Interview with Joshua Sealy-Harrington (Part 2): Systemic racism viewed through the lens of historical jurisprudence

In Part 2 of this interview, released in honour of Black History Month, Natalia Rodriguez and Joshua Sealy-Harrington continue their important discussion on systemic racism looking at examples in recent jurisprudence, including;

• R. v. Kokopenace, 2015 SCC 28, in which the Court declined to consider the disproportionate effects of the jury roll system on racialized and marginalized Canadians
• Fraser v. Canada, a recent Supreme Court of Canada decision that provides some helpful language in addressing systemic barriers
• R. v. Chouhan, a Supreme Court of Canada decision on pre-emptory challenges
• They also discuss why there is so little s. 15 jurisprudence relating to race at the highest levels of our courts

Natalia Rodriguez https://conway.pro/natalia-rodriguez

Joshua Sealy-Harrington https://powerlaw.ca/teams/joshua-sealy-harrington/

Transcript

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Today on Friends Who Argue, we welcome back civil litigator, Natalia Rodriguez, who continues her conversation with Joshua Sealy-Harrington researcher, teacher, and advocate. As the second part of a two-part series being released in honour of Black History Month, Natalia and Joshua discuss systemic racism and critical race theory in the context of modern jurisprudence.

Natalia Rodriguez: 0:55

And welcome back to Friends Who Argue. This is episode two of, uh, two-part series on, uh, systemic racism in, uh, historical jurisprudence. And we've been talking to Joshua Sealy-Harrington, um, about critical race theory and systemic racism in, in historical jurisprudence. And today we're gonna continue the conversation speaking about systemic racism in current jurisprudence and how, uh, it, it manifests itself today. Thanks again for being with us Joshua, really appreciate it.

Joshua Sealy-Harrington: 1:24

Happy to be here.

Natalia Rodriguez: 1:26

So in our earlier episode, we were discussing, um, how critical race theory applies to, uh, to our legal structures and to, uh, to society. In general, we looked at some examples of historical racism, uh, in the jurisprudence. And, um, we're gonna speak a little bit about how, how that systemic racism is evident in, in current jurisprudence and in, uh, in current day society.

Joshua Sealy-Harrington: 1:52

Yeah, so I'm, I'm working on a research project right now, actually exploring systemic racism in the Canadian Charter. Uh, and there's lots of examples. Uh, some of which I discussed previously, uh, on, on episode one, but I'll focus on a couple here. Uh, but before I do that, it's critical to refresh on, on what I mean by systemic racism before we, we dive into it specifically. Uh, so some people use systemic racism to refer to, uh, what you could potentially call widespread racism. Um, but typically, and certainly in critical race theory, um, systemic racism refers to the disparate racial effects of otherwise neutral policies, um, and whether or not a policy itself qualifies as genuinely neutral as a complicated political question. I acknowledge that. Uh, but in general, if we're concerned with systemic racism, we need to be thinking about the racial effects of our laws, regardless of their intent. That's a really important qualifier because a lot of people limit their imagination in relation to racism, to kind of intentional, uh, things which really limits the scope of what you can deal with through a racial justice lens.

Natalia Rodriguez: 2:55

Although section 15 of the charter, which we talked about in the first episode specifically talks about the effects of, uh, of the legislation and not the intent, right? So that trying to capture is that trying to, uh, to embed some of these concepts a little bit into that section?

Joshua Sealy-Harrington: 3:12

Yeah. I, I would say that if you, you, for example, compare section 15 of the Canadian Charter to the Equal Protection Clause in the United States, it has broader phrasing, uh, which I would, say very strongly supports the argument, even a conservative textual argument that the vision of equality, uh, created by section 15 is much broader. Um, I would also say just like normatively, we need a broader vision of equality than in the United States cause their, their section 15 jurisprudence is, uh, perniciously narrow. Um, but yeah, the language of Section 15 and in particular 15 two, which permits affirmative action, right? The, the constitutionality of affirmative action is constantly litigated in the United States and right in our charter it says the affirmative action is, is fine. Um, so that doesn't mean we do enough affirmative action or there aren't other ways of attacking equality programs, uh, through legal argument. Um, but as, as a starting point, yeah, you're absolutely right. There's lots of, uh, I think helpful language in section 15 of the Charter relating to equality rights advocacy. Um, but yeah, with the definition of systemic racism out of the way, uh, there's some, uh, recent Supreme Court decisions that we can look through at, through a lens of critical race theory and systemic racism. Uh, so one case is R. v. Kokopenace, from 2015, uh, which concerned charter rights pertaining to representative jury rules, um, and the majority of the court, which upheld the constitutionality of the jury role in that case interpreted these rights I would say very new narrowly, uh, specifically what was held to be a constitutionally adequate selection process left Mr. Kokopenace with a jury that had 0% on reserve representation despite 21 to 32% of the adult population in his district living on reserve. Um, so how did this happen? Uh, I would say it's because the court was willing to grapple with the ways in which systemic racism is institutionalized through government processes. So the majority rejected a results based test for jury representation, uh, and in their view it would spell the end of the jury system as we presently know it, if we adopted such a test, uh, which I find an ironic statement because hastening that end is why we need a results-based approach. Uh, because Canada has for far too long had disproportionately white juries, which compromised the impartiality of Canadian juries, especially for Black and Indigenous accused. Uh, the majority rights that the state should do as much as it can to overcome systemic issues yet designs a test that places literally zero scrutiny on the outcomes of the state's efforts. And instead solely considers the processes that the state elects to follow and whether those processes amount to reasonable efforts. And let's be clear, the state's efforts are as it stands totally inadequate. It bans people with criminal records from serving on juries, despite the obviously disproportionate racial effect that that has, does not permit permanent residents to serve on juries. Again, despite obviously disproportionate racial effects, most importantly, neither the federal or provincial governments, reasonably compensate jurors for their time, which of course selects for particular social groups. Uh, for example, a 2018 report to the Canadian Judicial Council on jury selection in Ontario found that the system favors"white, higher income earners, property owners reporting English as their mother tongue". And I would say based on the definition of systemic racism previously described, this system is systemically racist. And this systemic racism was by the Supreme Court immunized from constitutional review. A jury role could be 100% white, uh, and that would actually be constitutionally irrelevant to whether or not that jury was representative, which I think is simply a contradiction in terms,

Natalia Rodriguez: 6:52

Right? So they're saying as long as the process that was followed, uh, was reasonable and they made reasonable effort, the outcome, whether it is a hundred percent white, um, doesn't matter.

Joshua Sealy-Harrington: 7:01

Yeah. There's two things. One, they said it's all about the process, but two, right, when they say reasonable efforts, this is in a context where for example, jurors are not reasonably compensated. So it's not only that they limited it to the process, but they viewed the process so narrowly, right? If I were a judge, I would say it is an unreasonable effort to not pay people to be on juries, obviously then poor, lower income people who are disproportionately racialized cannot be on juries. They won't be able to afford it. They cannot set aside the time or have, or lack the financial resources. So, so even if you count

Natalia Rodriguez: 7:37

As far, sorry, did the court go as far as to say that the, um, that those, uh, that process was, was adequate and it was, um, it was a, it was, that was considered reasonable efforts? Like they, they basically, uh, gave a, a thumbs up to the, uh, to the current system.

Joshua Sealy-Harrington: 7:55

Yeah. The, the system that was under scrutiny and Kokopenace was upheld, um, and that system, I would say has many unreasonable<laugh>, you know, policy positions in relation to systemic racism. There's just essentially a series of decisions you can look at from provincial and federal governments in relation to how they compile jury rules, um, and how they select juries that vary predictably and foreseeably result in disproportionately white juries. Uh, and the court not only said we can ignore the outcome, but said, these processes are reasonable as is. Uh, and I think that in many ways, immunized a lot of the currently inadequate systems that we have in relation to jury diversity.

Natalia Rodriguez: 8:35

Yeah. It's interesting that they would say that the outcome is not important when, you know, uh, something I like Section 15, which addresses, um, racial inequality in legislation specifically says that, you know, the effects are what's important, what you have to look at. And so it would seem to me that this process is showing an effect, which, uh, is disproportionately excluding racialized individuals from serving on juries, yet the court is saying that, that, that the outcome doesn't matter. It's the process when, when actually it, that runs contrary to the language of Section 15, I, I would say,

Joshua Sealy-Harrington: 9:12

Yeah, I don't disagree with you. I think that it is, I, I think it is absolutely the case that, you know, the logic brought to the court in this case was, uh, ruthlessly formalistic, um, which is antithetical to the long tradition of Section 15, at least stated jurisprudence in Canada. Uh, and I say stated because, you know, the, the very first Supreme Court decision on equality Andrews, was clear that we need to be looking to affect when we conceptualize what inequality means. Um, but has not followed through on that constitutional promise in relation to racial inequality. Um, because like I said, there's been very few race inequality cases that Supreme Court has confronted, uh, and even fewer that it has decided, I would say in a progressive racial manner.<laugh>. And so, um, you're correct. I think, you know, if I were to, uh, if I were teaching a course on Section 15 of the charter and talking about Kokopenace, I would say it's pretty hard to square their process-oriented reasoning with the effects based jurisprudence under Section 15 mm-hmm<affirmative>. Um, but that's what they did. I think I'm pretty sure in Kokpenace like one paragraph in the majority that like summarily disposed of the Section 15 argument, um, wow. Which is often, which is often how often the court either gives, you know, short shift to Section 15, or if it's a Section 15, Section seven in case they'll say, uh, we'll decide under Section seven, cauce we don't want to go to Section 15. Um, there there's scholarship literally, you know, by, uh, scholars like Jonnette Watson Hamilton, and Jennifer Koshan that talks about, you know, the courts, uh, distaste with talking about with engaging with Section 15, uh, because it's a bit of a political, uh, quagmire they think, um, right. And I think that really limits its potential. I think Section 15 actually has, has a lot of really important work to do in Canadian society and that untapped potential something we need to think about.

Natalia Rodriguez: 11:08

Right. And I mean, it's, it's what you talked about, the kind of erasing of race talk, it's almost an avoidance of that race talk, um, you know, by going to different sections in order to avoid going to Section 15 and not having to deal with that. Right,

Joshua Sealy-Harrington: 11:19

Exactly. Um, it's a, it's a kind of rhetorical way that the court can avoid having to dive back into the pool and be like, okay, when are we actually gonna pretend like Canada has a race inequality problem that there's a legal means to, to deal with. Um, and uh, I think that's gonna be a big thing we have to, you know, reckon with, of going forward in our, in our advocacy strategies and in, in our scholarship.

Natalia Rodriguez: 11:42

Absolutely. Um, so take us to a, to a second example.

Joshua Sealy-Harrington: 11:46

Yeah. So, uh, a second example, which is more cautiously optimistic is, uh, Fraser v. Canada from 2020, just from last year. Uh, so five years after Kokopenace and Fraser, a majority of the court adopted a broad and flexible approach that was, I would say, sensitive to systemic barriers in relation to, um, social hierarchy in society. Uh, indeed the majority outlines in detail, how systemic discrimination should be analyzed by courts, uh, and critically the majority recognizes that systemic discrimination can be among the most powerful legal measures available to disadvantaged groups in society to assert their claims to justice. So admittedly, this appeal was in the context of gender inequality. Um, it, it was specifically about the RCMP's systemically sexist pension scheme. Um, but the principles articulated by the court in Fraser apply with equal, or I'd say even greater force to systemic racial inequality in Canada. Uh, and that relates to those outrageous statistics that I talked about, uh, in our first, in our first interview. Uh, so I, I think, you know, I'm cautiously optimistic about Fraser. It lays out doctrine that I think could be, you know, instrumentalized towards racial progress. Um, but, uh, I'm cautious in that optimism because it was in the context of gender inequality. Uh, and it was in the context of, um, you know, this like kind of narrow pension scheme issue. It wasn't necessarily about, you know, positive obligations related to public housing relating to education. U m, a lot of the complex vehicles for social inequality in Canada t hat we need to, that we need to confront. So while Canada has a long past and present of racism i n c ase law, this recent jurisprudence s hows some promise o f r espect t o future avenues for legal advocacy.

Natalia Rodriguez: 13:30

Great. And, uh, my understanding is that you're exploring some of those avenues as well in some research projects that you're working on.

Joshua Sealy-Harrington: 13:36

Yeah, no. So I have, uh, I have an essay currently under peer review that was invited for submission to a special edition of the university of Alberta's constitutional forum, uh, which is gonna be, uh, dedicated to the Fraser decision that I was just describing. Yeah. Uh, and I'm working on another essay right now where that I'm currently drafting for an upcoming conference, uh, and eventual book, uh, that's being coordinated by Emmett MacFarlane and Kate Puddister, uh, on the 40th anniversary of the Canadian Charter. So I'm, I'm essentially looking at different, um, ways in which legal advocacy can be used to combat racial inequality. And the Fraser decision is, uh, is a timely one cause in many ways the doctrine calls for some pretty broad conceptualization of what we might call discrimination.

Natalia Rodriguez: 14:18

Right. That's great. That's uh, excellent. I'm looking forward to, uh, to seeing all the, that um, work product come outta you. I gonna be.

Joshua Sealy-Harrington: 14:25

Me too.<laugh>.

Natalia Rodriguez: 14:27

<laugh> I'm gonna be, I got a lot of reading to do on critical race theory. Um, so last year you talked a little bit, uh, in our first episode you were involved in a case of the Supreme Court of Canada, which dealt with systemic racism in the justice system. And actually the podcast, our podcast, Friends Who Argue will be releasing a full episode, that's gonna be discussing this case in more detail. That's great, uh, R. v. Chouhan right? Yeah. Which, um, uh, The Advocates' Society, we actually, uh, intervened in it as well. Um, so tell us a bit about your role in this particular case and, and what it was about. First what's the, what was the, uh, what was the case about and, and how were you involved.

Joshua Sealy-Harrington: 15:03

Yeah, so broadly speaking Chouhan was a constitutional appeal concerning preremptory challenges, uh, which for a device that let crown and defense counsel remove prospective jurors from the trial jury without an identified justification to the court. And so Canada abolished prey challenges in the wake of Gerald Stanley's acquittal for killing Colten Boushie, um, where Stanley's defense counsel used preremptory challenges to remove every visibly Indigenous juror from the trial jury.

Natalia Rodriguez: 15:31

I'm surprised to learn that, but, uh, but it sounds like a good thing, especially when defense counsel is using these challenges to remove every single Indigenous juror from a jury trial, that doesn't sound like a proper use of a preremptory challenge. Yeah.

Joshua Sealy-Harrington: 15:44

So, so, and I I'm, I, I agree with you, uh, uh, but my, my client, the British Columbia Civil Liberties Association argued the opposite position. So they, uh, argued that the abolition infringed the right to impartial tribunal, intersection 11 D of the Charter. Uh, but that wasn't because they, uh, you know, supported what was termed the discriminatory use of preremtory challenges. Um, but rather because in their view more often than not peremtory challenges are used to increase rather than decrease diversity on juries. Uh, so one, so one of the key arguments that the BCCLA advanced, um, was essentially a, a concession to Indigenous groups that were intervening, uh, raising the concern of the removal of Indigenous jurors, uh, often by white male accused. Um, we don't think that that's good, but the reason why we don't think good is because of the systemic lens that the BCCLA brought to the intervention, uh, right. The use of peremtory challenges to decrease diversity on juries is a harm of their use and the use by Black accused, for example, to strike White jurors in the hope that that juror will be replaced by a racialized individual viewed systemically that's a, that's a beneficial use of peremtory challenges. So the case was complicated because, uh, depending on the accused and depending on the council, and depending on the context, peremtory challenges could increase or decrease diversity on different juries. Uh, and so different constituencies came at it through, through different angles. Uh, but absolutely the, the, you know, the prompt for the abolition related to, uh, you know, a horrible trial relating to, to Gerald Stanley, um, and to a use of peremptory challenges that the BCCLA didn't count whatsoever. It, it was more an issue of, you know, how are these used, uh, generally, and what's the net effect of abolition? Um, one of, one of the key things that the BCCLA brought up was that, um, like I said before, you know, we have, we have chronically, um, unrepresentative juries, uh, and the Canadian government by removing peremptory challenges was kind of washing its hands of having dealt with the issue. Uh, when in reality, you know, this bill did not bring in reasonable compensation for jurors. This bill did not remove the striking of jurors with criminal records. This bill did not do many of the positive things the government could do to create representative juries, rather it did one of the things that wouldn't require any investment from the government, uh, or any cost or resources from the government.

Natalia Rodriguez: 18:13

Right. A little bit like how, what we talked about in the first episode, uh, you know, these incremental changes that don't really do anything like body cams or whatever for police officers instead of revamping the entire system. It's more of a, just a band-aid solution.

Joshua Sealy-Harrington: 18:28

Yeah. So I, I mean, I, I wouldn't go quite that far. I think that the right Indigenous groups that were arguing, you know, in favor or in support of abolition are, are right, that its abolition will do something. And, and, and, and part of what it will do was what the BCCLA was resisting. So it's not that the policy was entirely immaterial, you know, for, for Indigenous, you know, victims in the criminal justice system, the ability for people to remove all of the visibly Indigenous jurors has been removed, uh, and that, you know, that isolated manifestation of the abolition I'd say is positive and is material and was important to Indigenous groups. And I understand that. But it is the case, right? That, um, though it will have an impact that the structural effect in relation to how juries are compiled was largely undisturbed. So the, you know, the, the, you know, the source of jury lists, um, the, the institutional commitments from federal and provincial governments in relation to providing support to jurors so that more diverse groups can be represented on the juries, all of that was not done. And so many of the structural, uh, policy preferences of the government, uh, or policy decisions of the government, um, that I would say deserve very harsh scrutiny were left entirely unscathed by this decision from the government. And I think that's, that's a big problem. And, and in meant to be clear in many ways, those problem, the BCCLA was absolutely on side with, with Aboriginal Legal Services, right. They also, uh, in many ways support, uh, greater structural reform in relation to, uh, in relation to diversity on juries. So, uh, we were on opposite ends of the intervention. Um, but in many ways we had very similar goals of more diverse juries and more impartial tribunals.

Natalia Rodriguez: 20:14

And what was the, uh, the outcome of that case? Is it on reserve?

Joshua Sealy-Harrington: 20:19

Uh, so that case was, uh, decided from the bench with reasons to follow.

Natalia Rodriguez: 20:24

Those reasons followed.

Joshua Sealy-Harrington: 20:26

They have not followed, uh, so the reasons are still under reserve. Uh, but the court decided from the bench that the abolition of peremptory challenges was, was, was constitutional. So where they'll go and the alternate reasons where we are not sure, uh, the, the hope, uh, from the BCCLA's standpoint is that, um, while the court is upholding, the decision to remove peremptory challenges that they'll be thinking carefully about, uh, alternative, uh, devices within the criminal code that relate to jury diversity and how those might be used at least to partially compensate with respect to diversity. So peremptory challenges were, were one means used by many, uh, accused to diversify their juries, uh, but there's challenges for cause, there's judicial standbys, there there's other provisions in the code that provide, or that could be strategically used for greater diversity on juries. Uh, and our, our hope is maybe there's some progressive language in the judgment that speaks to the, the use of these alternate measures as a means of securing greater diversity on juries. Uh, but currently it's just a waiting game.

Natalia Rodriguez: 21:33

Right. And so, um, just a factual question was it was, was the evidence, um, pretty clear that these peremptory challenges were being used to more often than not increased diversity in the, was that like uncontroverted evidence or was there a dispute about whether that was actually the case?

Joshua Sealy-Harrington: 21:52

Yeah, so, I mean, so the evidence was complicated because, uh, I mean to actually study peremptory challenges has a lot of, uh, kind of empirical hurdles, right. Cause peremptory challenges aren't, I mean, there isn't anybody that's like scrutinizing how they're used typically. Uh, and the way that they're used is, is without, is, is because it's, preemptory it's without scrutiny specifically. That's right. Yeah. Um, so whether or not it's being used in a particular fashion, right. You, you, you don't have to, but there isn't a ton of evidence about it. And so a lot of, um, there's a lot of anecdotal evidence from defense counsel in terms of how it's used. Um, what I will say is that there was a study that came out, um, I think in the Manitoba Law Journal, um, which polled or surveyed, I should say a number of crown and defense council, um, about these peremptory challenges and, uh, both crown and defense overwhelmingly were of the view that, that peremptory challenges had a positive impact on the fairness of the jury process. So it, it was, you know, there, there, I, I can't speak to we in the BCCLA's argument, they cited, uh, multiple reports, uh, um, studies relating to the, you know, patterns of use relating to peremptory challenges. Um, but, uh, there, but yeah, like I said, there's, there's, there's limitations on how you can explore it in innate to what, you know, how peremptory challenges function, uh, because they're not, uh, they're not meant to, and can't be scrutinized per se.

Natalia Rodriguez: 23:28

Right. Makes sense. Um, well, we've come to the end of, uh, part two of our discussion, uh, Joshua, I just wanted to say, thank you so much for joining us today. This has been a very enlightening and, uh, fruitful conversation. I've enjoyed it very much. I hope our listeners have enjoyed learning, uh, a little bit as well about, uh, how systemic racism affects our everyday lives in Canada and in our legal profession specifically,

Speaker 3: 23:54

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 Who Argue

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That's it for our show. We hope you enjoyed listening to this episode and that you'll tune in next time.

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Speaker 2: 25:01

Until next time, we are Friends Who Argue.