Reasonableness, racism and the articulation of bias.

• Main Author: Wright, Nicola Yvette.
• Other Authors: Sheehy, Elizabeth
• Format: Others
• Published: University of Ottawa (Canada) 2009
• Subjects: Law.
• Online Access: http://hdl.handle.net/10393/9613; http://dx.doi.org/10.20381/ruor-7881

One of the ways in which our legal system maintains legitimacy is through its claim to objectivity. Every element in the decision-making process is alleged to be neutral and free of bias. Judges are seen to dispense justice based on the facts and reason, without influence by extraneous factors. The process itself, if it can be seen to operate independently of the people who administer justice, also lays claim to impartiality and neutrality. One of the mechanisms used in the common law to sustain the perception of neutrality is the objective standard as embodied by the fictional Reasonable Man. In this paper I attempt a critique of the Reasonable Man and the concept of reasonableness as it is used in criminal law to show how such standards, when they remain unarticulated can allow bias to infiltrate the decision-making process unnoticed by those making the decisions. I have used police shootings of black men as a context in which to show that racist stereotypes about black men can creep into decisions that on the surface appear race-neutral. I have proposed a possible solution in which triers of fact would acknowledge racist elements so that they can be addressed directly rather than being left to hover overhead and influence the decision-making process unrecognized. In this way, I feel that decisions, by being race-conscious, will be fairer than those that officially ignore bias, but actually let it slip in through the back door.