Critical Race Theory

1
Critical Race Theory

• Marvin Coleby, Linda El-Halabi, Kendra
  Hefti-Rossier, Olivier Jarda

2
Omnibus Bill C-30

• Roundtable discussion regarding the Multicultural
  Protection Act.

3
Provision 1
Provision 2
Provision 3
Omnibus Bill C-30

• 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

• Introduces an Asian-centric immigration policy

4
Canasian Charter of Rights and Freedoms

• If Canasia's Charter was identical to Canada's
• Charter, would it adequately protect you under
• these provisions?

5
Critical Race Theory, Canadian Law, and Society
6
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

7
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)

8
What does CRT add?

• Rights as relationships (Nedelsky)
• Reconstruction
• Racial Narrative and Legal Analysis
• Law tool vs. impediment
• Striking a balance

9
Law and Society

• Racial context
• An Act Against Slavery 1793
• Public policy as a legitimizer
• Multidisciplinary active participation from
  philosophers, non-legal scholars

10
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

11
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?

12
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

13
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?

14
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

15
Acceptable Dehumanization

16
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

17
R v RDS in 30 Seconds

• Halifax, Nova Scotia 1993

18
The Debate
Contextualists v. Formalists

• McLachlin J Major J

19
The Critical Race Narrative of R.D.S.

• 1. Socio-historical Background
• 2. Black Neighbourhood
• 3. The Courtroom

20
The Black Neighbourhood

• "a terrain of memory"

21
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.

22
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

23
Africville
24
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.