In 1977, the Supreme Court of Canada heard the case of Smithers v. R., where two young hockey players who got into it, in and outside of the rink. In the brief altercation that ensued, one of the players died. The other player was charged and convicted of manslaughter.
The accused appealed unsuccessfully around the cause of death, which was due to asphyxiation. However, this was not due to any choking, but either the aspiration of foreign materials due to vomiting, and a malfunction of the epiglottis.
The unusual cause of death has therefore become one of the examples of the “thin skulled man” in criminal law. The Court held that if the prohibited act was at least a contributing cause of death beyond a de minimus range then they would be found legally responsible. The Court in R. v. Nette indicated a preference to move away from Latin terms, stating,
It is preferable to use positive terms such as “significant contributing cause” rather than “not a trivial cause” or “not insignificant”. Also, because causation issues are case-specific and fact-driven, trial judges should have discretion to choose terminology relevant to the circumstances of the case.
It wasn’t until 1993 that the Court refined this test further in R. v. Harbottle, indicating a higher threshold should be used due to the stigma attached, especially for first-degree murder cases.
What did not receive much attention was the nature of the dispute between the players in Smithers. It received a single passing reference at the Ontario Court of Appeal,
14 On the evening of February 18, 1973, the two teams played a hockey game at the Cawthra Park Arena in the Town of Mississauga. During the course of the game, Cobby and Smithers tangled with each other on several occasions. Finally, the referee ejected both of them from the game. The animosity between the two young men was heightened by the fact that the appellant was a black, and there were alleged (sic) to have been racial overtones in the conduct of Cobby toward him.
The epiglottis malfunction was subject to much dispute by the experts in the matter. It was theorized that it could have been caused by the single kick the accused made, or could have resulted from fear, without any contact at all.
In other words, the victim in the case may very well have died from just being afraid of a black man. The all-white jury had the choice of convicting him of assault, but went with manslaughter instead. The jury charge around this distinction was the main basis of the appeal,
The following passage of the charge is attacked by the appellant on the ground that it failed to emphasize that the act of assault must also cause the death of the deceased:
…So that one difference between manslaughter and the act of assault is that in manslaughter the intent to kill is not necessary, whereas in assault the intent to apply force is necessary. Because a person commits assault without consent when he applies force intentional to the person of the other, directly or indirectly. So once you have an assault, the unlawful application of force, and a person dies as a result thereof, whether it is intended that he die or not, then you have the crime of manslaughter.
It seems to me that this criticism is unwarranted because the judge stated plainly that in order to constitute the crime of manslaughter there must not only be an assault but a person must die as a result thereof.
CBC National aired a video interview of Paul Smithers in this case, many years later. He recounts how he was the only black person playing hockey at the time.
If you’re just one of the guys they don’t bother you,
Instead, he explained, it’s when you start to get just a little bit better than the other that you start to see the racial treatment.
This description is not dissimilar from the sentiment expressed by many racialized lawyers in the bar. They might be begrudgingly tolerated as a junior associate, and as long as they act in subordinate ways, which may include racial comments or taunting, often to “test” the dynamics. When placed in a position of leadership, that is when you will see other lawyers turn nasty.
Smithers described how he believed racism begins in the home,
I think we need to be really mindful of our words, our choice of words, because our words matter.
He also provided an account of some of the current affairs right now, especially for those who deny deep, systemic problems in Canada,
We are no different than the United States when it comes to racism. We’re not. But the underlying current here in Canada of racism is far more dangerous, because you just don’t see it coming.
This is what it looked like then, this is what it looks like now.
At the same time, there is a possibility for hope in the future,
I absolutely believe this is that moment in time in change.
…we have an opportunity to change.
That opportunity for change should also be extended to the legal community.
There is hard data demonstrating that minorities need to be more competent and accomplished to get just as far as others. Joan Williams describes in Bloomberg how “bias interrupters” can help facilitate change,
…a company facing diversity challenges in hiring should be keeping metrics: tracking the demography of the initial applicants, monitoring which resumes get to the top of the pile, logging who gets interviewed and who gets offers. Knowing exactly where underrepresented candidates are getting pushed out of the process matters because the fix for diversifying the initial pool is very different from the fix when only well-connected white men are getting high marks for interviews. For the former, the key is reaching out to a broader range of networks — for example, to career centers at historically black colleges and universities. For the latter, the key is a combination of structured interview questions, grading rubrics, and making interviewers aware of the patterns of bias that crop up in job interviews. Changing these business systems is how we turn lofty CEO statements into real progress.
There is a lot of words of support for Black lives these days, including from law firms. But it will take more than words for those lives to actually matter.