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Critical Race Theory: A Comparative Approach

  • Donna E. Young (a1)

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1 Part of my interest in comparing these two countries derives from my being a transplanted Canadian, legally trained in Canada but teaching law in the United States. I am fortunate to be familiar with both countries’ legal systems.

2 See, e.g., Williams, Patricia, The Obliging Shell: An Informal Essay on Formal Equal Opportunity, 87 Mich. L. Rev. 2128 (1989); Crenshaw, Kimberlé, Race Reform and Retrenchment: Transformation and Legitimation in Antidiscrimination Law, 101 Harv. L. Rev. 1331 (1988) (racial subordination persists despite apparent civil rights gains).

3 David Kairys, With Liberty and Justice for Some: A Critique of the Conservative Supreme Court (1993).

4 Note, for example, the recent development of an annual regional legal scholarship conference based in western New York state and southern Ontario, focusing on cross-border issues.

5 This term refers to the members of different nations that existed in Canada prior to European contact (i.e., Indian, Native Canadians, Indigenous peoples, Aboriginal peoples).

6 I have been particularly interested in discussions about the ways in which laws function to reinforce the supremacy of particular intersections of race and gender. See, e.g., Crenshaw, supra note 2.

7 See, e.g., An Elegy for Integration, Time, Oct. 30, 1995, at 108.

8 See, e.g., Gotanda, Neil, A Critique of “Our Constitution is Color-blind, “ 44 Stan. L. Rev. 1 (1991).

9 Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; Regina v. Turpin [1989] 1 S.C.R. 1331-32.

10 But a word of caution: Courts are perhaps the most hostile to countermajoritarian claims. See Bakan, Joel C., Constitutional Interpretation and Social Change: You Can’t Always Get What You Want (Nor What You Need), in Canadian Perspectives on Legal Theory (Devlin, Richard ed., 1991). Bakan argues that courts are not likely to adopt progressive interpretations of the Canadian Charter of Rights and Freedoms given the historical and political context in which they operate. Therefore, we must proceed with caution and a healthy dose of skepticism, and use the gains made in court to organize political coalitions along lines based on political principles.

11 Brown v. Board of Educ, 347 U.S. 483 (1954).

12 See Richard Gwyn, Like it or Not, Equality before the Law is Passe, Toronto Star, July 16, 1993, at A2S. Gwyn laments that the Canadian Supreme Court has moved away from the liberal ideal that most Canadians hold true and has followed arguments that allow that “instead of the state arbitrarily exercising its power unfairly, it is deliberately applying its power unfairly in order to try to be fair.”

13 Americans might find it strange that until 1981 Canada had no constitutionally rooted “bill of rights.” In the 1960s, Canada enacted federal and provincial human rights statutes that for the most part addressed claims of discrimination.

14 la Forest, Gerard V., The Use of American Precedents in Canadian Courts, Maine L. Rev. 46, 47 (1994). La Forest argues that Canada has a “sincere outward-looking interest in the views of other societies” and a “cosmopolitan” approach to law.

15 Id at 48.

16 la Forest, Gerard V., The Use of International and Foreign Materials in the Supreme Court of Canada, Proc. 1988 Conf. Canadian Council on Int’l L. 230, 238 (1988), cited in La Forest, supra note 14.

17 [1987] 1 S.C.R. 588, 639.

18 Canada is a signatory to several UN conventions relating to human rights. Relevant conventions include the Universal Declaration of Human Rights, G.A. Res. 217A 011), U.N. Doc. A/810, at 71 (1948); International Covenant on Economic, Social and Cultural Rights, 999 U.N.T.S. 3; International Covenant on Civil and Political Rights, 999 U.N.T.S. 171.

17 Evelyn Kallen, Ethnicity and Human Rights in Canada 5 (2d ed. 1995).

20 Id. Section 27 of the Charter provides: “This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.”

21 Section 15(1) of the Charter specifically guarantees that “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability.”

22 Section 15(2) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

23 For example, in a 1989 decision the court stated:

In determining whether mere is discrimination on grounds relating to the personal characteristics of the individual or group, it is important to look not only at the impugned legislation which has created a distinction that violates the right to equality but also the larger social, political and legal context___

Accordingly, it is only by examining the larger context that a court can determine whether differential treatment results in inequality or whether, contrariwise, it would be identical treatment which would in the particular context result in inequality or foster disadvantage. A finding that there is discrimination will, 1 think, in most but perhaps not all cases, necessarily entail a search for disadvantage that exists apart from and independent of the particular legal distinction being challenged.

If the larger context is not examined, the s. 15 analysis may become a mechanical and sterile categorization process conducted entirely within the four corners of the impugned legislation. A determination as to whether or not discrimination is taking place, if based exclusively on an analysis of the law under challenge, is likely in my view, to result in the same kind of circularity which characterized the similarly situated similarly treated test clearly rejected by the Court in [Andrews v. Law Society of British Columbia].

Regina v. Turpin, [1989] 1 S.C.R. 1331-32.

Critical Race Theory: A Comparative Approach

  • Donna E. Young (a1)

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