1. Judicial Independence
What will happen next? What are the student’s legal rights and how do they protect him? Who should decide whether the student has broken the law?
…someone slipped the bag into the backpack, planning to retrieve it later if the student made it through the security check?
…the friend was trying to smuggle drugs into the concert, spotted the police officers and stashed the bag in the backpack while the student was in the washroom?
…the student mistakenly grabbed someone else’s backpack at school before rushing off to get a place in line?
…after the arrest, police officers tossed the bag onto a pile of other suspicious substances they have seized, without marking it for identification?
…the suspected drug is analyzed at a lab and turns out to be a harmless powder?
…the officers or a prosecutor also charge the student with the more serious offence of trafficking, claiming the student intended to sell drugs to other concert-goers?
What are the student’s legal rights?
• Do the police have to explain why the student is being arrested and charged?
• Is the student assumed to be guilty?
• Does the student have to explain himself?
• Is the student entitled to consult a lawyer?
• Can police keep the student in custody indefinitely?
• Can the student be locked up while awaiting trial?
• Will the allegation hang over the student’s head indefinitely?
• Does the student have the right to dispute the allegation?
• Does the student have to establish his innocence?
The Charter of Rights and Freedoms says that everyone charged with an offence has the right to have their guilt or innocence decided at “a fair and public hearing” before “an independent and impartial tribunal” [s. 11(d)].
Will the trial meet these criteria if the decision whether to convict or acquit is made by ...
…a police officer?
…a lawyer working for the government, which has a zero-tolerance drug policy?
…the student’s parents?
…the parent of a child who died of a drug overdose?
…the principal of the student’s school, who is under pressure to keep drugs out of the school?
…one of the student’s best friends?
…a kid the student has never gotten along with?
…an unknown person who holds a hearing in private?
…the president of a citizen’s group seeking tougher penalties for illegal drug use?
…a judge who is an objective third party, with no interest in the outcome?
Sampson was refused access to a lawyer, tortured until he confessed to committing murder, and denied a fair and open trial. Was this justice? Why or why not? Even if he had committed the crime, would such treatment be justified? Could the public have confidence that justice was done? What rights should a person in his position have? Who should be responsible for ensuring those rights are protected? How would Sampson be treated if he were arrested and charged with murder in Canada?
Life, liberty and security of person
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
Search or seizure
8. Everyone has the right to be secure against unreasonable search or seizure.
Detention or imprisonment
9. Everyone has the right not to be arbitrarily detained or imprisoned.
Arrest or detention
10. Everyone has the right on arrest or detention
a) to be informed promptly of the reasons therefore;
b) to retain and instruct counsel without delay and to be informed of that right; and
c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.
Proceedings in criminal and penal matters
11. Any person charged with an offence has the right
a) to be informed without unreasonable delay of the specific offence;
b) to be tried within a reasonable time;
c) not to be compelled to be a witness in proceedings against that person in respect of the offence;
d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;
e) not to be denied reasonable bail without just cause;
f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment;
5)
Suggested questions for class discussion or written assignments:
a) Who prosecutes criminal offences in Canada and why?
b) What are the differences between criminal and civil cases?
c) Identify four Charter rights and explain why each is important.
d) A British judge once said: “It is better that ten guilty persons escape than one innocent suffer.” What did he mean? State whether you agree or disagree and explain your answer.
e) How does the rule of law ensure the same laws apply to everyone?
f) How do the principles of presumption of innocence, burden of proof and proof beyond a reasonable doubt apply in criminal cases?
Research Points:
(i) Judges were originally prohibited from voting in federal or provincial elections because they were expected to remain totally independent from politics. Their job is to take the laws passed by Parliament and the Legislature and apply them to the facts of individual cases. Deciding on what laws should be passed, even indirectly through voting to select a party to govern, was viewed as conflicting with their job. While limits on voting have now been relaxed, many judges continue to choose not to vote for these reasons.
(ii) “The judge is a pillar of our entire justice system, and the rights and freedoms which that system is designed to promote and protect”, the Supreme Court ruled in 2001 in the case of Therrien (Re). “The public will therefore demand virtual irreproachable conduct from anyone performing a judicial function…(Judges) must be and must give the appearance of being an example of impartiality, independence, and integrity.”
(iii) “No judge shall, either directly or indirectly, for himself or others, engage in any occupation or business other than his judicial duties, but every judge shall devote himself exclusively to those judicial duties.” Source: Judges Act, s. 55
(iv) Judges must conduct themselves, in and out of court, in a way that would not cause a reasonable person to conclude a judge cannot be objective and impartial in hearing a case. “A system of justice, if it is to have the respect and confidence of its society, must ensure that the trials are fair and that they appear to be fair to the informed and reasonable observer…If the words or actions of the presiding judge give rise to a reasonable apprehension of bias to the informed and reasonable observer, this will render the trial unfair.” (from the Supreme Court of Canada’s ruling in R.D.S. v. The Queen, 1997)
(v) To be chosen to be a judge, an applicant must have been a lawyer for at least 10 years. In fact, most judges practice law for 20-25 years prior to becoming a judge. (red herring)
(vi) “Judges should strive to conduct themselves with integrity so as to sustain and enhance public confidence in the judiciary…Judges must be and should appear to be impartial with respect to their decisions and decision-making.” Source: Ethical Principles for Judges, Canadian Judicial Council.
(i) Public Confidence in Court Decisions:Citizens must have confidence that justice will be administered in a fair and impartial manner and the courts will respect the rule of law when making decisions. If judges do not act fairly, or leave an impression that their minds are made up before the case is heard, members of the public will lose faith in the ability of the justice system to resolve disputes. This can lead to citizens ‘taking the law into their own hands’, which at its worst can lead to open violence, fear, and inability to work and support oneself.
(ii) Equal Access to Justice:While lawyers can be expensive, and it may appear that the person with the most money can hire the ‘best’ lawyer, judges must ensure that the same rules (laws) apply to all parties in a dispute no matter who represents them, or even if they do not have a lawyer.
(iii) The Appearance of Impartiality:Judges make every effort to avoid conduct and situations that could undermine public confidence in their impartiality. They must not, by their words or actions, appear to have pre-judged a case or to favour one of the parties involved in the cases that come before them.
(iv) Problems Can be Solved Without a Lawsuit:Everyone who has been a victim of a crime or suffered a financial loss as a result of the broken promises or negligence of another may sue. However, many situations are settled by parties coming to an agreement without suing, or before a trail starts. Other times people decide that a problem is simply too small to worry about.
(v) The Separation of Powers:In order to fulfill their roles properly and ensure public confidence in their actions, judges should not engage in conduct which might form the substance of lawsuits they later decide. Judges also must step back and allow another judge to hear a lawsuit where they are related to one of the parties or had been the lawyer for one of the parties before they became a judge.
(vi) Limits on Public Comments by Judges:Judges should, as a rule, reserve their public comments and opinions for the courtroom. While judges can make public appearances and speeches, they must take great care not to express opinions that could be seen as pre-judging conduct or issues that they may be called upon to decide upon in future cases.
Would the judge be in a position to hear the case if:
1) A decade earlier, when practicing law, the judge did some legal work for the large company that bought the hotel a year ago
2) The judge was recently seen dining with the hotel manager at a popular local restaurant
4) At a break in the trial, the judge invites the hotel manager to come to his office for a chat
5) The judge once stayed at the hotel while attending a legal conference
6) The week before, when sentencing two youths convicted of criminal charges for damaging property, the judge said harsh penalties were needed to battle a rash of vandalism by teenagers
7) The judge discovers that her daughter goes to the same school as the defendants and hangs out with them
2, A Trip to the Principal’s Office: A Class Discussion
Ask the students to consider the following scenario: Two students are summoned to the principal’s office for fighting on the school playground. Under the school’s policy, fighting on school property can be punished with a suspension or expulsion.
Ask students to discuss whether it would appear that the principal acted fairly and impartially in imposing punishment if:
• One of the students is the principal’s nephew
• Both students have been previously punished for using a key to scratch the principal’s car
• The father of one of the students plays golf with the principal on a regular basis
• The principal spoke briefly with the parents of both students during the school’s orientation activities in September
• The parents of one of the students are active in the school’s PTA and often deal with school administrators
• The principal has been overheard saying he considers both students to be troublemakers and the school would be better off they were expelled
• The principal rents a flat from the parents of one of the students
Should the judge slated to preside at trial hear the case if:
• The judge owns shares in one of the companies?
• The judge’s wife is the lawyer for one of the companies?
• The judge has been on the bench for 10 years, and members of his former law firm are the lawyers for one of the companies?
• The judge is on the board of governors of a university that has no connection with either company?
• The judge recently spoke to the local Rotary Club denouncing the kinds of business practices involved in the lawsuit?
• The judge was employed as an in-house lawyer for one of the companies before being appointed to the bench a year ago?
• The judge is an acknowledged expert in business law and has no connection with either company?
• One of the companies makes cars, and the judge drives one of its models?
• One of the companies has made large donations to a political party that the judge supported before being appointed?
4. Judicial Conduct and Impartiality: An Exercise
As a class discussion or written assignment, ask students whether they think the following conduct would be proper for a judge, and to explain why or why not:
• A judge asks a lawyer to repeat part of his legal argument, saying she is not sure the lawyer’s description of the law is correct.
• A judge attends a $100-a-plate fundraising dinner for a political party.
• A judge notes that a trial is taking far longer than expected, and asks the lawyers to try to speed up their questioning if they can.
• A judge joins a committee set up to improve the relationship between the media and the courts.
• A judge accepts a government appointment to head the inquiry into the collapse of an unfinished bridge, which killed four workers.
• A judge agrees to be a guest speaker at a political party’s annual convention.
• A judge accepts an offer to speak to a high school class about the judge’s role in the justice system.
• The chief justice of a court gives a media interview to comment on whether a government plan to freeze judges’ salaries is a threat to judicial independence.
• The judge hearing a criminal case does not reveal that the man on trial is her daughter’s boyfriend.
• A judge criticizes the government’s handling of welfare reform in a ruling that strikes down new welfare regulations because they discriminate against single mothers.
• A judge rules that a plaintiff’s lawsuit is frivolous and without merit and should be dismissed.
• A judge displeased with the way a lawyer is conducting a case secretly phones the managing partner of the lawyer’s firm and demands that the lawyer be replaced.
• A judge accepts a company’s offer to do consulting work on legal issues.
• A judge rules that she accepts the plaintiff’s testimony as true and rejects the defendant’s version of events as unreliable.
1) Is the player’s testimony about the scuffle admissible?
2) Should the coach’s lawyer call witnesses?
3) Have all procedural rules for filing documents with the court been met?
4) Should the player’s parents accept a last-minute compensation offer from the coach that would settle the case?
5) Has the player’s claim for damages been proven?
6) Should a witness be required to answer questions?
5.Rules of Evidence: An Exercise
Use the following scenarios as an in-class exercise to help students understand the rules for the admissibility of evidence.
In a criminal trial, is the following evidence relevant to the charges before the court?
• A defendant is charged with armed robbery. The prosecution wants to present evidence that the defendant was expelled from high school a decade ago for fighting on school property.
• Someone is charged with robbing a corner store while wearing a ski mask. The prosecutor proposes to call a witness who will say the person is the outdoors type and likes winter sports.
• The defendant was seen running away from a home at about the time a burglary occurred.
• The defendant had, in the past, threatened to kill someone he is now accused of assaulting.
• A former teacher says a defendant charged with theft always acted up in class and her classmates once voted her most likely to end up in jail.
• A defendant is charged with forging another person’s name on a cheque, and the prosecution wants to present evidence that two of the defendant’s neighbours have been convicted of similar crimes.
Ask students to identify which of the following is hearsay (second-hand) evidence and inadmissible in court, and which is direct evidence or circumstantial evidence that would be admissible:
• A witness testifies that she saw the defendant driving the car that collided with the plaintiff’s vehicle.
• A witness says one of her friends told her that she saw the defendant commit the crime.
• A school surveillance video shows the defendant using a screwdriver to break into a locker.
• Police searched the apartment of a man charged with break, enter and theft and found a rare coin taken from a home that was burglarized.
• A teacher testifies that he heard three students discussing the defendant’s role in a crime.
• The suspect was seen hanging around with friends outside a corner store shortly before it was robbed.
• The suspect’s watch was found at the scene of a crime.
• Rumours are circulating at school that a student being sued for damages after a car crash was drinking and driving at the time of the accident.
6. Analysis of a Media Report of a Court Case
Distribute copies of the following newspaper story (or any news story about a recent court case) and ask students to answer the following questions: Is this a civil or a criminal case? What level of court is involved? Is this a trial before a judge or a judge and jury? At what stage is the trial? Which side is presenting evidence? Which side is cross-examining? What types of evidence are being presented—witnesses, documents, or physical items? Ask students to identify which evidence is direct and which is circumstantial. Finally, ask them to outline what is likely to happen next in this trial.
7. Understanding Appeal Court Decision-Making: An Exercise
In-Class Discussion: Cast the class in the role of a court of appeal, and ask them to discuss how they would rule on the following cases:
A trial judge made an important ruling that does not follow a precedent set down by the Supreme Court of Canada. The defendant, who was found responsible for causing a car accident and ordered to pay damages, appeals in an effort to overturn the verdict and get a new trial. What is an appeal court likely to do?
A man being questioned about a string of suspicious fires confessed, but the police ignored his requests to speak to a lawyer before he made the confession. The man was charged with arson but the Crown has no other evidence linking the man to the fires. At trial, the judge ruled the confession could not be used as evidence because the defendant’s Charter right to consult a lawyer was violated. The man was acquitted and the Crown appealed the ruling, seeking a new trial. What is an appeal court likely to do?
The plaintiff and defendant gave contradictory versions of events that were at the heart of a civil dispute. The plaintiff testified he had a verbal agreement with the woman to landscape her property. The woman took the witness stand and denied such a deal was struck, but on cross-examination she admitted to hiring a rival landscaper, at a lower price, a day after speaking to the plaintiff. The judge found in favour of the plaintiff and awarded damages, saying she found the man’s version of events to be more believable and supported by other evidence. The defendant appeals. What is an appeal court likely to do?
A man convicted of a crime appeals, complaining that after his trial ended, he discovered the identity of a person who witnessed the crime and saw who was responsible. What is an appeal court likely to do?
