One judge: two cases about bias.

• Author: Mitchell, Teresa

Recently, two cases reported in Ontario caught my eye. The cases were very different in terms of the issues and the facts, but each highlighted the potential and the reality of bias against minority groups in Canadian society. One involved a high profile Black ball player stopped for allegedly speeding, the other an unknown, mentally ill defendant in a murder trial. The other thing the two trials had in common was that the same Judge, Justice Brian Trafford of the Ontario Superior Court, heard both.

In the first case, the defendant was Dee Brown, a Black American who was playing basketball for the Toronto Raptors at the time of his arrest. He was stopped for going slightly over the speed limit on a Toronto expressway, and subsequently charged and convicted of impaired driving. At his trial, his lawyer argued that he was the victim of racial stereotyping, and was stopped arbitrarily because black men in big cars must be criminals. The trial judge dismissed the idea of racial profiling, calling the allegations "distasteful" and "really quite nasty, malicious accusations based on, it seems to me, nothing." The judge also suggested that defence counsel should apologize to the police for the allegations. Mr. Brown appealed his conviction and Justice Trafford set aside the trial judge's verdict and ordered a new trial. He concluded that the trial judge had prejudged the case and had dismissed the notion of racial profiling. Justice Trafford found that there was indeed evidence before the court that racial factors were in play in Mr. Brown's case. He wrote "Racism is a part of our culture and justice system. This is a sensitive issue to a multicultural society such as Toronto." He commented that judges must always be sensitive to these issues and extremely careful to maintain public confidence in the fairness and impartiality of the courts. He further said "Although the threshold for a finding of real or perceived bias is high, courts should be held to the highest standards of impartiality."

The second case involved a mentally ill defendant named Jose Luis Deleon was charged with second-degree murder. When it came time to select a jury for the trial, his lawyer asked the trial judge, Justice Brian Trafford, to take judicial notice of the fact that society assumes that the mentally ill are dangerous, and sought permission to challenge potential jurors on the basis of this bias. Justice Trafford refused to take judicial notice that such a bias...