In 1982 the Charter of Canadian Rights and Freedoms was passed. This changed Canadian law forever by guarantying individual rights.
Section 15 is about equality rights. Subsection one gives every individual equality before and under the law without discrimination, “in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental physical disability”. Section two justifies any activity or program that has an objective of bettering the lives of disadvantaged individuals or groups38.The problem with section two is who is to say who needs help? Or if one individual from a certain ethnic group requires help do all people belonging to the same group? One of the most remarkable cases in the history of Canadian law concerning racial profiling or discrimination is R.
v. Gladue. The facts of the case are an aboriginal woman on her birthday was celebrating with her common law husband as well as some friends. They were celebrating her 19 birthday by drinking beer.The accused suspected her common law husband was having an affair with her older sister and when her sister left the party, she followed her. Later, she found the victim and her sister coming down the stairs together in her sister’s home. She believed that they had been engaged in sexual activity. When the accused and the victim returned to their home, they started to argue.
During the argument, Ms. Gladue confronted the victim and asked what had happened he told her that she was, “fat and ugly and not as good as the others”.A few minutes later, the husband fled their home. Ms. Gladue ran toward him with a large knife and stabbed him in the chest. When returning to her home, she was heard saying “I got you, you fucking bastard. At the time of the stabbing, the accused had a blood-alcohol content of between 155 and 165 milligrams of alcohol in 100 milliliters of blood. She pled guilty to manslaughter39.
At the sentencing hearing the judge took into consideration that she was a mother of two and pregnant. He also saw that apart from an impaired driving incident she had no criminal record.He took into account that she was provoked by the victim’s insulting behavior and remarks. At the time of the offence, the accused had a hyperthyroid condition which caused her to overreact to emotional situations. She showed some signs of remorse and entered a plea of guilty.
The judge also looked at several aggregative circumstances. He also indicated that the sentence should take into account the need to rehabilitate the accused. The judge decided that a suspended sentence or a conditional sentence of imprisonment was not appropriate in this case.He noted that there were no special circumstances arising from the aboriginal status of the accused and the victim that he should take into consideration. Both were living in an urban area off-reserve and not “within the aboriginal community as such”. The sentencing judge concluded that the offence was a very serious one, for which the appropriate sentence was three years’ imprisonment40. Section 718.
2 (e) of the Criminal Code of Canada states: “718. 2 (e)A court that imposes a sentence shall also take into consideration the following principles: …. e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.
” The difficulty with this case lies in how this section is interpreted. The sentencing judge did not think that she was affected by this law because she was “living in an urban area off-reserve and not “within the aboriginal community as such. “”41 Because she did not live a traditional “on-reserve” lifestyle this section did not apply her.She appealed and the Supreme Court found that “Section 718. 2(e) applies to all aboriginal persons wherever they reside, whether on- or off-reserve, in a large city or a rural area”.
The Supreme Court reduced the sentence to six months and a controlled release at the end of her jail time. With all respect to the Supreme Court I disagree with their decision. Section 718. 2 (e) says that all other options other than imprisonment should be considered, especially for those of aboriginal decent.
This means that this law applies to everyone but takes extra care for those who are aboriginal. The Supreme Court justified their decisions on the grounds that they do not want over representation of aboriginal peoples in jail. The Supreme Court justifies this law by just talking about numbers.
In the 1980s aboriginal peoples made up for 2% of the national population and 10% of those in federal prisons. While their effort to help aboriginal people from staying in jail is praiseworthy it is not their job, it is the job of social programs and politicians. By putting Ms.Gladue into a spot she only qualifies for because of her skin colour and reducing her sentence because of it an injustice has occurred It is not still necessary or justifiable to pay special attention to certain groups. Many laws like section 15 of the Charter of Rights and Freedoms that deals with equality use the words “in particular” or “especially those who”, this should no longer be necessary.
We often hear about how everyone has the same rights as each other and how we are all equals; why is it then necessary to protect minority groups, we are all equals after all?What I propose is that we change our legislation so that everyone receives equal benefit before the law. During the 1960s and 1970s and even in 1982 when the Charter of Rights and Freedoms came out it may have been necessary to protect minority rights because the idea of separate but equal had just become unlawful but in the twenty-first century the whole Canadian population has been equal for almost a generation; it is now time that our laws stop advocating for minority rights but rather seek equality for each individual.The problem with enforcing minority rights, like we have seen in the Gladue case is that it classifies people based on the colour of their skin not the situation they live in or who they are. We live in such a diverse country that it is not accurate to put people into groups based on ethnicity because people live such different lifestyles.
These laws need to be revamped for the new millennium in order for them to be accurate and effective towards the Canadian population. CONCLUSION For over forty years the issue of affirmative action has been subject to a tremendous amount of debate and controversy.When President Kennedy proposed the idea of preferential treatment in 1961, the nation was in the middle of radical changes regarding minority rights. It was a time when the mass population realized the oppression and atrocities that occurred at certain ethnic groups expense. At the time the idea was morally justified and socially appropriate.
While it is still a morally commendable effort today, the system has become an attempt to make up for bad decisions in the past and is acting as a serious double standard that threatens everyone.The first problem with affirmative action is the fact that it is an attempt to end discrimination with discrimination. When a company or university discriminates against a white male for the benefit of a minority group, an injustice occurs. Affirmative action is the governmental policies and legislation that justify this type of reverse discrimination. Secondly, affirmative action seeks to make up for injustices that occurred in the past.Horrific things like slavery and the refusal to grant women and minorities the right to vote are terrible things that happened in our nation’s past; but affirmative action cannot erase what our ancestors did in the past. Instead of making up for the oppression that occurred we should try to lend a hand to young people not just to minorities but to anyone who wants to learn and be successful, but lack the resources they need to accomplish their goals.
Another issue concerning affirmative action is the stigma attached to the minorities receiving the help.Minorities are capable of obtaining the best jobs out there and attending the best and most prestigious schools. The problem occurs when people view them as inferior because of affirmative action. The attitude of “you couldn’t do it on your own” is a dangerous one and can have lasting implications in the person receiving the help. How can any one truly feel accomplished with they doubt that they may not have been able to do it on their own and were merely a token person used to achieve an ideal of proportionate representation.
No one doubts that diversity is a positive attribute, people from different cultures and ethnic groups have a lot to teach one another. The only way for this to happen is to maximize diversity in schools and in the workplace. Affirmative action is not the best way of doing this, while it was a good start there are better and more effective ways of promoting diversity. Encouraging minorities from a young age to pursue their goals and obtain a good education is the most important start.Assisting people from lower socio-economic backgrounds in getting the resources and motivation they need to level the playing field with the more privileged population should be what out government and communities focus on. Understand and accepting diversity is not the issue in question; the issue is the best way of going about creating a society where minorities and non-minorities alike can be judged based on merit and character, and not on the color of their skin.