Critical Race
Theory
Marvin Coleby, Linda El-Halabi, Kendra Hefti-Rossier, Olivier Jarda
Omnibus Bill C-30
Roundtable discussion regarding the
Multicultural Protection Act.
Provision
Provides citizens the right to a
#1 Canasian education
Provision #2
Allows the freezing of assets of
persons found to have wired money
to countries of concern in the War on
Terror
Provision #3
Introduces an Asian-centric
immigration policy
Canasian Charter of Rights and Freedoms
If Canasia's Charter was identical to Canada's
Charter, would it adequately protect you under
these provisions?
Critical Race Theory, Canadian
Law, and Society
Revisionism
"We are there because under the Providence of God we are a Christian people
that have given to the subject races of the world the only kind of decent
government they have ever known [applause] […] and you and I must carry
our portion of that responsibility if we are to be the true Imperialists we
should be. […] An Imperialist, to me, means a man who accepts gladly and
bears proudly the responsibilities of his race and breed." – Prime Minister
RB Bennett, 1914
"We also have no history of colonialism. So we have all of the things that many
people admire about the great powers but none of the things that threaten
or bother them," – Prime Minister Harper, 2009
Key Concepts of CRT (Aylward)
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Beyond 'trashing': inadequate representation of racial
minorities
Necessary racial interpretation of the legal system
Impartiality v. Colorblindness?
CLS’ 'Utopian' Society
The Invisible Obstacle (Christie, Bhaudaria)
“Through the doctrine of precedent, the law is rooted in the past. It becomes
difficult to envision a racism-free jurisprudence when the law relies upon
concepts derived from a time when chattel slavery existed, women were not
persons, and colonization including the theft of Aboriginal lands, was in full
force... Legal precedents cannot transcend this racist history. It is one of the
primary, yet invisible obstacles within the legal system” (79 – 80)
What does CRT add?
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Rights as relationships (Nedelsky)
Reconstruction
Racial Narrative and Legal Analysis
Law: tool vs. impediment
Striking a balance
Law and Society
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Racial context
An Act Against Slavery 1793
Public policy as a legitimizer
Multidisciplinary: active participation from philosophers, non-legal scholars
Methodology
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Beyond conventional rights analysis
o Race is central focus
o Contextual juridical analysis
Epistemological diversity
o Uses unorthodox structure, language and form
o Complexity of multiple identities
o "drifting anchors dangling from short chains, far, far overhead"
(Williams)
Deconstruction (law as ideology, race relations)
Reconstruction, emancipation (duality)
Theoretical, methodological and pedagogical tools that help us understand
and address the inextricable relationship between law and race
Race through Canadian Law (Walker)
Discrepancy between Canada's national dream and reality
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Race and the Supreme Court
o 1914: Quong Wing v. The King
o 1940: Christie v. York Corp.
o 1951: Noble and Wolfe v. Alley
o 1955: Narine-Singh v. Attorney General of Canada
Systemic Racism
o Immigration
o Access to education
o Voting rights
o Military service
o Etc.
What about law and race in Canada today?
Policy as Legitimizer (Walker)
Indian Act (1876)
Tool of control and assimilation vs. tool that protects Aboriginal rights
1969: Trudeau proposes repeal of Act
2012: Harper proposes repeal of Act
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Safe Streets and Communities Act (SC 2012)
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Lowest crime rate in 40 years
Increases mandatory minimum sentences
Reduces the ability of judges to sentence certain offenders to house arrest
Overrepresentation of Aboriginals in the prison system (80% in prairies)
"Let's not talk about statistics, let's talk about danger." - Public Safety Minister
Vic Toews
Walker: Reinforcing, legitimizing common attitudes with dignity of law
CRT Critique (Gaudreault-DesBiens)
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Epistemological privilege
o Credibility of the oppressed in the eyes of the
oppressor
o Generalization of identity – speaking with one voice
Exclusion of critical scholars
The limits of anecdotes
Is 'emancipation' just another utopia?
CRT in post 9/11 Canada
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Hate crimes against Arabs and Muslims rose by over
1000% since 2001
48% of Canadians approve of racial profiling
Maher Arar, Faisal Joseph, Omar Kader, Liban Hussein
of Ottawa
Politicians can get away and even earn political credit
for saying that Arabs, Muslims, Iranians, are the new
enemies of the West
"Islamicism is the single most pressing threat to national
security" - PM Harper to CBC news
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Acceptable Dehumanization
CRT's challenge
The increasingly mainstream
acceptance of the post 9/11
curtailing of civil liberties of
Arabs and Muslims is a new
issue for CRT
R v RDS in 30
Seconds
Halifax, Nova Scotia 1993
The Debate:
Contextualists v. Formalists
McLachlin J
Major J
The Critical Race Narrative of R.D.S.
1. Socio-historical Background
2. Black Neighbourhood
3. The Courtroom
The Black Neighbourhood
"a terrain of memory"
The Courtroom
“…I am not saying that the Constable has misled the court, although
police officers have been known to do that in the past. I am not saying
that the officer overreacted, but certainly police officers do overreact,
particularly when they are dealing with non-white groups. That to me
indicates a state of mind right there that is questionable. I believe that
probably the situation in this particular case is the case of a young
police officer who overreacted. I do accept the evidence of [R.D.S.]
that he was told to shut up or he would be under arrest. It seems to be
in keeping with the prevalent attitude of the day.”
Did R.D.S. further the CRT Agenda?
1. Narrative
2. Deconstruction
o the reasonable person test
o the doctrine of reasonable apprehension of bias
o the myth of “neutrality” and “objectivity” in the context of
judicial decision-making
o concept of formal equality
o concept of legal reasoning as ahistorical
3. Reconstruction
Africville
Discussion
“Law should be emancipatory and liberatory for
everyone. And, although for Black people, law in
Canada has so often operated against us and so
seldom worked for us, law remains too valuable a
tool for us ever to abandon” (Professor Thornhill).
Being race conscious as a means to tackle racial
injustice reifies racial divisions. Discuss.