Discrimination and the Law:  The Evidence

June, 2000

 

There is continuing resistance by main stream society to admitting that race discrimination has been part of the Canadian landscape. 

Some people have taken umbrage at my previously published article entitled, “Discrimination and the Law”  in which I proffered a thesis that the vitriol attacks on the Supreme Court of Canada’s epoch-making decisions on native rights is evidence of continuing historic and contemporary racism in Canada.  This is because other epoch-making decisions are not so virulently attacked.  An underlining thesis was that Canada is also homophobic, xenophobic and sexist - for the same reasons - decisions favourable to gays and lesbians, cultural and racial minorities and women are viciously attacked.  And these decisions are even fewer than those favourable to governments and big business. 

I do not have evidence of a person climbing up to the top of the CN Tower in Toronto to proclaim that he or she is a racist bigot or whatever.  People are more subtle than that these days.  The aim is to injure without obviousness.  Sometimes racism operates at the subconscious level, after accumulating for a long time due to socialization and resistance of the target victims.  Sometimes only the recipients of racism are aware of their racist treatment because of differential treatment.  The perpetrator thinks everything is perfect because he has not been called on it immediately. 

What I have however, are documents and publications proving historic and contemporary racism in Canada.  This is just a minute selection of an otherwise monumental literature.  Denying the evidence or being ignorant of the evidence does not mean that racism does not exist.  Here is a selection of the literature: 

• Constance Backhouse, Colour-Coded:  A Legal History of Racism in Canada, 1900-1950 (Toronto:  University of Toronto Press, 1999);

• James Walker, ‘Race’ Rights and the Law in the Supreme Court of Canada (Waterloo:  The Osgoode Society and Wilfrid Laurier University Press, 1997);

• Sidney Harring, White Man’s Law:  Native People in Nineteenth Century Canadian Jurisprudence (Toronto:  University of Toronto Press, 1998);

• Ribin Winks, The Blacks in Canada:  A History 2^nd Ed. (Montreal et al:  McGill - Queen’s University Press, 1997);

• Walter Tarnopolsky, William Pentney and John Gardner, Discrimination and the Law (Toronto:  Carswell, 1994, October 1999 looseleaf);

• Clayton James Mosher, Discrimination and Denial:  Systemic Racism in Ontario’s Legal and Criminal Justice Systems, 1892-1961 (Toronto:  University of Toronto Press, 1998);

• Ontario, Report of the Commission on Systemic Racism in the Ontario Criminal Justice System (1995);

• Canada, Royal Commission on Aboriginal Peoples, Bridging the Cultural Divide:  A Report on Aboriginal People and Criminal Justice in Canada (1996);

• Alberta, Justice on Trial, Task Force on the Criminal Justice System and its Impact on the Indian and Metis People of Alberta (1991);

• Manitoba, Report of the Aboriginal Justice Inquiry of Manitoba  (1991);

• Nova Scotia, Royal Commission on the Donald Marshall Jr., Prosecution, the Commissioner’s Report (1989).

 Backhouse’s book boldly states that “the extensive and detailed documentation presented here leaves no doubt that the Canadian legal system played a dominant role in creating and preserving racial discrimination.  A central message of this book is that racism is deeply embedded in Canadian history despite Canada’s reputation as a raceless society”.   

The courts including the Supreme Court of Canada have accepted the existence of racism in Canada in Parks (1993) 84 C.C.C. (3d) 353 (Ont. C.A.); Wilson (1996) 107 C.C.C. (3d) 86 (Ont. C.A.); and Williams (1998) 125 C.C.C. (3d) 481 (S.C.C.).  No more evidence of the existence of racism is required.  Let us acknowledge it, deal with it and move on.