Discrimination and Disparity

What was the 60s Scoop?

The removal of about 16,000 Indigenous children from their families (1960s–1980s) and placement with non-Indigenous families.

What did the Ontario judge rule in 2017 about the 60s Scoop?

The federal government neglected its duty of care to Indigenous children.

What were the long-term effects mentioned by the court? (60’s scoop)

Loss of identity leading to addiction, mental health issues, and fractured lives.

What is prejudice?

Rigid and generalized ideas or beliefs about a group of people.

What is discrimination?

Practices that deny groups equal access to societal rewards.

What is racism?

A combination of prejudice and discrimination.

How can the criminal justice system show racism?

Through both prejudice and discriminatory practices.

What is hate/explicit racism?

Open, intentional racism meant to cause fear or anxiety.

What is polite racism?

Racism expressed in a socially acceptable or “nice” way that hides harmful beliefs.

What is subliminal/unconscious racism?

Racist actions or comments made by people who believe they are not racist.

What is institutional racism?

Racism built into laws, policies, or institutions (ex: Chinese Head Tax).

What is everyday-language racism?

Words/phrases with racist or sexist meanings that people keep using, often thinking it’s harmless.

What is ideological racism?

Deep cultural beliefs that one way of thinking or living is “normal” or superior.

How does Indigenous victimization compare to the national average?

More than double (160 vs 74 per 100,000).

What percentage of Canada’s population is Indigenous vs homicide victims (2009)?

4% of population, 27% of homicide victims.

What historical and social factors contribute to this disparity? (indigenous)

Residential schools, legal definition of “Indian,” poverty, unemployment, lower education levels.

Before 1983, who could legally be a rape victim?

Only a female.

Before 1983, who could be charged?

Only a male.

Could a husband be charged with raping his wife?

No, marriage excluded rape.

What act had to occur?

Sexual intercourse only.

What had to be proven?

Lack of consent from the woman.

What did Bill C-127 do?

Reformed sexual assault laws and removed gender restrictions.

What is Level 1 sexual assault?

Least physical injury; max 10 years.

What is Level 2 sexual assault?

Weapon, threats, or bodily harm; max 14 years.

What is Level 3 sexual assault?

Wounding, maiming, disfiguring, or endangering life; life imprisonment.

Why did Bill C-127 restrict sexual history evidence?

To prevent slut-shaming and blaming victims based on past sexual activity.

What happened to s. 276 in 1991?

It was struck down as unfair to the accused.

Which cases challenged Bill C-127?

R. v. Seaboyer and R. v. Gayme (1991).

What was the issue in Seaboyer?

The defence argued sexual history was relevant to consent and credibility.

When was the extreme-drunkenness defence introduced?

1994

What happened to it? (extreme drunkenness)

It was removed a year later.

What did Bill C-46 restrict in 1977?

judge would determine whether the victim’s records would be disclosed to the defence

What is the first stage of record disclosure?

accused must convince the trial judge that the documents are likely relevant to his or her defence

What is the second stage?

judge must consider whether it is necessary in the interest of justice for the defence to view them

What factors are considered?

• Privacy and dignity of the complainant

• Defendant’s right to full answer and defence

• Reasonable expectation of privacy

• Probative value of the record

Why is it hard to tell if justice system disparity is discrimination?

Because discretion by justice officials can look similar to biased decision-making.

Despite legal reforms, what remains low?

Sexual assault reporting rates.

Besides Indigenous peoples, who else faces justice system difficulties (Griffiths)?

Sexual minorities, Muslims, Black Canadians, and other marginalized groups.