Safeguarding Trials from Racial Bias

Policy Options (2 October 2018)

4 Pages Posted: 26 Sep 2019

See all articles by David M Tanovich

David M Tanovich

University of Windsor - Faculty of Law

Date Written: October 2, 2018

Abstract

There is much to learn from the trial of Saskatchewan farmer Gerald Stanley on the dangers of not directly confronting the potential impact of racial bias on the trial process. Stanley was acquitted in February 2018 by an all-White jury in the shooting death of 22-year-old Cree man Colten Boushie. The law gives us tools to safeguard trials from racial bias that we shouldn’t ignore. One of these tools is the law of evidence.

The law of evidence is a set of rules aimed at regulating the admissibility and use of evidence, in order to fairly promote the search for truth. It recognizes that judges and jurors bring to court every day assumptions about human experience and behaviour that are grounded in unreliable, stereotypical or discriminatory assumptions. That is precisely why it gives judges a discretion to exclude evidence where its prejudicial effect outweighs its relevance or probative value. And why we have rules, for example, that make prior sexual history evidence in sexual assault cases or evidence that paints an accused in a negative light (bad character evidence) presumptively inadmissible.

Unfortunately, despite the fact that Indigenous, Black and Brown lived experiences are disproportionately before courts consisting of largely White jurors or judges, we have failed to ensure that our rules of evidence protect against racial bias in the same way that they do against other types of unreliable and discriminatory generalizations. The Stanley trial is a stark reminder of this reality.

This short piece examines the Stanley trial and how the law of evidence can incorporate systemic racism as a lens to address issues of admissibility.

Keywords: Systemic racism, criminal justice, evidence law, R v Stanley

Suggested Citation

Tanovich, David M, Safeguarding Trials from Racial Bias (October 2, 2018). Policy Options (2 October 2018). Available at SSRN: https://ssrn.com/abstract=3453272

David M Tanovich (Contact Author)

University of Windsor - Faculty of Law ( email )

401 Sunset Avenue
Windsor, Ontario N9B 3P4
Canada
519-253-3000 (ext. 2966) (Phone)

HOME PAGE: http://www.uwindsor.ca/law/tanovich/

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