The study and practice of Law cannot exist without caselaw. Indeed, caselaw, that is, the written reasoning and decisions of judges, forms the backbone of our entire legal order. Given its importance, it is understandable that law students are offered training specifically designed to imbue them with the skills necessary to readand dissect it. This disciplinary socialization eventually empowers them to reduce complicated legal decisions into only several sentences. While this skill is invaluable for individuals aspiring to enter the legal profession, this form of academic essentialism has the consequence of erasing the human aspect of the law. Within the criminal context, for example, it is an individual’s life that comes to serve as the raw material transformed by judges into the caselaw that will eventually be read and studied by law students. It is, therefore, important to remain forever mindful of the very real human content of the law.
On November 22, 2024, first-year law students at Osgoode Hall were given the opportunity to hear from Mr. Paul Smithers during a special guest-lecture. The purpose of this exercise was, as Professor Richard Haigh explained, to allow students to ‘get to know a person, instead of the Supreme Court case called Smithers v R’ Similarly, Mr. Smithers told students that he intended to offer them insight into ‘what happened behind the scenes’ and ‘what his case really was.’
Mr. Smithers began by recalling the events following a hockey game on February 18, 1973, telling students that it still felt ‘like yesterday.’ At the time, Mr. Smithers was only 16 years old and a leading player on his local boys’ team in Mississauga, Ontario. During the game, tensions ran high and the young boys on both teams exchanged insults, with a number of racial slurs (including the N-word) being directed at Smithers. Eventually, Smithers and another young man from the opposing team, Barrie Cobby, were removed from the game. The on-ice tensions between the young boys spilled outside the arena. Smithers challenged Cobby and demanded an apology for the racial slurs, eventually managing to successfully land one or two punches to Cobby’s head. Following this, several of Cobby’s teammates arrived and grabbed Smithers, holding him back. While Smithers struggled to free himself, Cobby stood approximately two to four feet away. Smithers recalled that Cobby moved towards him. As Cobby approached, Smithers kicked him in the abdomen. Following the kick, Cobby fell to the ground and began to struggle breathing. Cobby was pronounced dead upon his arrival at the Mississauga General Hospital. Medical experts would later testify that Cobby died from the aspiration of foreign materials present from vomiting, following the kick delivered by Smithers. It was held by the examining physicians that the epiglottis in Cobby’s throat failed to fold over, and therefore failed to prevent the vomited stomach contents from entering his airway. Following a trial, Smithers was convicted by an all-white jury of the manslaughter of Barrie Cobby.
Mr. Smithers thoughtfully explained that his family felt, despite the competence and hard work of his legal team, that justice was not done due to the operation of race politics in Canada. He recalled the apprehension he experienced when looking at the jury tasked with deciding his fate. “Being a visible minority, we have a certain sixth-sense about getting a read on people. Sometimes you’re wrong, and it feels good to be wrong…but these people on the jury gave me a bad feeling.” Following the trial it appeared as though Smithers’ suspicions were confirmed. A number of sources close to the case emerged, alleging racial bias on the part of some jurors. The parents of Barrie Cobby, for example, told newswriter Dan Proudfoot that they personally knew one of the jurors, who had later told them that she was certain of Smithers’ guilt after only 2 or 3 days (of a 2 week trial). In response to these public statements, Smithers explained that his counsel sought a formal ministerial review of the case due to jury bias and sought a new trial. This request, however, was never seen through.
Despite the circumstances surrounding his trial and ultimate conviction, Smithers told students that he has consciously refused to position himself as a victim, nor does he hold onto any bitterness. He has spent many years reflecting seriously how to discuss what happened to him, and – after having a family and children of his own – came to form a more robust understanding of what both his own family and the Cobby family experienced. This experience, he explained, has not left him with a ‘chip on his shoulder,’ but that since that day in 1973 he has ‘never raised his hands against anybody since’ because it left him with a very profound sense of fear.
As a final word, Smithers urged law students to go beyond their ‘law books.’ He tasked students with taking a critical view of how the system treats (racialized) accused people, making them feel that they are being ‘ground into submission’ and pressured to ‘plead out.’ It should be about more than ‘wins and losses’ – it should be about the real people whose lives and liberty are on the line.