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David M Tanovich, 2016 CanLIIDocs 4601

Racial bias likely played a role in the Gerald Stanley case. This article explains how racial dynamics and process failures enabled systemic racism to play a part in Stanley’s acquittal.

Until recently, the issue of police deception in testifying has received very little attention in Canada. The issue has received significantly more attention over the last few years in light of a number of cases, almost all involving Black or racialized accused, where judges have concluded that the evidence of the police was either an outright lie, deliberately misleading or was tailored. This article chronicles the cases from 2011-2013 and offers a number of suggestions for greater judicial and prosecutorial regulation.

There is much to learn from the trial of Saskatchewan farmer Gerald Stanley on the dangers of not directly confronting the potential impact of racial bias on the trial process. Stanley was acquitted in February 2018 by an all-White jury in the shooting death of 22-year-old Cree man Colten Boushie. The law gives us tools to safeguard trials from racial bias that we shouldn’t ignore. One of these tools is the law of evidence.The law of evidence is a set of rules aimed at regulating the admissibility and use of evidence, in order to fairly promote the search for truth. It recognizes that judges and jurors bring to court every day assumptions about human experience and behaviour that are grounded in unreliable, stereotypical or discriminatory assumptions. That is precisely why it gives judges a discretion to exclude evidence where its prejudicial effect outweighs its relevance or probative value. And why we have rules, for example, that make prior sexual history evidence in sexual assault cases or evidence that paints an accused in a negative light (bad character evidence) presumptively inadmissible.Unfortunately, despite the fact that Indigenous, Black and Brown lived experiences are disproportionately before courts consisting of largely White jurors or judges, we have failed to ensure that our rules of evidence protect against racial bias in the same way that they do against other types of unreliable and discriminatory generalizations. The Stanley trial is a stark reminder of this reality.This short piece examines the Stanley trial and how the law of evidence can incorporate systemic racism as a lens to address issues of admissibility.

In R v Mann 2004 SCC 52, the Supreme Court of Canada set out an approach to investigative detentions under sections 8 and 9 of the Charter. The Court held that the police can conduct an investigative detention where they have reasonable suspicion to connect the individual to a recent or ongoing crime. The Court also held that the police can conduct a pat-down where they have reasonable grounds to believe that the person is armed. The Court's attempt to regulate these low-visibility encounters was important. However, it missed a critical piece of the story. Like so many of those subjected to investigative detentions in Canada, Mann was Aboriginal. The case provided the Court with an opportunity to explore the relationship between race and race-based suspect descriptions and race and detention under the Charter. This piece attempts to fill in for what is missing from the Supreme Court's analysis and also highlights why it is essential for race and systemic racism to be factored in when thinking about the reasonable suspicion threshold that justifies investigative detentions.

In the landmark Canadian racial profiling case of R v Brown, an unanimous Ontario Court of Appeal firmly recognized that racial profiling is a reality that is “supported by significant social science research.”

It is not uncommon in drug importation trials or other cases involving financial gain for the Crown to introduce evidence of the accused's general financial circumstances and then ask the jury to engage in inductive reasoning - to use their common sense to draw the inference that the accused had a motive to commit the offence because he or she was poor. This is what occurred in R v Mensah (2003) 9 Criminal Reports (6th) 339.This case comment explores the dangers of using common sense and experience to guide relevance assessments and why social context evidence is necessary in order to increase the likelihood that informed and reasonable inferences will be drawn from the evidence.

Law students are the future of the legal profession. How well prepared are they when they leave law school to assume the professional and ethical obligations that they owe themselves, the profession and the public? This question has led to a growing interest in Canada in the teaching of legal ethics. It is also led to a greater emphasis on the development of clinical and experiential learning as exemplified in the scholarship and teaching of Professor Rose Voyvodic. Less attention, however, has been placed on identifying the general ethical responsibilities of law students when not working in a clinic or other legal context. This can be seen in the presence of very few Canadian articles exploring the issue, and more significantly, in the paucity of law school discipline policies or codes of conduct that set out the professional obligations owed by law students. This article develops an idea that Professor Voyvodic and I talked about on a number of occasions. It argues that all law schools should have a code of conduct which is separate and distinct from their general University code and which resembles, with appropriate modifications, the relevant set of rules of professional responsibility law students will be bound by when called to the Bar. A student code of conduct which educates law students about their professional obligations is an important step in deterring such conduct while in law school and preparing students for ethical practice. The idea of a law school code of professional responsibility raises a number of questions. Why is it necessary for law schools to have their own student code of conduct? The article provides a threefold response. First, law students are members of the legal profession and a code of conduct should reflect this. Second, it must be relevant and comprehensive in order to ensure that it can inspire students to be ethical lawyers. And, third, as a practical matter, the last few years have witnessed a number of incidents at law schools that raise serious issues about the professionalism of law students. They include, for example, the UofT marks scandal, the Windsor first year blog and the proliferation of blogs with gratuitous, defamatory and offensive entries. It is not clear that all of this conduct would be caught by University codes of conduct which often limit their reach to on campus behaviour or University sanctioned events. What should a law school code of professional responsibility look like and what ethical responsibilities should it identify? For example, should there be a mandatory pro bono obligation on students or a duty to report misconduct. The last part of the article addresses this question by setting out a model code of professional responsibility for law students.

In R v Borde (2003), 8 Criminal Reports (6th) 203 (Ont CA), the Ontario Court of Appeal recognized that anti-Black racism could be taken into account in sentencing in applying section 718.2(e) of the Criminal Code, otherwise known as the Gladue provision for sentencing Aboriginal offenders.In R v Hamilton (2004) 22 Criminal Reports (6th) 1 (Ont CA), the same court restricted Borde to cases where there is evidence of a casual link between racism and the commission of the offence.This comment is critical of the decision and its failure to recognize the relevance of anti-Black racism in the "war on drugs" and the relevance of race and general deterrence in thinking about sentencing. These are arguments that are relevant today and could be used to distinguish Hamilton if an appropriate case ever got to the Supreme Court of Canada. In this case, the trial judge raised the issue of gender and racial bias and gave the parties an opportunity to address their relevance to the sentencing of the two Black female accused. The Court of Appeal was critical of the trial judge's intervention. This too was unfortunate given the general reluctance of lawyers to raise these issues.

There has been very little critical and feminist commentary in Canada on the admissibility of prior sexual misconduct evidence as similar fact evidence in sexual assault cases. The lack of critical attention to this area of evidence law is surprising given that the similar fact evidence rule, like other rules of evidence, serves as a site for gender, race, and sexual orientation bias.

In 1988, defence lawyers in Ottawa were instructed to “whack” the complainant in sexual assault cases. These were their marching orders:

Every week in Canada, a woman is killed by a current or former intimate partner. It is a serious systemic problem. To put it in perspective, the number of women killed by their intimate partners in 2011 was roughly comparable to the number of gang-related homicides. Many, if not most, of these cases involve intimate femicide, a term used to give effect to the gendered nature of the crime. R v. Angelis (2013) 99 CR (6th) 315 (Ont CA) appears to have been a case of intimate femicide. Unfortunately, the Court of Appeal did not construct the case in this fashion and, in ordering a new trial, failed to properly assess the relevance of the accused’s post-offense conduct on the critical issue of intent.