It’s okay okay to be upset by the verdict in R v Theriault. But I suggest we be upset for the right reasons. (thread 1/14).

It’s certainly okay to be upset that many police officers still think they can get away with beating up Black, Indigenous and racialized men.

I think it’s also okay to be upset that these Theriault accused had access to really good counsel when many, if not most, Indigenous, racialized and poor accused are under-represented.

It’s even okay to be upset at the verdict — reasonable minds could disagree on some of the finer points of Di Luca J’s reasoning.

But to suggest that Justice Di Luca would have ruled another way if the roles were reversed is plain wrong.

As I listened to those reasons, Justice Di Luca believes those Theriault brothers are reals POSs who abused their power, savagely beat a Black man and then lied about it.

But then when it came to apply the proof beyond a reasonable doubt standard, he had a doubt about certain elements of the offences. Remember: probably guilty is not proof beyond a reasonable doubt.

The problem with our system is not conscientious judges applying the reasonable doubt standard. It’s that not all judges out there apply the reasonable doubt standard in every single case.

We always say that we have the best judges in the world. We probably do. But the reality is that there are some judges out there whom I would trust with my life hanging in the balance (Di Luca J among them), and other judges who defence counsel try to avoid at all costs.

One of the key distinctions between the excellent judges and the others: who applies the reasonable doubt standard properly and who doesn’t?

The problem with our system is not that Justice Di Luca did what he was sworn to do.

The problem is that not every judge applies that standard — even though they should.

And so when judges convict racialized and Indigenous young men on flimsy evidence, but then accused cops get the fair trial that we’re all supposed to get, that gives the appearance of a double standard.

But it’s not judges like Justice Di Luca who need to change. It’s the ones convicting on something less than proof beyond a reasonable doubt who need to change.