“Re-thinking and Re-framing RDS: A Black Woman’s Perspective” by E.M.A. Thornhill
Often under-examined in Canadian legal scholarship, the notion of ‘race’ and the material reality of racism insidiously script outcomes and spawn legacies that continue to shore up Law as buttress, mediator and regulator of the Great White North!
Compelled to chart and pilot our lives maneuvering inside the ever-shifting interstices between ‘race’ and gender, Black Women in North America are intimately familiar with being perceived and treated as disruptors, as interlopers who are out of place. We remain acutely mindful that African-descended persons in Canada traditionally have been and are being construed still as disruptive of the country’s touted founding image— “a White man’s country”— that is, a nation based on British and French European-ness. Similarly, Black bodies in Canadian courtrooms continue to be viewed as disruptors, undermining, and threatening Law’s conventional function of policing and regulating the Great White North.
Black Women’s cognition of racism and racial discrimination is so deeply scored into our daily reality that the 1997 landmark case R. vs. RDS (RDS) resonates on multiple levels with us in familiar, disconcerting ways, unrelentingly pounding home the message that when it comes to Blackness, implicit bias and structural prejudice combine to make Law in Canada create rather than correct deficits.
This year’s 20th Anniversary of the Supreme Court of Canada’s ground-breaking RDS ruling on ‘race’ and racism, reinforced by two decades of hindsight and a lifetime of insight, make it especially timely and fitting to re-visit, re-focus, re–read and re-think RDS, using an Afrocentric critical race lens from a Black Woman’s perspective. Starting out as the criminal trial in Youth Court of an African Nova Scotian teenager on a bicycle, RDS quickly transmogrified into the presiding Black female trial judge herself being “arraigned,” “tried,” and “condemned” by the country’s legal, political, and social systems.
Today, the passage of 20 years should reflect some continuity in the march of progress such as new levels of awareness, increasing and shifting expectations, as well as ever-rising baselines. In addition, the lapse of two decades should also more readily allow and make legitimate space for much-needed Black contextualization. Such a coign of vantage, rooted in Black day-to-day existence will appropriately — even necessarily—- foreground the palpable material reality of the everyday racism that runs rife through RDS.
The historical and legal significances of RDS are undeniable. The case remains unsettling. But more important than the actual court case or judicial ruling itself are its aftermath and ongoing fall-out, replete with egregious acts of omission and commission, fuelled by entrenched racial animus. This critical examination of RDS, grounded in my own BlackWoman’s individual and communal raw experience, targets a three-pronged goal for empowerment:
- to expose the obfuscated historic role of complicity and duplicitythat Law and Canadian Legal Culture have played in the lives of Black people living in Canada;
- to articulate and validate in Law “Black culture, reality, perspectives, experiences and concerns.”
- to affirm the vital political act of Black people moving from“objecthood” to “subjecthood”, breaking silence and articulating in our own voices the physical and psychological material realityof everyday racism.
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Esmeralda M.A. Thornhill, Re-thinking and Re-framing RDS: A Black Woman’s Perspective, in Unsettling the Great White North: Black Canadian History. Edited by Michele A. Johnson and Funké Aladejebi. Toronto: University of Toronto Press, 2022.