Racism and the law

In the 1900 a prominent English scholar Gilbert Murray said:
“There is in the world a hierarchy of races…[some] will direct and rule the others, and the lower work of the world will tend in the long run to be done by the lower breeds of men. This we of the ruling colour will no doubt accept as obvious.” (Walker; 1997) It was very true at the time; everywhere you looked you could see that white people were in charge. Canada has faced many obstacles in the 19th century. It has been fighting a never-ending war against Racism in Canada. It has modified or created many laws to help try to combat the discrimination that exists within our country. Canada has modified its immigration act to make it less discriminatory. It has created the Charter of Rights and Freedoms to bring equality to everyone and it has, created human rights acts to protect people of different races.

Before we talk about the laws that Canada has put into motion to help combat racism we must first define what racism is. The term Racism is hard to define. Racism is more then just an attitude; it is a policy or practice of persecution or domination by one group over another. Due to this explanation the word racism is not found in statutes or court decisions to the same extent as the word discrimination. Discrimination in the ordinary sense of the word means to treat a person or group differently because of prejudice. However in the legal sense this definition had been expanded to include human rights. Today the word discrimination can include concepts such as adverse effect, or unintentional discrimination, and harassment. Both discrimination and racism come from prejudice. In short prejudice means to pre-judge. In other words to have negative attitudes towards a person based on stereotypical thinking about the group which the person belongs to. This stereotypical thinkin!
g comes from believing that all people in one group have the same characteristics. There are no laws which prohibit racism because you cannot control a persons state of mind only his actions. (Cohen; 1987)

In Canada the road to racism is compared by John Boyko to ladder the first rung being stereotypes. These stereotypes are brought to existence by popular culture such as newspapers, magazines, cartoons, and movies. The next rung is prejudice, which is the belief that stereotypes are true. These beliefs are portrayed in phrases such as, “They are all…” or “Those people…” prejudice only looks at groups not individuals. The next rung is discrimination which is an action based on prejudice. For example an employer not hiring someone because they believe the stereotypes about the group that that person belong to. The next rung that Boyko talks about is sanctioned discrimination. This is where the discrimination becomes entrenched in our laws and practices. After that the next step is systematic racism, which is seen in laws that promote segregation. This step leads to the next step, a need to purify the nation through exclusion or expulsion. And finally that last step, which i!
s genocide, the deliberate extermination of a race. (Boyko; 1998) In this essay I would like to talk about the 5th step in the ladder, sanctioned discrimination. Canada, which prides itself on being a multicultural nation, has a history of sanctioned discrimination. It is only in the lat 2 or 3 decades that Canada has really tried to change it legislations to help combat discrimination.

The first thing I would like to talk about is Immigration in Canada. In our country one out of every six people are born outside of Canada. Canada sees immigration as positive, something that helps us prosper economically and helps us to be more tolerant of other people. This view has not always been true. There was a time in Canadian history when Canada did not embrace the immigrant. In fact Canada’s immigration laws use to be full of racist tendencies. (Jakubowski in Comack, 1999) In 1945, Canada director of Immigration, A.L. Jolliffe, wrote:
“The claim is sometimes made that Canada’s immigration laws reflect class and race discrimination: they do, and necessarily so. Some form of discrimination cannot be avoided if immigration is to be effectively controlled in order to prevent the creation in Canada of expanding non-assailable racial groups.”(Cohen: 1987)
Discriminatory immigration laws may appear in many different forms. For example immigration laws may expressly apply only to a particular group. This happened in the case of the Chinese immigration Act. In the last half of the 1800’s Chinese were admitted in large numbers to help work on the railroad. The government encouraged Chinese immigration at this point to do the work that few others would do. Once the railroad was finished however and the need for Chinese workers diminished the government passed the Chinese immigration act (1885). This act put a head tax of $50 a head on all Chinese wishing to enter the country. The opposition to Chinese immigration grew within the country and by 1903 the head tax was $500 a person. In 1923 a new act was put in place the forbid the entry of all Chinese with certain narrow exceptions, Chinese within Canada could not sponsor relatives born in China. This act had a great impact on Chinese immigration between 1923 and 1947 only 44 Chinese immigrants came to Canada legally. (Cohen: 1987)

Another example of racist tendencies in immigration came with the Jews and Wartime Immigration policy. During the Second World War thousands of Jews sought refugee from Nazi persecution. Although the government did not actually pass a law not permitting Jews into the country they did execute policies designed to obstruct Jewish immigration. Many of these polices were executed on an informal basis. This memo from the department of External Affairs and Immigration in 1938 reveals such a policy.

We do not want too many Jews, but in the present circumstances we do not want to say so. We do not want to legitimize the Aryan mythology by introducing any formal distinction for immigration purposes between Jews and non-Jews. The practical distinction, however, has to be made and should be drawn with discretion and sympathy by the competent authorities, without the need to lay down formal minute of policy. (Boyko 1998)
These are just two of the examples of past discrimination against certain group there are many others including The Japanese War measures Act, and The East Indian and the Continuous passage rule. So what has Canada done to improve on these racist immigration laws?

Until recently nothing, there were no legal protections against racially exclusionary laws and practices. It was not until 1967 when Canada passed a new universal immigration act. That is people who apply to become Canadian Citizens are no longer judged by the colour of their skin, their religion or their ethnicity. In other words the immigration system, which had once used race-related factors to determine entrants is now seemingly “colour-blind”. (Cohen: 1987) Now the system determines its applicant on a system of points. Applicants gain points through amount of education, occupation, age, personal suitability, ect. This system is said to be universal because every person is evaluated with the same criteria. With the implementation of this new universal system Canada’s immigration act has become much less discriminatory. (Boyko: 1998)

The next major advancement that Canada has made to combat discrimination in Canada came with the Creation of the Charter of Rights and Freedoms. The Charter of Rights And Freedoms is one part of the Canadian Constitution, which is made up as a serious of laws rather then on document. The Charter offers a number of different crucial protections to minorities. There are three sections to the charter that should be examined when we look at racial discrimination; these are section 2, 15 and 27.

Section 2 of the Charter of rights and freedoms provides that everyone has certain fundamental freedoms, including freedom of religion. According to this act every individual has the right to “entertain such religious beliefs as the person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or by teaching, and dissemination” It also guaranties the absence of coercion and restraint.

The next section 15 may be the most useful to minority groups. This section among other things states that every individual is equal under the law and has the right to equal protection and equal benefit of the law without discrimination. This section has been very influential in the advancement of such groups as the Indians. The Indian Act governs most of Indian lives, this act has been a means for the government to control Indian matters since 1876. In the past the Act has placed constraints on the rights of and lifestyles of the Indian people. For years the Indians could not leave the reserves, even temporarily without a pass. Section 15 of the Charter of Rights and Freedoms helped to remove many of the discriminatory acts that were in the Indian Act.

The last Section that I want to discuss is section 27. It states that the charter will be interpreted in a manner “Consistent with the preservation and enhancement of the multicultural heritage of Canadians” One example of how this section is influential in helping minority groups was in the “Keegstra Incident” James Keegstra was a teacher who taught his students many anti-Semitic theories. He was charged with promoting hatred contrary to criminal code. He challenged the criminal code on the basis that is violated his freedom of expression guaranteed in the Charter of rights and freedoms. The court refereed to section 27 when they rejected Keegstra’s argument, noting that promotion of hatred contradicts the principles, which recognize the dignity and worth of minorities. (Schneiderman: 1997)

There are other sections of the Charter that are useful in protecting minority groups such as Section 3 that gives everyone the right to vote in an election and to be qualified for member of parliament. Chinese and Japanese Canadian were denied the right to vote until the 1940s, and native persons were not allowed to vote until1960. Section 6 gives every Canadian citizen the right to leave remain, and enter Canada. This offers protection against such act as the War measures Act that was invoked in WWII when Canada attempted to deport Japanese Canadians. (Cohen: 1987)

The last thing I would like to talk about in Canada’s war against discrimination is the Human Rights Acts. The human rights acts are the most significant legal protection in the field of race relations. The prohibit discrimination in such fields as accommodation, facilities, services, contracts, and employment.

The first Human Right Act in Canada was the Racial Discrimination Act of 1944. This act prohibited the publication, display or broadcast of anything indicting an intention to discriminate on the bases of race or creed. This act was ment to get rid of such sign like “No Jews or Dogs Allowed” which were in shop windows.

The Fair employment and accommodation acts came next. In the 1950s these acts set the basic structure for human rights. These acts were ineffective because there was no real enforcement it was up to the individual to pursue discriminatory acts by themselves.

The real revolution came in 1962 with the Ontario Human rights Code. This code prohibited discrimination on the bases of race, creed, colour, nationality, ancestry, or place of origin. Today all the Canadian provinces and the Territories have anti-discrimination laws. (Knopff: 1989)

There are some people who say that Canada has not come as far as they think. In the case of immigration even though people are being evaluated all on the same basis there are some people who come from countries where they can not obtain the necessary requirements to come to Canada should these people be excluded because their country does not offer education, or they can not find a job. The immigration act does however provide away for these people to get around the points system by applying to become an immigrant using refugee standing. Another argument is that the Charter of Rights and Freedoms is not absolute. A person must appeal to the courts when they feel their rights have been violated it is then up to the court to decided whether or not a persons rights have been violated and whether they should be compensated. Therefore in the end it may come down to one judge’s interpretation of the charter. However at least now minority groups do have the resources available to !
fight back.

In the end it is clear that Canada is winning the war it is fighting within its country. Although we are not raising arms and we are not killing people we are beginning to advance. Through the creation of the Charter of rights and Freedoms, the establishment of human right legislation and the changes we have made in the immigration act Canada can honestly say it is trying to create a county were multiculturalism is word you can use to describe the population. A place where a person can live, as an individual without discrimination. It is just to bad we need laws to ensure this.

Backhouse Constance, Colour- Coded: A Legal History of Racism in Canada, 1900-1950, Toronto, Osgoode Society for Canadian Legal History, 1999

Boyko John, Last Steps to Freedom: The evolution of Canadian Racism, Manitoba, Watson & Dwyer Publishing ltd., 1998

Cohen Tannis, Race Relation and the Law, 1987

Comack Elizabeth and others Locating Law, Halifax, Fernwood Publishing, 1999

Driedger Leo and Shiva Halli, Race and Racism Canada’s Challenge, Kingston, McGill-Queen’s University Press, 2000

Knopff Rainer, Human Rights & Social Technology, Ottawa, Carlton University Press, 1990

Schnederman David and Kate Sutherland, Charting the Consequences: The Impact of the Charter of rights on Canadian law and Politics, Toronto, University of Toronto Press, 1997.

Walker James, “Race,” Rights and the Law in the Supreme Court of Canada, Wilfred Laurier University Press, 1997