In Part 1 of this two-part interview, released in honour of Black History Month, please join Natalia Rodriguez for an engaging and meaningful conversation with Joshua Sealy-Harrington, author, academic and advocate, about Critical Race Theory and systemic racism viewed through the lens of historical jurisprudence. They also discuss racism in policing, the criminal justice system, and the free market, and why the absence of “race-talk” in the case law has the effect of maintaining racial barriers.
Natalia Rodriguez https://conway.pro/natalia-rodriguez
Joshua Sealy-Harrington https://powerlaw.ca/teams/joshua-sealy-harrington/
In Part 1 of this two-part interview, released in honour of Black History Month, please join Natalia Rodriguez for an engaging and meaningful conversation with Joshua Sealy-Harrington, author, academic and advocate, about Critical Race Theory and systemic racism viewed through the lens of historical jurisprudence. They also discuss racism in policing, the criminal justice system, and the free market, and why the absence of “race-talk” in the case law has the effect of maintaining racial barriers.
Natalia Rodriguez https://conway.pro/natalia-rodriguez
Joshua Sealy-Harrington https://powerlaw.ca/teams/joshua-sealy-harrington/
Welcome to Friends Who Argue, a podcast from The Advocates' Society.
Speaker 2:Each episode we'll bring you conversations with advocates across all areas of litigation who share their stories, insights, tips, and tricks from their journeys as advocates.
Speaker 1:We hope you'll find the podcast informative, inspiring, and most of all entertaining. And that you'll subscribe to our podcast on iTunes to stay up to date on the latest episodes
Speaker 3:Today on Friends Who Argue, we welcome civil litigator Natalia Rodriguez, who will be interviewing Joshua Sealy-Harrington fellow former Supreme Court of Canada Clerk, doctoral candidate at Columbia Law School, researcher, teacher, and advocate as the first part of a two-part series being released in honour of Black History Month. Natalia and Joshua will be discussing systemic racism and critical race theory in Canadian law and society. In part one of this series, Natalia and Joshua discuss what critical race theory and systemic racism mean and discuss systemic racism in historic jurisprudence through the lens of critical race theory.
Natalia Rodriguez:Hello, I'm Natalia Rodriguez and I'm a partner at Conway Litigation in Ottawa and I'm your host for this episode of Friends Who Argue. Today we'll be talking about systemic racism viewed through the lens of historical jurisprudence and some current day jurisprudence as well. Today we have the distinct pleasure of welcoming Joshua Sealy-Harrington to discuss this topic with us. Joshua Sealy Harrington is a doctoral candidate at Columbia Law School and a lawyer at Power Law. His research looks at the relationship among law, identity, and sexuality while his practice explores the intersection of these relationships with public constitutional and criminal law. Before joining Power Law, Joshua completed three judicial clerkships, two at the Supreme Court of Canada and one at the Federal Court. His writing has been published in various law journals, The Globe and Mail, The Walrus and Newsweek and his legal scholarship has been cited in several textbooks, as well as in judgments of the Federal Court, the Federal Court of Appeal, and the Supreme Court of Canada. He is a frequent media commentator, and we are very fortunate to have him with us today. Thank you Joshua so much for joining us.
Joshua Sealy-Harrington:My pleasure. Happy to be here.
Natalia Rodriguez:So to tell us a little bit about your own background and the work that you've done in the area of racial justice in the legal profession.
Joshua Sealy-Harrington:Uh, yeah, happy to, um, in terms of my background, my mother was born in Trinidad, uh, but moved to Ottawa when she was seven years old. Uh, my father grew up in various places in and around Ontario and New Brunswick. Uh, I was born and raised in Calgary, Alberta, uh, and I did a Bachelor of Science after high school at UBC for my undergrad, uh, where I majored in mathematics. Uh, and then after that I studied law at the University of Calgary, which is kind of the, the genesis of my legal work. And then, uh, in terms of racial justice work, uh, my academic and practical work engages racial justice from a variety of angles in terms of legal practice. Uh, there are some examples. I was lead council to the British Columbia Civil Liberties Association in a its intervention in the R and Chouhan appeal, uh, which concerned racial bias on juries.
Natalia Rodriguez:That's great and I think we'll discuss that a little bit later on if, if I'm, if I'm not mistaken, right?
Joshua Sealy-Harrington:Yes. Yes, no. Yeah. I'm happy to discuss that more. This is a really interesting and complicated case, uh, involving a lot of angles on racial justice issues. Um, and I'm also currently lead counsel, to Canadian Lawyers for International Human Rights and the International Justice and Human Rights clinic, uh, at the Peter Allard School of Law at UBC in an upcoming Federal Court of Appeal intervention that concerns investigations of public servants at Canadian embasies abroad relating to international mining operations. And that's a, and also, uh, an important, uh, international framed racial justice issue as well.
Natalia Rodriguez:Interesting. And, um, and I understand too, that you have, uh, you've published, uh, a lot as I mentioned at the top there. Um, tell us a little bit about those, uh, those publications.
Joshua Sealy-Harrington:Yeah, no happy to. Uh, so my prior publications have explored how, uh, Canadian constitutional law is framed in ways that often limits its emancipatory potential for subordinated groups. Uh, an article I have in peer view right now adopts a critical race theory lens to critique the court's recent decision in Fraser v. Canada, and, uh, speak to the silent ideological commitments that guide distinct judicial methods between the majority and the two dissenting opinions, uh, and my ongoing doctoral project at Columbia Law School explores how legal institutions not only maintain racial hierarchy, uh, but also create the social taxonomies of race that appear as natural in the world. So there's a lot of complicated ways that race and law overlap, and I'm exploring those in various research projects I'm doing right now.
Natalia Rodriguez:Great. Well, I'm hoping we can unpack a little bit of that. Uh, some of those concepts, as well as we're, as we're discussing, because um, you know, some of our listeners may or may not be familiar with some of the terminology, um, related to critical race theory and what it is and how, how it can, you know, what, what that lens is that you're describing to, to kind of see how, uh, how law and race intersect. So, um, that kind of dovetails nicely into our, um, our next topic of discussion, which is, um, you know, you've done a lot of work in the area of critical race theory. Maybe you can explain to our listeners what that is and how it applies to the way that we think about our current legal structure.
Joshua Sealy-Harrington:Yeah, no hap very happy to talk about that. Uh, critical race theory was defined by one of its founding members, Derrick bell, as a body of legal scholarship. Uh, a majority of whose members are both existentially people of color and ideologically committed to the struggle against racism, particularly as institutionalized in and by law. Uh, but in plainer terms, critical race theory, uh, essentially outlines various methods for analyzing the relationship between racial hierarchy and law. So there's a lot of kind of conventional, uh, forms of analysis that law schools inculcate students with. And in many ways, critical race theory, resists those methods and tries to bring a different perspective to how we look at the relationship between law and society.
Natalia Rodriguez:And can I ask, is it, is it, uh, is it limited then to, um, to, uh, issues of race within law or is it all also other areas of society that critical race theory applies to?
Joshua Sealy-Harrington:So, so there's a lot of critical race theories actually, um, to be more precise, um, and critical race theory, uh, as an area of scholarship that I engage with originated in law schools, resisting the lack of, of adequate racial lens through which to critique and analyze the law, uh, but critical race theory and, uh, the academic community has kind of spawned and spread to various areas. So you have critical race theory now in, uh, in education and sociology and anthropology, um, in, in STEM, there's kind, there's kind of critical race theory all over the place. Um, and so in that sense, it's not limited to law, uh, but it's genealogy. Uh, and the genealogy of the, uh, many of the authorities that I engage with started in law schools that were resisting kind of race or, or colorblind applications and interpretations of law, uh, in the United States. Mm-hmm.
Natalia Rodriguez:Right.<Affirmative> right. So what are some examples of, uh, systemic racism in Canada that can then, um, that critical race theory can, can kind of bring out and, uh, shine a light on, I suppose?
Joshua Sealy-Harrington:Yeah, so, um, the insights that critical race theory can bring to Canadian law are, are in my view, enumerable, the, the fact that we're even talking about racism through a systemic lens, uh, is, is, is something that some would be apprehensive to do depending on how they conceptualize racism within society and critical race theory for a long time has conceptualized racism, not only in an individual lens, but structurally and systemically. Um, and so that's part of why it's a method that can be quite valuable in terms of having these conversations. Um, so yeah, Canada has rampant systemic racism across various industries and fields, uh, and criminal law, Black people are 20 times more likely to be fatally shot by police. Uh, and Indigenous people are 5% of Canada's population, but 30% of Canada's prison population. If you look at public education, Black students are overrepresented by a factor of four in school expulsions and Indigenous students are overrepresented by a factor of three in public health. Uh, there's widespread Anti-Indigenous racism that was described in the recent In Plain Sight Report authored by Mary Ellen Turpel-Lafond. Uh, and in Toronto Black people make up 9% of the population yet we're 21% of COVID 19 cases. So you can kinda look across the Canadian spectrum and see very significant racial disparities. And these outrageous statistics, I would say, have a complex history. And I, I would say in many critical races theorists would say, have a complex history that's rooted in racism, colonialism, capitalism, explicit bias, implicit bias, et cetera, uh, and to discuss these disparities without first situating them in history and in context is to, I would say, completely misunderstand our society, its origins and its uneven distribution of power and resources, which results in these disparities.
Natalia Rodriguez:Right. So then, um, how do we use then critical theory to respond to these, uh, to these systemic, uh, examples of systemic racism in, in every aspect of our society?
Joshua Sealy-Harrington:Yeah, there's, there's there there's two things, right? So first critical race theory helps us name the problem. Um, like I said, talking about racial hierarchy and systemic terms is a longstanding ideological commitment of critical race theory. Uh, and second critical race theory helps us find solutions. So a centrist posture or a liberal posture would attempt to, would think that the system is largely functioning and that we just need to tweak it or do a couple small fixes to kind of, uh, smooth out the edges. Uh, whereas critical race theory in contrast identifies the system itself, as a problem, it focuses on things like white supremacy and its various manifestations. Uh, and so as a result of that, it will often, uh, prescribe the very different forms of, uh, response to racial inequalities and, and not just different forms, but forms of response that are, uh, actually irreconcilable. Uh, so for example, um, uh, critical race theorists often would say that we shouldn't be focusing on, you know, supposedly rare biased police officers functioning within the system. Rather we should be focusing on defunding police, uh, that is abandoning liberal reforms that have repeatedly proven ineffective, many of which require actually increasing police budgets. And instead committing former police funding to things like housing, to education, to employment, proactively creating the conditions in which communities can flourish. And, and it's, this is an example where you can see the kind of irreconcilable tension between the types of programs that would be advocated for by many critical race theorists, things like removing power from police versus more liberal, incremental reforms, uh, like putting body cameras on them, or like giving them better diversity training, cause in many ways that actually just increases funding in the police force. And doesn't actually do anything with respect to decreasing the power or influence of police in society, which many critical race theory scholars would say, it's the kind of fountain head of a lot of the issues relating to police violence.
Natalia Rodriguez:Right? So in that example, it's not, uh, a few bad apples as, as some, uh, as some say it's more that the, uh, overall structure of policing is set up such that, um, it's going to lead to, uh, issues of overrepresentation of minorities in, uh, in, in, in prison, in the prison system. And it's going to lead to more negative interactions with racialized individuals with police. Um, and so you gotta just rethink the entire thing is essentially what I'm getting. It's not a few bad apples, it's the system that's wrong. So you can sub out the the bad apples, but you still have a system that's not going to work.
Joshua Sealy-Harrington:Exactly. They're just, they're fundamentally different approaches, right? People can agree that police violence is bad. Um, but if person A thinks police violence is because 1% of the force is super racist and if person B thinks police violence is bad because of policing itself, having a, his, you know, a past and a present of being a form of social control of underrepresented communities, um, that, you know, what we choose to criminalize relates to racial hierarchy, then at how we sentence crime relates to racial hierarchy, mm-hmm<affirmative> that police, you know, that police departments have for an extremely long time been implementing the types of reforms that are now being called on um, and that we pretend are novel, like more diversity in the force or better training or implicit bias training. You know a, a lot of the forces where we we've seen rampant, uh, violence in the United States, um, were, were models of this, right. They'd been known and understood within the United States as, um, as exemplars of many of the liberal reforms of policing, uh, and yet continue to commit horrific violence against racialized communities. So it's kind of a no of being, I mean, abolition has been argued for a long time in relation to policing, but there's also a notion of just kind of being fed up with cycles of reform. And, you know, every 10 years we do an inquiry to confirm how racist the police force is and then we don't actually do anything to reduce know, reduce power in policing. We do things that actually operate as a palliative against the action of power of police forces. And those are very different positions. It's not, you know, a minor disagreement. One is going left and the other is going right. And, and critical race theory will often bring that broader, more radical perspective to how we think about issues like police violence.
Natalia Rodriguez:Right. And I guess we can say that, you know, these, these incremental changes have been, have been attempted, they been tried and they haven't resulted in significant change.
Joshua Sealy-Harrington:Let me put it to you a different way, you know, change at all. Right. So like, if you look at, uh, you know, certain reforms that have been proposed in relation to racial hierarchy in the criminal justice system, right. Let's think of something like the overrepresentation of Indigenous people and the types of Liberal reforms that we've thought of in terms of preventing that. And in, in the last decade, the overrepresentation of Indigenous people in many ways has gotten worse. Right. Mm-hmm<affirmative> so it's not just about, oh, these aren't enough. It's like these are not working at all.
Natalia Rodriguez:That's fair. That's right.
Joshua Sealy-Harrington:And so, you know, you can call defunding radical and, you know, in some ways that's a good thing. And, you know, it depends on audience, et cetera, but at the end of the day, a lot of these disparities that we're describing aren't, um, it's not even that the progress is too slow in relation to them. Many of these things have been entirely stagnant or, or being been exacerbated in recent years. And so, uh, a renewed commitment to modest liberal reform, which has proven repeatedly ineffective, um, is, uh, is just, uh, I don't think is an acceptable approach to a lot of these, you know, horrific issues of racial inequality in society.
Natalia Rodriguez:Right. And, and I mean, that's just one example, as you said, there are examples of this kind of systemic racism, which requires an overhaul, uh, of how we think of our, of the structures in our society. Um, and so, uh, this is just, but one example, and there are many others, as you mentioned.
Joshua Sealy-Harrington:It's ubiquitous.
Natalia Rodriguez:Yeah, yeah, exactly. Right. Like you said, any area that you can think of, um, there, there are those entrenched, um, entrenched systems that are working against, uh, racialized individuals. So let's talk a little bit about, um, how we can, how we can see this type of systemic racism in action, um, through the lens of historical jurisprudence and what those cases can, can show us about how law has been sometimes a vehicle for injustice, uh, as much as it is meant to be a vehicle for justice.
Joshua Sealy-Harrington:Yeah, no, I'm, I'm happy to talk about that. And I think that, you know, a really important part of critical race theory as a, as an area of scholarship, at least the, the, you know, the critical race theory that I participate in, um, is not only struggle against racism, but a recognition of how the law has actually been emblematic of the institutionalization of racial inequality. Um, you know, many would argue more a vehicle for injustice than justice often. Um, and so, uh, I think it's really important to look not only to historical, but contemporary jurisprudence to recognize the laws participation in racial hierarchy. Uh, so the first thing I'll say is that paradoxically racisms presence is evident in races absence in Canadian jurisprudence as Windsor Law Professor David Tanovich has noted in the context of criminal law. Um, but there are many other contexts as well. There's an absence of race talk in jurisprudence and by advocates, uh, which erases racial hierarchy from our frame of reference when we talk about injustice. And by racial hierarchy, I mean, the, stratification of the material condition of different racial groups within society. Um, so we can look at the condition of Indigenous people in Canada. We can look at the condition of Black people in Canada, across areas like health education, uh, the law, and see how these groups are, you know, unevenly distributed, uh, in a way that reflects various hierarchies within society.
Natalia Rodriguez:I see. I guess stratification, I guess you could say, of, of races in terms of how society treats them. And then you can see it in, in, in, uh, in their condition I, I guess, is what I'm taking from what you're saying.
Joshua Sealy-Harrington:Yeah. I mean, you could, like, you can walk into, uh, a, a, a number of prisons throughout Canadian society, and you will see what we mean by racial hierarchy and prisons. Right? You can look at the percentage of, uh, prisoners who are Indigenous in, I mean, anywhere in Canada, but especially in places like Manitoba. And you can see what I mean by racial hierarchy. It's like, mm-hmm,<affirmative> you can't, and you can see this in terms of where police police. You can see this in terms of who, uh, who requires greater you know, you can see this in expulsion statistics. You can see this in police stops. The Ontario Human Rights Commission's recent report on issues of policing, of carding. When you look at all of these sites of state interaction with individuals, um, there is an incredibly consistent pattern of racial disparity, um, and those speak to hierarchy within society along racial lines, specifically. It's similar to how you can look at gender hierarchy in relation to things like domestic violence.
Natalia Rodriguez:Sure.
Joshua Sealy-Harrington:And, uh, a critical lens would say that we have to be sensitive to the patterns that we see when we think of different sites of subordination, uh, that we, you know, it's difficult to talk about domestic violence without mentioning gender, uh, because gender is related to domestic violence, gender roles related to domestic violence.
Natalia Rodriguez:Yeah.
Joshua Sealy-Harrington:Um, and similarly you can't really meaningfully or substantively talk about criminal justice and not talk about race. Right? You have to talk about the history of policing and criminal justice. You have to talk about, you know, the, how these were in many ways, founded as for the express purpose of social control relating to racialized groups. Um, and so...
Natalia Rodriguez:So by not talking about it, you're sort of, uh, if I can use this, the phrase whitewashing, it, you are a little bit when you don't talk about race, um, within the, the justice system, um, then you are, you are, uh, glossing over a very important aspect of, um, of well racial hierarchy, which is what you discussed. So, so there needs to be more race talk, I guess, is what you're saying within the jurisprudence.
Joshua Sealy-Harrington:Yeah. And, and part of what brings it to jurisprudence is advocates. Uh, and, and this is in my point, this is Tanovich's great point, which is that, you know, like we've, we've had section 15 of The Charter, uh, for a long time, you know, we're coming up to, to, well, it, it, it actually technically became, uh, in effect in'85, but, you know, coming up to almost 40 years, um, we have rampant racial inequality in Canadian society. How many section 15 race discrimination cases have made their way to the Supreme Court of Canada, right. Almost none. You know, why is that? It's, it is not like we lack racial inequality in Canadian society. It's that we've been failing to name racial inequality as something that ought to be addressed through the vehicle of constitutional litigation. Um, and part of that is an issue with judges. Part of it's an issue with advocates, but on, on the part of advocates, there's also, you know, difficult strategic issues. You know, uh, there was, um, a notable case in Ontario where a, a lawyer or, I mean, the client, I guess technically argued that they were the subject of racial profiling and the trial judge reprimanded them for, for even, you know, having the gall to raise the possibility of racial profiling. It was actually like prejudicial to that individual's legal treatment. And that was ultimately overturned, I believe on appeal, but you can see why strategically, some people might be apprehensive about, uh, raising race as an issue when Canada considers itself a polite, multicultural society. A lot of people, especially those who operate in, uh, institutions of power might not take kindly to that. Um, and that's a problem, right? That's a culture problem.
Natalia Rodriguez:Yes.
Joshua Sealy-Harrington:In terms of, and, and in many ways it's white supremacy, right? Like if, if, if you have a police force that can profile Black people, and if you have Black people who cannot raise profiling as a legal issue, because our majority White courts are not willing to hear issues of racial profiling, that's what I mean about white supremacy, right? Like that's, that's not an, there's no individual you can identify per se. That is the source of the problem. There's an ideology that is kind of floating around society that relates to the function of policing and the function of courts and the function of advocates, which are all working in tandem to make sure that it is very difficult to resist racial hierarchy in Canadian society.
Natalia Rodriguez:So maybe we can talk a little bit about some of these cases that, um, that, you know, have, have shown us, um, through, through their reasoning and through their, uh, through their, through the judgments just how this, uh, systemic racism is infused within our justice system.
Joshua Sealy-Harrington:Yeah. So, so my first point was, uh, was just that, you know, how little we talk about race is actually itself a manifestation of racism, but there's also just overtly racist<laugh>, you know, historical jurisprudence in Canada. Um, which many people I think would be surprised to learn about, but, um, that surprise is part of the deceit of Canadian exceptionalism, where we think that we are just a non-racist society when in fact we are. Um, so one example is, uh, R. v. Quong Wing, um, from 1914, uh, which is a Supreme Court decision and I'll give a hat tip to, uh, professor Lisa, Professor Lisa Silver at the University of Calgary, uh, for pointing me to this decision in one of her, uh, idea blog posts. Um, but so this was an appeal to the Supreme Court of Canada that involved a Chinese Canadian, uh, who was convicted under a Saskatchewan act that prohibited quote"Chinamen from employing white women". Uh, the law itself is of course overtly racist. Um, but for our purposes here, I'm also interested in, uh, the court's reasoning, which is itself quite racist. The judgment, which I mentioned, uh, which was released in 1914, uh, wasn't even about, you know, discrimination, the illegality of this law in itself. Uh, but instead about the division of powers, uh, Mr. Quong Wing argued that the act, uh, that he was convicted under was outside provincial jurisdiction. Um, and he was convicted at trial, that conviction was upheld on appeal. And then finally, a majority of the court, again, upheld the conviction in spectacularly racist fashion. So if we look at chief justice Fitzpatrick, he upholds the Saskatchewan legislation and dismisses Mr. Quong Wing's appeal, uh, and in his reasons, um, he argues that barring Chinese Canadians from employing White women is akin to workplace safety legislation, uh, because it protects the bodily health and morals of Canadian women. Uh, and while he says that legislation quote"may affect the civil rights of Chinamen, it is primarily directed to the protection of children and girls". Um, the concurring judgements are not much better. They likewise upheld the legislation and justice Davies reasoned that laws barring Chinese Canadians from employing White women do not deprive them of the ordinary rights of other citizens, but rather other protect White women and girls. Uh, and Justice Duff reasoned that such laws are as strictly local concern to the provinces, that's giving us a kind of echo of states rights in the United States. Mm-hmm<affirmative>, uh, because we're not necessarily better than them. And thus under their jurisdiction. Uh, and what was that, you know, the concern that he raised in his words, quote"in the sparsely inhabited Western provinces of this country, the presence of Orientals in comparatively considerable numbers, not infrequently raises questions for public discussion and treatment". So in other words, he's essentially advocating a white supremacist theory of great replacement. This idea the foreigners are coming to take over our country
Natalia Rodriguez:And employ our White women, how dare they?
Joshua Sealy-Harrington:Yeah. And this is a Supreme Court opinion, right? This isn't like a fringe activist. This is the most significant and powerful legal institution in Canadian society. Uh, taking this position and writing it as something that is meant to be well reasoned in the context of public law.
Natalia Rodriguez:I hope this has been overturned.
Joshua Sealy-Harrington:Uh, I actually don't know if this specific decision has been explicitly overturned. Uh, I, I I'd have to research that, but I, I think it was actually cited repeatedly, um, for a number of ideas relating to the free market permitting, things like discrimination. Um, but I'd have to research that further. Um, the last thing I'll say is that even the dissent by Justice Idington, uh, which would've overturned the conviction, uh, only only did so because in his view, the act did not apply to naturalized British subjects like Mr. Quong Wing. So otherwise discrimination against Chinese people raised no legal issues. He just slight, slightly interpreted the legislation differently. Um, but so regardless, you're looking at a, a unanimous Supreme Court with like wildly problematic views, wildly racist views, um, um, in the, you know, the most significant legal institution in Canadian society.
Natalia Rodriguez:Right. That's um, that's pretty jarring. I have to say. It's um, it's, uh, yeah, it's, it's pretty shocking to, to hear that, uh, from our Supreme Court, I mean, you know, knowing that it was in 1914, obviously provides some context, but, um, but that, even with that context, it, it is quite shocking to, uh, to hear this kind of reasoning from the court on, uh, on this type of issue and that this, you know, this is probably one of so many laws at the time that were overtly racist, as you say, the, the legislation itself is overtly racist, and this is the one that made it up to the Supreme Court, but, you know, who knows what other types of legislation were out there at that, at this time that also had, um, overtly, uh, racist, uh, qualities to it. So.
Joshua Sealy-Harrington:Yeah. Yeah, for sure. And, and I think that, so I, I mean, uh, there's, there's two things that come to mind on that point. One is that, you know, our society is still super racist. The issue is that, uh, etiquettes of racism are subtly evolving. So, you know, we used to have, I mean, we still have, uh, you know, overtly racist laws, right? We still have, uh, an Indian Act, which, you know, is a colonial imposition that tells people whether or not they essentially qualify as Indigenous. Uh, so we're not completely post explicitly racist legislation per se. Um, but more importantly, a lot of how racism evades public discourse is that the, you know, the vehicles for racism in contemporary society um, now aren't, you know, laws that explicitly discriminate, but laws that, you know, systemically discriminate, right? So, and that, and that's, um, that's a big part of why the memory of Canada and the United States in relation to racism is, is, is so weak<laugh> because, you know, we have this narrow vision of what it means to be racist. It's like, oh, being racist is slavery, being racist is residential schools. And even some still are arguing that residential schools were not racist, which is preposterous. Um, but people still have the us narrow vision of what it means for something to be racist. When in reality, um, you know, you know, pathetic public housing standards are deeply racist. Um, and we have to name them that and understand them as that, uh, because of the disparate impact they have on different communities. Um, but you mentioned 1914, we don't have to go as far back as 1914, we can fast forward to, I mean, any recent decisions, but since we're discussing historical jurisprudence, uh, we can come up to 1940, uh, which involved another case Fred Christie v. The York Corporation, which is another decision, um, kind of known as a notable, uh, Canadian Supreme Court decision relating to racial injustice. Uh, and in that case, a majority of the Supreme Court dismissed a Black man's claim for damages after being denied service in a Canadian pub, simply on account of being Black. Uh, and again, I would say this is, you know, almost 30 years later, the court's reasoning yet again, spectacularly racist. Uh, so the majority opinion authored by Justice Rinfret and conferred with concurred with, by Justices Crocket and Kerwin, uh, includes perhaps the most absurdly made in Canada paragraph I've ever read seemingly dedicated to our particular mythology of plight racism. It reads,"it appears from the evidence that in refusing to sell beer to the appellant, the respondent's employees did so quietly, politely and without causing any scene or commotion, whatever. If any notice was attracted to the appellant on the occasion, in question, it arose out of the fact, the appellant persisted in demanding beer after he had been so refused and went to the length of calling the police, which was entirely unwarranted by the circumstances". Uh, that aside the court's reasoning is blatantly racist, right? They say that the only limits on free commerce are quote"good morals" and quote"public order", and then exclude blatant racism in public facing services from either exception, uh, which is obviously just an ideological position they took because they were participating in white supremacy. Uh, indeed they consider overt racial discrimination quote"well, within" end quote, the rights of public facing enterprises, even including those specifically licensed by the government and uniquely capable of selling certain goods, in this case, alcohol. Uh, so you, uh, you know, a, a brief review of this decision tells, of these two decisions gives you an idea of how comfortable our highest court was with respect to participating in white supremacy in judgements that became the law of the land.
Natalia Rodriguez:Right. So here it was the, uh, the appellant's fault for calling attention to the fact that, uh, people were being racist towards him. How dare he?
Joshua Sealy-Harrington:Exactly.
Natalia Rodriguez:Yeah, he should have just politely and quietly accepted the, uh, the discrimination and, and walked away.
Joshua Sealy-Harrington:Mm-hmm<affirmative> And the, the logic is right, the logic is that this is an acceptable consequence of the free market. And, and, and, and why I want to emphasize that that is the same problem we're dealing with today, just in more subtle terms. Right? So if we look at, uh, capitalism in Canada in relation to public housing, in relation to education and health and, and welfare, um, we still have in many ways, a belief that discrimination that is a consequence of the market is tolerable in a liberal, you know, in an acceptable or moral or ethical society. Uh, and that's why we have things like outrageous statistics that I read earlier in relation to various strands of society, where there's rampant, systemic inequality. Um, so, you know, while in 1940, this was a position in relation to who can buy a beer. And most Canadians, I think, would not accept the free market, permitting someone to not buy a beer from a tavern. Uh, I think many Canadians would still accept that if someone is, you know, goes homeless, if someone free to death as recently happened in Montreal, um, if someone, uh, is, um, you know, if there's systemic inequality in relation to education or, or public health, um, the, to the extent these are, you know, adjacent to, or a byproduct of allowing capitalism within Canadian society, I think a lot of people say, well, that's fine. Um, so this is, you know, these statements are framed in a way that would not, that many would consider inappropriate in contemporary society, but they're part of a logic, which is absolutely appropriate in Canadian society, which is that we tolerate homelessness. We tolerate the opioid epidemic. We tolerate drug and sex work criminalization. Uh, and a lot of these things relate to an acceptance of racism that is linked to the market. Uh, and so while this decision is old, its ideology persists in Canadian society, right?
Natalia Rodriguez:It's almost like that idea has, um, become, uh, embedded. And it, it's not spoken, nobody's talks about it in those terms anymore, but it's just become an embedded part of, of capitalism. Uh, and so it persists in, in a quiet, in a quiet way.
Joshua Sealy-Harrington:Exactly. And so that's why, you know, one of the big moves and critical race theory is talking about racism in systemic or structural terms, uh, because a lot of people would say, you know, a free market resulting in, uh, many black and indigenous people, not having housing, not having access to the support they need. That's not racist. That's just an inevitability of allowing, you know, capitalism and Canadian society, which is a net good in our society. And, and while I would question that it's a net good, even in the first place, I would also point out that critical race theory calls that racist for a reason, because, um, it is actually a majority of racism in society. You know, the, the, the evil man, like, you know, uh, who's just yelling racial slurs left, right, and center um, is this kind of like absurd vision of what racism means in society? When in reality, it's actually just the quiet etiquette of public policy, uh, that result in things like the, the, um, deportation of, of tons of people during a global pandemic, right? Like we, we make policy decisions that are deeply racist and we just fail to name them as such. Uh, and that's something that critical race theory is really important for, uh, in terms of expanding what we conceptualize as racist.
Natalia Rodriguez:So I think we've, uh, covered some, two really good examples that as you say, um, find their way into, uh, into current day, um, systemic racism in, in a, in a quiet, um, but, uh, but pernicious form. And, um, I think we're going to, uh, say goodbye for now, and we're going to, uh, have a second part of this conversation because I would like to continue this conversation. Um, and in the second part of this, of this discussion, we are gonna be exploring systemic racism in current jurisprudence. So thank you so much Joshua for joining us today. And, uh, we'll catch you in the next episode.
Joshua Sealy-Harrington:Looking forward to it.
Speaker 3:Thank you to Joshua and Natalia for this insightful series. I'd also like to thank my co-editors, Chloe Snyder and Chris Horkins for making this podcast possible. Thank you as well to our production leads, Ian Breneman, Natalia Rodriguez, Jean-Simon Schoenholz, Matthew Huys, and Laura Gurr. Thank you to Danielle Baglivo of Dentons for her sound editing help, and thank you to Robin Black and Dave Mollica of The Advocates' Society. We look forward to being with you next time on friends argueIan
Speaker 1:That's it for our show. We hope you enjoyed listening to this episode and that you'll tune in next time.
Speaker 2:If you enjoyed this episode and want to stay up to date, please subscribe to our podcast on iTunes.
Speaker 1:Friends Who Argue is brought to you by The Advocates' Society, an association of advocates with over 6,000 members from all areas of practice across Canada. For more information about The Advocates' Society, go to www.advocates.ca or follow us on Twitter at,@Advocates_Soc.
Speaker 2:Until next time, we are Friends Who Argue.
Speaker 6:I.