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 #1Provides citizens the right to a Canasian

education

Provision #2

Provision #3Introduces an Asian-centric immigration policy

Allows the freezing of assets of persons found to have wired money to countries of concern in the War on Terror

Omnibus Bill C-30

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)

• 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 analysiso Race is central focuso Contextual juridical analysis

• Epistemological diversityo Uses unorthodox structure, language and formo Complexity of multiple identitieso "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 Courto 1914: Quong Wing v. The Kingo 1940: Christie v. York Corp. o 1951: Noble and Wolfe v. Alleyo 1955: Narine-Singh v. Attorney General of Canada

• Systemic Racismo Immigrationo Access to educationo Voting rightso Military serviceo 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 privilegeo Credibility of the oppressed in the eyes of the

oppressoro 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

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

Halifax, Nova Scotia 1993

R v RDS in 30 Seconds

The Debate: Contextualists v. Formalists

McLachlin J Major J

2. Black Neighbourhood

3. The Courtroom1. Socio-historical Background

The Critical Race Narrative of R.D.S.

The Black Neighbourhood

"a terrain of memory"

“…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.”

The Courtroom

Did R.D.S. further the CRT Agenda?

1. Narrative

2. Deconstructiono the reasonable person testo the doctrine of reasonable apprehension of biaso the myth of “neutrality” and “objectivity” in the context of

judicial decision-makingo concept of formal equalityo 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.