Criminal Law Journal 4: The histories of Black peoples and Indigenous peoples are intricately connected

Sherene Razack’s article on R v RDS was an informative piece. I appreciated her discussion of the case and how racialized persons, regardless of their social position, are policed against a white standard. Her spectrum of formalists (colour blindness) versus realists (race as a social factor) is a useful tool in the discussion of racism within our judiciary. As someone who has previously read Razack’s work, this is one of her better pieces. Her work has a tendency to reduce racialized peoples to merely bodies. One piece by Razack that demonstrates this reduction of marginalized persons to merely bodies is the article that was mentioned in class today. In this piece mentioned, Razack explores the murder of Pamela George, an Indigenous woman that was murdered by two white, middle-class men. Pamela George was also a prostitute (I use this term purely as a legal term). I will discuss this piece in parallel with her article on RDS.

In her article about RDS, Razack begins with April Burie’s question to the Supreme Court of Canada, “What does it mean for a Black person to live in a place where racism and the legacies of slavery are routinely and energetically denied?” (p 60, Column A). In both articles, Razack highlights the significance of locating both acts within a historical context. In Gendered Racial Violence and Spatial Justice, Razack outlines that it is the history of Pamela George that is missing from the trial (p 126). One might ask then, what does it mean for an Indigenous person to live in a place where racism and the legacy of colonialism are routinely and categorically denied? The two questions together ask: how does slavery play a role in colonialism and the marginalization of both groups to merely bodies? Keeping this in mind, Razack makes two serious errors. In the RDS article, Razack ignores the history of Black people in Halifax. In the piece about Pamela George, she blatantly ignores the history of Canada’s anti-prostitution laws. I question then who benefits from this erasure of particular histories?

After the enactment of the Indian Act in 1867, there were several sections that were later enacted which included specific reference to prostitution. These sections were changed numerous times and each time, they added more force than the previous. Since these sections were enacted under the Indian Act, they only policed Indigenous peoples. By 1892, the Criminal Code (Code) was enacted and all sections relating to prostitution were removed from the Indian Act and placed in the Code. Razack’s article on Pamela George also places George in a space of prostitution and Aboriginality (p. 125). I would argue, however, that George lived in a space of criminalization both as an Indigenous person and as a woman; George was criminalized for being Indigenous first and for being a woman second.

Within the context of over policing and incarceration, like Razack mentions in her article, positioning Georges as living and working in criminalized spaces is important to the lived realities of Indigenous women in Canadian society. After highlighting that Indigenous women experience over policing and increased incarceration, Razack also calls attention to the fact that many Indigenous women can be both offenders and victim (p 134). If over policing and increased incarceration is the issue, then why are the police not there to protect Indigenous women? More specifically, if police are around to arrest Indigenous women all the time, then the police should at minimum be there to protect them.

The discussion question for today’s classed asked if we should have a national inquiry for missing and murdered Indigenous women (MMIW). I have written extensively on this issue and I have been asked to speak on this issue. Each time, I say no. We know from Razack herself that over-policing is an issue. I know as an Indigenous woman that under-protection is also an issue. Yet, Razack fails to acknowledge this under-protection, while at the same time ignoring the history of Canada’s anti-prostitution law. Ironically, in that same breadth, she also acknowledges there is a particular history is missing from trial (p 126).

Razack both denies and erases an entire colonial history about how Indigenous women’s sexualities have been criminalized. We have to ask ourselves, who benefits from this complete erasure of history? More importantly, who benefits from colonialism? We also have to acknowledge that the history of Indigenous peoples’ and Black peoples’ are intricately interconnected. Yet in her two articles, Razack ignores these important histories.

I critique Razack’s piece in more detail in this post.

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