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Legal scholars have long discussed the Supreme Court of Canada’s (”the Court”) erasure of race in its Charter jurisprudence. The lack of recognition is particularly noticeable in the Court’s jurisprudence on policing. It is well-established that African-Canadians and Indigenous people are disproportionately detained, arrested and charged by police, and thereby overrepresented in the criminal process. Criminologists and legal scholars largely agree that biased policing is one of the primary conduits through which Black, Indigenous and other racialized bodies are funnelled into the criminal justice system. Despite this fact, the Court has only ever marginally engaged in a race-based analysis of the Charter rights that are engaged by police encounters. In R. v. Le, the Court may have potentially lifted the judicial embargo on the discussion of race and biased policing; and, in so doing made a significant and much needed, contribution to critical race Charter litigation. The precedential impact of Le is challenging to predict, but there is reason to hope that Le will provide a veritable roadmap for lawyers who are seeking to mobilize race in the detention analysis under s. 9 of the Charter.
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"The Comprehensive Guide to Legal Research, Writing & Analysis focuses on developing the required competencies emphasized by the Federation of Law Societies in legal research, writing, and analysis and using those skills in both law school and professional environments."-- Provided by publisher
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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.
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The Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (the ‘Malabo Protocol’) does not include a provision defining which defences will be applicable before the African Court of Justice and Human Rights (‘the African Court’). This chapter has the task of examining the existing body of international criminal law to see what guidance the African Court may take with respect to which defences have been recognized and which have been explicitly rejected, how recognized defences have been defined, and what questions have arisen or may arise with respect to these defences.
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