Canadian Free Speech Newsletter: Gay Pride In; European Heritage Week Out!

Bludgeoned by the Ontario Human Rights Commission's $10,000 fine of Mayor Dianne Haskett for not proclaiming Gay Pride Week, the London, Ontario city council quickly reversed themselves. Gay Pride is in. Along came a group asking the city council to declare October European Heritage Week. The council obliged. "The white supremacist National Party has effectively duped municipal governments across Canada into declaring a special week to their cause. It has also duped the Queen into thinking the group was supporting a worthy cause: the celebrations of Europeans in Canada.

It had to quickly scramble to undo the proclamation when religious groups alerted council officials to the organizers' racist connections.

'The whole point is to get the imprimatur of council, 'said Mark Weintraub of the Canadian Jewish Congress, which is most often the whistle-blower alerting municipalities about the group's background. 'They are attempting to fain legitimacy by these means.'" (Ottawa Citizen, October 15, 1998)

The obscure Nationalist Party may or may not have "racist" connections. Surely, the point is that European Heritage Week celebrates the vital contributions of Canada's founders, not the Nationalist Party. If a group with "racist" connections is reprehensible, how much more so a celebration of a lifestyle that revels in sexual practices that have led to disease and death and which are repugnant to traditional Christians, Moslems, and Jews. A sign of the times! The Canadian Jewish Congress has tailed the Nationalist Party's requesst for declaration of European Heritage Week from Canadian city to city putting the kaibosh on it wherever possible.


http://www.canadianfreespeech.com/newsletters/1998/fsm_dec.html

CJC News Release: CJC WELCOMES ANNOUNCEMENT OF NEW LAWS TO COMBAT HATE AND HOLOCAUST DENIAL

Nov 26, 1998 - CJC WELCOMES ANNOUNCEMENT OF NEW LAWS TO COMBAT HATE AND HOLOCAUST DENIAL

OTTAWA, NOVEMBER 26, 1998---Canadian Jewish Congress (CJC) has commended federal Justice Minister Anne McLellan and her provincial counterparts for the announced package of Criminal Code amendments aimed at combating the promotion of hate and the dissemination of hate propaganda.

"Make no mistake-Canada is a country built on respect for diversity and the vast majority of Canadians abhor hatred aimed at particular groups and communities in our society," stated Mr. Ronen. "Nonetheless, we are not immune to the targeting of minorities for hate and violence, the desecration of sacred sites and the poisoning of cyberspace. We need tough laws that can safeguard bedrock Canadian values while punishing hatemongers who abuse our fundamental freedoms and promote social discord."

While the specifics of the proposals will be spelled out in future legislation, the announced changes appear positive in their orientation. "In supporting this package the justice ministers showed great sensitivity to the concerns of vulnerable minorities in our society," observed Mark Weintraub, chair of CJC’s National Community Relations Committee. "They also understood the need to upgrade the Criminal Code to make our laws more reflective of the demographic reality in Canada and responsive to the tremendous impact of new communications technology."

CJC welcomes the contemplated change to prevent persons indicted for promoting hate from claiming a defence of truth based on a denial of the Holocaust or any other historically recognized act of genocide. "Holocaust denial is a vicious obscenity and the leading edge of contemporary anti-Semitism," observed Mr. Ronen. "The thousands of Holocaust survivors living in Canada who know only too well that there is only one truth about the Holocaust will particularly applaud this change. Identifying the Holocaust as ‘an historically recognized act of genocide’ in law will send a critical message that Holocaust denial is unacceptable in Canada."

The announced package of reforms includes making it a crime to possess hate propaganda for the purposes of distributing it to others. "This new criminal offence should break the link between the hatemonger and his target audience and help prevent the dissemination of hate propaganda," observed Mr. Ronen. "This may be of particular value in keeping this filth out of the hands of impressionable young people."

Also positive is the proposal to create a new offence for the desecration of houses of worship, cemeteries and other institutions. "We have always maintained that such crimes went beyond simple mischief or vandalism," stated Mr. Weintraub. "They are aimed at intimidating the target community and sending a message that they are unwelcome in Canada."

The package also includes recommendations to add to the enumerated list of identifiable groups protected under the ambit of the Criminal Code anti-hate provisions and to permit police to seize computer hard drives containing hate propaganda. Said Mr. Weintraub: "Society has changed and the laws which protect us must respond to the new realities."

In generally welcoming these proposals, Mr. Ronen sounded one cautionary note: "It has always been CJC’s position that any new Criminal Code offences relating to hate had to be introduced as separate and distinct sections from the existing anti-hate provisions of the Code. The Supreme Court of Canada has twice upheld the constitutionality of the anti-hate law as currently constructed and we are loath to amend it directly and pave the way for a new challenge under the Charter of Rights and Freedoms. We look forward to the tabling of legislation designed to implement the announced proposals as complementary to the existing provisions. In the meantime, we call once again on police departments and provincial Attorneys-General to be vigorous in enforcing the existing law where appropriate."

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CONTACT: Eric Vernon
Director, Ottawa Advocacy Centre
Canadian Jewish Congress
(613) 233-8703

OR

Bernie M. Farber
National Director,Community Relations Committee
Canadian Jewish Congress
(416) 635-2883 EXT. 186
http://www.cjc.ca/template.php?action=news&story=295

Canadan Jewish News: Jewish connection questioned in abortion shootings

By PAUL LUNGEN
Staff Reporter
Canadian Jewish News

November 5, 1998

TORONTO - Is someone out there hunting Jewish doctors?Early last week, Amherst N.Y. Dr. Barnett Slepian became the third Jewish physician who performs abortions to be shot by suspected anti-abortion zealots since 1994. Slepian was murdered shortly after he and his family returned home from synagogue where they attended Shabbat services. His shooting came about a year after Dr. Jack Fainman was wounded by a sniper in Winnipeg. In 1994, Dr. Garson Romalis was wounded in Vancouver while in 1995 a sniper wounded Dr. Hugh Short in Ancaster, just outside of Hamilton. Short is not believed to be Jewish. A fifth, unidentified U.S. doctor was shot in Richmond, N.Y. in 1997. Other abortion doctors have also been killed or wounded in bombing or shooting attacks in Pensacola, Florida, Boston and Birmingham, Ala. Police and U.S. marshalls in Amherst stepped up security around a physician providing abortion services after an anti-abortion zealot called the Hamilton Spectator offices to say the Buffalo-area doctor was on a sniper's hit list. Earlier, a flyer with a picture of Slepian was left in the Hamilton police washroom. Slepian's face was crossed out with an X and the words "killer, Jew, Nazi" were written on it.While not all abortion doctors singled out for attack were Jewish, the shootings of Slepian, Fainman, Romalis and Short share common elements: they were all shot through a window in their homes within a few days of Nov. 11, Canada's Remembrance Day.Dr. Henry Morgantaler believes it's more than a coincidence that three of the doctors are Jewish."I have noticed it," Morgantaler said. "I don't rule out the possibility that the perpetrator is anti-woman and also anti-Semitic. The anti-Semitic part is nothing new to me. I've been insulted many time for being a Jew."Morgantaler, who pioneered a woman's right to an abortion in Canada, said he doesn't believe Jewish doctors are providing abortion services out of proportion to their numbers in the general population of physicians. "But the people against abortion try to make an issue out of it. It's like a modern blood libel, blaming Jewish doctors for killing Christian children." Mark Weintraub, national chair of Canadian Jewish Congress' community relations committee, adopted a more cautious approach."To date, we simply do not have any information available that would suggest that anti-Semitism is an additional motivating factor in the attacks on our doctors," he said. Nevertheless, he added, "we don't want to ignore the possibility of such a linkage."Weintraub said Congress' staff "will be discussing this with police...Those are members of our community who have been attacked."

Sol Littman, Canadian representative of the Simon Wiesenthal Centre, was also cautious in attributing anti-Semitic motivation to the shootings. But he urged police to follow up that angle. "If they fail to take it into consideration, they're failing to do their duty," he said.Littman pointed out that right-wing extremists often link Jews to issues they oppose, whether it is farm foreclosures or abortion."The radical anti-abortion movement people could see Jews as perpetrators, and act against them," he suggested.Staff-Sgt. Bill Vandergraaf, a member of a task force set up to investigate the shootings, said police were aware that three of the victims are Jewish. But "there's nothing in our investigation to suggest that is a motivation. We're not investigating it as a hate crime."Speaking from the task force headquarters in Winnipeg, Vandergraaf said police are not convinced the poster left in the Hamilton police headquarters was connected to the shootings. It might have been left by radical elements that are not connected to the killings, he suggested.Phil Baum, executive director of the American Jewish Congress (AJC), also dismissed suggestions someone was specifically targeting Jewish doctors. "I know of no police effort to identify Jewish doctors. I think the anger and outrage is directed at doctors doing abortion. I know of no reason to believe the motive [in the Slepian shooting] was anti-Semitism...I think it was coincidental that he was Jewish."An AJC news release condemned "those who, in the name of 'a demonic religious belief' provide encouragement for the murderers even if not specifically calling for murder.""It is not necessary explicitly to support a murder to provide the climate which impels psychopaths to take action. Moral shame and culpability attach no less to those who fail to condemn these acts or...condone and even justify them."Referring to Slepian's murder, AJC noted that "the contrast between the Sabbath peace he had returned to celebrate, and the violence of his death make his murder all the more obscene."In the United States, the National Council of Jewish Women planned vigils in Washington, D.C. and other cities in response to the shooting, while the Reform movement sent materials to its congregations to help them address the issues raised by the murder.Meanwhile in Hamilton, police are investigating whether two anti-abortion groups are working together in the four-year terror campaign, the Spectator's Bill Dunphy reported.A caller to the Spectator newsroom warned that another Buffalo-area doctor was targeted and said "our cousins in the United States have their list. We have our own."Hamilton police have linked the caller to a series of anti-abortion threats and messages delivered to the newspaper and a Hamilton-area doctor in the last year. The same man was linked to the flyer left in police headquarters.

http://www.cjnews.com/pastissues/98/nov5-98/main.htm

CJC News Release: CJC URGES SOLICITOR GENERAL TO FUND LEGAL COSTS OF STUDENTS AT APEC COMMISSION MONTREAL

Oct 15, 1998 - CJC URGES SOLICITOR GENERAL TO FUND LEGAL COSTS OF STUDENTS AT APEC COMMISSION MONTREAL

MONTREAL, OCTOBER 15, 1998 - Canadian Jewish Congress has written to Solicitor General Andy Scott, urging him to authorize the funding for the legal costs which are being incurred by the student complainants at the hearing being conducted by the RCMP Public Complaints Commission. These proceedings are looking into incidents which occurred during protests at last year’s APEC Summit in Vancouver.

“Canadian Jewish Congress has played a significant role in the development of constitutionally protected rights and freedoms in Canada,” stated Mark Weintraub, chair of the CJC National Community Relations Committee. Mr. Weintraub emphasized that it is precisely by reason of CJC’s non-partisan engagement with constitutional matters that it has strong interest in the RCMP hearings. “If even a small portion of the media reports is accurate, then all Canadians have a stake in both the process and the outcome of these hearings,” he noted “The Commission has the benefit of presumably unlimited legal resources, as does the RCMP.

The complainants, most of whom are students, are the only ones without funding and are the least able to afford counsel. It was the students who brought these issues to the public eye, thereby contributing greatly to the democratic process.” The reality, Mr. Weintraub says, is that the students have for the most part not been funding the work of their counsel to date; rather, their counsel has so far chosen to provide legal services without remuneration. “It would be troubling if it turns out that all of the facts have not properly emerged because of the financial exhaustion of counsel,” he says. “If significant violations were committed to our constitutional fabric, then we will certainly all benefit from a process that will lead to structural change to ensure that fundamental mistakes are avoided in the future. The student complainants and their counsel will therefore be owed a debt of gratitude by all Canadians.

Recognizing that the issue of funding has taken on a political life of its own in Parliament Mr. Weintraub feels politics should not distort the objective judgment which ought to bear on whether or not the complainants should receive funding. “It was through the efforts of students and their counsel that important documents were released, and continued representation by counsel would appear to be critical for the proper advancement of the complaints and to assure the public that the process is beyond reproach,” he said. Mr. Weintraub concluded that if equality before the law is to have any significance in this case, there must be some parity of legal resources. “We therefore join with those jurists, commissioners and others and respectfully call upon you to authorize legal funding for the complainants, and if there are compelling reasons not to do so, to fully inform the public as to your deliberations,” he said.

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Contact: Bernie M. Farber

Executive Director

Canadian Jewish Congress, Ontario Region

(416) 635-2883, ext. 186

or

Erwin Nest

National Director Community Relations CJC, Pacific Region

(604) 257-5101

http://www.cjc.ca/template.php?action=news&story=303

Canadian Jewish News: Vandals Strike Jewish Sites

October 15, 1998
by Ron Csillag, David Lazarus and Paul Lungen

Three attacks on Jewish targets in Canada in one week have left officials shaken, but confident the offences are not part of a trend.

Two of the attacks are being treated as crimes of hate against Jews.

Arson investigators are busy with two incidents, one in Ottawa and the other in Toronto.

A fire that caused up to $75,000 damage at Ecole Maimonides in suburban Ottawa is not even close to being solved. There have been no arrests and police have few leads. Although it was arson and it occurred hours after Yom Kippur ended, the blaze is not being treated as hate-motivated.

In downtown Toronto, a fire on Sukkot at the Bloor Jewish Community Centre (JCC) was deliberately set. Police say the blaze, which caused at least $10,000 in damage, was a hate crime.

And in Montreal, vandals broke into a private home over Yom Kippur, did thousands of dollars in damage and scrawled anti0Semitic messages on walls.

"To the best of our knowledge to date, we are not aware of any connection between the three," said Mark Weintraub, national chair of the Canadian Jewish Congress community relations committee.

"We are proceeding on the basis that these were ugly, anti-Semitic attacks, but [that] they are not related," he said. Weintraub said that because two of the attacks were hate-driven, he expects they will be given high priority.

On Sept. 30, Simon Bohbol, his wife Jocelyne, and their children Miriam, Benjamin and Jessica returned home after observing Yom Kippur and Miriam's 15th birthday, and were appalled to discover the destruction inside.

According to Police Constable Valerie Fradet, the vandalism appeared to be a hate crime with no precedent in the area.

Major areas of interior walls were covered with large-lettered anti-Semitic and obscene graffiti; rugs, furs and furniture were spray-painted and soiled by finishing stain; expensive basement furniture was ripped to shreds; and jewelry and electronic equipment were missing.

One of the anti-Semitic graffiti scrawled in the main floor hallway of the raised bungalow read: "Death to all Jews" (sic).

Another, above the ruined leather sofa in the basement, said simply, "Jews".

The walls also were defaced with what looked like two satanic pentagrams - one piece of graffiti read: "Satan Rules" - and threats to return to the home, which had also been broken into about 14 months earlier, but without vandalism.
"It's like we were invaded," Jocelyne Bohbol told The CJN, "I came in and screamed, 'Oh my God!'"

"This was a real nice birthday for my daughter," Simon Bohbol said. "This time, they very maliciously left messages."
The Bohbols indicated that who ever invaded their house may have been staking out the property. The family left their home several hours before Yom Kippur began and did not return until about three hours after it ended - an absence of over 30 hours.

They said their home was probably entered through a basement window that they discovered was broken.

The family was at a loss to explain any possible motive behind the attack or its level of viciousness.
In Ottawa, officials at Ecole Maimonides are appealing to all Canadian Jews for financial help in repairing the French immersion Torah day school.

A local anonymous donor has agreed to match half of all funds raised until Oct. 25.

The fire, set after someone broke in through a window, was the second at the school in four years. There were no arrests made in a 1994 arson attack.

The latest blaze cause extensive damage, including from water and smoke.

The school's 10 or so students are faring well, said principal Rabbi Menachem Blum.

"Their spirits are good. We had a sukkah, and the Museum of Civilization [in Hull] opened their doors to us," he told The CJN.

Meantime, Canadian Jewish Congress (CJC) has offered a $5,000 reward for information leading to the arrest and conviction of those responsible for the attack at Toronto's Bloor Street JCC.

No one was hurt, but an estimated $10,000 in damage was caused by the fire, which was centred in a storage area at the south end of the building.

Police and the fire department were summoned to the scene by a passerby who called 911 around 1 a.m. After extinguishing the blaze, fire officials discovered that the plate glass window on the rear door to the storage area was smashed.

Two gas-soaked rags were found at the scene. A two foot stick with a swivel device on it that was used to start the fire was also found, said Det. Sgt. James Ramer, the police hate crime liaison officer with 14 Division in Toronto.
Noting that the attack took place during a Jewish holiday (Sakkot) and that there were similar, earlier arson incidents in Ottawa, police immediately treated the Bloor JCC fire as a hate crime, Ramer said.

"CJC will work cooperatively with the Toronto Police Services and the Bloor JCC to apprehend those responsible for this crime," said Ellen Cole, chair of community relations for Congress' Ontario region. "This was an attack on one of our key institutions."

Cole noted that "in the past, these attacks had been known to occur around Jewish holidays."

Bloor JCC director Bill Emery said that in his 11 years at the facility, he could recall no other incidents of arson. On one occasion, a bomb threat was called in, and another time someone daubed an outside wall with "a hard-to-decipher slogan" that may have been anti-Semitic.

Emery said his initial "gut reaction" - one shared by many at the centre - was that the fire was a case of simple vandalism without racial motivation. "I think it's a case of being downtown," he said.

Emery noted that in the past, the Bloor JCC and its neighbors had experienced broken windows and kicked-in doors. But, he added, "this is a serious business. We're glad police are stepping up their patrols of the building [and] are treating this as a hate crime."

Prior to the High Holy Days, Congress hosted a security meeting in the Lipa Green Building for representatives of various Jewish organizations and agencies, and security precautions during the holidays were discussed. Police from Toronto, York and Durham regions attended, as did officers of the Ontario Provincial Police. The pre-holiday security meeting has become standard procedure in the Jewish community.

In the wake of the attack on the Bloor JCC, "Congress will consider whether to issue a security advisory alert," to warn Jewish agencies to be "more vigilant," Cole said.

That might include warning employees and users of the buildings to "look out for new people."

Emery said, "Right now, there is no time when there is no one in the building."

A day after the fire, it was business as usual at the centre, although a strong odor hung over the gym.

The storage area was a charred mess and a $5,000 trampoline was damaged, as was other "circus equipment," including rigging for a trapeze. Thanks to the quick response of the fire department, fire damage to the building was minor, Emery said.

It was too early to determine the full extent of the damage to equipment, he added.

Meanwhile, the Bohbols, as well as David Sultan, community relations director of Canadian Jewish Congress' Quebec region, expressed concern that it took police 14 hours to respond to the family's call.

Constable Fradet said that was probably because the family dialed 911, a central police line staffed by civilians, who advised the Bohbols to wait until morning because there was no personal injury or threat to life involved.

But the Bohbols feel police should have responded much faster.

"When the police officer came to the door, her jaw just dropped," Simon Bohbol said. Police said their investigation will continue.

http://christianactionforisrael.org/antiholo/vandals.html

CJC News Release: CJC PRAISES ANTI-RACISM WORK OF VICTORIA JEWISH COMMUNITY

Jun 26, 1998 - CJC PRAISES ANTI-RACISM WORK OF VICTORIA JEWISH COMMUNITY

TORONTO, JUNE 26, 1998 – Canadian Jewish Congress National President Moshe Ronen is lauding the work done by leaders from the Victoria Jewish community in relation to a group called the "Canadian Free Speech League" and its attempt to secure rental space at a suburban public library.

Mr. Ronen paid particular credit to Michael Peters, a co-chair of the CJC National Small Communities and president of the Jewish Federation of Victoria, who helped spearhead a demonstration opposed to the library gathering which attracted some 300 anti-racism activists.

"It has long been CJC policy to make the public aware of those organizations whose members include Holocaust deniers, potential hatemongers and anti- Semites," said Mr. Ronen. "With the knowledge that Paul Fromm, Doug Collins and others of their ilk were potential guest speakers at this ‘gathering,’ Michael Peters and his colleagues worked diligently to inform the Victoria community of the fact that such individuals were granted permission to rent the space in the library. While the library board chose to maintain its position on the rental, the work done by this anti-racism coalition to highlight this injustice was exceptional."

Mr. Ronen pledged that the CJC National Community Relations Committee (NCRC), chaired by Mark Weintraub of Vancouver, will continue to work closely with its regional counterparts to deal with those in our society who would foment hatred and deny the Holocaust. "Through the selfless efforts of our many dedicated volunteers like Mr. Weintraub and Mr. Peters we are confident that these bigots will remain on the periphery of society where they belong," concluded the CJC president.

Contact:

Michael J. Cohen, National Director of Communications Canadian Jewish Congress
(514) 931-7531
mikec@cjc.ca
http://www.cjc.ca/template.php?action=news&story=331

Wills, Women and Multiculturalism

By Mark S. Weintraub

1. Introduction

The recent film, Sense and Sensibility brought to the screen Jane Austen’s powerful critique of early 19th century English values and social customs. The film opens with the patriarch of the family on his death bed, pleading with his son to posthumously take care of his step-mother and step-sisters since, as testator, he was required to leave everything to his male heir. Later in the film, one of the daughters remarks to her suitor that men in England had the opportunity of inheriting wealth; women could neither earn it nor inherit it. While the film was not entirely accurate with respect to inheritance rights of women, it communicated well the essential patriarchy of that society.

Over the last century or so Canadian law, largely based on English common law, has developed such that equality between the sexes is the supreme law of the land. Yet, it was a scant 25 years ago that our modern family relations legislation was implemented in the various provinces which finally gave significant financial recognition to female contributions to a marriage. It was only 15 years ago that the principle of equality was constitutionally enshrined in the Charter of Rights. As a practical matter, equality of women is far from achieved in various facets of our society. Nonetheless, notwithstanding the progress that is still required, it would, I submit, be repugnant to the great majority of Canadians if it were suggested that the law of the land required a father/husband to leave a greater share of his estate to his sons.

The interesting fact is that while such a bequest would no doubt be offensive to most Canadians, there is no specific law which either prohibits or requires male-biased gifts under a will. In British Columbia there is no reported case that deals directly with this issue. Perhaps the reason is that this kind of discrimination just does not happen anymore. If, therefore, discrimination against women under wills has not been a burning issue over the last decades, is there then any basis for a concern about a throw-back in time particularly when we see increasing efforts at eliminating gender bias in many aspects of our society?

The concern is justified and two-fold. Firstly, there must always be continued vigilance against a potential backlash. The pendulum can always swing in the other direction and while it is unlikely that patriarchal views of property disposition will gain currency, history seems to continually reflect the dynamic of reaction and counter-reaction. While I think the better view is that the struggle for female equality emanates from the same well spring which has inspired the struggle against institutional dominance of any sort, recently acquired gains can simply not be taken for granted.

The second concern arises by reason of those who come from other cultures, be they European, Asian or African, whose views toward women are nurtured in a climate of patriarchal values which our society has rejected, albeit not so long ago. As we experience greater heterogeneity in our population, there is a greater likelihood that the legal profession will be compelled increasingly to deal with those who insist that their own customs, traditions or religion mandate that wealth be transmitted through the male line thereby excluding to a large or partial degree, the wife and female children from a will.

This paper then is an attempt to explore the potential conflict between those who would permit a patriarchal structure of wealth transmission and the principle of gender equality. Before going further, I need to underscore several points. Firstly, I do not wish my analysis to be seen as necessarily the positing of an inherently superior Anglo-Canadian system of values versus more traditional cultures. I purposely began this paper reminding all of us here that it was but a few short years ago that our own society was a patriarchy. Furthermore, newly arrived Canadians whose origins can be traced to such Commonwealth countries as Australia or certain European countries come from patriarchal based environments. Indeed, one of the few cases that I have been able to find in British Columbia which touches on this issue, deals with a testator who excluded his wife and favored his brother in part because of what the judge referred to as his “European” attitudes toward women.

So, as I proceed with my critique, I must continually remind you to remember that it has been a short 20 or 30 years since we, in the most affluent and democratically committed of societies have begun to encourage gender equality.

2. Relevant Testamentary Principles –
Testamentary Freedom vs. Moral Obligation

To understand the context in which I wish to place my analysis, it is important, first of all to understand a few basic principles of estate law. In British Columbia, as in other common-law jurisdictions, there is not law which requires the testator to leave his property in any particular way. Only in the event of an intestancy, ie. no will, is there a statutorily mandated percentage to be left to heirs. Because of this apparent open-ended permission to members of our society to leave their property according to their own desires, it has become an accepted axiom to refer to this regime as one of “testamentary freedom.” This concept, however, is somewhat over-blown. The starting point of the legal regime in England was that the estate passed to one’s heirs – and i.e., once again as illustrated so popularly in Sense and Sensibility – to male heirs. So much for testamentary freedom! However, in the 19th century with laissez faire economics, the law liberalized and it was really only by mid-19th century that the concept of testamentary freedom was put on a pedestal. But even at this time, it was recognized that freedom of testation could not in any way be absolute. The law developed in several areas which reflects the tension between testamentary freedom and society’s interest in ensuring that certain other collective values are adhered to.

(a) Mental Capacity

One of the most significant checks on testamentary freedom was the requirement for the mental capacity of the testator. In the still applicable case of Banks v. Goodfellow decided in 1870, Chief Justice Cockburn observed that:

“The law of every civilized people concedes to the owner of property the right of determining by his last will…to whom the effects which he leaves behind him shall pass. Yet it is clear that…a moral responsibility of no ordinary importance attaches…of the right thus given. The instincts and affections of mankind, in the vast majority of instances, will lead men to make provision for those who are the nearest to them in kindred and who in life have been the objects of their affection…

It is obvious that to the due exercise of a power involving moral responsibility, the possession of the intellectual and moral faculties common to our nature should be insisted on as an indispensable condition.”

Having established therefore the theoretical necessity for mental capacity, the difficult challenge for the law in this area was not to identify the “raving mad-man” which was easy enough but, to set down rules for the twilight cases. One of the principles laid down in the Banks v. Goodfellow case was that “no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural facilities – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.”

Without canvassing the many fascinating cases which have vexed the Courts in this area, the bottom line is that today it may be as difficult as it was 100 years ago to challenge a will based upon incapacity.

The second main restraint on absolute testamentary freedom in British Columbia is by way of relying upon the Wills Variation Act which is a provincial statute allowing for the variation of a will if the testator has not made an “adequate provision for the proper maintenance and support of a surviving spouse and children.” This legislation allows the Court to make an order that it considers “adequate, just and equitable” to ensure that a testator discharges his or her moral duty – such moral duty as defined by our Courts and which must reflect contemporary societal values.

(c) Supreme Court of Canada – Tataryn v. Tataryn

The extent of these moral obligations has recently been tested in the Supreme Court of Canada in the decision of Tataryn v. Tataryn estate (1994), 93 B.C.L.R. (2nd) 145, such that the long-simmering controversy as to whether the legislation simply calls for a needs-based financial test or whether it was intended to take into account the broader definition of moral obligation has now been settled. Our highest Court rejected the narrow needs-based test. In the course of giving this judgment, Madam Justice McLaughlin had the opportunity to review the origins of the Wills Variation Act and made some germane observations:

“The statute, adopted in 1920, was modeled on New Zealand legislation. When the Bill was introduced, the Attorney General J.P. De B. Farris, described it as ‘one of the links in the government’s chain of social welfare legislation’. The Bill was the result of lobbying by women’s organizations with the final power given to them through women’s enfranchisement in 1916—It is recorded in the journals of the Legislative Assembly of B.C. that on proclamation of the Act, the Lieutenant Governor said that it ‘will tend toward the amelioration of social conditions with the province’…”

The origins of the legislation therefore, are interesting. On the one hand this law was part of larger welfare legislation which was intended to ensure that scoundrel husbands and fathers would not leave their wives and children to be wards of the state. The debates in the New Zealand legislature which enacted the first legislation of this type in the 1890’s made it clear that there was a social problem of sufficient magnitude that required state intervention. What is more intriguing however, is the observation that the Bill was the direct result of lobbying by women’s organizations.

Later in her Judgment, Madam Justice McLaughlin makes the point that there was nothing to suggest that the women’s groups who lobbied for legislation intended that it be restricted to financial need. At page 151 Her Ladyship states:

“…The desire of the legislators who conceived and passed it was to ‘ameliorate social conditions within the Province.’ At a minimum, this meant preventing those left behind from becoming a charge on the state. But the debates may also be seen as foreshadowing more modern concepts of equality. The Act was passed at a time when men held most property. It was passed, we are told, as ‘the direct result of lobbying by women’s organizations with the final power given to them through women’s and enfranchisement in 1916’. There is no reason to suppose that the concern of the women’s groups who fought for this reform were confined to keeping people off the state dole. It is equally reasonable to suppose that they were concerned that women and children receive an ‘adequate, just and equitable’ share of the family wealth on the death of the person who held it, even in the absence of demonstrated need.”

Madam Justice McLaughlin pointed out as well that the Act must be read in light of modern values and expectations:

“Whatever the answers to the specific questions, this much seems clear. The language of the Act confers a broad discretion to the Court. The generosity of the language suggests that the legislature was attempting to craft a formula which would permit the Courts to make orders which are just in the specific circumstances and in light of contemporary standards … What was thought to be adequate, just and equitable in the 1920’s may be quite different from what is considered adequate, just and equitable in the 1990’s. This narrows the inquiry. Courts are not necessarily bound by the views and awards made in earlier times. The search is for contemporary justice.”

3. Judicial Consideration of Gender Discrimination

That then is the supreme law of the land as it relates to the interpretation of our Wills Variation Act. Let us now examine more specifically the scenario with which we are concerned. Take the following example from a 1978 decision (Re Serra estate, Unreported, February 2, 1978 X7 468-75), a decision of Judge Catliffe, who was a County Court judge at the time. In that case, the widow of the deceased applied for a variation of her husband’s wife. Mr. Serra left to his wife the right to a life interest in his estate delivered to Mr. Serra’s brothers in equal shares. Mrs. Serra was 47 when her husband passed away and they had been married 21 years. Part of the estate was farm property and in the will, Mr. Serra stated that:

“The meaning of this my will, in plain words is that I leave all my personal possessions to Nan (Mrs. Serra). My land, home and buildings are for Nan to live on and in as long as she has need for them. Should Nan in her old age decide to live in some old age home – then- she is to sign a quit claim and the property will be yours (ie. his brothers’) to do with as you wish.

The reason for making this new will is that I do not want this property to be inherited by the Klempson family through Nan. I want it to remain in the Serra family.”

Ultimately, the Court held that there was financial need which necessitated variation. Furthermore the Court held that Mrs. Serra had contributed to the building up of the estate. The Court also observed:

“The widow said that her husband had a ‘European way of thinking’ that women should not own property and had a strong sense of obligation to his family. In my view (i.e. the Court’s view) this sense of obligation to his brothers, neither of whom have visited the property for over 30 years, must be overborne by the wife’s claim.”

This case is instructive for several reasons. Firstly, while the Court does not specifically hold that the testator’s views were patriarchal and therefore could not be sustained under the legislation, he considers the observation to be of sufficient merit to note it and states that this sense of blood obligation, perhaps noble in one sense, could not override his obligation to his wife and his wife’s equitable claims. Inherent in this decision is the articulation of a clear moral statement that a man’s first duty is to his wife and not to his clan.

This is one of the few reported cases that touch on the issue of the exclusion of women and how the Wills Variation Act may be used to overcome patriarchal views. However, the decision in this case does not reflect any analysis, but rather, simply points to equitable considerations which the judge invoked in light of contemporary values. I suggest that there is a more detailed analysis which can justify the exclusion of patriarchal views on property transmission. Here I need to draw upon a case which, while not directly dealing with gender issues, does provide a relevant precedent. In the decision of Boyd v. Boyd-Talpas (1989), 35 E.T.R. 240, Mr. Justice Shaw of the B.C. Supreme Court held that a testator who held an erroneous view of her son as taking advantage of her must be stripped of her inaccurate views to then determine how she would leave her gift. That is, the testator in this particular value system, disentitled to an inheritance. Accordingly, the Court “constructed” a mother/testator without these erroneous and therefore irrelevant views and held that in those circumstances, there would have been no justification for anything but the most generous treatment under the will. It is in this category of cases of “mistaken assumptions” and “irrelevant consideration” that I believe we find the basis for the excluding of patriarchal views from testamentary dispositions. My main points on this argument are as follows:

(a) the origin of the Wills Variation Act was a part of a social justice campaign in the Commonwealth which had as its ultimate purpose the overthrow of a legislative and social system which treated women as second-class citizens;

(b) the legislation which embodies our society’s highest ideals and values, namely the Charter of Rights and various Human Rights legislation, insists on the absolute equality of women; and

(c) the Supreme Court of Canada has held that the statute must be interpreted in light of contemporary standards and that the search is for contemporary justice. The Court held this in the context of a case wherein it was observed that the very statute with which we are concerned was part of an attack on patriarchal systems of wealth distributed. It would be perverse, therefore, not to interpret a statute in a manner in which it was originally intended – namely, as a flexible but nonetheless powerful tool in levelling the playing field between male and female heirs. In other words, the approach I have suggested is not only consistent with our standards of contemporary justice but is in conformity with the very rationale for the legislation in the first instance.

Accordingly, any testator who brings to bear an ideology or value system which holds that women are not as worthy as their male counterparts to inherit property simply because of their gender must be seen as operating under irrelevant considerations and such beliefs would therefore have no room in the consciousness of a just parent or spouse. The testator must therefore be notionally stripped of any patriarchal beliefs to determine the appropriate gift.

4. Gender Equality vs. Multiculturalism

Now so far, I suspect that there could be little opposition to this analysis. What happens however, when a will is justified not only on the basis of clan, as was in the Serra case, but on the basis of religion, tradition or culture? Let us take, for example, a testator from any number of countries who had arrived in Canada with his family, whether it be from any of the Middle Eastern countries, from the Indian sub-continent or from certain parts of Southeast Asia. In these countries arranged marriages may not be uncommon and property in the mother country is transmitted through the male line. Women have certain rights in these countries but their position is little different than the vast majority of Canadian women in the 19th and first half of the 20th centuries.

In the even that a Court is met with an overt argument that a differentiation based upon gender can be justified or even mandated by the testator’s culture, tradition or religion, the argument in favour of gender discrimination would go something as follows.

Canada is a country of immigrants. The modern state of Canada has always been a country of immigrants and the only thing that has changed is the source of immigration. While the first waves of immigration were from the British Isles and France, the balance may now have shifted. While at one time a Eurocentric ideology and value system dominated the country, there is nothing innately superior to this ideology and the Eurocentric value system should cease to dominate and be prepared to share the stage with other competing views.

The argument might continue along the lines that liberal immigration policy since W.W.II has seen a growing proportion of third world immigrants thereby changing the population composition. Bernardo Berdichewsky, in his work Racism, Ethnicity, and Multiculturalism (Future Publications 1996) observes (at pps. 51-52):

“As a product of this overall liberal immigration process (even if it still favoured mostly Europeans) the second fundamental social fact has been evolving to shape this country’s unique nature as a modern and independent nation. Subsequently, during the last four decades of this century particularly, a dramatic alteration of the ethnic composition of the immigration flow took place. As a result, Canada is becoming an increasingly pluralistic, polyethnic and multicultural society. …From a few original British colonies in the 19th Century that united under the Canadian Confederation, it has transformed itself into a totally independent, and quite different nation/state as the end of the 20th century approaches.”

The enactment of both federal and provincial multiculturalism statutes acknowledges this reality. Further, these statutes must be seen as part of those few pieces of legislation which attempt to define and embody the collective values of our country. So, for example, the federal Multiculturalism Act notes that the Constitution recognizes the importance of preserving the multicultural heritage of Canadians. The federal Multicultural Act declares it to be the policy of the government of Canada to recognize and promote the understanding that multiculturalism reflects the cultural and racial diversity of Canadian society and acknowledges the freedom of all members of Canadian society to preserve, enhance and share their cultural heritage.

As such, the argument goes, it would be arrogant and unlawful for a Court to dictate to a Canadian of a traditional culture that, for example, property cannot be transmitted in a way which he, as part of a traditional culture, has determined is the ideal social structure. Respect for traditional cultures and religions demands that the Eurocentric views of social relationships be suspended. The argument would include that the search for contemporary justice does not mean without regard to other cultures’ views of the place of women which may at first glance appear to be subordinate but with greater understanding will be seen as providing for their ultimate protection and the preservation of a minority traditional culture.

Ultimately, as a society we have to determine whether this line of reasoning will prevail. I say it should not and need not. There are universals which apply cross-culturally. There are universal declarations of human rights – not everything is subjected to cultural relativity and those whose are most knowledgeable about multiculturalism in Canada do not say that multiculturalism is a license for the expression of every custom, whim and fancy of a particular person or group who has arrived in the country. Indeed. Berdichewsky has observed that multiculturalism stands for an ethos which promotes integration without the loss of identity. It does not mean the assimilation of “ethnics” into the mainstream, but it implies an adjustment on both sides whether it be with respect to values or social customs. Indeed, the purpose of multiculturalism is to foster the best of all cultures so that we create something here in Canada that is unique. Certainly, the proponents of multiculturalism envision the ideal of a common set of values which accord to each individual respect and dignity irrespective of race or gender while at the same time allowing for every ethnic group to pursue their unique cultural heritage provided such expression does not collide with the agreed upon universals. These universals include gender equality and cannot be breached by catering to anachronistic social custom.

To set up a clash between female equality and multiculturalism is therefore a false conflict.

In sum, it is my view that in the context of inheritance rights, any gift which distinguishes male from female, whether subtly disguised or overtly justified, must be seen for what it is – an erroneous and therefore irrelevant consideration that has no place in the mind and heart of the “just parent or spouse” and as such must be stripped away in the same fashion that our Courts have dealt with other cases of irrelevant considerations or mistaken assumptions.

What is needed therefore in these cases is a strong message communicated by the legal profession in its capacity as advising solicitors, litigators who end up arguing these cases and judges who end up deciding them: that whether the exclusion of women is blatant or buried a little bit below the surface, such exclusion will not be sustained in a Court of law. That is, any testamentary gift which either blatantly or by subterfuge intends to defeat the just claims of members of the family for the sole reason that they are female must be roundly condemned at every stage of the legal system. Any attempt at justifying gender differentiation on the basis of culture violates fundamental principles of equity while discrediting the ideals of multiculturalism.

Alpha Canada: Japan has a responsibility to recognize its war atrocities

Japan has a responsibility to recognize its war atrocities
By Gabriel Yiu*

As we neared the end of this old millennium, concerned citizens from around the world gathered in Tokyo, not to celebrate, but to cast a look back on history and address the question of Japan’s responsibility for its role in WWII and to help victims of victimized countries to obtain justice from Japan.

The occasion was the International Citizens’ Forum (ICF) on War Crimes & Redresses - Seeking Reconciliation & Peace for the 21st Century.

The list of supporting organizations for the forum is long: it includes Global Alliance for Preserving the History of World War II in Asia, World Jewish Congress, Canadian Jewish Congress, teachers' federations from Hong Kong and Taiwan.

One might ask: For a war ended over half a century ago, why do people around the world still spend such a great effort to organize a event about it? The fact that the conference proceeded without any governmental assistance makes it all the harder. The truth is, not many countries would risk offending the second largest economic power in the world, not even countries that suffered at the hands of the Japanese Imperial Army during WWII. Sad to say, Canada is one of them.

Mark Weintraub said in his keynote speech at ICF: "The great task is to somehow move all levels of Japanese society to recognize the enormity of the crimes committed only 50 years ago. That in turn ought to lead to responsibility and to vest accountability with real significance."

To date, Japan has not apologized for the conduct of the nation's military and their atrocious acts of cruelty in WWII; nor has it compensated people who were brutalized. Germany, on the other hand, will have paid almost $60 billion US by 2005 to its wartime victims and their families.

The active organizers of ICF come from Japan and include scholars, attorneys and human rights activists. These far-sighted Japanese work in the cause of international and historical justice, for the younger generation in Japan, and to foster better relations between Japan and its neighbors. These people are branded "traitors" and live in danger of being assaulted by right-wingers in their own country.

One such brave soul is Professor Akira Fujiwara of Hitotsubashi University.

He said that Japan's post-war history has been whitewashed and distorted through censorship, and there as a lack of post-war trials of war criminals. In 1957, a Class A war criminal Kishi Nobusuke even became a two-term prime minister of Japan.

It is fact, noted by these Japanese scholars and professionals, that in recent years the militaristic right-wing elements in Japanese society and within the government have grown in strength. There are many telling signs. Textbooks have been cleansed to eliminate any mention of war atrocities. Government officers have visited the Yasukuni Shrine to pay homage to war criminals. Liberal Democratic lawmakers publicly endorsed a film that glorifies the prime minister and war criminals as honorable samurais and that treats the invasion of China as a just campaign to liberate China from Western colonialism. Last summer, the government pushed through Parliament bills that made the country's rising sun emblem its national flag and a hymn to the emperor its national anthem, both becoming legal symbols of the nation for the first time. The resolutions were opposed by many human rights groups in Japan.

The right-wing faction is clearly dominating the Japanese media. The ICF conference held in Tokyo received very low-profile reporting in Japan.

The ICF organizers considered the conference a success. Over six hundreds participants from various parts of the world exchanged views on the problems of guilt ascription, compensations and more positively reconciliation, closure and lessons for humanity from this dark chapter. The international background of the participants exerted some pressure for the ruling government. After the conference, ICF delegates met with officials from the prime minister's office and the chairman of the opposition Democratic Party.

A German academic, Dr. Gunter Sasthoff put his finger on it. In Germany, the atrocious history of the Nazi regime has been thoroughly and openly discussed by German citizens. The driving force in urging Germany as a nation to accept responsibility for its war crimes has been the citizens themselves. External pressure could only do so much; real change and commitment must come from inside.

Even the organizers of ICF knew that for the victims of the war to receive apology and compensation from the right-wing dominated Japanese government now is unlikely. To move things forward, we need some new ideas.

Earlier, the state of California passed two bills urging the pinpointing of war crime responsibilities and compensations. This is a great step. Other countries and states/provinces could do the same. Perhaps another method the redress movement activities could consider is to enlist the help of Hollywood. It could produce a Japanese version of Schindler's List (Iris Chang's The Rape of Nanking is already a best selling book). In Japan, the influence of Hollywood is not to be underestimated; it certainly surpasses that of indigenous productions. A film about the responsibility of Japan for WWII crimes might be the driving force to move and stir up the Japanese citizens.

http://www.alpha-canada.org/ICFart2.htm

(Gabriel Yiu is a current affairs commentator and a free-lance columnist of Vancouver Sun. An edited version of this article was published in P. 15 Forum Section of Vancouver Sun on December 28, 1999.)