Carol Aylward, professor law and director of the Law Programme for Indigenous Blacks and Mi’kmaq at Dalhousie Law School, applies the principles of Critical Race Theory (CRT), a recent movement in public-interest/civil rights law, to Canadian racial problems and issues. Especially noteworthy is her treatment of litigation, which successfully weds the insights of this new body of jurisprudence with the everyday problems of lawyers working for racial justice. In this respect, at least, Aylward vaults Canadian thought far ahead of its forerunner and challenges her U.S. counterparts to rethink their neglect of praxis.
Crisply written and tightly constructed, Canadian Critical Race Theory is divided into five chapters that build on each other in satisfying fashion. Chapter 1 explains what CRT is and how it began in the mid-1970s, as antiracist lawyers and legal scholars in the U.S. realized that the gains of the heady civil rights era had stalled and, in some cases, were being rolled back. New approaches were needed to deal with subtle, or latterday, racism and a newly conservative public and judiciary. Scholars offered theories of unconscious discrimination and critiqued such liberal standbys as colorblindness and the requirement that one suing for racial discrimination demonstrate intent. They engaged in revisionist history, questioning whether such vaunted decisions as Brown v. Board of Education came in response to black needs or white self-interest. Aylward sets out all this history in rich detail and with dead-on accuracy.
Subsequent chapters deal with the theory’s applications. Chapter 2, on American Critical Race Litigation, incisively analyzes the Rodney King and O.J. Simpson trials, showing how colorblindness in one and race consciousness in the other played decisive roles. Chapter 3, Canadian Critical Race Litigation, discusses landmark police brutality and jury selection cases in which insistent advocacy raising the “race question” proved successful, and other less successful cases in which the court “erased” race. Though Canadian law, in contrast to that of the U.S., prohibits discriminatory effects as well as intent, Canadian lawyers generally do not make racial arguments out of adherence to the colorblindness principle. Aylward shows how, in R.D.S. v. The Queen, appellants persuaded the Supreme Court of Canada that a “reasonable person”--in this case a black judge-- would not be colorblind but aware of the prevalence of racism in Canadian society.
In the final two chapters, Aylward proposes a novel approach, grounded in Critical Race Theory, for representing black clients, and addresses ethical problems that may arise in the course of such representation. Lawyers for black clients should engage in consciousness raising, Aylward writes, so as to increase their own awareness of the historical role of race in Canadian society. Whites are urged to adopt a black perspective. Lawyers should then apply that knowledge to particular cases, honing their ability to “spot the racial issue” in situations where others might miss it. Then, lawyers should confront the racist practice or rule (for example, Canada’s practice of relegating many forms of discrimination to a nonjudicial human-rights complaint system), asking whether and how the rule or practice subordinates people of color. Finally, advocates should engage in reconstruction: imagining alternatives; assessing harms, risks, or benefits; then working to institute, fairer, juster social arrangements.
A final chapter considers what constraints rules of professional responsibility place on race-conscious advocacy. For example, suppose the lawyer wishes to raise a racial issue, or elevate a matter to “test case” status -- but the client does not? Aylward discusses this and the role of community activists and coalitions in balanced fashion, generally encouraging lawyers to press for radically transformative litigation as far as the client and professional rules permit.
As original and timely as this book is, one might nevertheless wish that the author had addressed certain issues missing in its pages. She limits her treatment expressly to blacks, explaining that she is black and so is most familiar with their situation. As such, the book is well researched, imaginative, and thorough. Yet, racial justice is a matrix, with the fortunes of all nonwhite groups linked in complex fashion. One hopes for a work like this that addresses First Nation and East Asian racial problems. Sometimes the author is excessively exclusive in framing her issues: What can we do for blacks? On the other hand, she does cite writers who examine or compare Canada’s treatment of other minority groups, so that the diligent reader is at least pointed in the direction of the appropriate literature.
By the same token, Aylward gives scant attention to the emerging white-studies movement, even though advocates for racial justice are beginning to realize that discrimination is like a hydra, with white privilege constituting one head, and oppression of people of color the other. Lopping off the one head (discrimination), without dealing with the complex of favors, exceptions, privileges, and special treatments white people afford each other will leave current social arrangements pretty much as they are, with whites on top and blacks, browns, and indigenous people at the bottom.
Finally, one must ask whether the author’s pragmatic roll-up-your-sleeves optimism is warranted. In the U.S. and Canada, conservative forces are in the ascendant. What if race-conscious advocacy does not work? In times like these, attorneys and progressive judges should, of course, do what may be done within the confines of the legal system. But to these reviewers, at least, it makes sense to have other strategies -- such as electoral politics, civil disobedience, grass roots organizing, and economic development and self-help, just to name a few -- ready if litigation fails. These minor reservations, however, should not mar what is easily the most impressive and ambitious book on critical race jurisprudence in a decade.
Richard Delgado and Jean Stefancic
Faculty of Law
University of Colorado
jean.stefancic@colorado.edu
September 1999
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