Document Type
Article
Publication Date
12-2-2024
Publication Title
Windsor Yearbook of Access to Justice
Volume
39
First Page
544
Keywords
Critical Race Theory, Equality, Constitutional Law, Systemic Racism, Anti-Black Racism, Anti-Indigenous Racism
Last Page
560
Abstract
This article outlines the concept of “critical race equality” in Canadian constitutional law and critiques the Supreme Court of Canada’s jurisprudential silence on systemic racism under section 15 of the Charter. First, the article discusses the theory of critical race equality. It describes six principles that animate a critical race perspective, which understands equality as ambitious, contextual, ideological, comparative, systemic, and positive. Second, the article discusses the practice of critical race equality. It traces a genealogy from the Supreme Court’s first equality decision (Andrews) to its latest (Fraser), both of which reflect the principles of critical race equality. This genealogy demonstrates that critical race equality has been consistently affirmed by the Supreme Court, yet has never been applied by the Court to ubiquitous systemic inequality confronting Black and Indigenous communities in Canada. This article concludes that systemic racial justice advocacy under section 15 of the Charter is doctrinally viable. Consequently, it calls upon a coalition of scholars, lawyers, and organizers to recognize that viability as one of many tools for challenging unconstitutional state neglect and advancing systemic racial justice.
DOI
doi.org/10.22329/wyaj.v39.9262
Recommended Citation
Sealy-Harrington, Joshua. (2024). The Charter of Whites: Systemic Racism and Critical Race Equality in Canada. Windsor Yearbook of Access to Justice, 39, 544-560.
https://scholar.uwindsor.ca/lawpub/191
Included in
Civil Rights and Discrimination Commons, Constitutional Law Commons, Human Rights Law Commons, Law and Race Commons
Comments
This article was originally published as Joshua Sealy-Harrington, “The Charter of Whites: Systemic Racism and Critical Race Equality in Canada” in Kate Puddister & Emmett Macfarlane, eds, Constitutional Crossroads: Reflections on Charter Rights, Reconciliation, and Change (Vancouver: UBC Press, 2022) at 234, and is republished here with permission and with revisions only to adhere to the citation style of the Windsor Yearbook of Access to Justice.