Introduction
The Supreme Court of Canada’s decision in Baker, 25 years ago, was foundational in forging the basis for procedural fairness arguments with a bias component.1 Despite this case being of a Black disabled single mother dealing with some explicitly biased reasons for decision in the immigration context, the Supreme Court of Canada neglected to mention race, gender, or their intersectionality in this decision, only stating that the standards for reasonable apprehension of bias (“RAB”) can vary and that Canada is a diverse nation.2 The RAB test merely states that this apprehension may be raised where a reasonable, informed person would perceive more likely than not that the decision-maker would decide the issue unfairly. The “reasonable person” standard stated simply as such is problematic given whiteness being the unstated, dominant norm of the reasonable person, when viewed through a critical race theory (“CRT”) lens. As noted by critical race feminism theorists Trina Grillo and Stephanie Wildman, being the norm allows White individuals in power to not perceive racial bias when it exists.3 If we do not name the problem of bias as being racial bias specifically when race is involved, we thus cannot recognize the operation of systemic racial bias in immigration decisions. Applying CRT to the RAB test at the judicial review stage can allow the judiciary to recognize the operation of systemic oppression that underpins decisions by using an intersectional critical race feminist framework in cases involving subtle biases that one could miss through a gap of privilege if one is not from those marginal identities oneself. It is key distill CRT into a synthesized, usable framework to do this which is the focus of my current masters’ research. In this article, I will apply such a framework in the RAB analysis in Baker to make explicit the intersectional biases Ms. Baker faced to illustrate the utility of this framework for use in future RAB decisions.
Analytical Framework
A full review of CRT literature is outside of the scope of this article, but I present the synthesized framework here. The main theoretical tenets of CRT concern the nature of racism as an ordinary, daily experience, the notion that society privileges White people over racialized individuals, and the social construction of race.4 I now review the three camps of CRT that form my synthesized framework for analysis: genealogy, intersectionality, and materialism.
In the genealogical camp, Daniel SolĂłrzano and Tara Yosso describe that society prescribes to a “majoritarian story,” which “distorts and silences the experiences of people of colour.”5 In relation to the law, CRT storytelling aims to subvert white privilege by recapturing the excluded perspectives of racialized minorities that are ignored by the law’s silence on race.6 Utilizing Foucault’s genealogical method, CRT theorists can apply the genealogical discourse analysis tools of “reversal, marginality, discontinuity, materiality, and specificity” (derived from Michel Foucault and Friedrich Nietszche)7 from a CRT lens in their storytelling.
The intersectional camp of CRT not only refers to race but also analyzes the intersecting impact of class, sexuality, ability, gender identity, sexual orientation, nationality, and religion with race to see how their intersection produce domination and subordination.8 There are more unstated complex factors at play in the stories and experiences of racialized women in their interaction with immigration law that would be missed in the “majoritarian story” of Whiteness. Crenshaw has noted that immigrant women facing domestic violence face additional barriers beyond just gendered violence – they fear deportation, they have limited access to social services, they face language barriers.9 Informed by critical race feminism and ableism, Alyssa Clutterback analyzed Baker.10
Richard Delgado explains that the materialist camp of CRT focuses on how society allocates privilege and status with racial underpinnings.11 David Stovall explains that notions of “Whiteness as property,”12 which focus on how the privileged and marginalized positions in the economic and social hierarchy, are underpinned by racial ideology.13 “Property” in this theoretical conception is common assumptions of race operating on the economic and social level,14 including the operation of white privilege.15 Also, Derrick Bell conceptualized interest convergence theory,16 which is grounded on the notions that racialized interests in achieving equality are only granted success when they converge with the interests of White policy-makers only up to the point that it does not threaten White superiority.17
The reasons in Baker
I will be applying the CRT framework from the point of view of a decision maker deciding if the RAB test has been met to the following immigration officer reasons from Baker:
PC is unemployed - on Welfare. No income shown - no assets. Has four Cdn.-born children- four other children in Jamaica- HAS A TOTAL OF EIGHT CHILDREN
Says only two children are in her “direct custody.” (No info on who has ghe [sic] other two).
There is nothing for her in Jamaica - hasn’t been there in a long time - no longer close to her children there - no jobs there - she has no skills other than as a domestic - children would suffer - can’t take them with her and can’t leave them with anyone here. Says has suffered from a mental disorder since ’81 - is now an outpatient and is improving. If sent back will have a relapse.
Letter from Children’s Aid - they say PC has been diagnosed as a paranoid schizophrenic. - children would suffer if returned -
Letter of Aug. ’93 from psychiatrist from Ont. Govn’t.
Says PC had post-partum psychosis and had a brief episode of psychosis in Jam [sic]. when was 25 yrs. old. Is now an out-patient and is doing relatively well - deportation would be an extremely stressful experience.
Lawyer says PS [sic] is sole caregiver and single parent of two Cdn born children. Pc’s mental condition would suffer a setback if she is deported etc.
This case is a catastrophy [sic]. It is also an indictment of our “system” that the client came as a visitor in Aug. ’81, was not ordered deported until Dec. ’92 and in APRIL ’94 IS STILL HERE!
The PC is a paranoid schizophrenic and on welfare. She has no qualifications other than as a domestic. She has FOUR CHILDREN IN JAMAICA AND ANOTHER FOUR BORN HERE. She will, of course, be a tremendous strain on our social welfare systems for (probably) the rest of her life. There are no H&C factors other than her FOUR CANADIAN-BORN CHILDREN. Do we let her stay because of that? I am of the opinion that Canada can no longer afford this type of generosity. However, because of the circumstances involved, there is a potential for adverse publicity. I recommend refusal but you may wish to clear this with someone at Region.
Capitalization in original
Application to RAB test to Baker
Genealogy
To start off, I apply the genealogical discourse analysis tools of “reversal, marginality, discontinuity, materiality, and specificity” (derived from Michel Foucault and Friedrich Nietszche)18 from a critical race feminist lens to Ms. Baker’s case in applying the RAB test to reveal what the actual biases at play are. Reversal allows us to see the social construction of race, gender, and intersectional relations and related privilege and disadvantage that underpin Ms. Baker’s case, such as the officer focusing silently on her Jamaican nationality by stating that she is not deserving of Canada’s generosity and the officer silently finding her to have disrupted dominant gender norms of having left four adult children behind in Jamaica and then having four more children in Canada. We can also see the social norms constructed around class, with the officer attaching negative connotations to her only having worked as a “domestic” and been on “welfare” to conclude that she would be a “tremendous strain” on hardworking Canadian taxpayers.
Marginality enables us to bring Ms. Baker’s race, gender, disability, class, and migrant status to the center of the analysis. The officer relies negatively on Ms. Baker being “paranoid schizophrenic” working as a “domestic” on “welfare” with “FOUR CHILDREN” in Canada as a single mother migrating from Jamaica to conclude that “Canada can no longer afford this type of generosity.” Unpacking this brings Ms. Baker’s marginal identities as a Black single mother with a disability living in poverty to the forefront as the source of the officer’s bias.
Discontinuity reveals the shortcomings in judicial application of the existing reasonable apprehension of bias test in this case which I have already addressed earlier by pointing out the majority’s silence on Ms. Baker’s identities as the source of bias. Materiality makes visible the dominance and subordination of race, gender, and the intersections of various marginal identities that underpin Ms. Baker’s case. Ms. Baker’s factors which served to meet the extraordinary hardship and best interests of children components of the H&C (humanitarian and compassionate) test were devalued because of her position as a Black single mother with a disability on welfare (with connotations that she simply gave birth to four children in Canada to get welfare and immigration status) which are subordinate positions in society versus if she were a White able-bodied married mother with Canadian-born children who was out of status but working. Lastly, specificity allows us to focus on how to situate case-specific, individual factors in the reasonable apprehension of bias test which I have done above by noting Ms. Baker’s marginal identities as the source of bias in this case with reference to the actual words used by the officer.
As this demonstrates, applying CRT genealogy to the RAB test allows decision-makers to look into the specific words and the context behind the words used that reveal truly what type of biases need to be named in a finding of reasonable apprehension of bias.
Intersectionality
In Ms. Baker’s case, simply focusing on race alone or gender alone does not accurately depict the bias she faced. The immigration officer specifically had a lack of open mind to Ms. Baker’s H&C considerations because she was a Black disabled single mother living on welfare, utilizing the unstated stereotypes of unmarried Black mothers as simply having children to obtain social benefits and being undeserving. Ms. Baker’s vulnerabilities placed her in a particularly oppressed position structurally in society given the interaction of her race, gender, disability and class in dominant society where privilege is placed on Whiteness, maleness, and ablebodiedness as being the unstated ideal features of the Canadian hardworking taxpayer. This is akin to Fiona Sampson’s article about the devaluation of women with disability within society, due to unstated assumptions of a link between dependency and culpability, the replacement of citizenship with consumerism, and the view that disabled women do not meet the ideal worker norm of an able-bodied male.19
This shows that intersectionality is a key consideration when a decision-maker applies the RAB test. Human rights tribunal jurisprudence has also applied and accepted intersectionality as a concept in discrimination cases, and it follows to recognize the utility of this concept in detecting how bias operates when applying the RAB test.
Materialism
In Ms. Baker’s case, she clearly has a disempowered relationship to the law and economy due to her racialization, gender, single mother status, migration status, disability, and class. Biased by these factors, the officer states that “Canada can no longer afford this type of generosity.” This is because Ms. Baker does not possess any of the empowering notions of “Property” due to her marginal identities. Cheryl Harris described whiteness as a form of property protected by American law with race providing a basis for allocating societal benefits.20 This is exactly what is at play in the officer’s source of bias – Ms. Baker’s lack of whiteness and maleness as property led to her being seen as undeserving of allocation of citizenship status.
Applying interest convergence theory to Ms. Baker’s case, the officer’s reasons were so clearly egregious on their face that all interests align for the Supreme Court of Canada to find that his reasons were biased, but this is only done to the extent that it does not threaten White superiority. By not unpacking exactly what the sources of the officer’s bias were (race, gender, disability, migrant status, class, and their intersections), systemic oppression and gendered racism are allowed to continue as the status quo.
Materialism offers a very interesting perspective in applying the RAB test – forcing the decision-maker to confront their own privilege and accountable to oneself to ensure that they are not engaging in mere interest convergence, as well as to see the intersections of class-related bias and economic power dynamics at play in cases of reasonable apprehension of bias. This is integral to reflect on when applying the RAB test to ensure true access to justice for all. We need to name the problem to tackle it.
Expansion of RAB test proposed
Baker was an incredibly ground-breaking decision in the realm of reasonable apprehension of bias and procedural fairness, but it dealt with a very obvious and egregious set of facts. The majority of bias on the ground is not so explicit, yet still would fall under the purview of the RAB test. To be able to expand the RAB analysis to capture these more subtle biases that still fall under the purview of the test, we must name the biases we see in all cases. I have used genealogical methods of reversal, marginality, discontinuity, materiality, and specificity informed by an intersectional critical race feminism theoretical framework inclusive of race, gender, disability and class to apply the reasonable apprehension of bias test in my concurring reasons in Ms. Baker’s case. Doing so has allowed me to make visible the sources of bias in the immigration officer’s decision and how they relate to the systemic power dynamics in society, allowing me to expand the reasonable apprehension of bias test.
Race, gender, class and disability – and their intersections – were at play in Ms. Baker’s case contributing to a reasonable apprehension of bias with the officer having used the words “paranoid schizophrenic,” “tremendous strain,” “FOUR CHILDREN IN JAMAICA AND OTHER FOUR BORN HERE,” “on welfare,” “a domestic,” and “Canada can no longer afford this type of generosity” to deny her claim (and the associated unstated negative stereotypes underlying those words).
The reasonable apprehension of bias test as it stands states that a reasonable apprehension of bias is met where a reasonable, informed person would perceive more likely than not that the decision-maker would decide the issue unfairly. By undertaking the above analysis, I add to this a third component that this reasonable person is a fair-minded person who is informed of the larger historic and social context of race, gender, religion, sexual orientation, class, disability and intersections of marginal identities situated in the structural power relations of society impacting historically and systemically marginalized groups. This addition would also suggest using the above noted synthesized CRT framework in applying this third part of the test. Stating the test as such will allow justices to turn their mind to these factors when assessing bias while applying the intersectional critical race feminism framework I have outlined. This will prevent falling into gaps of knowledge due to privilege and lack of lived experience that could allow systemic oppression to go unchecked.
Sania Chaudhry is a labour, employment and human rights lawyer with Forte Law.
End Notes
1 Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 187 [Baker].
3 Trina Grillo & Stephanie M Wildman, "Obscuring the Importance of Race" in Adrien Katherine Wing, ed, Critical Race Feminism: A Reader (New York: New York University Press 1997) 34 at 48-49.
4 Richard Delgado and Jean Stefancic, Critical Race Theory (New York: New York University Press, 2001) at 7 [Delgado & Stefancic, “Critical Race Theory”]; See e.g. Robert S Chang, “Critiquing ‘Race’ and Its Uses: Critical Race Theory’s Uncompleted Argument” in Francisco Valdes, Jerome McCristal Culp, & Angela P Harris, eds, Crossroads, Directions, and a New Critical Race Theory (Philadelphia, Temple University Press, 2002) 87 at 87-88; Trina Grillo, “Anti-Essentialism and Intersectionality: Tools to Dismantle the Master’s House” (1995) 10 Berkeley Women’s LJ 16 at 25.
5 Daniel SolĂłrzano & Tara Yosso, “Critical Race Methodology: Counter-Storytelling as an Analytical Framework for Education Research” (2002) 8 Qualitative Inquiry 23 at 29 [SolĂłrzano & Yosso].
6 Richard Delgado & Jean Stefancic, “Critical Race Theory: Past, Present, and Future” (1998) 51:1 Curr Legal Probs 475 at 484 [Delgado & Stefancic, “Past, Present, and Future”].
7 Richard A Jones, “Philosophical Methodologies of Critical Race Theory” (20 August 2019), online (blog).
8 Delgado & Stefancic, “Critical Race Theory”, supra note 8 at 51; See also KimberlĂ© W Crenshaw, et al., Critical Race Theory: The Key Writings that Formed the Movement (New York: The New Press, 1995).
9 Crenshaw, “Mapping the Margins”, supra note 14 at 1246-1249.
10 Alyssa Clutterback, “Rethinking Baker: A Critical Race Feminist Theory Of Disability” (2015) 20 Appeal 51 [Clutterback].
11 Richard Delgado, “Two ways to think about race: Reflections on the id, the ego, and other reformist theories of equal protection” (2001) 89 Geo LJ 2279 at 2280 [Delgado, “Reflections”]; Richard Delgado, “Crossroads and blind alleys: A critical examination of recent writing about race” (2003) 82 Tex L Rev 121 at 123 [Delgado, “Crossroads”].
12 David Stovall, “Forging community in race and class: critical race theory and the quest for social justice in education” (2006) 9 Race Ethnicity and Education 3 at 243-259.
16 Derrick Bell, “Brown v Board Education and the interest convergence principle” (1980) 93 Har L Rev 518 at 518-533.
17 Derrick Bell, Silent covenants: Brown v Board of Education and the unfulfilled hopes for racial reform (New York: Oxford University Press, 2004) at 69.
18 Richard A Jones, “Philosophical Methodologies of Critical Race Theory” (20 August 2019), online (blog).
19 Fiona Sampson, “Globalization and the Inequality of Women with Disabilities” (2003) 2 JL & Equality 17 [Sampson].
20 Cheryl Harris, “Whiteness as Property” (1998) 106:8 Harv L Rev 1709.