A question of bias

Page 6

Aboriginal people involved in the day-to-day workings of the justice system were eagerly awaiting the Supreme Court of Canada decision in the Corrine Sparks case. Judge Sparks is the first black female judge in Canada's history. She sits on the provincial court bench in Nova Scotia. During a case she was hearing, which involved testimony from a white police officer and a 16-year-old black young offender, the judge remarked that she had doubts about the police officer's version of events. She acquitted the youth, saying police officers have been known to make faulty decisions based on race when dealing with minorities and then mislead the courts when called to account for those mistakes.

In Canadian law, there are not a lot of ways to get a judge's decision overturned. One of those ways is to prove bias. The Crown tried to get the acquittal reversed on appeal by arguing Sparks' comments showed bias against white police.

In late September the Supreme Court, knowing the legal community inside and outside Canada was watching closely, issued a complicated series of reasons why Sparks' comments were close to, but not over, the line that constitutes bias.

This is really a story that almost happened. Had the Supreme Court reversed Sparks, the future of all minority judges would have been clouded. The high court avoided a step that would have been a retreat into the days when only white, Anglo-Saxon Canadians mattered. What was revealing about the decision, Aboriginal people with an intimate understanding of the law believe, was that three of the nine Supreme Court justices dissented with the decision that, in a sense, was a green light for judges who aren't white, male and Anglo-Saxon to bring their life experiences into the courtroom with them and apply them.

The fact the case made it to the highest court and the court treated it so gingerly was a recognition that all judges are biased and, to paraphrase Orwell, some biases are more equal than others.

Many Aboriginal rights or land claim lawyers were sort of hoping the court would go the other way. They were hoping to be able to subject the biases of white mainstream judges to the same scrutiny which Judge Sparks' decision was exposed to.

Which may be why the court ruled as it did.