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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.

Until the Supreme Court of Canada decision in R v. Hart 2014 SCC 52, there was very little, if any, judicial regulation of the Mr. Big undercover investigative strategy. The Supreme Court approached the issue of admissibility using first principles to create a new exclusionary rule. By giving prominence to reliability as part of the probative value/prejudical effect analysis, the Court opened the door for assessing afresh the admissibility of other putatively unreliable evidence such as identification evidence.

Despite the growing reliance on the internet, electronic communications and social media evidence in adjudicative proceedings, there have been very few cases in Canada that have addressed a fundamental aspect of admissibility - authentication. This article explores the issue in the context of a case involving a photograph showing the offence and anonymously uploaded to the internet.

This chapter explores the more general and arguably distinct ethical obligations of those who practice criminal law either as defence lawyers or prosecutors. As you read this chapter, you should ask yourself whether you are satisfied with the justifications offered for the ethical rules that we have carved out for defence lawyers and prosecutors in this context and whether you think we have achieved the right balance. To assist you in thinking about the modern-day ethical roles of criminal lawyers, we begin with two historical cases, one from England and the other from Quebec, which frame the obligations in arguably extreme terms – defence lawyers justified in unbridled zealousness within the bounds of the law on the one hand, and the prosecutor as a “minister of justice” on the other. In reading the descriptions of the cases consider whether you think the duties of defence lawyers and prosecutors should be so different. What would justify that sort of difference? What common framing for the duties of defence lawyers and prosecutors might be available?

In the early morning hours of September 6, 2008, S.B., a twenty-seven-year old African Canadian, experienced the depths of depravity at the hands of five officers with the Ottawa Police Service. She was arrested unlawfully for effectively questioning why she had been stopped by the police, taken to the police station where she was assaulted and strip searched in the presence of a number of male officers, one of whom cut off her shirt and bra with a pair of scissors, and then left half-naked in a cell for over three hours. When she left the police station, she found herself charged with assaulting a police officer. The case was reviewed on a number of occasions by senior prosecutors who believed that the prosecution of S.B. was in the public interest. Two years after the incident, a trial judge stayed the charge concluding that it was a "travesty" and that what happened to her was an "indignity to a human being."

The Supreme Court of Canada decision in R v Brown is an important precedent on the issue of privacy, dog sniffers and the role of the courts in creating new police powers. This comment explores the Court's scrutiny of using drug courier profiles to screen individuals in the "war on drugs." This is significant part of the judgment because of the historical lack of judicial scrutiny of criminal profiling evidence with a few notable exceptions, its widespread use across Canada, its unreliability and the disproportionate impact of the drug courier profile on racialized communities in Canada.

Beverley McLachlin is the architect of a flexible, socially conscious and principled approach to evidence admissibility in Canada. Her jurisprudence has infused the law of evidence with tools that enable it to adapt to new situations, to be aware of and reflect concerns for systemic issues all with an eye to ensuring it can fulfill its regulatory purpose of facilitating justice. I call this the McLachlin principle. This chapter explores the foundations of that approach in two early McLachlin decisions: R v Khan; R v Seaboyer; and then, as Chief Justice, in Mitchell v MNR where she set out, for the first time in a Supreme Court decision, a theory of evidence admissibility. After examining this evidence trilogy, the chapter will consider the application of the McLachlin principle in the context of defence applications to limit cross-examination of an accused on their prior criminal record under R v Corbett. Section 12(1) of the Canada Evidence Act permits all witnesses, including an accused, to be cross-examined on their criminal record and our common law has, for the most part uncritically, accepted that a criminal record is relevant to a witness’s credibility and whether they are prepared to abide by their oath or affirmation. In Corbett, the Supreme Court of Canada upheld the constitutionality of section 12(1) by reading into the provision a judicial discretion to prohibit or limit cross-examination on a prior record. Corbett was decided in 1988 and since then we have become more aware of the existence and manifestations of systemic racism, particularly as it relates to Indigenous and Black communities and the criminal justice system. Chief Justice McLachlin recognized this social reality in both Sauvé v Canada (Chief Electoral Officer) and R v Williams. Despite this consciousness, little, if any, attention has been given in our trial and appellate courts to how social conditions and bias are relevant in thinking about admissibility under Corbett. Enter the McLachlin principle.The chapter examines how it can be used to impact Corbett applications and stimulate future consideration of how evidence law can adapt to better facilitate justice in cases involving Indigenous and racialized participants.

R v Campbell is one of the few cases in North America to exclude rap lyrics as evidence of guilt in criminal cases. Unlike in Canada, the issue of criminalizing rap has received considerable attention in the United States. This article begins by documenting the Canadian experience. It is a response to the call for research by two leading American scholars on the phenomenon of putting rap on trial, Professors Charis Kubrin and Erik Nielson. After documenting and discussing 36 Canadian cases, the article examines the Supreme Court of Canada decision in R v Simard and the two leading trial decisions R v Campbell and R v Williams. Generally speaking, the Canadian cases have failed to apply a culturally competent lens when assessing probative value and, to address the relevance of race and bias, when assessing prejudicial effect. The article urges our courts to put the rap back in rap by taking a culturally competent and critical race approach to admissibility.

Notwithstanding Pierre Trudeau's famous quote from 1967 that the "state has no business in the bedrooms of our nation", adults in Canada who engage in certain kinds of consensual sexual activity in private continue to face the stigma of criminalization and, in some cases, the very real possibility of imprisonment.This comment examines two such situations: (i) section 159 of the Criminal Code and anal intercourse; and (ii) the judicial nullification of consent in cases involving S/M and other sexual practices, like erotic asphyxiation, as evidenced most recently in the case of R. v. A.(J.) which is currently before the Supreme Court of Canada.

Justice Marc Rosenberg will be remembered as one of Canada’s greatest criminal law jurists by those fortunate enough to have worked with him, to have appeared before him, and now, by those who study and rely on his jurisprudence. He was a jurist who cared deeply about the fairness of the criminal justice system and he strived in every decision to arrive at a just result on the law and the facts. Many of Justice Rosenberg’s judgments reflect a concern for the constant struggle of triers of fact to accurately and fairly assess the credibility and reliability of evidence in determining historical events whether it be the testimony of the accused or central Crown witness. This piece explores three decisions from Justice Rosenberg which highlight the different ways in which stereotyping can distort the assessment of credibility and reliability in sexual assault cases: R v. Levert, R v. Rand and, R v. Stark.An important aspect of ensuring accuracy and fairness for Justice Rosenberg was the need to carefully regulate inductive reasoning: the engine that drives judicial reasoning and, ultimately, fact finding. The tools used for inductive reasoning include the decision maker’s or the law’s application of what it sees as common sense, logic and human experience. As an endeavour that explicitly relies on so-called common sense and generalizations about human experience, which shift with time, inductive reasoning can be highly subjective and can easily become a breeding ground for implicit bias, discriminatory stereotyping and unreliable decision-making.

The issue of racial profiling has finally begun to attract the attention of the Canadian media; courts; human rights commission; the Canadian Bar Association; and, the academy. The focus has been on racial profiling defined as the use of racialized stereotypes of the usual suspect as the basis for suspect selection. Less attention,however, has been given to cases where race forms part of the description of a suspect provided by the victim or witness. Through the use of narrative, the article examines how race-based suspect descriptions have been misused by the police in Canada. The narratives also reveal the devastating collateral damage when the police use race in any manner in suspect selection. This damage includes widespread harassment, intimidation, false arrests, violence, death, stigmatization and an engendering of mistrust. Given the misuse, the article recommends including suspect descriptions in the racial profiling prohibition where race is used as the dominant characteristic. After considering whether there should be a complete prohibition on using race in suspect descriptions, the article examines current constitutional standards to protect against misuse and proposes a new dominant feature constitutional test.