A rchive Date
[ 17-06-2020 ]
Category
[ International Relations ]
sub-Categoy
[ Canada ]
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[https://torontosun.com/news/national/goldstein-unconscious-racism-the-new-mccarthyism
'Unconscious racism' the new McCarthyism
Lorrie Goldstein
June 17, 2020
First there was racism. Then systemic racism. Now there’s unconscious racism.
For the average person, it’s an accusation of unconscious racism that’s the most dangerous in an era when being falsely accused of racism is the modern-day equivalent of being falsely accused of communism in the age of McCarthyism.
So what does unconscious racism mean and what would it take for you to be found guilty of it by a human rights tribunal, if you were the subject, that is, the “respondent” of a complaint?
Unconscious racism means, according to an Ontario Human Rights Commission tribunal, that because “there will often be no direct evidence of discrimination; discrimination will more often be proven by circumstantial evidence and inference.”
As such, “there is no need to establish an intention or motivation to discriminate. Rather, “the effect of the respondent’s actions on the complainant” is what is significant.
In that context: “Once a prima facie case of discrimination has been established, the burden shifts to the respondent to provide a rational explanation which is not discriminatory.”
In other words, the legal concept of innocent until proven guilty has now been turned on its head. The person accused of unconscious racism must now prove his or her innocence.
Further, “the proof of intent (to discriminate), a necessary requirement in our approach to criminal and punitive legislation, should not be a governing factor in construing human rights legislation aimed at the elimination of discrimination.”
In attempting to prove one’s innocence, “it is not sufficient to rebut an inference of discrimination that the respondent is able to suggest just any rational alternative explanation. The respondent must offer an explanation which is credible on all the evidence.”
By contrast, “a complainant is not required to establish that the respondent’s actions lead to no other conclusion but that discrimination was the basis for the decision at issue in a given case.”
Further, “there is no requirement that the respondent’s conduct, to be found discriminatory, must be consistent with the allegation of discrimination and inconsistent with any other rational explanation. The ultimate issue is whether an inference of discrimination is more probable from the evidence than the actual explanations offered by the respondents.”
Finally, “the prohibited ground or grounds need not be the cause of the respondent’s discriminatory conduct; it is sufficient if they are a factor or operative element.”
These findings all come from a 2009 decision by an Ontario human rights tribunal in which a Toronto police officer was found to have engaged in racial profiling during a 2005 incident.
This even though: “An individual officer engaged in racial profiling may be subjectively unaware that he or she is doing so. Indeed, racial profiling does not necessarily reflect any racial bias. It may reflect the officer’s legitimate perception of the reality of the world in which the officer operates.”
Now, imagine trying to defend yourself against an allegation of unconscious racism in a tribunal like this one.
Clearly, it would be impossible, which is how the police service felt when it appealed the tribunal’s decision.
As then police chief Bill Blair, now Canada’s public safety minister, said at the time, it created “an impossibly high standard” to refute allegations of racism.
“You can have the best of intentions and be totally without bias but none of that matters if someone wants to believe you are biased.”
Exactly. Ontario’s Court of Appeal, however, upheld the human rights tribunal’s ruling.
So beware.
lgoldstein@postmedia.com
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