What Should A Judge Say?

Explanations are critically important for litigants and the public to understand why judges decide cases. We tend to be good at the law but not necessarily good at explaining ourselves. Want a practice pointer? Every educational program you go to until you retire from the bench sit there , listen and think how might I explain this. It isn’t necessarily about being affirmed on appeal. A judge I admired once said, “I have been affirmed so many times by the court of appeals that I have lost all respect for them.” The reason for explanations is each decision incrementally advances or detracts from confidence in the courts. Judges can be eloquent and judges can say incredibly rude things particularly when making oral rulings. And sometimes there is just a fine line where reasonable minds differ as illustrated by this recent commentary about a Canadian case.

Revisiting R v. S. (R.D.), 1997: A Case About a Black Judge on “Trial” for Acquitting a Black Boy 

by Heather Douglas

“It wasn’t that long ago in Canada when our justice system put a Black judge on trial for acquitting a Black boy of allegedly running his bike into an officer’s leg – her offence? Speaking truth to power by stating that sometimes police over-react when dealing with Black youth.” – Professor David Tanovich @dtanovich 

In R v S. (R.D.), 1997 CanLII 324 (SCC), R.D.S. was a young person accused of assaulting a police officer. At trial, the testimonies of the police officer and the accused differed in material ways. The trial judge acquitted R.D.S. after trial. The case was appealed on the issue of whether there was a reasonable apprehension of bias.

At trial, R.D.S. testified that while riding his bike to his grandmother’s house, he saw his cousin being arrested by a police officer. R.D.S. tried to speak to his cousin. The police officer told him to “Shut up, shut up, or you’ll be under arrest too.” When R.D.S. continued to ask his cousin if he should call his mother, Constable Steinburg arrested R.D.S. and put him in a choke hold. R.D.S. stated that he could not breathe. R.D.S. denied running his bike into anyone or pushing the police officer.

In the course of the trial judge’s judgment, she commented that:











Justice Major writing for the dissent (Lamer C.J., Sopinka J., and Major J.) stated that the appeal should not be decided on questions of racism but instead on how courts decide cases. “A fair trial is one that is based on the law, the outcome of which is determined by the evidence… Did the trial judge here reach her decision on the evidence presented at the trial or did she rely on something else?”

Justice Major wrote that the judge’s statement “was stereotyping all police officers as liars and racists, and applied this stereotype to the police officer in the present case… Whether racism exists in our society is not the issue. The issue is whether there was evidence before the court upon which to base a finding that this particular police officer’s actions were motivated by racism. There was no evidence of this presented at trial.”

Justice Major continued that the life experience of a judge is an important ingredient to understand human behaviour and assess credibility. However, it has no value in reaching conclusions for which there is no evidence. “Life experience is not a substitute for evidence… In my opinion the comments of the trial judge fall into stereotyping the police officer… judges cannot judge credibility based on irrelevant witness characteristics.”

Justice L’Heureux-Dube and Justice McLachlin found the comments of the trial judge Justice Sparks to reflect an appropriate recognition of the facts in evidence in the case and the context of the case, which was well known to Justice Sparks and to any well-informed member of the community. for the rest of the commentary:


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