This article presents a legal history and counter-narrative of the Supreme Court of Canada’s unanimous 1977 decision in Smithers v The Queen. Smithers is a criminal law case that focused largely on the issue of causation and is likely taught in most if not all Canadian law faculties annually. The case arose out of a fight following a midget league hockey game where one of the combatants died. In constructing its brief narrative of the facts, the Court drastically understated the racial dynamics that were in play during the game which prompted Paul Smithers, a Black and white biracial teenager to confront Barrie Cobby, who was white, and his primary racial antagonist. In framing its narrative, the Court caricatured Smithers as a Black aggressor preying on Cobby. Drawing from critical race theory, this article advances a detailed counter-narrative challenging the Court’s official account which ignored Paul Smithers’s experiences and interpretation of events leading to Cobby’s death. The article relies on primary sources such as the original trial transcripts including Smithers’s testimony and those of defence witnesses. It also draws on the parties’ factums and newspaper articles published contemporaneously with the original trial, in addition to those published as the case was being appealed. Such news articles include interviews with key witnesses like Smithers and other individuals, which provide added insights on what transpired. Despite the racialized dynamics located within the decision, it has been overlooked in various Canadian legal histories centered on race. Thus, the article seeks to fill a gap in the scholarly literature on race and Canadian legal history. Through a broader historical account offered in this study, one learns not only about the intentional omissions in the Court’s narrative in a racially polarized case, but that its construction of events and of the accused effectively and implicitly advanced a white supremacist account of what took place. In addition to scrutinizing the Court’s narrative, this study examines how Crown prosecutors minimized the role of racism within the case and its impact on Smithers. Lastly, this article emphasizes how racial bias may have played a role in one of the juror’s decision-making, rendering Smithers’s conviction suspect.
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"Black Voices Matter Too: Counter-Narrating Smithers v The Queen."
Osgoode Hall Law Journal