Author Archives: Lindsay

The Perpetuation of Racialized Social Hierarchy through Residential Schools in Canada

Residential schools are a dark part of Canada’s history. The goal of residential schools was to assimilate Aboriginal peoples to the European settlers of Canada. The Canadian government implemented a program of “aggressive assimilation” (Monchalin, n.d., slide 3) as a way to “remake these savages in [their] own image” (Monchalin, n.d., slide 2). Residential schools operated in Canada from 1831 – 1996; in fact, residential schools were in operation even before Canada officially became a country. By 1920, it “became mandatory for all Native children to attend one of Canada’s residential schools” (Monchalin, n.d., slide 4). At their peak, there were 80 residential schools in operation across Canada (Monchalin, n.d., slide 3). At the schools, Aboriginal children were forced to only speak English, as well as adopt a Christian faith. The children were provided with an inferior education that often only went up to a fifth grade level (Monchalin, n.d., slide 5). Typically, the education was geared towards manual labour training for boys and domestic work for girls (Monchalin, n.d., slide 5). Furthermore, many of the children at residential schools were subjected to severe emotional, physical, and sexual abuse (Monchalin, n.d., slide 7). For a more personal look at residential schools, please watch the powerful Canadian documentary ‘We Were Children (also available on Netflix).

Critical race theory recognizes race and racism as “systemic, structural, and cultural, as deeply psychologically and socially ingrained” (Pavlich, 2011, p. 130). Essentially, race and racism serve an intended purpose in society. The residential schools of Canada are a prime example of the role of law as a “mechanism for the reproduction and perpetuation of racialized social hierarchy” (Larsen, 2014). The racism and ethnocide of the residential schools in Canada was not the least bit subtle. The settlers/government of Canada viewed Aboriginal peoples as ‘savages’ in need of guidance. By using their power, the government was able to implement laws for their agenda of assimilation. This plan proudly had the appearance of superiority, as if the colonizers of Canada were doing the Aboriginal peoples a favour by taking the responsibility to help them fit into society. The Aboriginal children were taught that their culture, language, and ways of life were an abomination. Attendance was mandatory, yet the lessons at school were not helpful. The residential schools were a way for the government to construct, reproduce, and reinforce racism in society (Comack, 2006).

It was not until 1990 that those whom opposed residential schools could be heard on a national level. Phil Fontaine, the then-leader of the Association of Manitoba Chiefs, demanded the church acknowledge all the abuse suffered by Aboriginal children in the schools (“A history …”, 2008). In response, the federal government created the Royal Commission on Aboriginal Peoples. This commission was required to conduct an inquiry and finally the wrongs of the residential schools could no longer be ignored. Over the following years, the government worked with the churches that had ran the schools to develop a compensation plan (“A history …”, 2008). The Indian Residential Schools Settlement Agreement included Common Experience Payment (CEP), Independent Assessment Process (IAP), Truth and Reconciliation Commission (TRC), and Aboriginal Healing Foundation (AHF) (Monchalin, n.d., slide 16). The CEP provided $1.9 billion to former students of residential schools. By accepting this part of the agreement, the survivors forfeited the right to request more money in the future. The IAP was set up to address all of the claims of physical and sexual abuse (“A history of …”, 2008). The TRC examines the negative legacy of the residential schools that continue to effect Aboriginal peoples to this day (“A history …”, 2008). The AHF was established to help the victims that experienced physical and sexual abuse, but the federal funding for that project has ended (“A history …”, 2008). On June 11, 2008, Canada’s Prime Minister, Stephen Harper, formally acknowledged and apologized to residential school students for the discrimination and abuse they were subjected to. The Christian churches that played a role in the schools offered public apologies, with the exception of the Catholic Church whom offered an ‘expression of regret’ rather than an apology (Monchalin, n.d., slide 18).

Residential schools provided a platform for the Canadian government to embed and reproduce racism. While the government’s goal was clear with residential schools, there application of dominance over Aboriginal peoples is slightly subtler now. The government was able to limit Aboriginal peoples in their compensation package; in order to receive monetary compensation, the former students had to agree not to request more money in the future. Also, the government agreed to set up the AHF in order to help the victims deal with the abuse the suffered, yet they no longer provide any funding for the program. The survivors of residential schools continue to have their lives shaped by their experiences there (Monchalin, n.d., slide 22). The students were “deprived of care, love, and guidance by their parents during the most critical years of childhood” (Monchalin, n.d, slide 21), resulting in the legacy of residential schools as being overwhelmingly negative. Residential schools had, and will continue to have, a lasting effect on Aboriginal peoples.

References

A history of residential schools in Canada. (2008, May 16). CBC News. Retrieved from http://www.cbc.ca/news/canada/a-history-of-residential-schools-in-canada-1.702280

Comack, E. (2006). Theoretical approaches in the sociology of law: Theoretical excursions. In. E. Comack (Ed.) Locating law: race/class/gender/sexuality connections (2nd ed., p. 18-67). Halifax, NS: Fernwood Pub.

Larsen, M. (2014, October 24). Food for thought: Applying critical race theory [Web blog post]. Retrieved from https://kpulawandsociety.wordpress.com/

Monchalin, L. (n.d.). Agenda of assimilation: Residential schools and intergenerational trauma [PowerPoint slides]. Retrieved October 20, 2013 from https://courses.kpu.ca/course/view.php?id=685

Pavlich, G. (2011). Law and society redefined. Don Mills, Canada: Oxford University Press.

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Sociological Jurisprudence in Action

Insite is a health-focused place where people can inject drugs and connect to health care services (Vancouver Coastal Health, 2014). Founded in 2003, Insite provides a clean environment for intravenous drug users in Vancouver’s Downtown Eastside. Here’s a quick video about Insite, if you are interested. The facility does not provide narcotics for its clients, but instead provides the clean utensils necessary to prevent the spread of disease. In order to operate legally, Insite was provided a legal exemption from section 56 of the Controlled Drug and Substances Act. After having to apply for exemption annually, Insite petitioned the courts to allow for exclusive exemption. The federal government opposed this claim but the courts sided with Insite. The federal government appealed the decision and the case made its way up to the Supreme Court of Canada (SCC). The SCC dismissed the appeal, ensuring Insite the legal exemption it desired once and for all. In reaching their decision, the judges utilized sociological jurisprudence.

As Pavlich describes, sociological jurisprudence views law as connected to the social and psychological processes that judges use to decide what law is in a particular context (Pavlich, 2011). Rather than strictly relying on legal rules, judges let extra-legal factors (social, cultural, and psychological) determine how they will decide (Pavlich, 2011). Roscoe Pound founded the concept of sociological jurisprudence. As dean of Harvard Law School, Pound valued the law and felt that it could be used to advance society (Pavlich, 2011). Sociological jurisprudence looks outside legal domains and maximizes the interests of society (Larsen, 2014). While consideration of the consequences is key, the decision must reflect the public opinion (Larsen, 2014).

In relation to the Insite case, the judges looked beyond the law; they considered how the consequences of their decision would affect society. While Insite does violate section 56 of the Controlled Drugs and Substances Act, they determined that a legal exemption was in the best interest of society. Insite was preventing overdoses and limiting the spread of infectious and often deadly diseases. Canada’s highest court ruled that laws might be struck down if there is scientific or statistical evidence showing that a regulation negatively affected individuals or groups (Makin, 2011).

Not everyone was pleased with the SCC’s decision. Kirk Makin’s article expresses that the ruling gave judges a new tool for activism (Makin, 2011). The ruling outlined the federal government’s ideological reach and opened a can of worms at the same time (Makin, 2011). Essentially, there is fear that the courts will scrutinize legislative decisions through judicial activism. Many people are uncomfortable with the idea of judges having that amount of power.

Linda McKay-Panos’ article contrasts the views portrayed in Makin’s article. McKay-Panos acknowledges that judicial activism usually has a negative connotation, but how can it be called activism when judges are only doing what they are empowered to do? (McKay-Panos, 2011). Judges are interpreting the law based on the arguments and evidence presented to them (McKay-Panos, 2011). By evaluating the harm that would result from not granting Insite the exemption, the judges determined that it was an unjustifiable violation of some individuals’ Charter, section 7 rights to life, liberty, and security (McKay-Panos, 2011).

Through a sociological jurisprudence lens, McKay-Panos and the Supreme Court of Canada agree that Insite should continue to operate. The main purpose of law, as suggested by Pound, is to ensure the survival and advancement of society (Pavlich, 2011). Essentially, law is cleaning up the Downtown Eastside by preventing death and disease through Insite.

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