HUMA 1825 Study Note 4
- The risk of discrimination runs both to ignore and to recognize difference in
equal treatment and special treatment
- The Five unstated assumptions:
1. Difference is Intrinsic, not relational
a. Through this assumption litigants and judges treat the problem
of difference as what society should do about the different
b. This is also a pitfall in logic and reason because we do not
contain differences in the same person and instead we look at
differences in comparison.
i. By considering differences to be intrinsic, we forget that
there are differences in respect to race, gender, etc. that
can be read as a social construct
ii. The error in judgment here is that people are being
compared to each other, therefore differences cannot be
intrinsic because it would require information coming
from a “separate” source.
c. This is more of a assumption that causes individuals to judge
other individuals without an ability or training to actually see
that person in the broader context of what affects him:
i. Take a person in a wheel chair. The fact that they can’t
get through normal doors isn’t THEIR fault since they’re
in a wheel chair, it’s society’s fault for not
accommodating their problem into consideration.
1. Essentially, always look into the bigger picture
2. The norm isn’t specifically mentioned and doesn’t need to be
a. This is wrong because it automatically places everyone in
lower-ranking positions in the sense that someone’s individual
judgment of someone else may reflect their participation in the
i. Depending on whether you’re in a certain group, it
reflects your insights and judgments, therefore, certain
judgments will reflect a group-level category of errors
b. Our judgments reflect the type of norms that are present
within our own groups in the sense that if we’re white-able-
bodied men we will see everyone else in that specific
c. Groups with different privileges and advantages cause us to
judge others with different advantages
i. If the unstated norm changes, and the change is for the
greater good, then that norm change is justified and
3. The observer can see without a perspective a. Humans cannot analyze a topic without looking for a specific
think to look forward to. We have to find something we dislike
and therefore there can be no neutrality
b. This is referred to scientific measure that measures our
potential or ability to achieve greatness.
i. She doesn’t like statistics as a method of justifying proof
that may not be 100% accurate
c. At the same time, Minow claims that there is a false idea that
data or any scientific claims are neutral because there is no
way to know what occurred in the area of study
i. For example, comparing two students in their
university exam is not a good way to determine their
future success because one of these students could have
a broken home with no place to study, and another
person could be living the good life.
ii. Therefore, relying too much on official or formal
information goes back to the assumption that difference
4. People think that all other perspectives are irrelevant
a. This is untrue because people end up ignoring other people’s
voices. This is wrong because you need to look at other
people’s perspectives in order to find a better choice.
i. By dealing with objections to your perspective you will
be capable of finding out the better choice.
b. Also, relying too much on the authority of experts would result
in the possibility of wrong ideas coming forward. Assumption
#3 is played in this regard because there’s an assumption that
scientific evidence can easily be trusted and that is not always
5. Status quo is natural, uncoerced and good
a. This assumption is false because it creates an assumption of
neutrality that results in naivety.
b. This is a poor assumption because it thinks that since society is
not forced, everything we do is our own choice and fault:
therefore, if we’re poor, battered, or black it is our fault.
Therefore, an unemployed person could be blamed for the
corrupt way of society
i. This relates the 2 assumption in the sense that its
people judging from their groups.
ii. This also forgets that some people are not similar and
don’t have similar opportunities.
c. This assumption creates patters that result in people being
stuck for generations in such as poverty, alcoholism, and sex
abuse. Essentially, this is systemically made problems that a
community must face. However, most of the time it choses to
ignore it - An important aspect of Minow is that she says that good law is that which
ascends all the assumptions and allows us to think about the judgment that
we make whether it privileges some groups over others.
o Don’t be too gullible or naïve and consider the broader issue
- Minow wants to engender Justice:
o This means Minow’s notion of community is extended to women,
minorities and etc.
Therefore, through engender, Minow means that she wants to
bring about this aspect of extended community to minorities to
the previously conceived aspect of justice by fixing the five
- The dilemma of difference is the attempt at engendering law in the fact that
there are specific tasks in order to create fairness and equality in the
workplace for women as well as men.
o The dilemma of difference is a choice between several differences that
are all equally unfavourable:
Minow shows that analyzing differences, as well as ignoring,
and not acknowledging them make discrimination.
- She believes that justice must be used to answer questions of complexity, not
a specific science.
R v. NS
- What is the morally substantive way to proceed in the case?
- Does McLachlin do anything to improve the status of women in law to put it
on more equal footing? Is the balancing of free trial to freedom of religion
valid as a legal just balancing?
- There’s a concern to revoke women’s sexual abuse. This is the big problem.
- Sexual violence doesn’t; happen in a vacuum; it works in patriarchal in the
potential sense of it, therefore, therefore a culture of permissibility of male
- By making the decision context-dependent, asking the four questions that
guide the balance of weighing when she can wear it. That weighing process
accommodates all the groups.
o These are the four Questions:
One: Would requiring the witness to remove the niqab while
testifying interfere with her religious freedom?
This would require the sincerity rather than the
strength of belief
Two: Would permitting the witness to wear the niqab while
testifying create a serious risk to fair trial?
There is a presumption that seeing a witness’ face is
important for a fair trial
o However, where evidence is uncontested,
credibility assessment and cross-examination
are not in issue. o Therefore, being unable to see the witness’ face
will not impinge on trial fairness.
Third: Is there a way to accommodate both rights and avoid
the conflict between them?
Fourth: Do the salutary effects of requiring the witness to
remove the niqab outweigh the deleterious effects of doing so
Salutary effects mean unwelcome or unpleasant effects
that produce good effects
Deleterious effects include harm done by limiting the
witness’ sincerely held religious practice. Deleterious
means that which causes harm or damage.
The salutary effects must outweigh the deleterious
effects when requiring the witness to remove the niqab.
- How does law get better about thinking about difference?
- Keep it in principle in work. Does the ruling adequately endorse the right
kind of equitable values? Consider the value of justice. Even though if in
practice it can cause headaches, does it affirm the right values?
- Look at the natural law perspective in Dworkin and Minow: their concern of
social justice and the law not reducing it to self-understanding.
- Freedom of religion, the right to fair hearing, right to make full answer and
defense, Muslim witness at preliminary hearing in sexual assault trial
wanting to testify with her face covered by niqab
o Whether requiring the witness to remove her niqab would interfere
with her religious freedom
o Whether permitting her to wear a niqab while testifying would create
a serious risk to trial fairness
- The accused stand charged with sexually assaulting NS. The Crown called her
as a witness at the preliminary inquiry. She indicated that for religious
reasons she wished to testify wearing her niqab.
o The preliminary judge concluded that her beliefs weren’t sincere
enough and ordered her to remove her niqab
- On appeal, the Court of Appeal held that if the witness’ freedom of religion
and the accused’s fair trial interests were both engaged on the facts and
could not be reconciled, then the witness must remove her niqab.
Decision of McLachlin, Deschamps, Fish and Cromwell
- The issue is if a witness who wears a niqab for a religious reason can be
required to remove it while testifying
- Two set of Charter rights are potentially engaged – the witness’ freedom of
religion, and the accused’s fright to fair trial, including the right to full answer
- The answer must be a just and proportionate balance between freedom of
religion and trial fairness, based on the particular case before the court - A witness who is testifying in