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Racism and Legal Culture

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There is a particularly widely held perception held of Canada throughout the world: specifically, that of a multi-ethnic, metropolitan utopia. With federal government for the most part, displaying positive attitudes towards immigration policy increasing its plans for intake by 2021 as well as Canada’s high number of international residents, many would, of course, be inclined to perceive Canada as a nation steeped in diversity with equal opportunity for all to thrive. While some of this may be true to a certain extent, such perceptions are from the outside looking in, and as a result, they often times lack true insight into the harsh realities which exist within Canadian society.

Being oblivious to Canada’s racist nadir, is not however, a condition unique to those who live outside of Canada. This is evidenced by the results found in the detailed survey by Ipsos , asking Canadians on their opinions regarding various race related issues and scenarios. In their detailed report, it was revealed that as of 2019, 49% of those interviewed believe that racism is either a minor problem or simply not a problem at all, a stark shift from the sentiments held of Canadian residents in 1992 (29%). An even more interesting story, however, is told when the aforementioned results are placed together with the results from the questions asked only to visible minorities. Visible minorities are roughly twice as likely to see racism as a serious problem (25%) vs whites (19%) while being almost three times as likely to be victims.

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While I may be running the risk of delving into statistics too soon into the discussion, I retain that for the purposes of this introduction, they serve an integral function. These statistics represent an overarching theme which I will be going further into throughout this paper – that of disparity between whites and visible minorities. Many (but by no means all) Canadians whites are willfully unaware of the race related issues that visible minorities struggle with, simply due to the fact that they themselves do not have to face those issues on a day to day basis. These views stem from the issue that the white perception of racism is often times limited to that of overt racism; things such as public hate speech, openly preventing visible minorities from accessing certain spaces and opportunities, violence inflicted on visible minorities by whites and scenarios of that ilk. As such, where there has been a significant reduction in covert racism, those who only consider racism as overt acts, will be of the perception that racism itself is less serious of an issue than it actually is and that visible minorities are treated fairly and equally in Canada.

This, however, is certainly not the case. While a reduction in overt racism should undoubtedly be lauded, racism is far more multi-faceted and deep rooted than simply covert acts. Certain observations of Canadian society need to be made, and viewed with a more critical eye; an eye that refuses to simply reason certain patterns involving visible minorities as pure coincidence or outright ignore them. This paper seeks to demonstrate that visible minorities in Canada continue to be oppressed as a result of the individual, institutional and ideological racism which permeates throughout the Canadian justice system.

As such, it would be fitting to begin an analysis of this nature by taking a look at things from the micro level, particularly, individual racism. It would be remiss, however, to do so without briefly touching on what exactly individual racism is. According to Henry & Tator in their book ‘The Colour of Democracy’, individual racism is described as an individual’s racist assumptions, beliefs or behaviours and “is a form of racial discrimination that stems from conscious and unconscious, personal prejudice”. Considering that this happens at an individual level, personal racism is as complex and intricate as the people themselves who portray these abhorrent attitudes, which naturally, makes it one of the most difficult types of racism to deal with.

Identifying individual racism today in Canada of 2019, along with the majority of Westernized, predominantly white nations, is a task immeasurably harder than attempting to do the same in the 19th and even as recent as the 20th centuries. So, what can this difficulty in identifying racist individuals/instances of individual racism be attributed to? For the most part, this is due to the reduction in overt/explicit racism. With civil rights movements and campaigns for racial equality picking up speed (particularly in North America) throughout the 20th century, there has been more education on the subject matter of racism, and as such, racism, more specifically overt racism, has become much more widely frowned upon than ever before.

Forms of open racism have, since the middle of the 20th century in Canada, found themselves countered by legislation and or organizations whose raison d’etre is to punish offenders and deter the commission of such acts. For instance, the promotion of overtly racist and hateful views is countered by Sections 318, 319 & 320 of the Criminal Code which make it an offence respectively to: Advocate/promote genocide, publicly incite/promote hatred & possess hate propaganda. By reviewing the caselaw under the criminal code, it is fairly upfront to determine when acts of open racism have taken place. As Rodney Coates in his book Covert Racism postulates: “in the past, the codes of the racial matrix were much more visible, objective and identifiable.”

For instance, the case of R v Keegstra (1990) , which involved the offence of promoting hatred. The accused, a high school social studies teacher at the time, taught his students extreme anti-Semitic views. The students were then expected to produce the anti-Semitic views in their exams, with their marks suffering in cases where they did not. The accused try to challenge the constitutionality of the offence of promoting hatred (s. 319), contending that the offence infringed upon his freedom of expression, however, the Supreme Court dismissed these challenges. Chief Justice Dickson agreed that the offence of promoting hatred infringed on the accused’s Section 2(b) Charter rights, however, he upheld the infringement as reasonably limiting under Section 1 of the Charter. The consequences of being overtly racist are now far more damning than ever before, with perpetrators of such offences now not only facing legal ramifications, but possibly social and professional alienation.

While many sociologists and professionals in the field of studying human behavior agree that overt racism has seen a decline, the following quote by York University Prof. Kawakami ushers in the concomitant issue perfectly: “Explicit racism and prejudice is decreasing, but if you talk to a lot of minorities – particularly black youth – racism is almost a daily occurrence.” For those less acquainted with the subject matter, this begs the question: ‘how can this be so?’ The answers here lay within arguably the more dangerous counterpart of individual racism i.e. Covert racism.

Though there is no set definition universally accepted by sociologists for covert racism, the definition put forward by Rodney Coates seems to be more than satisfactory. Racism which is hidden; secret; private; covered or concealed. He posits the following: “While varying by context, the qualities associated most with covert racism are that it serves to subvert, distort, restrict and deny rewards, access and benefits to racial minorities.” Often times, an individual who is the victim of covert racism may not even be entirely aware that they were the victim until they have been told, and for this, covert racism’s danger has can in certain instances be far more dangerous than overt.

As Coates posits, plausible deniability is an intrinsic characteristic of covert racism. What this means is that where there are suspicions of covert racism taking place, perpetrators can easily deny it in favour of other mechanisms which are instead, legitimate and commonplace in society. At its core, however, such assumptions could not be further from the truth as covert racism’s objective is deliberate denial, omission and obfuscation of visible minority groups.

At the individual level, it is posited that covert racism thrives where the veneer of ‘racelessness’ exists. David Brunsma in his book “Now You Don’t See It, Now You Don’t” posits rather boldly that white identity is structured and defined by covert racism. He goes on to say that they have been subliminally though their socialization, taught to ignore their racial privilege and are rather adopt the belief that we live in a society of meritocracy, and that individual effort is what accounts for society’s structuring and distribution of wealth, rather than any form of group/racial identity. As such, a problem arises, namely that whites no longer see the need to critically analyze issues at a racial level – problems faced by or failings on the part of visible minorities are no longer viewed as the responsibility/fault of the dominant white majority, but rather a lack of individual effort by those visible minorities themselves. This then ultimately allows for racist attitudes to thrive but now under the guise of individual judgement.

Canadian police officers are by no means above displaying these individual racist attitudes either. The way this translates in their line of work is that visible minorities often find themselves stopped, harassed, suspected of crimes, brutalized and recipients of generally poor treatment from police officers simply due to the fact that they are visible minorities. However, as earlier mentioned in the description of covert racism, plausible deniability remains a key factor for the police in many of these occurrences. It would be nigh impossible in the current social climate to hear a police officer explicitly profess to being a racist or prejudiced towards certain races, and as such, their plausible deniability takes a myriad of forms: ‘I was just doing my job’, ‘I feared for my life’, ‘their activity seemed suspicious’ seem to be said far too many times in response to visible minorities receiving adverse treatment from those sworn to protect them.

One need not look very far either for such occurrences in Canada, as Kingston’s very own Police Force has come under particular scrutiny since the turn of the 2000s for the way which its officers have treated visible minorities, and more specifically, black youth. To get a better idea of this issue, one can recall the unfortunate scenarios which the African Canadian, Wallen family had to endure at the beginning of the 2000s. In March 2001, brothers Mark and Andrew Wallen, aged 16 and 12 respectively at the time, along with a friend of theirs (a white female), sat in a parked Mercedes Benz in the Kingston suburb of Arbour Ridge. Police responding to a 911call from a woman who mistook Mark Wallen for a man who had assaulted her, surrounded the car and ordered the boys to kneel on the ground at gunpoint. The youths were entirely innocent of any wrong doing yet found themselves held at gun point, sobbing and pleading, and were naturally, deeply affected.

This would not, however, be the only instance where Mark Wallen would find himself at gun point by a police officer who suspected him of committing a crime of some sorts. In March of 2003, Wallen was on his way home from basketball practice along with his black friend Adrian Parkes. A Kingston police officer, responding to a call from the, public regarding ‘two men peering in car windows suspiciously’. According to Wallen: “a police cruiser came flying down the street” and the police officer “came at them” not telling them why he was stopping or investigating them. Wallen and Parkes claimed that the officer “acted as if he had caught the culprits as soon as he laid eyes” on them” . Wallen and Parkes had a gun pulled on them because they did not comply quickly enough with orders to remove their hands from their pocket. The Kingston officer testified that Wallen’s refusal to remove his hands from his pocket made him ‘nervous’ and that he ‘feared for his life’. Here we see plausible deniability in action as the police officer involved in the incident was acquitted of all charges of misconduct.

What these incidents did result in, however, was a particular year-long study in 2003 by the Kingston Police, where they would keep racial statistics on each person they stopped, including their race and ethnicity. The first study of its kind by a Canadian police force, its results only echoed what many blacks in Kingston already knew. The study found that black pedestrians and motorists in Kingston are 4 times as likely to be stopped and questioned by officers on patrol . The incidents affecting Mark Wallen and those around him were primarily as a result of covert individual racism in the form of racial profiling, but the study by the Kingston police suggests that these attitudes operate on a sort of continuum. No longer can there simply be the assertion that cases similar to those of Mark Wallen’s are isolated incidents or that the officers displaying these racist or prejudicial attitudes are just ‘a few bad apples’. Where a significant number of individuals in an organization, and specifically here, the police, incorporate their covertly racist ideologies in the application of their work, it is no longer merely individual racism, rather it graduates to the next level of racism – institutional racism.

So what is institutional racism? This level of racism operates at a much broader level than individual or personal racism. According to Henry & Tator , institutional racism is manifested in the policies, practices, and procedures of various institutions, which may, directly or indirectly, consciously or unconsciously promote, sustain or entrench differential advantage or privilege for people of certain races. To add to this definition, Williams succinctly posited: “If racist consequences accrue to institutional laws, customs or practices, the institution is racist whether or not the individuals maintaining those practices have racist intentions . Therefore, statements such as “It’s our position that (racial profiling) doesn’t exist” by Tom Kaye, president of the Ontario Association of Chiefs of Police, does nothing to truly show steps being taken in the right direction for an unbiased justice system.

Considering that the discussion currently pertains to institutional racism, there are two institutions in the Canadian justice system which will be scrutinized, beginning with the police force. Having earlier recounted the experiences of Mark Wallen and the Kingston police force, it should be noted that incidents of this nature are by no means an anomaly for visible minorities, nor are such behaviours unique to the Kingston branch of the Ontario & Canadian police force. There is in fact, various empirical studies which suggest that institutional racism in the police is an ongoing issue faced by visible minorities. In one such study sponsored by the Commission on Systemic Racism in the Ontario Criminal Justice System, it was found that the vast majority of black Toronto residents (79%) found that they were treated worse than whites by members of the police. However, before delving into the studies and cases which highlight the institutional racism in the Canadian police force, the relevance of such a task must be elucidated. The police are more than simply a branch of the executive tasked with enforcing the law. Rather, they are representatives of a very delicate relationship between visible minorities. This is so as the police, according to France & Tator are ‘the most visible embodiment of the dominant group’s power’. The attitudes of the police are a reflection of the current society’s perception on visible minorities as well the historical attitudes of the dominant majority. 

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