gee vividly writes,

Using [the dangling modifier] doesn’t just violate some musty grammatical decree. It obscures the writer’s meaning and leaves the hapless reader confused. If good prose is like a windowpane, the dangling modifier fogs the glass.

So many grammatical issue to consider: when “I” or “me” or “who” or “whom” is (singular because of the use of “or”) correct are just two examples. Of course, we tend to be more lackadaisical when speaking and being grammatically precise in ordinary conversation does often sound stilted. So much writing today is more like speaking and takes on that informal tone; that has seeped into newspapers and other more formal writing, it seems.

Inevitably, people who learn English as a second language may well be concerned about the proper use of English grammar, but they also may focus primarily on conversation. When I spent time trying to learn French in a sustained way, I found refuge in grammar, including some of the more difficult French constructions. But I had much greater difficulty with conversational French, partly because I found spoken French hard to understand (having what is best described as a “tin ear”) and because I was so determined to speak correctly. The result: I hardly spoke at all and never really achieved the level I might have done had I given myself a break.

We all know and acknowledge that language evolves; we know English is different in different countries, despite being a first language , or within a single country. We know spellings change. We are aware English has become more simplified, as anyone who might have read or listened to a play by Shakespeare certainly knows. Yet as we veer more and more towards the colloquial and the easier way of writing (short sentences with a single thought, for example), we also lose some of the pleasure of language. At least some of us think so. Robert Fulford quotes David McNamea, who wrote, “I have always admired the apostrophe. It floats anarchically above the rigid baseline that most other characters limp along. It looks cute too.” As Mr. Richardson says, “To do without [the apostrophe] would be confusing, as well as inelegant.” Yes, language must be functional, but how wonderful to also maintain its beauty and variety.

How Long Would it Take You to Fire This Guy?!

You’ve just hired a new CEO of your company, which is large and diverse.

The multifaceted nature of the company requires many people with specialized expertise in communications, cybersecurity, relations with government and with other companies, as well as specialized knowledge in many other areas. Your company’s relationship with others, especially with those with similar company characteristics, is on the whole good, despite the occasional disagreement. There are some companies, however, about which it is agreed among members of your board of directors, senior executives and yourself you need to be wary.

Inevitably, internally, there have been disputes, disagreements about specific decisions, as well as the general direction of the company, but again, for the most part, things are going well, despite certain philosphical differences. However, there was some disagreement about hiring your new CEO. He happens to be male and quite a few people would have preferred hiring a diferent candidate, a woman, including you. If anything, more of your other employees preferred the other candidate, but the board of directors, to whom you had entrusted the decision, chose the other candidate who has now been in the position for a short period of time.

Your new CEO talked big during the hiring process, but it doesn’t take long before you realize he has trouble realizing some of the promises he made (some he manages to accomplish, primarily because of help from others). Indeed, there are some people who are completely dedicated to the new guy and go out of their way to make your employee look good; one impact of how he operates is that it reveals that things weren’t really that great internally, after all. He knows how to take advantage of this, not to improve the company, but to benefit himself.

Over the next few monhs, several of the employees in quite senior positions who were hired to assist the CEO with difficult issues outside his own area of expertise leave the company. You find that he is making decisions and announcing them at will, without any approval from you or the board of directors. He doesn’t care what his advisors say — he knows better than anyone on a whole lot of different subjects, subjects in which he objectively speaking shows a great deal of ignorance .

It becomes clear that he often lies, sometimes mispresenting events that have happened and sometimes fabricating information, results of company projects or the actions of others in the company out of whole cloth. But this is not the only problem as far as lies are concerned, because you discover he is requiring other employees to lie for him, to make him look better, especially, but certainly not only, in comparison with his predecessor.

The CEO starts having public fights with many people and groups; it’s not unusual that there are sometimes a few arguments or a bit of hostility, but it’s reached the point where, except for one or two members of these groups, he exhibits ongoing and public antagonism towards them. The good, even excellent, relationships with other enterprises start to deteriorate, while at the same time, the CEO cozies up to those you’ve distrusted in the past. You find, as well, that they are working with competitors to help them and to hurt others in the organization.

You find out that the CEO is carrying on his own business, a chain of high-end restaurants, although technically it is being run by relatives. Sometimes other employees hold company events at his restaurants, as do people from other companies. He’s also appointed relatives to positions in the company where the relatives also can benefit themselves; indeed, these relatives become involved with your company’s operations, although they’ve never been been formally considered for them.

Although the CEO has a very good fund to pay for legitimate expenses, you discover that he ise using it to hold big events to promote his keeping hisjob beyond his current contract — to make it seem okay, he sometimes will take an hour or so to do some actual business. But when he go out of town for these events, you’ve been told he doesn’t always pay what he owes those who provide services for these events.

He doesn’t prepare for meetings or even public pronouncements. Even when he does talk from prepared notes (prepared by other people), he ad libs, sometimes with crass remarks, sometimes with fabrications, sometimes with insults to others. He seem incapable of writing comprehensible sentences, but he insists on sending out notes to all and sundry without checking with anyone first.

Although far from perfect, your company has committed to policies designed to increase equality in the firm. You were shocked to hear the CEO make misogynist and racist comments in private meetings and also in public settings.

In short, your CEO is highly incompetent in carrying out the job for which he was hired, his actions raise serious ethical and moral issues and his conduct, unfortunately aided by others, makes it difficult to achieve the company’s goals.


Secularism and Religious Complexities

For many years, my view of the world has included a belief in secularism. Depending on how confident I feel at any given time, I am an atheist or agnostic. But what does this really mean and what does it say, from my perspective, about the place of religion in the public square and in private life? What can we say about the nature of a secular society, especially one that has recognized freedom of religion? (I stress, at least as far as I see it, no absolutes, or very few, here.)

In contrast to a theocratic state, which is governed by a particular religion, a secular state does not advance a particular religion, or religion generally: thus government and education, for example, do not have a connection with religion (although this is complicated by the constitutional guarantee of denominational schools). The moral attributes of the state are not explicitly attributed to religion, although religious tenets may serve as a subtext to an ostensibly secular moral code, whether admitted or not.

On this last point, secular states may be officially atheist, not accepting freedom of religion, recognizing freedom of religion or, despite stating acceptance, nevertheless oppressive of it or of some forms of it. My personal perspective believe in a liberal-democratic state that does acknowledge and permit freedom of religion (and of conscience, a rather trickier ground I think, despite the broad scope the Supreme Court of Canada has given religious belief in cases such as Big M Drug Mart and Anselem). Such a state also prohibits the corollory of freedom of religion, the right not to be discriminated against on its basis.

However, inevitably things are really not so simple. A state that is appropriately described as secular today may have had significant religious components or influences in the past that linger today. Canada is a good example of a state that at one time, although not identifying an official or state religion, nevertheless behaved as if Christianity was a state religion. A brief description of the discrimination against Indigenous peoples, in part based on religion, on Jews and on others can be found in the Ontario Human Rights Commission’s history of “creed”. Some states, such as France (and Quebec), once governed by religious practice, now seek to eliminate religion from the public square completely or in part .

Our respect for civil liberties — freedom of speech, freedom of religion, freedom of association — derives from the historical denial of those liberties. As far as religion is concerned, world history and current circumstances is replete with forced conversions, death, sometimes horribly so, for those who do not accede to the dominant religion and, in a less dramatic sense, denial of education, employment or housing. We can point to many such occurrences across the world, including in Canada. It is a mark of an advanced society, in my mind, that it can accept people’s religious observances, recognize the strength they gain from their religious belief and understand that their commitment to their religion is a fundamental aspect of their identity. Similarly, those who have no religious views should be allowed that perspective, as well.

I appreciate, and even envy at times, the comfort people can receive from religion, whether because they believe they will see their loved ones again after they have passed away or at least that the afterlife has meaning.

I read not long ago a beautiful and moving description of the “afterlife” by Ted Rohn, publisher Greg Younging’s brother:

When Dr. Younging began his spirit journey on May 3, he was surrounded by family and the love of friends who had inundated the hospital with calls and posted messages online. His father spoke to him while his daughter Nimkish held his hand and sang to him, much like he had sung her to sleep as a child.

“He found peace in the surrender,” brother Ted wrote online. “We washed him in cedar water and prayed for his spirit.”

“On the first night, he travelled to the Sky World. He rested, lit a fire and ate a meal,” Ted said in his eulogy. “On the second night, he travelled to the Star World. That night, we watched from his balcony as the night sky lit up and danced with his energy. The third night, he travelled to the place where the waters are. There, our ancestors met him and greeted him and showed him how to cross the waters. On the final night – last night – the ancestors took him into the dark. They had to leave him, this part of the journey he had to take on his own. Alone, he followed the light through the Dark World, and made his final crossing over into the light and into the love.”

Kateri Akiwenzie-Damm, “Publisher Greg Younging nurtured Indigenous voices in Canada“, The Globe and Mail (online May 28, 2019)

Such belief can only be described and truly felt by those for whom it is an integral part of who they are. The rest of us, or at least I know I am, are outsiders who can only acknowledge how important this belief is. That is what freedom of religion is ultimately about, I believe. Even those of us who do not have the faith religion requires, should in a liberal secular society, be willing to accept the faith of others with the important caveat that the faith is not grounded in hatred or ill-treatment of others.

But that is the easy part. Inevitably, conflicts will arise when religious beliefs run up against other religious beliefs or other situations in which the religious expression negatively affects other people directly or cannot be reconciled with another significant societal interest. Despite a commitment to religious freedom, a secular society requires that some expressions of religious belief may have to give way in the face of the public good. Otherwise, we run the risk of developing a theocracy, albeit one that is manifested in the dominance of several different sets of religious belief. (Although some would argue the public good requires observance of the morality reflected in or following from certain religious beliefs.)

Sometimes the struggle is an internal one: for example, a public figure must somehow reconcile — or ignore — their religious beliefs in order to conform to other loyalties.

In secular countries, adherents of the church who also have public decision-making powers and authority must struggle themselves with conflicts that might arise from their religious beliefs — and expectations of their church — and their government responsibilities. I recall being impressed by Mark MacGuigan’s honest and thoughtful journey into this struggle in his book Abortion, Conscience & Democracy (1994) (still available, it appears, from Dundurn Press). (See my 1995 review in the Canadian Bar Review). I wrote in my review,

MacGuigan’s theoretical position grows from the parallel developments of pluralist democracy and of the liberalization of religion, merging in the secular democratic state, the separation of the political from the religious, and the growth of secular principles to guide the determination of moral decisions. Yet he sees the religious and the secular as ultimately intertwined : “a religiously neutral, pluralist democracy. . .is more than a mere toleration of diversity. It is an acceptance of pluralistic society as God’s plan for the world”. (P.526)

I reread this review for the first time in many years (I probably haven’t looked at it since 1995!) for this post and realize that, while I have always thought about MacGuigan’s position as one to be admired (and probably still do), that it does not suffice in the end to address the fundamental question because of MacGuigan’s starting point:

MacGuigan’s position is grounded in the rights of women who are “morally impelled to have abortions”. This attribution of the demands of conscience provides a symmetry perhaps necessary to a thesis premised on rationality and logic. But in the nearly twenty-five years that I [had then] been involved in this struggle, I have never heard a woman claim that she has been “morally impelled” to have an abortion. Rather, I have heard women talk about the failure of contraception, having to raise existing children singlehandedly, having conceived from rape, and young women who, like their male companions of the instant, were careless and faced severe disruption of their lives. These are not reasons which MacGuigan would recognize as legitimate after viability, but they are the reasons women need access to abortion. (P. 528)

Individuals with other religious beliefs in public positions of authority will have faced the same challenge, maintaining adherence to their religious beliefs and observing public policies and laws that affect others. Others (and I think of Vice-President Pence of the United States who appears to bring his particular Christian beliefs to legislation denying LGBTQ+ peoples their rights, even to perhaps influencing taking away the rights they have already acquired) use their public positions to advance their own religious outlook.

In other cases, and perhaps increasingly so, the conflict will be more direct and open. For example, if a public school teacher’s religious faith restricts his interaction with women and he refuses to meet alone with a female parent of a student, his belief must give way to the more general commitment to gender equality rights. Some may argue that an accommodation could be achieved: if there is a male parent available, he could meet with the teacher; a male employee of the school could meet at the same time. Such adjustments might seem simple and possibly both female parent and teacher would be willing to make these arrangements. But what does it say about our understanding of the equality of women that they must be subject to the tenets of a religion that somehow does not see them as equal (I say this realizing that others would argue that there are different ways to think about equality)? This is a case in my view where the religious belief must give way to another right.

A similar issue arose at York University when a male student refused to work with female students in a course requiring group work. The student had taken internet courses because he said his religious beliefs prevented his interacting with women; however, the group work was required. The professor refused the student’s request and the student did accept that. Despite the student’s response, the York administration took a different tack, ordering the professor to accommodate the male student. The professor refused. (The university claimed that the order to accommodate was based on the nature of the course: it was an online course and the student had selected it because he would not have to attend classes on campus, but without seeing the course syllabus it is difficult to see whether this might have been the case from the outside and it is not the reason apparently given by the student.) These cases affect particular groups, but they also represent the public interest in not having authorities complicit in infringing broader rights.

Let me consider another example: the refusal on religious grounds to vaccinate children. (There are issues relating to adults who do not get vaccinated, such as failure to get a flu vaccination every year, but I’m limiting myself to children here). Here the broader public interest is clearly at stake, since it is necessary for a sufficient percentage of persons to be vaccinated in order to have the proper impact (the so-called “herd immunity”). Children who cannot be vaccinated for some reason are also at greater risk from other children around them who contract measles, for example, because the latter were not vaccinated. This example is also complicated because some parents refuse to vaccinate their children for non-religious reasons, because, for example, they believe debunked notions that vaccinations cause autism.

In Ontario, the law requires children to be vaccinated against a list of diseases before they can attend school; however, the Immunization of School Pupils Act permits exemptions for medical reasons (this requires a medical certificate limited as to disease and effective time period) and for reasons of “conscience or religious belief” (in this case, the parent must, since September 2017, attend an educational session about vaccines and must file a certificate with the medical officer of health, subject to a fine of $1,000 for non-compliance). A report in the National Post earlier this year suggests that these sessions have not changed anyone’s mind and may have entrenched opposition because parents feel insulted. Non-vaccinated students can be removed from school if there is an outbreak of disease.

New Brunswick, which also has a mandatory vaccination law with medical and religious and conscientious exemptions, is eliminating the non-medical exemptions, as are some other jurisdictions, including New York. (I have considered the constitutional aspects of removing non-medical exemptions in a Slaw post.) According to a report in the National Post, Australian parents can lose child benefits if they do not vaccinate their children.

There is disagreement about how to address what is called in an unfortunate euphemism, “vaccine hesitancy”, or more pointedly, labelling those opposed “anti-vaxxers”. Measles can result in death (and has since its resurgence), hearing loss, brain damage and other problems, yet parents still refuse. And measles is easy to catch — one person will probably infect 18 others and even after someone leaves a room, people may still catch it over the next wo hours — and there’s no cure once someone contracts it. It seems that many people opposed to vaccinations develop that view through the internet and social media, where there is false information or emotional stories, compared to the sheet of dry facts and statistics. Better, it is said, to treat those opposed with respect and to discuss their concerns.

We do not permit parents to refuse blood transfusions or other medical procedures that are required to save a child’s life (see B. (R.) v. Children’s Aid Society of Metropolitan Toronto, in which four judges held that the right to religious belief is broader than the right to act on that belief and the other five held that limitation on the right was justified under section 1 of the Charter) and so it is reasonable to ask why we permit religious objections to vaccinations. Not only the parent’s own children are at risk, but other children and adults with certain conditions. Requiring vaccinations is an example of where the public interest should take precedence over personal belief.

Another example can be found in the refusal of some doctors to provide certain services on religious grounds and, in particular, the view that even to refer patients to other medical professionals who would provide the services infringes their religious beliefs. I discussed the Ontario Court of Appeal’s decision in Christian Medical and Dental Society of Canada upholding the College of Physicians and Surgeons of Ontario’s referral policies in a post. The doctors’ obligation to ensure that their patients will have proper treatment arises from the doctor’s fiduciary relationship to their patient and that may require setting aside religious beliefs.

However, a secular state can tolerate individual religous expression even in those who represent the state: what it cannot tolerate is influencing state policies on the basis of those beliefs.

Quebec’s Bill 21, An Act respecting the laicity of the State (available at has now passed the National Assembly. It prohibits certain civil servants, that is, persons in public positions such as teachers, police officers, government lawyers, judges and others in similar positions of authority providing government services to the public from wearing clothing or other manifest examples of religious belief. While it grandparents current employees, it is only in their current positions, with the paths to a different position or a promotion blocked if they do not secularize their appearance.

The premier considers the legislation a compromise because it only targets people in authority and is a response to the majority of Quebecers’ desire to ban all manifestation of religious symbols in public. Although there is already a challenge to the law, the government employed section 33 of the Canadian Charter of Human Rights (the notwithstanding clause) and amended Quebec’s own Charter of Human Rights and Freedoms so that the legislation cannot be held to contravene it. Nevertheless, those going to court are basing their challenge onthe legislation’s vagueness and on the pre-Charter law holding only the federal level can legislate in this way about religion.

There are several difficulties with the legislation. For example, it is not clear what particular clothing will be considered religious; generally, the forbidden items are “any object, including a garment, a symbol, a jewel, an adornment, an accessory or a headdress” [that] is worn “in connection with religious belief” or “reasonably considered to refer to religious affiliation”. As someone who believes in a secular state, and, I think, understands the view that religious clothing speaks not only for the individual, but for the state itself (a view I reject), such a significant intrusion into religious freedom makes a state autocratic, not liberal, with the possibility of inspectors to ensure compliance with the law (it appears individuals in an organization will be responsible for ensuring compliance and that other inspectors will be checking institutions that may not be applying the law, as some have said they will not.)

How does the principle of freedom of religion until its manifestation harms others play out here? The Premier’s defence, at least in part, is that it is acceptable to limit people’s rights in order to prevent others from acting badly; some may consider that this is asking those who may be subject to harassment or worse to give in to the extremists (according to the Premier, “To avoid extremism, you have to give a little to the majority,” referring to extremist parties in Europe). More philosophically, the premise underlying the legislation is that an individual’s religious expression is transmorgified into the state’s religious expression. It is true that the state is entitled to control the behaviour of its agents so that their ill deeds or even less serious behaviour do not rebound on the state or become associated with the state. The state’s failure to control such conduct might be treated as acceptance of the conduct.

Should the state recognize the degrees of a university that because of its religious commitment singles out a particular group for negative treatment? Here I believe the state would be complicit in the discrimination by the university, although the Supreme Court of Canada found otherwise. (See Trinity Western University v. British Columbia College of Teachers for the relevant case.) However, contrast this decision with Law Society of British Columbia v. Trinity Western University and Trinity Western University v. Law Society of Upper Canada in which the SCC upheld the decision of law societies not to approve the TWU law school. These decisions did not deny people to have particular religious beliefs; rather they meant that people could not act on those religious belief to deny others’ rights (to equality) and still expect to get the benefit the governing authority controlled.

What is the difference between the TWU situations and Quebec’s Bill 21? In my view, the former uses religion to harm a particular group, and thus the state or other governing body becomes complicit in allowing it, while in the latter, the state uses its so-called secular identity to hurt persons who are not harming others solely on the basis of their religious beliefs. Allowing those in authority to wear religious garb, given the different religions involved, would be an example of religious pluralism, which is compatible with a secular state. It would be different if on the one hand, those holding these (different) religious beliefs brought those beliefs to bear in carrying out their functions, or, on the other hand, if the state required the wearing of religious garb or some other indication of religion, whether of one or several religions. Rather, the state is denying religious expression that does not harm others (except that others will see it) and at considerable cost to the religious employees.

A secular state that protects religious belief will not necessarily find it easy to decide when those beliefs cross the line to harm others. This is particularly the case when religious beliefs acted upon may be contrary to other significant societal values. However, for me, the secular state has the same obligation to prevent that harm as it does to prevent harm done to those engaging in religious practice or expressing religious belief through what they wear. A secular state that recognizes freedom of religion can find itelf in treacherous waters, but for me, the way it navigates them — and this is, I admit, easier to say than to do — is to avoid favouring a religion while protecting the expression of all religions unless religious belief is used to harm others.

(One last point: can religion effectively meet its purposes for the individual without structure or a religious institution? That raises the question of the extent of state support for religion through recognition as having a charitable purpose under the Canada Revenue Act, and whether religions/religious institutions are beyond the scope of the state. This, to my mind, does not follow from the place of faith-based institutions in a secular society. However, a complicated topic for another day — maybe!)

Michael Wernick: Mounting the Offence? (A Hypothesis)

As clerk of the privy council, Michael Wernick is Canada’s most senior public servant and, therefore, ostensibly neutral. But a more passionate defender before the House Justice Committee this past Thursday (February 21st) of the various actors (the prime minister, the PM’s principal secretary, others and himself) who helped to present, in his word, “the context” about the SNC-Lavalin situation to former Attorney General Jody Wilson-Raybould, is unlikely to be found. His doing so set the stage for the former attorney-general’s appearance next week.

Discussing the various meetings Wilson-Raybould had with these various political actors, as well as his non-partisan self, Wernick went to great pains to make it clear that these conversations may have been pressure, but that they were not “inappropriate”, merely ensuring that Wilson-Raybould had the necessary information about the economic consequences if the director of public prosecutions (DPP) did not invite SNC-Lavalin to negotiate a remediation agreement. (For details of Wernick’s testimony, see “Top bureaucrat says Trudeau, staff pressed Wilson-Raybould on SNC-Lavalin settlement” in the February 21st edition of The Globe and Mail online and “Privy Council Clerk Michael Wernick adamant no undue pressure exerted on Wilson-Raybould” in the February 21st online edition of the National Post.)

Was Wernick’s testimony the neutral setting out of events about the interactions between the former AG and others? Or was it intended to set up the former AG so that she would be on the defensive when (if) she testifies before the committee? Was his testimony a cool articulation of how much political pressure on an AG is permitted before it cross the line? Or was it intended to ensure that when (if) the former AG testifies, she will come across as overly sensitive to legitimate discussions, indeed, even to some degree of okay pressure?

The stronger argument seems to me to be that Wernick was another form of attack against Wilson-Raybould. After all, he put it clearly:

So I can tell you with complete assurance that my view of those conversations is that they were within the boundaries of what’s lawful and appropriate, I was informing the minister of context. She may have another view of the conversation, but that’s something that the ethics commissioner could sort out. [emphasis added]

The National Post

In short, Wernick’s testimony puts Wilson-Raybould on the defensive. Yes, his testimony implies, she was subject to pressure, but really this is nothing more than one would expect in the tough world of politics. After all, the economic consequences of SNC-Lavalin having to go to trial, be convicted and not being able to bid for government contracts would be severe. The PM, the PMO, the clerk of the privy council and others all expected she would understand that and take the appropriate action: instruct the DPP to offer to negotiate an agreement with SNC-Lavalin (even though by then the DPP had already decided against doing so). And even though the reason behind all the (“not inappropriate”) pressure, the national economic interest, was a reason the DPP could not take into account in deciding whether to offer to negotiate a remediation agreement (s.715.32(3)).

So let’s think about being in Wilson-Raybould’s position. She is the AG. She is not to take political considerations into account in making legal decisions, including any instructions to the DPP. The DPP makes a decision not to offer SNC-Lavalin an opportunity to negotiate a remediation agreement. The AG does not need to be involved in that under the relevant provisions of the Criminal Code; she needs to consent if the DPP does want to offer the opportunity, but not if the DPP does not (s.715.32(1)(c)). She is assailed on all sides to think about the bad impact on employees and other other negative consequences if SNC-Lavalin has to go to trial, but she decides (let us suppose) that the DPP’s decision is the correct one that reflects the requirements of the remediation agreement provisions and the independence of the DPP. She rejects the pressure she has been subject to and does not counteract the DPP’s decision.

Perhaps that seems to end the matter. Although Wilson-Raybould does apparently believe that she had been inappropriately pressured by the PMO, at least, she had not resigned as AG, perhaps because no one did give her a direct order to countermand the DPP’s decision. (The Globe and Mail reported that when she met with cabinet on February 19th, she told cabinet members that the pressure from the PMO was improper.) The PM was careful to say when questioned after The Globe and Mail story revealing there had been pressure, that he had not directed Wilson-Raybould, although that had not been the The Globe and Mail‘s assertion. For example, on February 15th, he explained,

There were many discussions going on. Which is why Jody Wilson-Raybould asked me if I was directing her, or going to direct her, to take a particular decision and I, of course, said no, that it was her decision to make and I expected her to make it. I had full confidence in her role as attorney general to make the decision.

National Post

The PM said if Wilson-Raybould had concerns, she should have raised them with him, but she did not. Or perhaps she was not concerned because she did not give in to the pressure, did what she thought was right and nothing negative followed.

Until the prime minister had an opportunity to shuffle his cabinet in mid-January when Scott Brison left government, Wilson-Raybould continued to be attorney general. And, said, Trudeau, if Brison hadn’t left, she still would be. The PM took the opportunity to move Seamus O’Regan from Veterans Affairs to Indigenous Services, replacing Jane Philpott who was given Treasury. And. to the surprise of many, he filled Veterans Affairs with Jody Wilson-Raybould (Global News had reported on January 14th that there was some expectation that Veterans Affairs would be filled by a newcomer from Nova Scotia).

The reality is, fair or not, that Veterans Affairs is seen as a less significant portfolio than many others and thus a demotion for Wilson-Raybould. Although the PM is free to name cabinet members as he wishes (taking into account the usual factors of geography and competence, among others), there are times appointments raise eyebrows and this was one, since overall, Wilson-Raybould had been a successful minister). Was she being punished because she refused to toe the line? Or was her removal a reflection of the lack of trust the PM now had in her to do what he wanted?

The PM replaced her with David Lametti, an MP from Quebec, who wasted little time in letting everyone know that he might still direct the DPP to offer to negotiate a remediation agreement with SNC-Lavalin. This suggested that the PM still wanted a different outcome on the SNC-Lavalin file, through a possibly more compliant minister (although possibly one who genuinely thought that there was cause to override the DPP’s decision, despite the remediation agreement provisions) . Possibly, we might infer from Wernick’s testimony, one who could take more pressure than could Wilson-Raybould without seeing it as inappropriate.

On that point, The Globe and Mail reported that “Lametti said the attorney general ‘is not an island’ who can’t talk to cabinet colleagues or government officials before making a decision about a prosecution. ..” but he also said
it is crucial that the final decision must be the attorney general’s alone.”

This is an accurate statement about the independence of the attorney general: she can consult with colleagues and is encouraged to do so, but she must make the decision. When she concludes that the political actors have become directing, she may have to resign. (This is the Shawcross doctrine, named after a UK attorney-general, Lord Shawcross). This is the crux of the matter. Repeated efforts to convince her to change her mind (or to reach a particular conclusion contrary to her inclination) from senior members of the government, the PMO and the PCO might well have crossed the line, but may also have been very close to it. At least one statement of attorney general independence, that relies on the Shawcross doctrine, says that “the government is not to put pressure on him or her” and that

although the Attorney General is a cabinet minister, he or she acts independently of the cabinet in the exercise of the prosecution function. This convention is now so firmly entrenched in the Canadian political system that any deviation would likely lead to the resignation of the Attorney General or would, at the very least, spark a constitutional crisis

The Honourable Marc Rosenberg , “The Attorney General and the Prosecution Function on the Twenty-First Century“, Ontario Court of Appeal website

Here there was “pressure”, not merely consultation. Rather than resigning, however, Wilson-Raybould kept her own counsel. The large clue to this lies in her statement posted on her website following her demotion:

The role of the Attorney General of Canada carries with it unique responsibilities to uphold the rule of law and the administration of justice, and as such demands a measure of principled independence. It is a pillar of our democracy that our system of justice be free from even the perception of political interference and uphold the highest levels of public confidence. As such, it has always been my view that the Attorney General of Canada must be non-partisan, more transparent in the principles that are the basis of decisions, and, in this respect, always willing to speak truth to power. This is how I served throughout my tenure in that role. (emphasis added)

Website of Jody Wilson-Raybould

She may well have thought all was forgiven until she was demoted and then, she, a good member of the Liberal government accepted that, or at least it seems she did, until the PM went one step too far. He mused that Wilson-Raybould was satisfied with the government because she was still in cabinet — upon which she resigned as minister of veterans affairs on February 12th.

Back to Michael Wernick’s testimony before the justice committee. The prime minister said on Friday (February 22nd) that Wernick “is someone we need to heed very carefully when he chooses to express himself publicly and I’m sure everyone is taking a careful look at his words yesterday”, effectively saying, “here’s the truth of the matter against which other views must be compared”. Wernick confirmed (it appears) the extent of the extensive pressure from various high officials on Wilson-Raybould. What he did not necessarily confirm is that that degree of pressure, despite Wilson-Raybould’s not giving in, did not constitute attempts to undermine the AG’s independence.