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Relationships Between Law and Racism in Canada: Two Perspectives

Published online by Cambridge University Press:  18 July 2014

Jonnette Watson Hamilton
Affiliation:
Faculty of Law, The University of Calgary

Abstract

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Type
Review Essays (Hors Theme)/Notes critiques (hors-thème)
Copyright
Copyright © Canadian Law and Society Association 1995

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References

1. Henry makes an initial distinction between Afro-Caribbean migrants, the focus of her book, and Indo-Caribbean migrants, a group she did not study, and thereafter refers only to the former when using the adjective “Caribbean,” a practice I have adopted for the purpose of this review. In addition, I refer to Caribbean “communities,” rather than a Caribbean “community,” in Toronto because, as Henry notes (p. 22), there is no homogeneous group due to strong class stratification.

2. Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.) c. 11 [hereinafter Charter].

3. Kallen's conceptual framework for analysis separates Canadians into three different groups on the basis of four different types of collective claims that can be made under Canadian human rights law. Her three broad social categories are based on Porter's, JohnThe Vertical Mosaic (Toronto: University of Toronto Press, 1965)CrossRefGoogle Scholar. Her groups are “Charter ethnic groups,” which include both the English and French populations and later immigrants from the British Isles and northern and western Europe; “[A]boriginal ethnic groups,” which include the members of the various First Nations, the Métis, and the Inuit; and “immigrant ethnic groups,” which include everyone else. Kallen also refers (at pp. 68 and 123, for example) to the “Charter ethnic groups” as Canada's “founding peoples.” Members of her second category may find this label culturally hegemonic, describing a belief that Canada was founded, or discovered, by those whom Aboriginal peoples can, and do, regard as “immigrants”. See e.g., Turpel, Mary Ellen, “Aboriginal Peoples and the Canadian Charter: Interpretive Monopolies, Cultural Differences” [19891990] Canadian Human Rights Yearbook 3 at 7Google Scholar. In addition, Kallen's characterization of Aboriginal peoples as an “ethnic group” has been rejected by Aboriginal scholars. See Turpel, ibid. at 10. Kallen does not capitalize the adjective “Aboriginal” nor the phrase “First Nations” (at p. 75, for example). In a footnote (note 7, p. 40), she does indicate that she uses the capitalized designations “White” and “Black” throughout her book to refer to self-identified groups within the broader population categories, but there is no explanation for her unusual uncapitalized use of “aboriginal” or “first nations.”

4. This is not to say that class and gender are not dealt with at all by Kallen. Just over two pages (pp. 105–07) are explicitly devoted to “Intersecting Dimensions of Ethnicity, Gender and Class” and a further seven pages (pp. 113–19) to “Multiple Minority Status” and particularly immigrant women in Canada. There are also very brief but specific references to aboriginal women (pp. 72 and 221). However, the text as a whole, and such specific examples as the Table on page 76, which classifies “women”, for example, as a “subethnic social category” of an “ethnic origin group,” which is in turn within a category labelled “race”, make clear that the focus is overwhelmingly on race and ethnicity. For a study of how Canadian human rights tribunals have responded to claims of discrimination brought by racial minority women to deny their reality of combined racial and gender discrimination, see Duclos, Nitya, “Disappearing Women: Racial Minority Women in Human Rights Cases” (1993) 6 Canadian Journal of Women and the Law. 25Google Scholar.

5. Henry indicates (p. 6) that all field researchers, chosen in part for their knowledge of the culture of the area, were Black, migrants from the Caribbean, and trained in the social science. It is interesting, however, that her interviewers are not located by class (unless a social sciences university education is considered sufficient indication of social class), given the author's emphasis on social class within the communities studied. For an analysis of the argument that anthropological studies of cultural differences reveal more about the anthropologist than those studied, see e.g., Geertz, Clifford, “From the Native's Point of View: On the Nature of Anthropological Understanding” in Geertz, C., Local Knowledge: Further Essays in Interpretive Anthropology (New York: Basic Books, 1983) 56Google Scholar.

6. Her dispassionate discussion of racism, which is presented more as the subject of technical analysis, complete with charts and tables, may be experienced negatively by some readers. Kallen's presentation may also illustrate the inability of sociological and legal categories to account for lived experiences. See Turpel, supra note 3 at 12–13; Monture, Patricia, “Ka-Nin-Geh-Heh-Geh-E-Sa-Nonh-Yah-Gah” (1986) 2 Canadian Journal of Women and the Law 159 at 163–64Google Scholar.

7. hooks, bell, Talking Back (Toronto: Between the Lines, 1988) at 14Google Scholar. What they do not speak about may be as important. Despite the attention paid in Henry's book to gender differences within the Caribbean community, the omission of any mention of violence within families and between intimate partners is noticeable. Henry does characterize one of the roles of Caribbean men as that of “disciplinarian” (p. 62) and refers to their “resentment” of women's increased independence and authority following immigration (p. 89), but that is as close as she comes to the topic of domestic violence. Because it would be a unique community and culture if such violence were totally absent, it seems most likely that the politics of community integrity in the face of racism precludes acknowledgement of intracommunity violence. See e.g., Razack, Sherene, “What Is to Be Gained by Looking White People in the Eye? Culture, Race, and Gender in Cases of Sexual Violence” (1994) 19 Signs 894CrossRefGoogle Scholar; Crenshaw, Kimberlé Williams, “Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color” in Fineman, Martha Albertson & Mykitiuk, Roxanne, The Public Nature of Private Violence (New York: Routledge, 1994) 93Google Scholar.

8. There is no systemic collection and analysis of crime statistics by race in Toronto.

9. Henry's discussion (pp. 99–100), in connection with Caribbean family patterns, of the high unemployment rates of young Black men, their low (if any) income, and their inability to enter or stay in the labour force, is probably relevant to the existence of the illegal subculture, but she does not mention the factors limiting available options when discussing that subculture.

10. Gilroy, Paul, There Ain't No Black in the Union Jack: The Cultural Politics of Race and Nation (Chicago: University of Chicago Press, 1991)Google Scholar.

11. The “new racism,” according to Kallen, involves a shift to “natural” cultural differences (p. 30). She identifies “old racism” as part of a religious ideology, based on the idea of “inherent biological racial inferiority,” although, as her references to Philip Rushton and the Aryan Nations group make clear, this 19th-century version is still around at the close of the 20th century. Kallen summarizes the distinction between the two as being the racialization of culture in the old form and the culturalization of race in the new (p. 34). Razack, supra note 7 at 897, adds that what distinguishes the old from the new forms is the vigour of our denial of the “culturalization of racism,” which “thrives in a social climate that is officially pluralistic.”

12. The phrase, “residual ethnic factors,” should recall Henry's thesis that the differential incorporation of Caribbean people in Canada is a result of two forces: the maintenance of certain cultural patterns within the communities studied and racism without. Henry is very careful to point out (p. x)—it is even the excerpt from the book chosen for the back jacket—that “by demonstrating that some Caribbean cultural traits create barriers to incorporation in Canadian society, I am not using a ‘blame the victim’ approach … However, some transplanted Caribbean cultural patterns not only inhibit the immigrants’ mobility but also feed and reinforce racism” [emphasis in the original].

13. Chapter 11 is titled “Coping Mechanisms: Strategies of Adaptation to Canadian Society” and Chapter 12 is titled “Coping Mechanisms for Racism as the Individual Level.”

14. There are only two references to human rights legislation in Henry's book. In discussing racial harassment in employment, Henry notes (p. 108) that, “[i]n a few cases, grieved respondents launched complaints. Only two official complaints were filed with the Human Rights Commission.” In one, a modest financial settlement was awarded. In the other, after a preliminary hearing found there was too little evidence to pursue the case, the respondent was led to say: “I would never go back to them again. They don't give a damn”. Henry's other brief mention of human rights legislation occurs in connection with housing. She notes (p. 230) that the Ontario Human Rights Commission receives relatively few complaints based on discrimination in housing and attributes this to an unwillingness to take such complaints to a Commission that is perceived as bureaucratic, inefficient, and excessively slow in handling complaints. Somewhat contradictorily, Henry later notes (p. 275) that “Caribbean people rarely see themselves as the victims of housing discrimination because at the individual level, it is difficult to prove.” Henry's first reference seems to be that of an academic, well aware of such studies as the Cornish Task Force Report: Ontario Human Rights Code Review Task Force, Achieving Equality: A Report on Human Rights Reform (Toronto: Ontario Ministry of Citizenship, 1992)Google Scholar and Howe, R. Brian & Andrade, Malcolm J., “The Reputation of Human Rights Commissions in Canada” (1994) 9: 2Canadian Journal of Law and Society 1CrossRefGoogle Scholar.

15. Barth, Frederick, Ethnic Groups and Boundaries (Boston: Little, Brown, 1969)Google Scholar.

16. Kallen posits that this may be because religiously-defined ethnic groups are organized actively, rather than passively, to resist outside influences. See Cover, Robert M., “Forward: Nomos and Narrative” (1984) 97 Harvard Law Review 4Google Scholar, for a more extended treatment of “active organization” in the religious context.