As we move into African Heritage Month, we are presented with an opportunity to reflect on this year’s theme Strength in Unity: Moving Forward with Purpose, Prosperity, Power, and Progress. This theme highlights the ways that strength comes from unity and that a shared purpose brings clarity and the collective commitment required to create lasting systemic changes.
At CBA Nova Scotia, we see this month as an opportunity for lawyers across the province to reflect on the theme of strength in unity, and to deepen our understanding of why it matters. Throughout the month, we will be releasing a series of articles that explore this theme within the context of the legal profession.
As we begin this month, I want to focus on the legacy of Judge Sparks. I want to explore how her life, her work and her logic, created new epistemological possibilities for Canadian law. How her work as the first Black woman appointed to the judiciary in Canada was challenged, and how we might understand and engage with her legacy twenty years later.
There was enormous controversy sparked by the reasons of Judge Sparks in a case involving a Black youth accused of assaulting a white police officer. That landmark case was appealed to the Supreme Court of Canada, R v.S(R.D.) [1997] 3 S.C.R. 484, and established the legal test for reasonable apprehension of bias of Canadian Judges.
R v.S(R.D.) provides space to explore the themes of African Heritage Month through the lens of judicial independence. It invites us to think seriously - like jurists and philosophers - about why diversity on the bench and at the bar matters.
R v. S(R.D.) arose from comments made by Judge Corrine Sparks, the first Black woman to serve as a judge in Canada, during a 1994 youth criminal case involving a Black teenager and a white police officer. A 15-year old Black youth was arrested in Halifax after an encounter with police officers. Judge Sparks acquitted the youth, finding their evidence reasonably credible. She noted that it was relevant to consider the ways police officers react to non-white young people on the streets when making her decision. This decision was overturned on appeal when the Nova Scotia Court of Appeal found the comments of Judge Sparks gave rise to a reasonable apprehension of bias against the police officer.
The case ultimately reached the Supreme Court of Canada, where the issue on appeal spoke directly to the theme of this year’s African Heritage Month. The first Black woman to be appointed as a judge in Canada was accused of bias for she acknowledging the social context and life experience of the accused Black youth. This history speaks to the value of Black women on the bench because it reveals the unique epistemological contributions they bring.
Epistemology is, at its core, the theory of knowledge: how we know what we know, the validity of what we know and the scope of what we can know. Black women on the bench expand the field of epistemological possibilities of Canadian law. What does that actually mean? It means that diversity on the bench isn’t just a politically correct nod; it’s absolutely required if the law is going to reflect the lived experience of people beyond a narrow, dominant perspective. When Black women serve as judges, they expand the possibilities of what law can know. It opens space for a deeper understanding of social context in law. This is extremely important.
The Supreme Court of Canada overturned the Nova Scotia Court of Appeal and upheld the acquittals of Judge Sparks. The Court was asked to determine if there was a reasonable apprehension of bias in the reasons of Judge Sparks. Was it biased for a judge to take note of the social realities of Black youth? Was it biased to conclude that the statements of the accused Black boys were credible when they claimed discrimination at the hands of white police officers? This is the task the Supreme Court was called upon to answer. In doing so, the Court examined, in particular, the following statement made by Judge Sparks:
“I'm not saying that the Constable has misled the court, although police officers have been known to do that in the past. I am not saying that the officer overreacted, but certainly police officers do overreact, particularly when they're dealing with non-white groups. That to me indicates a state of mind right there that is questionable. I believe that probably the situation in this particular case is the case of a young police officer who overreacted. And I do accept the evidence of [R.D.S.] that he was told to shut up or he would be under arrest. That seems to be in keeping with the prevalent attitude of the day.
At any rate, based upon my comments and based upon all the evidence before the court, I have no other choice but to acquit. [Emphasis added.]”
The Supreme Court concluded that Judge Sparks’ comments did not demonstrate a reasonable apprehension of bias against the police officer. In its reasons, the Court clarified that judges are permitted – indeed, required – to consider social context and life experiences when making judgements. Finding of reasonable apprehension of bias will arise only where the circumstances clearly justify such a conclusion. In this case, despite some dissent, the Court held that Judge Sparks had grounded her decision in the evidence and the law, not in bias.
With this landmark ruling, the first Black woman appointed to the bench in Canada, set a new precedent. In doing so, she expanded the judiciary’s understanding of what it means for a Black youth to be charged with assaulting a white police officer. Judge Sparks reshaped what the law was able to see and know. She was able to expand the epistemological possibilities of Canadian law to include the realities and lived experiences of Black youth. She was likewise able to change what the law is able to know about police misconduct.
As we move through this month, I invite each of us to reflect on these themes. On the way that the first Black woman to be appointed a judge in Canada was able to expand the scope of what is knowable by law. On the epistemological necessity of Black women on the bench and at the bar. On how we stand today on the shoulders of giants like Judge Sparks. Her contributions changed not just how to test for a reasonable apprehension of bias in a case, but much more profoundly, she expanded what law is able to know about police misconduct in the first place. As we reflect on the themes of this African Heritage Month, I invite each of us to see this as an invitation and not an obligation. An opportunity and not a burden. To reflect on the ways that a diversity of people on the bench at the bar is not merely politically correct, but an absolute epistemological necessity for a free and democratic society. About the ways we can ourselves seek to broaden our own understanding of law and race. About the ways the law shapes and creates categories of persons as much as it administers them. And of course, what we can do in this expanded field of knowing to move together towards justice.