Supreme Court backed a Black judge’s acquittal in 1997

On Sept. 26, 1997, the Supreme Court of Canada restored an acquittal that two Nova Scotia courts had thrown out, and in doing so answered a question that still shapes Canadian courtrooms: when a judge acknowledges racism, is that bias or is it context?

The case, R. v. S. (R.D.), [1997] 3 S.C.R. 484, began with an arrest in Halifax on Oct. 17, 1993. The accused was a 15-year-old Black youth, identified in law only by his initials because of his age. According to Wikipedia’s case summary and a CBC retrospective, he was charged in connection with an encounter with a police officer. The trial judge was Corrine Sparks, described by CBC as the first Black judge in Nova Scotia.

The remarks that became the case

Judge Sparks acquitted the youth. The Crown appealed, not because of the evidence alone, but because of what she said while giving her reasons. CBC reports that the Crown argued her comments showed a racially based bias against police. In a passage CBC quotes from the biography of the late lawyer Rocky Jones, who represented the youth at the time, she said: “I’m not saying that the constable misled the court, although police officers have been known to do that in the past. And I’m not saying that the officer overreacted, but certainly police officers do overreact, particularly when they’re dealing with non-white groups.”

CBC reports that Nova Scotia’s Supreme Court agreed with the Crown, overturned the acquittal and ordered a new trial, and that the province’s Court of Appeal upheld that decision. The question the Supreme Court of Canada then had to settle was not whether the officer had acted badly. It was whether a reasonable, informed observer would fear that the judge had not decided the case fairly.

A divided Supreme Court

The Court was split. As summarized by legal commentator Heather Douglas in a 2020 Slaw column, Justice Cory, writing for himself and Justice Iacobucci, delivered the lead judgment. Justices L’Heureux-Dubé and McLachlin wrote separate reasons that found the comments appropriate, and Justices La Forest and Gonthier agreed with the treatment of social context. Justice Major dissented, joined by Chief Justice Lamer and Justice Sopinka.

The majority restored the acquittal. Justice Cory wrote that a high standard must be met before a court can find a reasonable apprehension of bias. In his words, “although her comments, viewed in isolation, were unfortunate and unnecessary, a reasonable, informed person, aware of all the circumstances, would not conclude that they gave rise to a reasonable apprehension of bias.” He also stressed, as quoted by Slaw, that it is “obviously not appropriate to allege bias against Judge Sparks simply because she is black and raised the prospect of racial discrimination.”

The ruling did not give judges licence to reason from stereotype. Justice Cory cautioned that a judge must avoid judging a witness’s credibility on the basis of generalizations or matters not in evidence. Justice Major’s dissent made the opposing case sharply: life experience, he wrote, is not a substitute for evidence, and the issue was whether there was evidence that this particular officer’s actions were motivated by racism.

The other opinions went further on context. According to Slaw’s summary, L’Heureux-Dubé and McLachlin described the reasonable observer as someone aware of the history of disadvantaged groups and of racial dynamics in the community, and quoted an Ontario Court of Appeal passage by Justice Doherty that anti-Black racism is “a part of our community’s psyche.” CBC summarizes the practical result this way: the decision established that judges can take social context such as racism into consideration when making decisions.

Why it still matters

The 1997 ruling arrived in a province where Black Nova Scotians had lived under formal segregation within living memory. The last Black-only school there closed only in 1983, a history we reported in our look at Nova Scotia’s last segregated school. Halifax’s apology for the destruction of Africville came more than a decade later, as covered in our report on the 2010 apology. Federal policy had also treated Black newcomers as undesirable, as our piece on the 1911 immigration ban attempt explains.

Against that backdrop, the case tested whether Canadian law would treat a Black judge naming racism in the justice system as evidence of partiality. The majority said no, while holding judges to a strict line on evidence. What the record we could check does not tell us is just as worth stating: we were unable to confirm the date of the original trial or the vote of the Nova Scotia courts from the sources available, and we have not reproduced details we could not verify. The full judgment is published by the Supreme Court of Canada and on CanLII (1997 CanLII 324 (SCC)).

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