The Charter of Whiteness: Twenty-Five Years of Maintaining Racial Injustice in the Canadian Criminal Justice System

This paper examines the impact of the Canadian Charter of Rights and Freedoms on racial injustice in the Canadian criminal justice system. While there have been modest gains, we have seen very little systemic change over the Charter’s 25-year life. We continue to incarcerate Aboriginals and African Canadians at alarming rates, racial profiling at our borders and in our streets continues to flourish, and the federal government continues to propose legislation that will further entrench the problem. Why is this happening? is there any hope for the future? these are some of the fundamental questions explored. of course, some might say that it is simply naive to think that constitutional litigation can make a difference when dealing with structural and systemic problems. This larger philosophical question is addressed in Part II. Part III sets out and defends the the sis that it is not so much the Charter that is the problem but rather those who apply and interpret it. Racial justice has not had a chance to grow over the last 25 years because there has been a significant failure of trial and appellate lawyers to engage in race talk in the courts and a failure of the judiciary to adopt appropriate critical race standards when invited to do so. Engaging in race talk and developing critical race standards are critical because colourblind due process standards are working disproportionately to the disadvantage of racialized groups. There is reason though to be optimistic. Criminal lawyers and judges are committed to the pursuit of justice and with a greater understanding of what needs to be done and commitment to getting it done, we may begin to see some significant change