Reckoning with Racism: Police, Judges and the RDS Case

I am sometimes asked why I chose to write a book about the RDS case. The idea stemmed from a first-year criminal law class that I was team-teaching at the University of Ottawa Faculty of Law in 2008. As many law professors will agree, we never have enough time to teach cases properly, and in this course, RDS was bundled together with a few other cases in one lecture. My colleague Professor Rosemary Cairns Way and I then asked the students what they understood was the principle that came out of the Supreme Court ruling. With great confidence, they responded, “It’s a good decision. All judges should be impartial.” And I was repeatedly dumbfounded when the same exchange occurred year after year, because that is so not the message that I took out of RDS. The actual message, at least to me, was the peril of assuming that judging is—or can be—impartial. To try to unpack the seeming simplicity and beguiling obfuscation of the concept of “impartial judging,” I thought, would take more. It could take up an entire course. In fact, it led me and my colleagues to speculate that we could reconfigure the teaching of criminal law entirely around a rich single case like this. “Let’s just teach RDS! Nothing but the RDS case,” we ventured. “We’ll start from the encounter between the police and the accused. We’ll look at the history of the Black population in Halifax, the history of policing. We’ll examine the arrest in detail. We’ll look at bail, the history and regulation of legal aid, access to defence lawyers, the structure of the prosecutorial bar. What do careers in criminal lawyering look like – historically and today? We’ll take it through the preparation of evidence, the preliminary inquiry, the infrastructure of the courts, the appointments processes for the judges who hear these cases. We’ll look at how the media covered the trial, and the role of public information in the criminal process. We’ll follow the case through the various appellate processes, examining which cases get appealed and why, and how one prepares differently for appellate litigation than for trial work. We’ll take this all the way up to the Supreme Court ruling. We’ll run a mock trial with “guest” witnesses. We’ll conduct mock appellate hearings with students acting out the various roles. We’ll get them to prepare appellate factums and explore the role of interveners. We’ll have the students write their own versions of the judgments as they think fair. And every step of the way we will be examining how this case impacted all the people involved. We’ll look at every single stage of RDS and we’ll teach the students about one case in depth.” It would have been a radically different way to teach first-year criminal law, but we marvelled at how exciting it would be to try. And we asked ourselves whether our students would come out knowing less, or more, about the nature of criminal law. Would we do a disservice to the objective of setting a foundational framework in first-year law, or would our students come out more knowledgeable, more prepared? Well, we never got there. Why is it that law professors, including me, cleave so rigidly to 19^th-century Langdellian pedagogical practices? Yet the idea of an intensive focus on RDS stayed with me. And when I heard about a new series at UBC Press where authors could propose to write a short book on a “landmark Canadian case,” I volunteered to do RDS. I interviewed over one hundred people who had some connection with …