© 1994 Karen Selick

An edited version of this article first appeared in the September, 1994 issue of Canadian Lawyer.  If you wish to reproduce this article, click here for copyright info.


 The Playing Field's Not Tilted (and Other Musings)

The expression "a level playing field" must be the most over-used and inaccurate metaphor of our time.  These days, people who feel envious over some advantage, real or imaginary, possessed by somebody else commonly attribute their own lack of advantage to the fact that they have been unfairly treated: they've been forced to play on a sloping playing field.

Why doesn't anyone ever think the metaphor through to its logical conclusion?  In every game, even those played on the levelest of playing fields, there are winners and losers.  Some people are just naturally better at the game than others.  Some work harder at it.  Some are more enthusiastic.  Some teams work better together.

Tied scores are the exception, not the rule.  If one team consistently outscores the rest, it doesn't mean the field has been tilted in its favour.  The only way to determine whether the field is tilted is to examine the field itself.  You don't look at an unequal score and presume that the game was unfair.

Unfortunately, a low score seems to be the only evidence that complainers usually have of the alleged unfairness of the game.  Sometimes they state quite openly that they'll know the field is finally level only when the score is finally tied.  For example, some women maintain that women won't be treated fairly until half of all members of parliament are female.

What these people are really after is not a level field and a fair game.  In fact, it's just the opposite: what they really want is a rigged score.



The Ontario Court of Appeal ruled recently that jurors should be screened for racial bias in cases involving accused who are members of visible minorities.

It's hard to object to that ruling in principle, but one has to wonder just how effective it will be in practice. 

First let's consider some of the evidence placed before the court in R. v. Willis by the Urban Alliance on Race Relations.  According to The Globe and Mail, their affidavit said that racism is "not so much a moral failing on the part of particular individuals but...more a set of social practices and constructed behaviour that operate without the need for any conscious prejudice on the part of the social actors."

Well, if racism is not conscious prejudice, how will it help to ask jurors if they are prejudiced?  If they're not conscious of it, they will naturally answer no.  The trial will then carry on just as if the question had not been asked, replete with unconscious prejudices.

On the other hand, there are probably some jurors--of both colours--who are seething with prejudice and are fully aware of it.  Might they not simply lie about their prejudice just so they'll have the opportunity to sit on the jury and convict the object of their hatred?

My suspicion is that the questioning will simply afford a welcome excuse for escaping jury duty for conscientious and moderately introspective people who feel that they have other things they'd rather do with their time.  Ironically, this is probably the kind of person who would be most desirable on a jury.


And now to the one-man's-meat-is-another-man's-poison department.

Gays and lesbians have become increasingly militant in their demands to be recognized as spouses under various laws.  Although there is currently nothing to stop them from arranging their affairs (using contracts, custody orders, wills, etc.) in a manner that mimics marriage, their goal is something more: it is formal recognition by the government that they seek. 

One gay man in Denmark, where same-sex marriages are permitted, put it this way: "It was great to be gay and have the official handshake and smile of the the state."

I find it astonishing that some people are so desperate to have their relationships recognized by the state.  My position is exactly the opposite:  I don't recognize the state's right to govern my voluntary relationships with other people in any respect, and I wish it would just butt out of my business.

In 1992, I became compelled when filing my tax return to declare myself to be a common-law spouse rather than a single person.  Nothing in my living arrangements of the previous eleven years had changed, but suddenly the status of spouse was foisted upon me without my consent.  If my partner and I didn't like it, there was no way to opt out.  Our only choice would have been to split up.

If the Ontario government goes through with its plans to amend the Family Law Act, my partner and I will soon find ourselves roped into a scheme of property equalization which we want no part of and which we have consciously and deliberately avoided by not getting married.  We will have to go to the trouble and expense of preparing a cohabitation agreement just to maintain our previous independence.  Even that won't be entirely satisfactory, because there are certain provisions of the legislation that spouses are not permitted to opt out of.

The laws and court decisions governing married people and their property have gyrated so wildly over the past two decades that I can't understand why anyone, straight or gay, would voluntarily submit themselves to such a regime.  Marriage these days means frequent, unpredictable changes, sometimes with retroactive effect, and no way out. 

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June 07, 2000