“It wasn’t that long ago in Canada when our justice system put a Black judge on trial for acquitting a Black boy of allegedly running his bike into an officer’s leg – her offence? Speaking truth to power by stating that sometimes police over-react when dealing with Black youth.” – Professor David Tanovich @dtanovich
In R v S. (R.D.), 1997 CanLII 324 (SCC), R.D.S. was a young person accused of assaulting a police officer. At trial, the testimonies of the police officer and the accused differed in material ways. The trial judge acquitted R.D.S. after trial. The case was appealed on the issue of whether there was a reasonable apprehension of bias.
At trial, R.D.S. testified that while riding his bike to his grandmother’s house, he saw his cousin being arrested by a police officer. R.D.S. tried to speak to his cousin. The police officer told him to “Shut up, shut up, or you’ll be under arrest too.” When R.D.S. continued to ask his cousin if he should call his mother, Constable Steinburg arrested R.D.S. and put him in a choke hold. R.D.S. stated that he could not breathe. R.D.S. denied running his bike into anyone or pushing the police officer.
In the course of the trial judge’s judgment, she commented that:
Justice Major writing for the dissent (Lamer C.J., Sopinka J., and Major J.) stated that the appeal should not be decided on questions of racism but instead on how courts decide cases. “A fair trial is one that is based on the law, the outcome of which is determined by the evidence… Did the trial judge here reach her decision on the evidence presented at the trial or did she rely on something else?”
Justice Major wrote that the judge’s statement “was stereotyping all police officers as liars and racists, and applied this stereotype to the police officer in the present case… Whether racism exists in our society is not the issue. The issue is whether there was evidence before the court upon which to base a finding that this particular police officer’s actions were motivated by racism. There was no evidence of this presented at trial.”
Justice Major continued that the life experience of a judge is an important ingredient to understand human behaviour and assess credibility. However, it has no value in reaching conclusions for which there is no evidence. “Life experience is not a substitute for evidence… In my opinion the comments of the trial judge fall into stereotyping the police officer… judges cannot judge credibility based on irrelevant witness characteristics.”
Justice L’Heureux-Dube and Justice McLachlin found the comments of the trial judge Justice Sparks to reflect an appropriate recognition of the facts in evidence in the case and the context of the case, which was well known to Justice Sparks and to any well-informed member of the community.
Justice L’Heureux-Dube and Justice McLachlin held that the test for a reasonable apprehension of bias is what would an informed person, viewing the matter realistically and practically, conclude? Would they think that it is more likely than not that the decision-maker, would not decide fairly? The reasonable person expects judges to consider matters with an open-mind, carefully, and dispassionately.
The reasonable person is informed and supports the fundamental principles of the Charter. They are aware of the history of disadvantaged groups in Canadian society. They are aware of the racial dynamics in the local community. Quoting Doherty J.A., Justice L’Heureux-Dube and Justice McLachlin highlight: “Racism, and in particular anti-black racism, is a part of our community’s psyche. A significant segment of our community holds overtly racist views…” Judicial notice of anti-black racism in our society may be taken. Justice La Forest and Gonthier concurred with the treatment of social context and the manner in which it may enter the decision-making process.
Justice Cory delivered the judgment of Cory and Iacobucci JJ. Justice Cory wrote that it is a fine line a judge must walk. On one hand, the judge can use common sense and wisdom gained from personal experience in judging credibility and demeanour. “On the other hand, the judge must avoid judging the credibility of the witness on the basis of generalizations or upon matters that were not in evidence.”
Justice Cory commented that “it must be emphasized that it is obviously not appropriate to allege bias against Judge Sparks simply because she is black and raised the prospect of racial discrimination.”
Justice Cory held that a high standard must be met before a finding of bias. True impartiality requires a judge to consider different points of view with an open mind. It does not require a judge to divest themselves of sympathies or opinions. However, “[i]f there is no evidence linking the generalization to the particular witness, these situations might leave the judge open to allegations of bias on the basis that the credibility of the individual witness was prejudged according to stereotypical generalizations.”
Justice Cory concluded that: “Although her comments, viewed in isolation, were unfortunate and unnecessary, a reasonable, informed person, aware of all the circumstances, would not conclude that they gave rise to a reasonable apprehension of bias.” The judgment of Justice Sparks was restored.
Were Justice Sparks comments truly that unfortunate as stated by Justice Cory? Would Justice Sparks be viewed the same way today?
In Judgmental Judges, Alice Woolley (now Justice Woolley) writes that:
… because of the blurred line between law, policy and morality, the centrality of judicial independence, and the unique ability of judges to speak to certain moral and political issues, we must not label every obitercomment by a judge as misconduct. Indeed, we must recognize that sometimes such comments are important and useful. They should be labeled as misconduct only where they interfere with the judge’s judicial role. Where, for example, they lead the judge to disregard the law, or to treat the parties with contempt.
In my opinion, Justice Sparks comments were appropriate and useful in explaining her reasons and reflecting the context of the case.
(Views are my own and do not reflect the views of any organization. This article was originally posted on slaw.ca)