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The Defender: Politics of Diversity
By Munyonzwe Hamalengwe
Some recent political and legal developments in Canada are indicative of the necessity of the politics of diversity. These developments
point out the obvious: the need to continue to encourage the power brokers
to consider appointing members of diverse communities to positions of power
and influence in Canada.
We have been reminded that MP Jean Augustine is the one who sponsored the
adoption of February as a Black History Month in the House of Commons
several years ago. There was no dissent as the House of Commons recognized
February as a Black History Month throughout Canada. You would not have
expected Stephen Harper or John Crosbie or Mike Harris to have sponsored such a move. It sometimes takes your own to
recognize your own.
Without Jean Augustine as an MP, Black History Month
may not have been recognized as such at the time this happened several
years ago. Note that I have not said that it would never have happened, I
have said it may not have happened.Jean Augustine's contribution to the betterment of Canada is yet to be assessed and appreciated.
Perhaps the most important fruit of diversity in the recent past is the decision by
Judge Juanita Westmoreland-Traore of the Court of Quebec. For the first
time ever in Quebec and perhaps Canada, Judge Westmoreland-Traore found that the arrest and
charging of a black man by the Montreal police was due to racial profiling
and not due to any reasonable and probable grounds that that black man had
committed a criminal offence.
As a consequence of this finding, the small
amount of marihuana that was found on the accused black man, was excluded
as evidence.
The accused was acquited.
This is one of very few times in
Canadian history that the finding that racial profiling has occurred led to
the advantage of the accused black person.
This decision is a milestone in
criminal law.Judge Westmoreland-Traore is African-Canadian, was once
Employment Equity Commissioner for Ontario and Dean of the Faculty of Law
at Windsor.
Westmoreland-Traore is just one of two black judges ever
appointed to the judiciary in Quebec.
Would a lily-white judge have even recognised that racial profiling was
involved in that case? Maybe.
It is my thesis that without racial profiling by the police and judges,
there would be less minorities going through the Canadian criminal justice
system. I am not saying that there aren't criminal elements in minority
communities. There are plenty. But no more than in white communities. The
overrepresentation of minorities in the criminal justice system is due to
racial profiling.
The recognition of this phenomenon by the judiciary as
did Judge Westmoreland-Traore in R. V. ALEXER CAMPBELL (January 27th, 2005)
hopefully, will go a long way in cautioning police officers against
discriminatory conduct.
Note also that the first major case that recognised racial profiling was
decided by a Black judge in Nova Scotia ( the case of R. V. RDS). In that
case, all principal participants, except crown witnesses, were black. That
case went all the way to the Supreme Court of Canada, and it stood for the
importance of the principle of contextualised judging rather than racial
profiling.
The concept of racial profiling was a long way in the future
though black lawyers and others had been raising that issue long before
that, but without success.
Ontario has adumbrated a number of cases dealing with racial profiling in
the recent past. However, this is not as a result of sudden insight by the
judges, it is due to the fact of the constant pounding of this issue by defence
lawyers.
It is important that decision-makers from diverse backgrounds be there to
anchor these positive developments of "justice for all".
Munyonzwe Hamalengwa is a Toronto lawyer.
His phone number is
(416)644-1106.
His e-mail is mhamalengwa@sympatico.ca
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