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Racism and the Law exam review

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Political Science
POLS 3561
Sirvan Karimi

Racism and the Law 1. (week 1, jan 10)- what are the main challenges that the criminal justice system has encountered? How has the CJS responded to these challenges? Are there effective mechanisms in place to maintain accountability within the CJS? Gender issue - women = underrepresented in police services/courts/lawyers/judges/institutional and community corrections. - RCMP  try to increase female applicants by lowering recruiting standards = raise policy concerns - women = have different needs as victims/offenders Multiculturalism - CJS = slow to address major ethnic shifts - minority and police confliction/discrimination - black people = over represented - minorities = see whites treated differently in CJS, racial profiling  Measures taken to bridge the gap: - community partnerships (ethnic communities and CJS) - increase minority in police force/JS - educate legal resources, info about law, make things more accessible = better CJS - cultural sensitivity be applied to CJ and JS Aboriginal Peoples (retributive vs. restorative justice) - high crime rates/victimization and over representation (from incarceration, parole, arrest, all processes, etc). - solution: use other types of sentencing and correction programs that tend to the historical circumstances, displacement of Aboriginals = restorative justice (response to failings of CJS, integrates offender back into community, restores peace back in victim’s life, lower recidivism/deterrence in Aboriginal communities) and retributive justice (payback) Accountability mechanisms (holding law enforcement accountable): 1- charter (sections: 7-14)process that protects charter rights and public safety (police cant abuse, and those that need to be punished be punished) 2- three-part test (sue govt if rights violated)effect of evidence on fairness of trial; seriousness of charter violations; effect of excluding evidence on rep of police force 3- the principle of inevitable discoverability (evidence is admitted) 3. Outline and explain the various components of the legal framework or legislative basis of race relations in Canada. - legislative base of race relationslegal framework for race relations is composed of a set of statutes/policies/govt programs (constitutional guarantees to govt programs) A Human rights codes:  HR protection has increased in 3 ways: 1) expansion of protective group (LGBT, disable, minority, Brooks case 1989); 2) SCC recognize HR legislation as quasi- constitutional (i.e. Wiems v Inco metal); 3) better understanding of how discrimination occurs (can be systemic/systematic—i.e. O’Malley 1985 and Bhinder case 1985) How to strengthen HR legislation/reforms: - defining racial harassment as crime - sub. Reconciliation function with deterrence - eliminate onerous standard of proof in race-based discrimination cases - addressing delays for race-based cases - reinstatement in workplace remedy B Bill of Rights: - 1960, federal statute made to prevent discrimination = ultimately uneffective not part of constitution, and could be easily amended by govt. C Ordinary Statutes- criminal offences of hate propaganda; Hate Crime Law - hate propaganda sec. of criminal code states: any attempt by individual to spread hatred to bring about genocide of a group is a crime. only possible defenses: hate propaganda based on beliefs/sincerity of this religious belief, and freedom of expression (essential to well-being of democracy, as there has been historical push for legal protection, and enhances individual self-growth) D Charter: relevant sections; 2-15 (1,2)—27 - discrimination based on race/religion protect in charter; Indians protected by s.25; right to vote (whether Canadian or not); charter basically says that the govt is hindering rights; - discrimination comes from pvt sectors, however, pvt sector can use charter to protect self i.e. Blainey vs hockey association (since pvt sector, charter did not apply, only HR code did. Hr code = violate s15 = cant justify in s1blainey won case 4. What is securitization of public policy? What are the mechanism that have been put in place in order to protect refugee/immigrant rights? In which ways have the foreigners’ rights been corroded? Securitization and human rights; protective mechanisms:  Substantive and procedural standards within the international and regional human rights system  Right to seek and enjoy asylum  The principle of nonrefoulement  Procedural rights relating to expulsion of aliens  Equity provisions  Standards in Canadian character Erosion of foreigners right through:  A. preventative measures  Visa regime  Carrier sanctions  Interception and interdiction mechanisms  B. deterrent measures;  Elimination of appeals  Reduced legal aids  Increased detention  Excessive penalty for migrant smuggling 5. What factors did contribute to the passage of Human Rights legislation in Canada and in which ways has the human right protection increased in Canada? Have human right codes been effective in combating racism and discrimination? - under this system, race-based cases are dismissed more than any other type of case (sex, disability, status case, etc)…delays in race-cases are severe - Courts/tribunals = not serving needs of minorities while racism cases flourish, a lot of formal complaints rejected/dismissed - HR system in CAN depends on complain system complainant files complain to HR commission in jurisdiction, commission investigates case - criticisms against HR system in Canada: race cases dismissed more than other cases; complaints can be dismissed even when wants to proceed; long delays; assumption that equality already exists in Canada. - response to criticisms: amendments that make employers/services accommodate religious minorities/disability; protection for complainants against retaliation; $ fine against hate messengers - HOWEVER-legislation still does not address fact that race-case dismissed; delays longer than other cases; denial of right to access court; complaint driven system has problems = little impact on HR complaints Human rights protection has increased in the following three ways: 1. Expansion of protected groups Brooks vs. Safeway LTD (1989) Two women worked as cashiers fro safeway and they became pregnant and the insurance didn’t cover salary for pregnancy. They didn’t include pregnancy as compensation of loss of salary due to that particular condition. They challenged them on the grounds that this is a violation of human rights based on sexes. The case ruled in favour of Brooks. 2. SCC’s recognition of human rights legislation as quasi- constitutional; Constitution is a supreme court of law. Wiens v. Inco Metal Co (1988) the company for workplace safety had a law in place that woman of child bearing age were not allowed to work in a particular area because its a danger to the fetus. That was challenged, the board that inquired ruled that that particular statute as workplace safety is violating the human rights act. 3. Greater understanding in how discrimination actually works (systematic/ systemic discrimination). O’Mallet v. Simpson Sears (1985) she had a religious belief that she cant work Friday sundown to Saturday sundown and so she went to sears adn told them to accommodate that and she was denied so she took it to court and the court ruled that the company should accommodate the religious considerations of this person in order to change the schedule so that she can stay at home. Perfect example of systemic discrimination? Service providers and employers are required to accommodate their clients and employees upto point of hardship. Canadian National railway v. Canada (Human Right Commuission ) and Bhinder ) (1985) He was working for CN. He WAS A MEMBER OF Sikh religious group. Turban is part of his religion and at work he had to wear a hard hat for safety reasons at work and he thought that violated his religion. Was the requirement that he had to wear a hard hat a violation of the right? The court said yes. Can this be justififed? Yes. Bona Fide is a corporational company. This policy is in place to protect that person. 6- Explain the difference between Employment Equity as a philosophy and Employment Equity as an Act, and evaluate the debate on the desirability and effectiveness of Employment Equity. EQA - rejects government mandated quotas; targets/timetables are flexible involving reasonable expectations about hiring and promotion; if under-representation found...following steps are required (employment system review; employment equity plan developed; employment equity plan monitored) EEP - organized around principle of ―institutional inclusiveness‖; remove systemic barriers; equal representation of groups (status, income, etc); hire/promote based on merit/skills; recognize that systemic discrimination requires external intervention; institutions need to be blamed for exclusiveness DEBATE: Against --- 1) violates principle of equality and merit (all should be promoted based on merit = discriminate those who not minorities); 2) run counters to paradigm of liberal universalism; 3) puts pressure on employers to hire someone undesirable therefore ruin competitive position of Canadian global economy; 4) EE values visible minorities and disregards whites (argue that people simply hired based on ethnic/merit = form of discrimination itself); 5) Canada becomes more fragmented and divided; 6) when minority/aboriginal/women get hired because of EQ = seems patronizing because got position not because of skills, only because minority For--- 1) symbolic impact = promotes stability; 2) goal of equality/inclusiveness; 3) global pressure on institutions to promote demo/equa/SJ; 4) legal framework for EE = more defined and clear; 5) discriminatory employment practices are wasteful since these groups are core of future labor force; 6) workplace that meet needs of gen. pop. = effect meet needs/interests of gen. public. 7- Explain human right legislation, employment equity and pay equity. Human right legislation - 1) Objective: to enhance freedom from discrimination based on certain characteristic such as race, nationality, sex, age, ethnic, origin, physical and mental disability; 2) Focus/concern: all aspect of employment 3) Who is covered: only those specified in the act based on race, age, ethnicity, disabilities. there is big diff b/w charter and HR= charter says all people are free from discrimination, but in HR you cannot expand it, what you see is what you can use. 4) Orientation: complaint based= if you think you have been discriminated/treated unequally, you have to initiate the complaint yourself 5) Implementation: post-orientation stage HR commission investigates case + reconcile/accommodate complainant Employment Equity 1) Objective: remove systemic barriers to employment so that the member of the marginalize group can participate in the sector 2) Focus/concern: All aspect of human resources 3) Who is covered: Women/Aboriginal/minority/disability 4) Orientation: if under representation found, then proactive steps be taken; govt agency must address problem. 5) Implantation: agencies covered by govt need to survey workforce, and identify, and remove underrepresentation barriers. Pay equity 1) Objective: Equal pay for the work of equal value 2) Focus/concern: To make compensation 3) Who is covered: Man and women 4) Orientation: proac
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