Racism, Credibility, Reasoning Pitfalls, and why I need to spend less time on Twitter

I got into a Twitter spat last week. I noticed a lawyer calling out the Canadian judicial system for its apparent racial bias in a 1997 decision. I had a quick look at the case, and thought it was a weak claim. I tried to challenge the claim on Twitter, and met with a whole lot of resistance. I then realized Professor Tanovich – a respected law professor out of Ontario (and a subsequent article written in Slaw) made similar assertions. I asked for further clarification, and Chad Haggerty, a criminal lawyer (and ex-cop) was very helpful.

It’s an interesting case: R. v. S. (R.D.), 1997 CanLII 324 (SCC). A Black youngster was detained by police and charged with assaulting a police officer, among other things. The youngster’s testimony was that he was “nosy” but did not attack the officer. The officer, on the other hand, testified that the youngster rode his bike into him. In any event, the officer placed the youngster in a chokehold. The trial judge (in R. v. R.D.S., [1994] N.S.J. No. 629 – QuickLaw) acquitted, finding that there was reasonable doubt as to whether the youngster was guilty. Firstly, she found the youngster to be forthright. Second, she found that the officer had overreacted by overcharging and by using unnecessary force on the slight youngster. She also went on to note that racism was not uncommon in her community, and that police officers are known to overreact – particularly when dealing with racialized youth.

The Crown appealed the decision to the provincial superior court, indexed as R. v. R.D.S., [1995] N.S.J. No. 184 – QuickLaw. The appeal court ordered a retrial. The Court of Appeal (R. v. R.D.S., 1995 NSCA 201 (CanLII) upheld the appeal court’s decision – primarily on the basis of the judge’s comments appearing to show bias. Essentially, the judge was not being fair by generalizing from her understanding of common practice in that community to that particular officer – for whom there was no specific evidence of racism.

The Supreme Court of Canada reversed the decision however, restoring the acquittal. Cory, J. for the majority found that the judge’s comments were very “close to the line” but did not overcome the hurdle of showing judicial bias. The dissent agreed with the Court of Appeal. L’Heureux-Dubé (among others) wrote separate concurring reasons, agreeing with the result of the majority, but finding that the judge’s comments were not unfortunate or close to the line, and were sufficiently founded by the facts of the specific case.

I think Cory J. is technically right in the sense that the judge’s observation about general racism shouldn’t apply to this particular officer, given that there was no evidence of specific racism – although, one can argue that what was objectively excessive force could constitute this evidence, although the judge did not say this. However, given the excessive force used, her observations were probably correct – and even absent the controversial comments made – should not be considered problematic.

This case illustrates a weakness in our evidence laws. One is not entitled to argue that a witness is lying due to generalizations (i.e. police often lie or accused often lie, or sexual assault complainants often lie, or the opposite: that Z witnesses do not lie, etc.). While some of these generalizations may be true, we don’t allow this reasoning for obvious reasons – fear of injustice that will arise if people are disbelieved (or believed) for reasons that are rather vague, out of their control, often irrelevant and possibly false. How, then, does a judge determine who is saying the truth – particularly when there are conflicting stories?

There’s no easy answer to this. The judge must walk a very fine line of at least appearing to be fair to all parties, and choosing who to believe – without relying on generalizations. Often, they’ll use language such as “the witness was evasive” or contradicted themselves, etc. The hope is that the judge will be able to discern (magically, perhaps) who is lying and who is not by mere answers to questions from both lawyers – including, of course cross-examination, which is expected to be some sort of panacea, or “truth serum”.

Judges constantly get into trouble for saying the wrong thing – instead of saying “Witness X was full of s**t” – however accurate that may be, they are forced to resort to acceptable reasons for choosing one version of events over another. They may attempt to be subtle or gentle on the witness (e.g. “he might have been racist but I don’t think he was” as in this case, or “the complainant’s fear was not obvious although it definitely existed” – see my comments on Ewanchuk). On occasion, these reasons withhold appellate scrutiny. Other times, judges say things like “the accused had the benefit of disclosure which suggests they had the opportunity to fabricate” which is blatantly unacceptable, and a whole spate of recent ONCA decisions overturned convictions on this basis (see R. v. M.D., 2020 ONCA 290 (CanLII), and R. v. G.V., 2020 ONCA 291 (CanLII), for examples). Yet other times, judges are understood to rely on “rape myths” in acquitting and are generally pilloried by appeal courts for this (e.g. R v Wagar, 2015 ABCA 327 (CanLII)). Still other times, judges give scant reasons for their decision, and are usually criticized for that, too (e.g. R. v. Sheppard, 2002 SCC 26 (CanLII)). Or the age difference suggests lack of consent (e.g. R. v. Kodwat, 2017 YKCA 11 (CanLII), or what I’d term the “ew gross! argument”) is prohibited. Similar inferences suggested by a size difference (as used by the SCC in Ewanchuk) is also arguably prohibited reasoning. Of course, nothing is stopping a judge from arriving at a decision through impermissible reasoning but simply couching the decision in language that is permissible, though judges are generally trusted not to resort to this. For that matter, little prevents police officers and/or any other witnesses from doctoring their testimony so as to make it more palatable and/or persuasive to the trier of fact. But yes, education for judges about “rape myths” is all it will take to solve all of the problems with our justice system.

Essentially, there are a lot of restrictions on what reasoning judges are allowed to use and mention in believing or disbelieving witnesses. Assume for the sake of argument that the officer in this case did not objectively overreact (say the witnesses disagreed over whether a chokehold was used, or if the force used was not clearly excessive). Would the judge still be allowed to point out that racism is common, and quite possibly played a role? I doubt it. However, maybe that is problematic. Perhaps the judge should be allowed to use that reasoning. I would prefer not to have that possibility in our system – accused are entitled to not be prejudiced by these sorts of fallacies (in theory, anyway), and I don’t see why any other participant in the system should be subjected to that. In this particular case, I think since the officer did overreact, the judge’s comments about racism – although not specifically in the evidence for this officer – were acceptable, especially given that they did not appear to affect the acquittal. Essentially, it was a credibility (R. v. W.(D.), 1991 CanLII 93 (SCC)) case, and the judge clearly accepted the accused’s testimony. Whether she went a little too far in criticizing the police force in that community for racism is debatable, but I don’t see how it’s determinative.

Of course, this case is somewhat easier given that the officer did overreact – objectively. Let’s say he hadn’t. If his evidence was no chokehold and the youngster said there was a chokehold, etc. Now who do you believe? I suppose this is the difficult – and likely thankless – job for the judge to determine who to believe and why; obviously bearing in mind the burden of proof in the context of a criminal case. This ties in to one of the problems I have with our sexual assault laws as they stand – judges (and accused) are more constrained than in other matters from reasoning and arguing as a result of rape myths, effectively prohibiting many possible routes to acquittal, and generally ensuring an easier path to conviction for the Crown. I have briefly touched on this point in previous posts, and intend to follow up with a few more.

Published by Efrayim Moldofsky

I am a junior criminal defence lawyer in Calgary, Alberta. Read my observations here.

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