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 #2 Provision #3 Introduces an Asian-centric immigration policy Omnibus Bill C-30 Provision #1 • Provides citizens the right to a Canasian education Allows the freezing of assets of persons found to have wired money to countries of concern in the War on Terror
Canasian Charter of Rights and Freedoms If Canasia's Charter was identical to Canada's Charter, would it adequately protect you under these provisions?
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) • 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? • Rights as relationships (Nedelsky) • Reconstruction • Racial Narrative and Legal Analysis • Law: tool vs. impediment • Striking a balance
Law and Society • Racial context • An Act Against Slavery 1793 • Public policy as a legitimizer • Multidisciplinary: active participation from philosophers, non-legal scholars
Methodology • Beyond conventional rights analysis • Race is central focus • Contextual juridical analysis • Epistemological diversity • Uses unorthodox structure, language and form • Complexity of multiple identities • "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 • Race and the Supreme Court • 1914: Quong Wing v. The King • 1940: Christie v. York Corp. • 1951: Noble and Wolfe v. Alley • 1955: Narine-Singh v. Attorney General of Canada • Systemic Racism • Immigration • Access to education • Voting rights • Military service • 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 Safe Streets and Communities Act (SC 2012) • 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) • Epistemological privilege • Credibility of the oppressed in the eyes of the oppressor • 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 • 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
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 • the reasonable person test • the doctrine of reasonable apprehension of bias • the myth of “neutrality” and “objectivity” in the context of judicial decision-making • concept of formal equality • concept of legal reasoning as ahistorical 3. Reconstruction
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.