Excerpted From: Amar Khoday, Black Voices Matter Too: Counter-Narrating Smithers v the Queen, 58 Osgoode Hall Law Journal 567 (Fall, 2021) (305 Footnotes) (Full Document)


AmarKhodayRACIAL VIOLENCE AGAINST BLACK PEOPLE has been a persistent problem in North America and elsewhere for centuries. Though such racial violence was already well-known among Black communities--given their lived experiences--over the past decade, there has been a renewed sense of urgency to confront the unwarranted state and non-state violence inflicted on such communities. This reinvigorated consciousness has given rise to the Black Lives Matter movement, which was started in the United States and has spread well beyond its borders. The 25 May 2020 police murder of George Floyd, a Black man in Minnesota, has, in particular, inspired an upsurge in public protests in the United States. Not forgotten, however, are the many prior and subsequent homicides or acts of aggression perpetrated by police officers across the country. The protests have expanded beyond the United States and emerged in countries, such as Canada, that have their own very troubled histories of racial violence against Black people, Indigenous people, and people of colour.

This broader and more sensitive awareness has been partly due, in no insignificant measure, to various video recordings capturing lethal or otherwise brutal police conduct toward Black lives. Such striking visual evidence and the proliferation of protests seem to have motivated responses from various public officials and institutions, however belated, to recognize systemic racism in their midst. For example, in a noteworthy letter issued by the Washington Supreme Court to members of the state judiciary and legal profession, the justices provided several significant acknowledgments concerning systemic discrimination against Black people. Writing collectively, the justices asserted, “The devaluation and degradation of [B]lack lives is not a recent event. It is a persistent and systemic injustice that predates this nation's founding.” The court rooted the injustice plaguing the country in “the individual and collective actions of many, and it cannot be addressed without the individual and collective actions of us all.” Assuming responsibility for its own institutional contribution to such actions, the court posited, “As judges, we must recognize the role we have played in devaluing [B]lack lives.” While recognizing the inability to turn back time, they affirmed, “We can develop a greater awareness of our own conscious and unconscious biases in order to make just decisions in individual cases.”

The Washington Supreme Court's admission of its own participation in devaluing Black lives should inspire the judiciary in other jurisdictions to reflect on their own past and present conduct. There are lessons to be learned from our legal pasts. Correspondingly, legal scholars and historians can play an important function in researching when, why, and how such judicial devaluations have transpired. These lessons may be instructive for courts, the practicing bar, and those teaching and learning within the legal academy and cognate disciplines. Interrogating past decisions is also important where the judicial depreciation of Black lives may neither be especially obvious from reading a particular decision nor necessarily reflected in the outcome. Needless to say, racism has been a persistent scourge affecting countless societies, including Canada's. Despite refusals by many, including some political figures, Canadian courts have recognized valid and tangible concerns about systemic racism within the country. Various scholars have documented Canada's long-standing and endemic racism towards Black people, Indigenous people, and people of colour. Despite such valuable contributions, there continues to be ample room for more academic engagement with our legal histories and the involvement that racism and racists have played in them. One need not go back too far in time. Objects in our historical mirror may be closer than they appear.

In this vein, and drawing from critical race theory, this article will examine the factual and racialized context of Smithers v The Queen (Smithers), a unanimous 1977 Supreme Court of Canada decision authored by Justice Brian Dickson (as he then was). During a 1974 trial, an all-white jury convicted Paul Douglas Smithers of unlawful act manslaughter in connection with the death of Barrie Ross Cobby. Smithers is the son of a Black father and white mother (Donald and Joyce Smithers). Though Smithers is biracial, the Court identified him as Black, and certainly he was verbally and physically attacked because of his Blackness. Cobby was white and the son of two British-born immigrant parents (Leonard and Brenda Cobby). Smithers and Cobby were both sixteen years old at the time of Cobby's death. The case is read annually in criminal law courses across Canada as part of a suite of judgments that illustrate, among other things, the legal standard for proving legal causation in homicide cases. In undertaking a legal history of this decision, my goal will be to excavate the traumatic racial violence perpetrated against Smithers by various actors, including the deceased. When one reads the Court's interpretation of the facts from the case and the decision as a whole, one might be forgiven for failing to notice or remember the role that racism played in the events leading to Cobby's death. For this, I argue, the Court bears significant responsibility.

In order to situate the reader, I furnish the facts as presented in the decision now. I later provide a counter-narrative and legal history that challenges this account. The portion that follows the ellipses in the passage quoted below appears later in the decision (in connection with the Court's dismissal of the claim of self-defence), but it provides critical insight into the Court's perception of what took place and its construction of Smithers and Cobby as participants:

On February 18, 1973 a hockey game was played between the Applewood Midget Team and the Cooksville Midget Team at the Cawthra Park Arena in the Town of Mississauga. The leading player on the Applewood team was the deceased, Barrie Cobby, sixteen years of age; the leading player on the Cooksville team was the appellant. The game was rough, the players were aggressive and feelings ran high. The appellant, who is black, was subjected to racial insults by Cobby and other members of the Applewood team. Following a heated and abusive exchange of profanities, the appellant and Cobby were both ejected from the game. The appellant made repeated threats that he was going to “get” Cobby. Cobby was very apprehensive and left the arena at the end of the game, some forty-five minutes later, accompanied by eight or ten persons including friends, players, his coach and the team's manager. The appellant repeated his threats and challenges to fight as the group departed. Cobby did not take up the challenge. Instead, he hurried toward a waiting car. The appellant caught up with him at the bottom of the outside steps and directed one or two punches to Cobby's head. Several of Cobby's team mates grabbed the appellant and held him. Cobby, who had taken no steps to defend himself, was observed to double up and stand back while the appellant struggled to free himself from those holding him. While Cobby was thus bent over, and approximately two to four feet from the appellant, the appellant delivered what was described as a hard, fast kick to Cobby's stomach area. Only seconds elapsed between the punching and the kick. Following the kick, Cobby groaned, staggered towards his car, fell to the ground on his back, and gasped for air. Within five minutes he appeared to stop breathing. He was dead upon arrival at the Mississauga General Hospital.


Although undoubtedly much upset by the actions and language of Cobby during the first ten minutes of play, thereafter the appellant alone was the aggressor. He relentlessly pursued Cobby some forty-five minutes later for the purpose of carrying out his threats to “get” Cobby.

In this article, I shall demonstrate that the Smithers decision presented a rather succinct, but altogether uncomplicated and largely one-sided narrative regarding what transpired, including the fight that led to Cobby's untimely death. As can be understood from the excerpt above, the Court acknowledged only once in its judgment, and summarily, that Smithers was subjected to racial insults. In doing so, the Court drastically understated and omitted the significant role that racism played in provoking Smithers to confront Cobby. This is striking, especially given that Smithers is a decision that focuses notionally on the theme of causation. To the extent that the Court even barely recognized the racism to which Smithers was subjected, this reality was functionally offset by its construction of Smithers and the broader narrative. Through its interpretation of what transpired and, just as critically, its omissions from that story, the Court painted Smithers as a Black “aggressor” who stalked his (white) prey for some forty-five minutes. It is Cobby who is portrayed effectively as the sympathetic, youthful, white victim who purportedly sought to avoid a physical confrontation but was relentlessly pursued by an incensed Black male: Smithers.

Through this article, I shall argue that issues of race permeated various aspects of the Smithers case, including the Court's account of what transpired, the manner in which the Crown prosecutors at trial minimized the role of racism and its impact on Smithers, and concerns about racial bias with respect to at least one juror. In Part II, below, I offer a more complex history of the case and a counter-narrative of the events leading up to Cobby's death--an account that challenges the Court's rendition. This shall include an alternative narrative of the fight itself as seen primarily through the eyes of Smithers and revealed during his trial testimony. As the case is taught annually in law school, one of my objectives is to encourage scrutiny regarding the facts we receive from appellate judgments. Presenting a counter-story that highlights Smithers's account of what transpired would not necessarily have changed the outcome of the Court's decision. This is especially the case in Smithers, where a jury preferred the Crown's evidence and concluded Smithers's guilt beyond a reasonable doubt. That said, in Part IV, below, I identify reasons to consider that one or more jurors were racially biased.

Another purpose in undertaking this study is to humanize Smithers, who is perpetually vilified through the Court's prose. To be clear, my goal is not to beatify Smithers, but rather to contextualize and understand his actions as a victim of racial aggression. Through this counter-narrative, I shall also demonstrate that the deceased, while clearly not deserving of death, was no mere victim. Rather, Cobby was a racial antagonist whose conduct contributed significantly to Smithers's determination to confront him regarding his racism during the hockey game and subsequent reluctance to apologize. In purposely omitting a more nuanced account and portraying Smithers as a Black aggressor, the Court effectively (even if unintentionally) legitimized a white supremacist account of the events. Generally, white supremacy has been explained as “a political, economic, and cultural system in which whites overwhelmingly control power and material resources, conscious and unconscious ideas of white superiority and entitlement are widespread, and relations of white dominance and non-white subordination are daily reenacted across a broad array of institutions and social settings.” By simultaneously purging Smithers's account and those of defence witnesses from the official narrative, the Court furthered a tale that accentuated Cobby's victimhood as a young white male, while largely concealing the racist aggression Smithers endured at the hands of white players and spectators, alongside the neglect of white hockey officials who failed to intervene. In so doing, I contend that the Court devalued Smithers's voice as a Black person fighting against the racism he was subjected to. By re-inscribing Smithers's subjectivity through a counter-narrative, I argue that Smithers engaged in acts of resistance, however imperfect, tragic, and unintended in their outcome, to the anti-Black racism that plagued him and the systemic nature that allowed it to persist. Smithers was both a victim of white supremacy and someone who resisted it. This was a narrative that was left out of the Court's decision.

In order to present a counter-narrative that in many ways inverts the Court's account, I draw on official and unofficial sources, including those available to the Court. With respect to official sources, I rely on a specific portion of the original trial transcript and the parties' factums. The trial transcript consisted of five volumes, of which volume four comprised the direct and cross-examination of defence witnesses, including Smithers. Given that the Court's interpretation of events already reflects a prosecution-friendly perspective that was clearly more sympathetic to Cobby, my goal here, drawing from critical race theory, is to offer a historical counter-narrative based principally on volume four of the trial transcript. In addition, I rely on numerous newspaper articles written during the 1970s, including those published in The Toronto Star, The Globe and Mail, The New York Times, and The Washington Post. Some of these articles were contemporaneous to the trial that occurred in April 1974, while others were published following the trial and as the case was being appealed to the Court of Appeal for Ontario and the Supreme Court of Canada. In the post-trial articles, Smithers and other individuals familiar with the case gave interviews and offered perspectives which reinforced or, in some circumstances, drew attention to facets which may not have been present or apparent in the official sources mentioned above. These include concerns related to allegedly racist attitudes held by one or more jury members that prompted Smithers's appellate counsel Roy McMurtry, in 1975, to seek federal ministerial review of the decision to convict Smithers at trial.

This article tells a story concerning overt acts of anti-Black racism. The narrative includes the utterance of vile and destructive words synonymous with such discrimination. As a person of colour who is not Black, I do not claim any license to employ such racist terms in an unrestricted manner. When not quoting from sources, and in instances where I refer generally to the most common and destructive anti-Black racist slur, I shall employ the surrogate term “n-word” rather than the full word that it signifies. However, when citing to publications in the footnotes that employ racial slurs in the titles, I have retained the unredacted words to account for the sources accurately.

In telling the broader story of racism in the Smithers case, I have incorporated numerous statements by individuals who are Black, especially Smithers, and who, when speaking of their experiences of racism, employed the actual racist terms to explain what was said to them as well as the terms' damaging effects. When quoting such statements, I have chosen to reproduce the racist slurs in a redacted form by encapsulating them in square brackets with asterisks as substitutes for certain letters. I should briefly explain why I have incorporated quotations with racial slurs in this article at all, albeit in redacted form. First, including the racist language found in the original texts maintains fidelity to the historical record located in the trial transcripts, parties' factums, and newspaper accounts. Second, documenting such language shines a light on the reality and violence of overt anti-Black racism, which in the Smithers case was also an implicit assertion of white supremacy. Third, most of the statements quoted below that employ the use of racist terms were made by Black individuals themselves while sharing their experiences of when such slurs were deployed against them or others. I am loath to censor their words in an article that seeks to value Black voices and Black people's experiences of racism.

Given these stated reasons, some readers might find it odd that I would employ redacted forms of these racial slurs, especially when quoting from primary sources. I offer a few explanations for this. The sheer quantity of times that the n-word appears in the history of this case is far from scarce. While not all readers, including those who are Black, may find reading the unredacted racial slurs upsetting and triggering within the context of this article, others surely might for a host of legitimate reasons. This may prove to be a barrier to engaging with the article. Although the unabridged version of the n-word appears in a great deal of legal scholarship by Black authors from the United States, it is not as common a practice in Canadian legal scholarship to use it and certainly not as extensively in any one single article. Employing a redacted form of particular racist terms when quoting from primary sources still allows readers to fully understand what was said to Smithers and the terms' impact on him, while maintaining fidelity to the original texts in which these words appear and their readability. I have not replaced the original words with entirely different words, which would indeed be falsifying the record. In my respectful view, using redacted versions of the racial slurs when quoting source material is a reasonable approach. It seeks to avoid the harm that quoting the full and unabridged racist terms would cause to some readers, while steering away from sanitizing the account by excluding such language altogether, which would replicate the Court's approach. It is not enough to just state that racial slurs were directed at Smithers and to cite the relevant sources that corroborate this reality. As with all storytelling, it is important to show and not just tell about the racism Smithers was subjected to.

This article is divided into four main parts followed by a conclusion. Part I situates this article within several scholarly and intellectual frameworks, including critical race theory and Canadian legal history and historiography regarding race. Part II of this article presents a more robust counter-story of what occurred in the Smithers case that draws upon, from the official sources discussed above, the largely missing perspectives of Smithers and other defence witnesses. This counter-narrative will, in effect, not only reveal information that was excluded from the Court's narrative but will also serve as an inversion of the roles that Smithers and Cobby played in the official account. Part III focuses attention to how the prosecution's theory of the case and the statements of the prosecutors minimized the pivotal role that racism played in the events leading to Cobby's death, as well as the impact of such racism on Smithers as the victim of that prejudice. Part IV then redirects the reader to concerns relating to how racism may have played a role in at least one juror's decision making, affecting the fairness of the trial.

[. . .]

This article tells a historical counter-narrative of the Smithers case. It draws substantially from the perspective of Paul Smithers, through both his testimony at trial and interviews in the years immediately following it. It is a story that highlights his experiences of anti-Black racism, their impact on him, and his attempts to resist such discrimination. The case and its racial dimensions have remained hitherto unnoticed in Canadian legal histories on race. This study has sought to fill this gap. In presenting this counter-story, I have attempted to challenge the Court's official narrative, largely on the basis that it substantially understates the extent and depth of Cobby's racial transgressions, which were perpetrated in the presence of both adults who participated in the discrimination and arena officials who failed to intervene.

As the Court is an appellate court, it made no formal findings of fact. Nevertheless, in narrating the facts of the Smithers case, the Court relied on a selective interpretation of the evidence presented at the jury trial. The Court's factual matrix projects an especially Crown-oriented view of the events. It does not even acknowledge the conflicting evidence presented by the defence. One might divine from this that writing a case history is a zero-sum game, which must be told in a rather caricatured manner and solely from the perspective of the legal victor--here, the Crown. But more devastating and condemnable is the fact that the Court's portrayal of Smithers as an angry Black aggressor, together with their obscurement of the deep-seated and systemic racism he experienced, strongly resemble a white supremacist narrative of what transpired, even if the Justices themselves harboured no obvious or actual racial animus. This may be a harsh statement. However, I am reminded of African-American legal scholar D. Marvin Jones's observation that Black men “are perceived as congenitally disobedient and lawless. This is true because of how white male ideas about manhood distinguished between man--read civilized man--and savage.” By presenting the facts in the way that it chose to, the Court in Smithers left itself open to such criticism.

In addition to providing a counter-narrative, this article also highlighted the Crown prosecutors' role in minimizing the impact of race in the case. Lastly, this article brought renewed attention to concerns about overt racial bias, regarding at least one member of the jury, as well as systemic discrimination, as the jury was all white. Echoing the Washington Supreme Court's recognition of its own contribution to the devaluation of Black lives, my hope is that this article will encourage Canadian courts and other actors within the legal system to reflect on their contributions to such devaluation of both Black lives and Black voices. Though the outcome might not be any different, a one-sided story does not serve the ends of justice-- certainly not when the story of a victim of racial violence is erased.

The Smithers case, despite the concerns raised above about the manner in which the facts are represented, is taught annually in most, if not all, criminal law courses across Canada. It is not a decision buried in a vast sea of thousands of forgotten Supreme Court judgments. This is not a judgment that is allowed to be forgotten. In crafting this counter-narrative, I have tried to allow for a long-silenced Black voice to pierce through the juridical veil. At the very least, we can now engage with the factual matrix of the case anew, through a lens that demonstrates greater sensitivity to the systemic racism that continues in Canada--a matter of tremendous importance for criminal law. Or, alternatively, one may choose to remain deliberately ignorant and disregard this broader understanding of the case in favour of the official tale that was spun, over forty years ago, by the Supreme Court.

Associate Professor, Faculty of Law, University of Manitoba.