Discursively Embedded Institutionalized Stigma in Canadian Judicial Decisions

Abstract

The aim of this research was to explore how the concept of harm is constituted in case law judicial decisions pertaining to the importation, production, possession, and trafficking of drugs in Canada using critical discourse analysis methodology. The research was designed to uncover taken-for-granted assumptions about drugs and associated harms. The data source for this study is judicial decisions. These are published texts where judge(s) summarize details about the factors considered, provide a reasoned interpretation of sentencing principles relevant to the judicial decision, and explain the rationale for their decision. Initially, codes were identified deductively, using words related to drugs and harm. Codes were added when incidents of moralization language were observed to be high. Moralization language was defined as “the usage of language cues referencing moral values”. The selection process resulted in n = 129 judicial decisions meeting the inclusion criteria. Discourse analysis was guided by four tools described by Gee’s study: the significance tool, the why this way and not that way tool, the connections tool, and the intertextuality tool. Emergent themes are: (1) trafficking as an immoral enterprise; (2) scourge to society, (3) fentanyl and harm, and (4) constructing gravity. This study uncovers discursive practices in many judicial decisions that convey the (re)production of institutionalized stigma. High reliance on legal tropes about drug harms, harm of trafficking, moral culpability associated with distribution of some drugs, by some people, in some ways, and a lack of contextual awareness of social inequities that influence the lives of Canadians perpetuates legal interpretations that support rationales for sentence predicated on denunciation and deterrence.