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One consistent and disturbing trend since the birth of the Charter in 1982 is that race has been and continues to be, with a few notable exceptions, erased from the factual narratives presented to the Supreme Court of Canada and from the constitutional legal rules established by the Court in criminal procedure cases. Understanding the etiology of this erasing is not easy. In earlier pieces, the author has explored the role of trial and appellate lawyers. This paper focuses on principles of judicial review and the failure of the Supreme Court to consistently consider the impact of the constitutional rules it creates or interprets on Aboriginal and racialized communities. What makes the silence so problematic is that the Supreme Court gave itself the tool in 2001 to address part of the identified problem when it established an anti-racism principle of Charter interpretation in R. v. Golden, [2001] 3 S.C.R. 369. This paper seeks to address a number of questions focused on the legacy of Golden. What is the origin and content of the Golden principle of judicial review? What is the evidence from subsequent cases and academic commentary that this is indeed an accepted principle of constitutional interpretation? What cases from the 2007 Supreme Court term would have benefited from a critical race analysis? And, in particular, how would factoring in Golden have impacted the Court's analysis in R. v. Clayton, 2007 SCC 32? And finally, how should the Golden principle be applied in future cases?

Despite a very sophisticated and rich jurisprudence on racial profiling, there are very few criminal cases in Canada where the issue has been litigated. This is as true today in 2016 as it was in 2006 when I wrote this article examining cases from 2003-2006. This piece from 2006 explores why there is such litigation silence. It also develops arguments about how race and systemic racism are relevant in thinking about the meaning of detention under section 9 of the Charter and in the interpretation of behaviour that the police often believe gives rise to the necessary reasonable suspicion to conduct an investigative detention. Finally, the piece identifies the relevance of the failure of the police to collect race data on street interactions in thinking about admissibility under section 24(2) of the Charter.

Racial profiling remains a serious and systemic problem in Canada. In 2004, I wrote this article addressing the naysayers - those who denied the systemic existence of the problem - as well as to identify a number of policy and law reform recommendations for addressing the problem. Even though the article is well over a decade old, the recommendations remain relevant today. They include mandatory data collection and anti-racial profiling legislation. I also set out a number of law reform recommendations including:

When can a trier of fact take into account the absence of a complainant's motive to lie in assessing credibility in sexual assault cases. How much weight can be attributed to that absence? Resolution of these questions has led to a surprisingly sizable number of appellate cases. R v Gerrard 2022 SCC 13 is now the leading case on the issue. It confirms somewhat cryptically that the absence of evidence of a motive to fabricate can be considered in assessing credibility. Clarity on the issue is still needed. In particular, what consitutes "proved absence" and/or evidence of an absence of motive. This piece argues that courts need to start afresh. If we better understand what courts are trying to get at by referencing the issue of motive as being "proved"and, we apply the everyday rules of evidence, we can escape from this confusing trap of trying to fit the issue into a particular box. When the cases talk about proved absence (or presence) of motive, the phrase should be interpreted to mean that there is a sufficient and compelling evidentiary basis or foundation to allow for the conclusion or inference to be drawn. After setting out how the ordinary rules of evidence and policy support this principled approach to the issue, the article offers some model instructions on the issue.

Recently in Canada, there have been a number of high profile wrongful convictions involving individuals who plead guilty. These cases raise the thorny issue of the ethics of pleading guilty a client who maintains their innocence. There is very little guidance from the case law or rules of professional conduct.This is an issue that needs attention. In 2004, the Supreme Court of Canada released a decision (R v Taillefer) regarding an accused's common law right to disclosure and setting out the essential elements of a valid guilty plea. Although not directly raised, the case was also about a co-accused who pleaded guilty despite maintaining his innocence to his lawyer. This short case comment identifies some of the relevant Canadian sources on this ethical issue which all seem to suggest that it is, in fact, unethical to plead guilty a client in these circumstances.

This article examines the impact of the Canadian Charter of Rights and Freedoms on systemic racism in the criminal justice system in Canada. The article's thesis is that while there is reason to be optimistic about the possibilities of future reform, the Charter has, to date, had very little impact on racial injustice in Canada. We continue to incarcerate Aboriginals and African Canadians at alarming rates, racial profiling at our borders and in our streets continues to flourish, and the federal government continues to pass legislation that will further entrench the problem. Of course, some might say that it is simply naive to think that a constitutional document can make a difference and so Part II (Part I is the Introduction) briefly addresses this larger philosophical question. In Part III, the article explores why it is not the Charter that is the problem, but rather those who apply and interpret it. Racial justice has not had a chance to grow over the last 25 years because there has been a significant failure of trial and appellate lawyers to engage in race talk in the courts and a failure of the judiciary to adopt appropriate critical race standards when invited to do so.

The law of entrapment has received very little scholarly attention in Canada despite the fact that its reliance on branding neighbourhoods and other locations as "high crime areas" and its low visibility encounters serve to engender discriminatory policing. This article relies on recent Charter decisions in other contexts to argue that an anti-racist lens is now required as part of the assessment of the bona fides of the investigation branch of the entrapment test from R v Barnes.

This is one of the first articles written in Canada on racial profiling and policing. While dated, the piece set out standards that can be used to prove racial profiling and recommended enhanced Charter standards to facilitate adjudication. As noted in the Introduction:

There is a growing disconnect and alienation between lawyers and the legal profession in Canada. The etiology of this discontent is complex. One cause, which is the focus of the paper is philosophical in nature. It concerns the role morality of the profession and what I posit is a disconnect between the role lawyers want to pursue (i.e. a facilitator of justice) and the role that they perceive the profession demands they play (i.e. a hired gun). In my opinion, this perception is a mistaken one. Given the paucity of Canadian research and reflection on ethics and professionalism, we have created an ethic of lawyering that finds expression in American stories, fears and academic criticisms. I argue in the paper that over the last 15 years, we have been engaged in a process of role morality reconstruction. Under this reconstructed institutional role, lawyers are problem-solvers whose mandate is to seek justice not only for their client but also for the broader legal, social and political system within which they operate. In other words, I contend that an ethic of client-centered zealous advocacy has slowly begun to be replaced with a justice-seeking ethic that seeks to give effect to law's ambition. Part II of this article provides the basic foundations of my reconstruction thesis. In the first section of Part II, I define role morality and defend it as the beacon of ethical reflection rather than jettisoning it in favour of an approach that relies on personal responsibility or morality. The next section attempts to trace the evolution of our understanding of the public interest. As the legal profession has always attempted to ground itself in the public interest, how the profession conceives of it will largely determine how it, and its members, should conduct themselves. The final section of Part II attempts to provide the evidence of this reconstructed role morality by exploring statements from leading members of the profession, recent ethics jurisprudence and by examining equality and harm prevention principles in our codes of conduct. Like any large bureaucratic institution, the profession will inevitably be slow to respond to its new identity and the changing set of norms and values that go with that identity. The required institutional changes are beyond the scope of the paper. However, Part III does address how lawyers can on an individual level give effect to this evolving role morality by adopting a pervasive justice-seeking ethic and by engaging in identity lawyering that is consistent with the interests of justice.

In the US, rap is frequently on trial, even in death penalty cases. It also appears to be a growing trend in England. And so, I began to study the issue in Canada. I was able to document thirty-six cases of attempts by the Canadian criminal justice system to put rap on trial in a recently published article “R v. Campbell: Rethinking the Admissibility of Rap Lyrics in Criminal Cases” (available on SSRN at http://ssrn.com/abstract=2730123). This Walrus piece provides a summary of some of the Canadian cases and explores how our criminal justice system should respond.

R v J(TR) once again raises the question of whether any inferences can be drawn from how a witness satisfies the moral competency requirement to testify and whether it is time to remove religion from the oath. This short comment critically assesses the cases where negative inferences have been drawn and recommends that the religious oath should be abolished.