Race on Trial

Race on Trial: Black Defendants in Ontario's Criminal Courts, 1858-1958

BARRINGTON WALKER
Copyright Date: 2010
Pages: 276
https://www.jstor.org/stable/10.3138/j.ctt2tv37s
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  • Book Info
    Race on Trial
    Book Description:

    This exploration of the complex and often contradictory web of racial attitudes and the values of white legal elites not only exposes how blackness was articulated in Canadian law but also offers a rare glimpse of black life as experienced in Canada's past.

    eISBN: 978-1-4426-6722-8
    Subjects: Law, History, Sociology

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Foreword THE OSGOODE SOCIETY FOR CANADIAN LEGAL HISTORY
    (pp. ix-x)
    R. Roy McMurtry and Jim Phillips

    In recent years legal historians have been increasingly interested in the social history of the law and in the law’s impact on, among many other social phenomena, race relations. This ground-breaking study investigates the relationship between Ontario’s Black community and the criminal courts from the mid-nineteenth to the mid-twentieth centuries. Using a sample comprised of capital-case files and the assize records for Kent and Essex counties, counties with relatively large Black populations because they were termini of the Underground Railroad, Barrington Walker investigates the ‘limits of freedom’ for Ontario’s African Canadians. He contrasts formal legal equality with pervasive patterns of...

  4. Acknowledgments
    (pp. xi-2)
    Barrington Walker
  5. Introduction
    (pp. 3-23)

    From the early nineteenth century until the post-Second World War era, Blacks in Canada lived in a state of paradox, caught between formal legal equality and deeply entrenched societal and economic inequality. Their experiences were shaped by the expression of ‘race’ in a racial liberal order which granted them full legal equality and the rights of citizenship but nonetheless legally supported racial discriminatory behaviour against them. Over this long period of time, Blacks faced a daunting number of barriers to full inclusion in Canadian society. They were effectively (while not legally) restricted to the lowest forms of menial wage labour,...

  6. 1 Blackness and the Law in Slavery and Freedom
    (pp. 24-44)

    These quotations, each from a formative period in Black history in Canada – the era of slavery and the Underground Railroad – tell two distinct, yet intertwined, stories of Blacks’ relationship with the law and how it changed over time. The first encapsulates the period prior to 1833 when Blacks in Canada were the legal property of Whites who could buy and sell them as they wished. During this period Black slaves were the property of their White owners whose rights were sanctioned (though not unequivocally) by the colonial state. The second quotation is emblematic of the challenges Blacks faced in the...

  7. 2 Nationhood, Mercy, and the Gallows
    (pp. 45-88)

    Death-penalty cases in Canada were stories not merely about punishment but also about selective mercy and discretionary justice: the power of the state was realized both through its ability to sanction violence and in its authority to spare life through mercy. This tension between mercy and punishment was heightened even more for dangerous outsiders, such as foreigners, Aboriginals, and Blacks. This chapter examines death-penalty cases involving Black defendants. The worrisome body of the Black male criminal was a site where the power of the Canadian state and where powerful aspects of Canadian identity itself could be realized. Black defendants simultaneously...

  8. 3 Black Patriarchy
    (pp. 89-115)

    Race and racialization remain important themes in this chapter, but the focus shifts slightly to Black social, gender, and familial history. In the process, I also consider the issue of Black patriarchy and how it was expressed in and through the law.

    This chapter owes a great debt to a generation of feminist scholars who have turned to legal sources to unpack the history of gender conflict through cases of family violence, spousal murder, and rape. Following in their footsteps, I study cases of family violence and spousal murder both for their value as sources of cultural and social history...

  9. 4 Tales of a ‘Peculiarly Horrible Description’: Archetypal Rape Narratives
    (pp. 116-140)

    The Black male rapist and his White female victim is an archetypal image of sexual danger. In reality, these cases were very rare. Indeed, one study found only one such case in York County, Ontario, between the 1880s and the 1930s.² Out of all the (non-property) cases mined for this book, only a small fraction – 5 out of 77 or 6.4 per cent – featured the rape, sexual assault, or sex murder of a White woman at the hands of a Black man. These cases are not statistically significant, but, because they embodied the archetype of sexual danger, they attained the...

  10. 5 Race, Sex, and the Power of Dominant Rape Narratives
    (pp. 141-182)

    The previous chapter looked at rape cases involving Black men and White women and argued that the courts’ response was shaped by the parameters of the law and the peculiar alchemy of racial stereotypes of Black men and the dangers they posed to White womanhood; these cases embodied the archetype of sexual danger. I will continue with that theme, but it is joined by others. This chapter examines cases of assault, robbery, and murder that in one form or another involved sexual contact – criminal or consensual – that crossed the colour line. The archetypal image of the particular sexual danger posed...

  11. Conclusion
    (pp. 183-186)

    When Blacks were on trial in Ontario’s criminal courts, race was on trial too. Black defendants tested the limits of freedom in post-slavery Canada. They experienced a social order that was far from the celebratory rhetoric of equality found in abolitionist broadsheets of the mid-nineteenth century, with their routine portrayal of euphoric ex-U.S. slaves kissing British soil as they crossed the border. This rhetoric has been emblematic of the Black experience in Canada, and has become a deeply embedded part of the national psyche. The myth is grounded in more than a kernel of truth, but, like all myths, it...

  12. Notes
    (pp. 187-230)
  13. Bibliography
    (pp. 231-244)
  14. Index
    (pp. 245-256)
  15. Back Matter
    (pp. 257-264)