Criminal Law Journal no. 3: “Racism is embedded within and inherent to Canadian institutions.”

Today’s class discussed Justice Cory’s decision in the R. v S. (R.D.) case. This was the plurality decision of the case and as a result, there was no majority. But there were six Justices that did agree that there was no bias. I found this part of the case to be troublesome but not because there is no majority decision.

Cory J.’s decision references the “Hitler test.” It can be said that individuals entering law school will most likely know about the history of Hitler. Cory J. highlights that condemning this particular history is “objectively justifiable” (at para 105). Yes, condemning Hitler is something that ought to be done. But I found it awkward that our own Supreme Court Justices could not come up with a more localized example for the objectively justifiable bias test.

For example, Canada has a history of slavery. More specifically, Halifax has a poor history for its treatment of Black Canadians. Halifax was an entry point for Black slaves. It was also an area where many Black slaves who escaped their owners in the United States came to settle and begin a new life. But what they encountered, as Black people, was not freedom in the sense that white Canadians experienced freedom.

The Black people that settled in the Halifax region built up a community, which they called Africville. The city of Halifax did not extend any infrastructures or supports to Africville. So, there was no sewage system or police and fire department service in Africville. They built and maintained their own institutions, like church and school. Frequently, white Canadians would go to Africville and raid their homes, knowing well that the police would not help the residents of Africville. Then by 1960, four hundred Africville residents were forced to relocate. Under the guise of urban renewal, Africville was demolished. This occurred fifty-four years ago.

I remember reading the discussion questions that were prepared for the first day of class. One of the questions proposed that we think of the unjust laws that existed one hundred years ago. That would begin in the year 1914. World War I was set to begin. By the end of WWI, white Canadian women won the right to vote. Then, one of the same women that fought for white Canadian women right to vote is the same woman that advocated for the forced sterilization of Indigenous women (and also “feeble-minded women”) in the province of Alberta. At the time, “feeble-minded women” may have included poor or marginalized non-Indigenous women. This was in the late 1920s. It was not until the 1960s that Indigenous people, including Indigenous women, won the right to vote. This was also the same era that Halifax officials decided to demolish Africville, effectively displacing four hundred Black Canadians.

The frustration with Cory J.’s decision originates from the complete erasure of Canada’s treatment of marginalized individuals, like Black Canadians. Cory J. acknowledges the history of Hitler Germany. The Hitler test is an established objectively justifiable bias test. Yet, at the same time, Cory J. ignores the history of Halifax, where the R. v S. (R.D.) was originally heard, and how Halifax has historically treated Black Canadians. It is particularly telling that our own Supreme Court Justices acknowledge the history of over there, Hitler Germany, but not here, Halifax, Canada. Racism is embedded within and inherent to Canadian institutions. Canada is built on protecting and maintaining its whiteness which is implicit and explicit in our (in)justice systems.

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