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Mea culpa | John L. Hill

Monday, June 07, 2021 @ 8:43 AM | By John L. Hill


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John L. Hill %>
John L. Hill
I have always maintained that I learned more from cases in court where I was unsuccessful than in those cases where I claimed victory.  In late May I submitted an opinion piece to The Lawyer’s Daily that was published on a Monday. Within minutes after its publication, I received an e-mail from Harold A. Maio, a retired mental health editor from Fort Myers, Fla. He rightly objected to the use of phraseology “the mentally ill” that was quoted in the piece that was published. It was noted that the term “the mentally ill” has been used without objection by the late Antonin Scalia in at least two cases that came to the United States Supreme Court (District of Columbia v. Heller in 2008 and McDonald v. City of Chicago in 2010). Despite that fact, the term is objectionable. The preferable manner for expressing the thought would have referenced “prisoners with mental illness.”

I noted that the term with which Mr. Maio took objection was in a quotation I had used from an Ontario Superior Court judgment (Francis v. Ontario [2020] O.J. No. 1714), but I soon realized that did not let me off the hook. I chose to use the quotation and it was my story. The reason it was objectionable is that it categorizes those people afflicted with mental health problems. It is a category (“the mentally ill”) that deprives those individuals of the broader sense of humanity to which they are entitled.

Words matter. For a long time, I have noted that the term used for the tract of land on which prisons are located is not “campus” but “reserve.” The same way that tracts of land where our Indigenous people are housed is a “reserve.” There is nothing wrong with the word itself but the connotation that accompanies it is that it is an area set aside for the less desirable.

The way language is used varies from one generation to the next. Consider this 1889 quotation attributed to Canada’s first prime minister: “When the school is on the reserve, the child lives with its parents, who are savages, and though he may learn to read and write, his habits and training mode of thought are Indian. He is simply a savage who can read and write.”

Of course, the notion of “savagery” was adopted by people of the time who could not (or would not) accept that people who did not share the same language, religion and culture could have the right to be considered as “human” as those in the more dominant culture. The result is the headlines we have been reading about lately: 215 residential school children discovered in a mass grave in Kamloops, British Columbia.

The atrocities that took place at our residential schools should be condemned as the literal meaning of cancel culture. The denial of an overriding humanity and categorizing human beings as savages supposedly justifies actions that are criminal at best and genocide at worst.

Because we accept terminology such as “the mentally ill,” are we not justifying the Nazi-like experimentation that went on at the Oak Ridge Division of the Penetanguishene Mental Health Centre? When we are overlooking an individual’s inherent worth as a human being and simply lumping them into a category, we invite mistreatment and abuse.

Harold Maio was right in calling me out for using an unfortunate quote. He is right and I was wrong. For this I am truly sorry.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and LL.M. in constitutional law from Osgoode Hall. Contact him at johnlornehill@hotmail.com.

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