Race and Erasure in R. v. MannCriminal Reports (6th) (2004)
All judicial decisions tell a story by identifying the relevant facts, legal issues, and values at play in a given case. As Robert Cover has famously observed, all law takes its meaning from the narratives in which it is embedded.But as we have learned from feminist and critical race scholarship, unavoidable though such narratives might be, they have the inherent feature of privileging certain stories and meanings while excluding or marginalizing others. This article will look at the erasure of a story in the Supreme Court of Canada's recent decision in Mann-- an account that should shape our understanding of investigative detentions: the story of race. Specifically, I will suggest that the Court's analysis might have been quite different had it addressed the substantial racial dimensions of investigative detentions. I propose three possible impacts: the Court might have (a) concluded, applying the Waterfield test, that the common law does not support such a power; (b) found that the power should be withheld or limited on the basis of a direct application of Charter values; or (c) decided to closely circumscribe the power by answering some important ancillary questions raised by the legal sanction of investigative detentions.
Citation InformationBenjamin L Berger. "Race and Erasure in R. v. Mann" Criminal Reports (6th) Vol. 21 (2004) p. 58 - 64
Available at: http://works.bepress.com/benjamin_berger/90/