Mandatory Racial Discrimination In Canadian Courts

     In the name of “Equity”, racial discrimination is declared to be necessary as a component of “anti-racism” to counter the “systemic racism”, while ignoring the fact that if you can get away with this racial discrimination, then perhaps the people being discriminated against aren’t the ones who are “privileged”.   Case in point: The Canadian justice system.

“The Ontario Court of Appeal ruled late September that the criminal records of Indigenous persons can be excluded from their trials to preserve fairness. Trial fairness, to Ontario’s top court, means creating race-based procedural rules to supposedly make up for the effects of systemic racism. In other words, these rules aren’t fair at all.

“In Canada, we have the laws on the books, and the laws that judges soften at certain points in the criminal process for certain groups. The recent decision out of Ontario, R v. King, deepens the split between these two tiers of the Canadian justice system, a notable step in the growing use of intersectionality and critical theory by the courts.

“The R v. King appeal explored whether it’s acceptable to consider a person’s Indigenous background when deciding whether the prosecution should be able to cross-examine them on their criminal record; this cross-examination helps determine just how credible an accused person’s testimony is. The ruling follows the trial of Dale King, who fatally shot Yosif Al-Hasnawi in Hamilton in 2017. Both men were 19 at the time. King argued self-defence and was ultimately acquitted of second degree murder, and the appeal court agreed with this result.

“Al-Hasnawi was a Brock University student aspiring to become a doctor, while King was a methamphetamine dealer who used daily. On the way to a meth sale with a friend, King had an interaction with an older man on the street where Al-Hasnawi, unarmed, was gathered with his brothers getting fresh air during an event at a mosque. Al-Hasnawi called out (some said the older man was being bothered) and King approached. After some talking, King’s friend punched Al-Hasnawi and the two ran off; Al-Hasnawi gave chase. King then shot Al-Hasnawi in the stomach.

“On appeal the Crown objected to the fact that part of King’s lengthy criminal record was suppressed at trial. The trial judge had reasoned that this was fair because of systemic discrimination against Indigenous people and experiences of family separation, transience, addiction and abuse. The full criminal record could prejudice the jury against King due to racial stereotypes, so the judge opted to keep some of it out.

“Judges in Ontario going forward will now need to consider race when letting someone’s criminal record into trial, because racial stereotypes arising from a criminal record might lead to unfair treatment.”

     It gets worse.

“In 1999, the Supreme Court ruled in a case called R v. Gladue that sentencing for Indigenous people should take systemic background factors into account, because these factors can make someone less morally blameworthy. This has since been extended to bail, which is supposed to be an exercise in risk management (not a calculation of blameworthiness, which was the original purpose of Gladue). It could always be extended further too — the newest member of the Supreme Court, Justice Michelle O’Bonsawin, has written about making the consideration of Gladue principles mandatory at administrative tribunals that deal with detaining people over mental health (her thesis is under an embargo, so we unfortunately can’t read the argument there).

“In 2019, the Supreme Court ruled that minority status is a factor in determining whether someone has been detained by the state. The accused was Asian, so the court reasoned that he was more likely to believe he was detained when talking to police. The distinction is important because once detained, a person’s charter right to be free from arbitrary detention is engaged. In short, this means that people who aren’t white have an additional line of argument to use to their advantage in a criminal trial.”

     Canada is hellbent on playing out the Civil Rights era of the United States in reverse.


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