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Using insights from Critical Race Theory (“CRT”), this article illustrates how Canada’s proportionality-driven criminal sentencing structure (re)produces, invigorates, and sustains pernicious race-based discourses. Indeed, the concept of proportionality can reinforce archaic norms and notions about Black bodies’ status, belonging, identity, and worth. Moreover, the demands of proportionality, with its fixation on calibrating blame, can distort and pathologize Black lives in a perverse attempt at sentence mitigation, resulting in what I refer to as the paradox of visibility. The article uses an analysis of Impact of Race and Culture Assessments (IRCAs) reports to explore paradoxical race visibility. This allows us to better comprehend and redefine the impact of incorporating race awareness into the criminal sentencing process, which can have positive and negative consequences. Indeed, introducing race at the sentencing phase is a challenging and perhaps even a paradoxical manoeuvre—but one that may also be logical insofar as we operate within the cruel illogic of white supremacy.
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This article analyzes interview data from nine Black criminalized individuals and nine defence lawyers (five white, three Black, and one Arab) about the utility of heightened race visibility in sentencing proceedings. The data reveals a schism between these groups, reflecting different responses to what I refer to as “the paradox of visibility.” For Black people, this paradox occurs when an emphasis on race may simultaneously have a deleterious and ameliorating impact on sentencing. Defence lawyers and judges laud the ameliorative potential of race visibility, which obscures the genuine concern shared by criminalized Black individuals about how they believe their Blackness betrays them in the criminal sentencing context. In this regard, the article explores ethical concerns arising from this paradox. It also argues that race-based strategies at sentencing are not a no-cost or low-cost proposition. Indeed, from the criminalized research participants’ point of view, the cost is not only the risk that an emphasis on race may result in a higher sentence, including longer and harsher custodial sentences, but also an affront to their dignity. In contrast, the defence lawyers strongly supported increased racial visibility to combat what they saw as judicial and prosecutorial intransigence to grapple with race in sentencing proceedings. These perspectives are critical for sentencing judges tasked with sentencing Black individuals and for lawyers who are developing and deploying legal strategies to assist their Black clients.
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Ottawa police sergeant Steven Desjourdy was the first officer in Canada to be prosecuted for sexual assault based upon an illegal strip search of a woman, arguably a “sexual assault by the state.”1 Sexual assault prosecutions present innumerable hurdles for all complainants, but when the accused is a police officer engaged in his duties, those hurdles are almost insurmountable. The prospect of racism loomed large in this case, given that Desjourdy was white and SB was a Black Canadian woman portrayed as volatile and dangerous. Using the transcripts of Desjourdy’s trial and drawing upon sexual assault and critical race literatures, this article explores the systemic biases that favour police officers on trial and facilitate the construction of white innocence and racialized danger.
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14 — Notes and Comments
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Legal scholars have long discussed the Supreme Court of Canada’s (”the Court”) erasure of race in its Charter jurisprudence. The lack of recognition is particularly noticeable in the Court’s jurisprudence on policing. It is well-established that African-Canadians and Indigenous people are disproportionately detained, arrested and charged by police, and thereby overrepresented in the criminal process. Criminologists and legal scholars largely agree that biased policing is one of the primary conduits through which Black, Indigenous and other racialized bodies are funnelled into the criminal justice system. Despite this fact, the Court has only ever marginally engaged in a race-based analysis of the Charter rights that are engaged by police encounters. In R. v. Le, the Court may have potentially lifted the judicial embargo on the discussion of race and biased policing; and, in so doing made a significant and much needed, contribution to critical race Charter litigation. The precedential impact of Le is challenging to predict, but there is reason to hope that Le will provide a veritable roadmap for lawyers who are seeking to mobilize race in the detention analysis under s. 9 of the Charter.
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14 — Notes and Comments
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- Danardo Jones (9)
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