“Silly Anecdotes”: From White Baselines to White Juries in R v Chouhan

This is a free event, however, registration is required. 

This presentation explains how the Supreme Court’s decision in R v Chouhan concerning jury impartiality is an illustrative example of “baselines”, or how implicit political positions held by judges govern their legal analysis. It begins with a summary of the background in Chouhan: the issue before the Court (the abolition of peremptory challenges) and how the judgment resolved that issue by constitutionally vindicating the impartiality of systemically white juries (an unfortunate continuation of the Court’s widely critiqued judgment in Kokopenace). Then, the article analyzes Chouhan through the lens of baselines. First, the article uses Chouhan to describe what baselines are—that is, by examining both the judgment and hearing, the article reveals how implicit political positions significantly drove the legal analysis in the case. And, given the political character of that baseline reasoning, the article briefly critiques the Court in two ways: (1) it critiques Justices Moldaver and Brown for relying on weak baseline positions, like juries already being diverse (they are not) or Canada not having intractable racial inequality (it does); and (2) it critiques the Court’s recent notice limiting intervention submissions to “legal” issues insofar as that limitation can, perversely, prevent interveners from challenging those weak baselines from which the Court may conduct its analysis. Second, the article uses Chouhan to describe what baselines do—that is, by examining Justices Moldaver and Brown’s opinion in Chouhan, the article demonstrates how judges’ baseline commitments can motivate their reasoning and lead them to make analytical errors. In their opinion, Justices Moldaver and Brown purport to defer to Parliament while nakedly legislating from the bench—indeed, they rule that their policy preference of ignoring race in jury selection should, “as a matter of law”, take precedence over Parliament’s preference for race-conscious processes. Further, Justices Moldaver and Brown strawman both jury diversity and peremptory challenges to bolster their position. Specifically, when jurists argue for more jury diversity, Justices Moldaver and Brown simply respond that no jury can be perfectly diverse, a fallacious response because doing something for jury diversity need not require doing everything. The article concludes by noting how the continuing relevance of baselines in constitutional interpretation demands ongoing and critical reflection on how Canadian jurisprudence is routinely produced from a baseline of “silly anecdotes”: white subjectivity masquerading as universal objectivity, which institutionalizes white supremacy in law.

About Joshua Sealy-Harrington

Joshua Sealy-Harrington is a passionate teacher, scholar, and advocate. As an Assistant Professor at the Lincoln Alexander School of Law at Toronto Metropolitan University, Professor Sealy-Harrington teaches about criminal punishment, legal theory, and social change. He is the faculty advisor for the Gale Cup moot team and the Black Law Students’ Association, as well as the annual moot problem drafter for the Julius Alexander Isaac Moot, Canada’s critical race theory mooting competition. He received an excellence in teaching award from the University of Ottawa, where he previously taught “Race, Racism and the Law” and a dedication award from the Black Law Students’ Association for his volunteer support of the Isaac Moot. As a doctoral candidate at Columbia Law School, Professor Sealy-Harrington draws on critical race theory to explore the ways in which law mediates social hierarchy, with a particular focus on the promise and limitations of “identity” rhetoric in legal discourse and advocacy concerning race, gender, sexuality, disability, and class. And as counsel at Power Law, Professor Sealy-Harrington strategically mobilizes criminal and constitutional law to advance the interests of marginalized communities. He has litigation experience before all levels of court, including as lead counsel before the Supreme Court of Canada. And a majority of his practice involves pro and low bono work for non-profit organizations promoting human rights and social justice, both in Canada and abroad.

Professor Sealy-Harrington’s writing has been published in various law journals, The Globe and Mail, Newsweek, and The Walrus. And his legal scholarship has been cited by various tribunals, including the Federal Court, the Federal Court of Appeal, and the Supreme Court of Canada, where he clerked for two years. He is also a frequent media commentator, whose analysis has been featured on CBC News and CTV News. And he often presents to government, academic, and private institutions on critical race theory and racial justice, including the Department of Justice, the National Judicial Institute, the Ministry of the Attorney General, the Criminal Lawyers’ Association, and The Advocates’ Society. He is most passionate, though, about speaking with equity-seeking groups, including the Black Law Students Association of Canada, the Indigenous Bar Association, the Federation of Asian Canadian Lawyers, and the Canadian Hispanic Bar Association.

A light lunch will be served at 12:00pm in the Centre Lounge, 2nd floor of the Canadiana Gallery. 

Please note that the location does not have a working elevator. If you are a person with a disability and require accommodation, please contact us at crimsl.communications@utoronto.ca and we will do our best to make appropriate arrangements.