Category: Law

There is a golden thread that underlies our criminal justice system. Articulated in the famous English case of Woolmington v. DPP by Lord Sankey, speaking for the House of Lords on an appeal from a conviction for murder, uttered the now famous words; “Throughout the web of the English criminal law one golden thread is always to be seen that it is the duty of the prosecution to prove the prisoners guilt…if at the end and on the whole of the case, there is a reasonable doubt, …the prisoner is entitled to an acquittal. No matter what the charge or where the trial….”

Recent news associated with the Gomeshi sexual assault trial raises questions whether the general public really understand our criminal justice system. The old and well known adage: “Better that ten guilty persons escape than that one innocent suffer” finds its ancient origins in Genesis. The golden thread of the presumption of innocence is the unwavering principle that guides every criminal prosecution. The accused is presumed innocent unless his guilt is proved beyond a reasonable doubt. in all cases, the accused is entitled to the presumption of innocence. This presumption he carries into and throughout the trial until the verdict is rendered and he is found to be guilty or not guilty.

Some news articles, public reactions and editorial cartoons seems to suggest an antediluvian justice system at work that puts ‘victims’ on trial. How unfair that they are subject to rigorous, intrusive and embarrassing cross examination – so goes the narrative. Such a point of view implicitly presumes the guilt of the accused and portrays the witness as being twice victimized. Such views seem to be peculiar to cases of sexual assault. Yet there are many victims of crime and the criminal justice system operates in the same fashion in all cases. To be clear, if someone is to accuse YOU of a crime, then you will expect that person must take the witness stand and face you and provide the evidence to the court. What would you think, how would your feel, accused of a crime you did not commit and the accusation never tested, the accuser never questioned? It would be a Kafkaesque world. The days are long since gone, in our democracies governed by the rule of law, when the mere allegation of a crime is deemed sufficient to exact punishment. We no longer suffer the perfidy of the Star Chamber when you could be convicted in abstentia, without the right to face your accuser or the court.

Unfortunately, our efforts to be fair to an accused within the system do nothing to protect the person before trial, while still presumed innocent. Today, social media and mainstream media can irrevocably eviscerate a  life in a matter of hours.

Whatever may be thought of Mr. Gomeshi as a human being, he is entitled to the presumption of innocence for the crimes he is accused of. He was not on trial for misbehaviour or even leading a secret life of sorts. He was on trial for very specific matters alleged by very specific individuals.

There is another point worth noting. Two of the three complainants who gave evidence at the trial were afforded anonymity. There was a court ordered publication ban on their identities. Mr. Gomeshi was publicly accused of these unproven crimes many months in advance of trial. He is publicly humiliated and his reputation is trashed. It matters not what the outcome of the trial will be – even if found not guilty, his reputation is irreparably damaged. But what of the complainants – not just in this case but in any case. They may not enjoy their courtroom experience, but in effect they can come forward and make false accusations of sexual assault. The accused faces the loss of reputation, employment, social stigmatization and risks the loss of his freedom – the complainant faces no risk whatsoever. Shouldn’t the public be entitled to know the identity of the complainant as well as the identity of an accused? Such a double standard does not enhance the notion of presumption of innocence.

The recent discussions regarding the nature and process of judicial appointments in Canada is both timely and vitally important. In a democracy such as ours, the appointment qualifications of the third branch of government is of critical importance.

In our tripartite system of government – the executive , the legislative and the judicial – it is only the latter branch that does not face the scrutiny of the people through the electoral process.

Judges are not elected under our constitution. They are appointed by the government of the day. This is a constitutional mandate.It can not be properly delegated to anyone else. Nor should it. We should all know who to blame (or praise) for such important appointments – our elected politicians. That is where the political accountability lies.

But judges are appointed for life (age 75), there is no effective recall, they are largely unaccountable and their decisions can have a significant impact on society – even at the trial level.

In a country governed by the rule of law, it is not for judges to make law or even interpret law. It is for judges to apply the law that is given to them objectively and independently on a case by case basis. In that fashion all like cases will be treated the same.

But clearly there is something wrong. No one seems to know what the law is. A judge hears a case. It is appealed to a panel of judges (a court of appeal) who disagree with first judge (and may do so in a split decision). It is further appealed to the Supreme Court of Canada. They disagree with the appeal court (and also disagree among themselves in another split decision) but in doing so find there are different reasons for deciding from any of the judges below.

So what is the average citizen to do when the lawyers and judges – wise and experienced in the law – cannot agree.

When a judge errs, that injustice is usually isolated to the parties before the court, an accepted (if not acceptable) margin of error. However, when the case gets decided on social facts – facts not peculiar to the particular parties – then the injustice of that particular judicial error becomes the law of the land. It is no longer democracy at work. It is fiat by judge.

The unfortunate history of judicial appointments across the country has been that the quality of the appointee was completely dependent on the level of attention and motivation afforded the process by the politicians charged with that responsibility. Party politics and a form of crony nepotism has always been an aspect of political appointments and this includes appointments to the bench. A close examination of the 600 federal appointments would no doubt demonstrate this fact of life. But since the constitution mandates it, there is nothing to prevent this practice.

Personal and political relationships, which have always largely been the basis for appointment, is not as bad as it sounds. Some of our political appointees have turned out to be outstanding judges. Ultimately, conscientious politicians want to appoint respected and qualified individuals.

But it is not this aspect of the process which seems to have garnered the recent attention. Rather it is the ‘ideological ‘ aspect of recent appointments that is of concern to some. This aspect of the process needs to be understood and appreciated.

If one is to appoint a judge, you can decide to pay no attention to ideology and appoint judges based purely on experience and personal qualities. But every judge brings to the bench preconceived attitudes regarding the role of the judge. Is that person a ‘liberal’ or a ‘conservative’, an originalist or a subscriber to the living tree theory? Will this new judge want to change the law to suit these preconceived beliefs or objectively apply the law that is given? Can they?

Mr. Harper and many others not of Conservative persuasion have a right to be concerned that some judges on some courts are not deferring to the democratically elected legislative bodies and are assuming powers that they were never meant to have. Good laws and bad laws alike are to be applied – not reinterpreted to accommodate the subjective views of an appointed judge. Incomprehensible legislation does need to be rationalized in rare circumstances. Occasionally the supreme law of the land needs to be applied to sort out competing rights.

But Mr. Harper and all parliamentarians should ensure that judicial appointees have the ideological qualities necessary to fulfill their responsibilities. This should include deference to parliament and the legislatures. The living tree philosophy is not a basis for establishing a judicial super government who rule by decree. Judges everywhere need to be reminded that the highest court in the land is Parliament.

A recent CBC article reported on recent appointments to Nova Scotia’s Supreme Court by federal Justice Minister Peter MacKay. The article reported that six of the last nine appointments were individuals who were close friends or political supporters of Mr. MacKay or members and supporters of the Conservative party.

It should be clear at the outset that all of our judges are appointed by our politicians. They apply for the job and then it is within the power of the government of the day to make the appointment. That is what the constitution allows.

Our judges are appointed for life. Supreme court judges can retire at age 65 on a full pension after 10 years of service or may continue to work part time up to age 75. We pay them very well and accord them high status in our communities. Judges enjoy unprecedented job security. For all intents and purposes they can‘t be dismissed for laziness or incompetence or negligence or dereliction of duties. The Canadian Judicial Council, a body of senior judges, can hear complaints of misconduct, but they have no real power to discipline a judge and the inquiry process is not public.

Federally appointed judges can only be dismissed by parliament and only for extreme misconduct. This has never happened.

This is for a good reason. We don’t want judges easily removed at the whim of politicians or in the aftermath of a brave but unpopular decision on, for example, a constitutional issue. We want our judges to be free of undue influence and independent to conscientiously go about their duties. On the other hand, it means that it is virtually impossible to remove judges who are just unsuited to fulfill their responsibilities by reason of incompetence, character or shoddy work habits.

Judges are a very important part of our justice system. Collectively, they form one of our three branches of government. At the highest level, the Supreme Court of Canada has the final say on constitutional questions and interpretation. The recent striking down of the law on euthanasia is a good example.

Judges are appointed by the government of the day. To become a judge you must apply to the government as you would for any other job. The selection process however is a little different.

We don’t elect judges as is common at the state level in the United States. We don’t appoint and promote judges based on their training, experience and credentials or their track records as junior judges as occurs in Europe. Here in Canada, judges at all levels – provincial, superior (supreme court) and federal judges are all appointed by the government of the day. Nova Scotia supreme court judges are appointed by the federal Minister of Justice. They are appointed at his discretion from the ranks of lawyers practicing in the province who apply for the job and after being vetted by a committee who advise whether the applicant is recommended or not recommended. The process is entirely private and confidential.

Confidence in our justice system is essential to the happiness of our democracy. Confidence in our judges is central to that notion. Lack of confidence in individual judges is not new and will continue. However, as a group, the public must believe that our judges embody those qualities essential to the fulfillment of their public duties.

An ideal judge, it has been said, would be independent, honest, fair, patient and intelligent. Experience of and understanding of the law and our legal system is indispensable. The ability to listen and to be polite and respectful of citizens who appear in court is essential. Judges should understand that they are servants of the public and of the law.

In reality, our judges are all human and make mistakes. Appeal courts exist to review and remedy at least the most egregious of such mistakes. Unfortunately, justice is dispensed on a daily basis in many courts and most mistakes cannot be practically corrected.

So, what we need in our judges is the character and the will to strive every day for that unattainable perfection.

In reality, we have experienced some poor appointments – judges who are not suited to the position by reason of character or experience. Some may display arrogance, impatience, deep seated biases that intrude (consciously or unconsciously) into the deliberative process or just lack proper knowledge and experience. At the other end of the extreme, we are blessed with judges who are remarkable models of the ideal to be strived for.

As for the public, we need the best possible judges. The citizen who appears in any of our courtrooms should feel they are before an impartial and independent tribunal who will listen and render a fair, respectful and timely decision. The public must have confidence in a process that will result in the appointment of the best possible judges.

As for Mr. MacKay, he needs to appreciate that he exercises a public trust. His power of appointment is not a private piggy bank from which he can dispense gifts to his friends and supporters. Appearances are important. The public and our democracy expects that in the appointment of our judicial officers every effort will be made to ensure the very best applicant will succeed so that the judges will be handmaidens of justice in the noblest sense of that term. If the citizens lose confidence in the quality of appointment then they will demand a new process of appointment. We may have to look to the experience of other jurisdictions where judges are elected and are accountable to the people they serve, or where judging is it’s own unique profession and much like a civil service job, applicants are hired at entry level judicial positions and then promoted based on their experience and conduct in lower courts. An obvious option is to make the current process an open and public process.

As for our new judges, we should wish them well as they embark on their final lifetime careers. We want them to do well. We need them to do well. And it should be said, that merely because the optics or process of appointment may be criticized, who is to say that each and every one of them may not embody the very ideal of judgeship that we all seek. We certainly want them to strive for that ideal.

The recent decision by Justice Greg Warner of the Nova Scotia Supreme Court raises questions regarding the limits of judicial power.

An application recently brought before the court alleged that the Warden of the Municipality of West Hants had violated the Municipal Conflict of Interest Act. The Applicant elector sought a ruling that there was a violation of the Act and also sought the removal of the Warden from his elected office. The court determined that there had been no violation of the statute. However, Justice Warner then engages in a commentary, not relevant to the decision of the court, regarding the actions of the Warden and the municipal council regarding the purchase of a parcel of land.

The judge is highly critical of both the Respondent and the council, stating they acted “improperly” and that their conduct was “inappropriate” by reason of “haste, secrecy, lack of due diligence and apparent excessive price paid”. However, the matter before the court was whether the Warden was in a conflict of interest by reason of his participation in a decision of the council.  The actions of the council and the municipality, the decisions they made and the manner in which they carried on their business were never justiciable issues before the court.

In our system of government, we grant judges extensive power. But their power is limited to the questions we bring before the court. Neither the municipality nor its council or members were parties to the court application and they were not represented.

Here, the judge offers opinions on matters that were not before him to decide. The judge’s opinions in this regard are gratuitous and have no bearing on the ultimate decision. Moreover, the opinions are based on matters on which there was little or no evidence before the court precisely because these were not matters in issue that required the parties to provide evidence. For example, there were differing opinions as to the value of the land but experts were not called to give evidence or to be cross examined  because the value of the land was not relevant.

The court room is not a bully pulpit for a judge to comment on social or political issues of the day. Things said by the judge as obiter (by the way) comments are not strictly part of a court decision and great care must be (and usually is) taken by our judges not to comment on matters unnecessary for the determination of the issue before the court. In some cases, such comments may suggest that the ruling of the court extends beyond the factual context of the case before the court and therefor mislead as the principle of the case may be taken out of context. In other cases, such as here, such comments may be very damaging  to the reputation or character of a person.  Such comments are problematic in circumstances where such are unnecessary to the determination of the question before the court and where there may be insufficient evidence before the court upon which to base such statements.  Such statements have grave implications where the judge enjoys immunity for any civil action for such statements made ‘from the bench’. And because they are delivered by a judge in the course of his judicial duties and because the judge cannot be called to task for those comments, the public may not appreciate the distinction between the court decision and these obiter comments.

This case also highlights another area of concern with obiter comments by a judge. Our legal system, based on the Rule of Law, provides for a strict separation of powers as between elected representatives and the judiciary. Great care is taken to ensure that the limits of those powers are carefully observed. It is for example improper for a politician to call a judge regarding a matter before the court . Likewise it is improper for a judge to criticize the actions of an elected government. It is certainly not a judge’s role to criticize a policy decision of an elected government or ascribe unsubstantiated motives to the decision of an elected Council, particularly a unanimous decision. If an elected body – Parliament, the Legislature or Municipal council makes a decision, it is for the electors to pass judgment, not the judiciary. These decisions are part of the political process and it is well accepted that judges are most definitely not to be involved in politics.