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The Right to Remain Silent
The Toronto Star published an editorial on R v. Singh, where the Supreme Court upheld the conviction of a Jagrup Singh, who was interrogated even after requesting to remain silent as his right under under s. 10(b) of the Canadian Charter of Rights and Freedoms.
The majority decision stated,
There was no error in law in the approach adopted by the courts below. Although historically the confessions rule was more concerned with the reliability of confessions than the protection against self‑incrimination, this no longer holds true in the post‑Charter era. The modern expansive view of the confessions rule clearly includes the right of the detained person to make a meaningful choice whether or not to speak to state authorities. On the question of voluntariness, as under any distinct s. 7 review based on an alleged breach of the right to silence, the focus is on the conduct of the police and its effect on the accused’s ability to exercise his or her free will. The test is an objective one, but the individual characteristics of the accused are obviously relevant considerations in applying this objective test. Although the confessions rule applies whether or not the suspect is in detention, the common law recognized, long before the advent of the Charter, that the suspect’s situation is much different after detention. After detention, the state authorities are in control and the detainee, who cannot simply walk away, is in a more vulnerable position. There is a greater risk of abuse of power by the police.
The Star editorial raised some valid concerns:
There can be little doubt that some sort of safeguard is necessary in light of the many DNA-exonerated innocent defendants who confessed prior to their trials…
The right to silence is supposed to rectify the disadvantage that a detained suspect is faced with when confronted with the powers at the disposal of the state. On balance, it does not appear to be providing much protection. Given what we know about current interrogation practices, there is much that the suspect needs protection from.
The dissenting opinion per Binnie, LeBel, Fish, and Abella JJ. said,
…nothing in this Court’s jurisprudence permits the police to press detainees to waive the Charter rights they have firmly and unequivocally asserted, or to deliberately frustrate their effective exercise. This is true of the right to counsel and true as well of the right to silence. While detainees who have asserted their right to silence are entitled to change their minds, they cannot be compelled to do so by the persistent disregard of that asserted choice. The right to silence, like the right to counsel, is a constitutional promise that must be kept. There is no evidence to support the proposition that requiring the police to respect a detainee’s right of silence, once it has been unequivocally asserted, would have a “devastating impact” on criminal investigations anywhere in this country.
Alex from the Criminal Review blog, also did an entry on this case. He asks some interesting questions:
But, even given the greater latitude now given police questioning under Oickle, does “police persuasion” only have to stop short of oppression so great it deprives the accused of an operating mind or overrides his will?
Apparently so. By the Court of Appeal’s reasoning the choice to remain silent is never made once and for all, but has to be continuously exercised in the face of questioning that can be maintained almost indefinitely. One has to wonder what meaning the accused’s “choice” has when it can be so easily ignored. While this case may have been correctly decided, I think some basic limits on questioning are in order once the right to silence has been invoked.
Slippery Slope
Erosion of such civil rights during interrogations have been a concern for many in the advocacy community in recent years.
Similar predictions have been made about popular culture shows such as Fox’s 24, which some claim is softening the publilc to the use of torture.
See Primetime’s seried on torture here, which claims that law enforcement is actually adopting tactics from popular television.
[youtube]http://www.youtube.com/watch?v=LdxV6G19R8o[/youtube]
Jon Wiener of The Nation said,
It’s especially unfortunate to see Kiefer Sutherland play the world’s most popular torturer, because his father, Donald Sutherland, has been a prominent antiwar activist since Vietnam days and starred in some great films critiquing fascist politics, including “MASH” and Bertolucci’s “1900.” It’s unfortunate also because Kiefer’s grandfather, Tommy Douglas, was Canada’s first socialist premier, and was recently voted “the greatest Canadian of all time” — because he introduced universal public health care to Canada.
Enough Brutes Already
The concern here is not just with the erosion of the rule of law, but also of poor intelligence resulting wrongful convictions and excessive brutality.
And as Joe Navarro of the F.B.I. has said,
Only a psychopath can torture and be unaffected. You don’t want people like that in your organization. They are untrustworthy, and tend to have grotesque other problems.
With the recent tasering death of a Polish immigrant in a Vancouver airport this month, Canadian law enforcement organizations appear to have enough challenges as it is.
[youtube]http://www.youtube.com/watch?v=VqdUhotL6Fw[/youtube]
I can’t believe it’s a law firm!
[youtube]http://www.youtube.com/watch?v=IDOtPIP_Fg4[/youtube]
Freaking out about law exams?
With midterms approaching the stress and tension is visibly palpable. It seems nearly everyone appears to be determined to beat the tight bell curve of a “B” average.
I can already envision the disappointment on people’s faces.
Some Whine with that Cheese
Robert Farley shares some humourous commentary about typical grade complaints on Lawyers, Guns and Ammo that dismisses expectations of the typical work-performance relationship:
But I really feel like I worked hard enough to get a higher grade.
Ideal Response: Well, if you really worked that hard, I guess that you should get a higher grade.
Actual Response: Really? Well, you’ve discovered that hard work does not unproblematically transform itself into good results. Congratulations.
And if that fails, you can always sue for personal injury if you get a “C” on your exams.
Brian Marquis attempted 15 counts against the University of Massachusetts, including civil and contractual rights and emotional distress. You can try it too, but your likelihood of success is slim. (No, that was NOT legal advice).
So What’s the Big Deal?
The reason why students put such a disproportionate emphasis on grades, as opposed to cooperation, teamwork, charisma, work ethic, and everything else that really matters in the work force, is that they are led to believe that their career hinges on it.
And it’s true, most of the large commercial firms use the quickest and simplest method to sort the piles of applicants – by ranking by grades.
Aside from alternative careers in law, many of the most creative and talented young lawyers blaze a bold path in a totally different direction.
Remember that nearly half of all Canadian lawyers are self-employed.
If you can bear to look at your own transcript, knowing how hard you worked regardless of the letter listed on the paper, all of this really doesn’t matter that much. Everyone knows that law school exams do not measure your intelligence, knowledge, or even your ability as a lawyer. All they test is your ability to write law school exams.
Larry Ribstein, law professor and Chair of the University of Illinois College of Law, shares on his blog:
What I really am looking for when I’m honest about it is not originality, creativity and the flash of insight, but regurgitation of the readings and the brilliant thoughts I uttered in class. If I wanted creativity and originality, I would ask questions like, “In blank verse, tell me the most important thing about this subject you did not learn in this class.” Or, “what flower did this course most remind you of?” But instead I ask the students to play “where’s waldo,” in prose form, with the legal issues in fact patterns that look like cases they read or talked about in class.
A Better Response?
I don’t know how true it is, but a lawyer friend of mine in a big firm once told me,
“A” lawyers eventually work for “C” lawyers, because the former have their noses dug to deep into the books, while the latter have more balance and a personality that clients relate to.
Maybe a better response is for students to start grading law firms instead. The New York Times reported a grading initiative by law students at Stanford using criteria of diversity, including gender, ethnicity, and orientation.
Although some Canadian firms are making considerable progress in this regard, many still have challenges recruiting and retaining diversity (and it is retention that is the key).
But perhaps the best approach of all is to ignore all of the hype and just have “fun” learning, as summarized by Sherry on Stay of Execution:
…quit freaking out and turn your attention to the fascinating and baffling topics they’re asking you to learn THIS semester. You are just as smart and full of potential as you were in September. Smarter, in fact. Go learn.
Pre-exam slowdown
As our team of first-year Canadian law students approach their first exams in law school, ever, the site will present content with less frequency.
You can expect an additional podcast for the year of 2007, and for posts to resume in the New Year.
Autopsy Errors Wrongfully Convict
Twelve people criminally convicted of murder of their child or loved one are happy today.
Forensic evidence used against them was found to be faulty. Several other pending cases have also been tossed out.
The pediatric forensic pathologist involved, Dr. Charles Smith, is the center of an investigation by the Chief Coroner’s Office.
Counsel for Dr. Smith, Niels Ortved of McCarthy Tétrault, stated,
As this inquiry commences and before any testimony is heard, Dr. Smith wishes to publicly acknowledge to the commission that in the 20 years that he performed autopsies at the direction of the Office of the Chief Coroner of Ontario, he made a number of mistakes for which he is truly sorry.
Dr. Smith sincerely regrets these mistakes and apologizes to all who may have been affected by his errors. Dr. Smith wishes to emphasize that any such mistakes were made honestly and without any intention to harm or obstruct the pediatric death investigations in which he was involved.
At all times, Dr. Smith endeavoured to use whatever knowledge and expertise he possessed to render accurate pathologic opinions. In retrospect, he understands that in some 20 cases which form the basis of this inquiry, his work, while to the best of his ability at the time, was simply not good enough in certain circumstances.
Admitting the mistake up front in this manner is quite forthcoming, and likely to bode well for Dr. Smith in the perception of the public. Best practices in public relations can at times be a challenge for the legal industry.
Others holding standing in the case include Crown Attorneys, the Coroner’s office, and the College of Physicians and Surgeons of Ontario.
You can learn more about this on a blawg dedicated specifically to the case, or on the CBC page backgrounder page.
To JD or not to JD
In most Commonwealth countries the designation for lawyers is LL.B., for Bachelor of Laws.
The University of Toronto breaks ranks with Canadian law schools, issuing a J.D., or Juris Doctor to its graduates. The J.D. designation is used in American law schools.
However, the UofT J.D. is not recognized by the American Bar Association (ABA), and the designation serves little more than a symbolic function. The distinction, argued by UofT, is that most law students these days already have an undergraduate education (unlike many Commonwealth LL.B. nations), and the J.D. designation better reflects this background. Traditionalists have proclaimed that the LL.B. speaks to a long legacy in Canada that should not be so easily discarded.
Finally, it seems as if other Canadian universities may follow suit.
Recently, Queen’s University did an informal poll on which designation the students preferred. The student body overwhelmingly preferred the JD over the LL.B.
JD versus LLB
Which letters are for you?
JD man. It’s progress. 58.2% 107
I want an LLB. Let’s stick with tradition! 25% 46
Whichever. The degree’s the same. 16.8% 31
Queen’s Law Life has a summary of some of the pros and cons of each designation.
The Globe and Mail is expected to do an article on this subject in tomorrow’s paper.
There are rumblings among other schools of similar considerations, which have yet to be formally announced.
Updates
The Globe story can be found here. See the comments as well for the ongoing conversation on the issue.
The complete report issued by Queen’s Faculty Board is available here.
The University of Western Ontario also had a similar referendum demonstrating overwhelming student support for the J.D. and the issue is now under review by the Programs Committee and Faculty Council.
Queen’s University and the University of British Columbia recently passed motions to adopt the change. Osgoode (York) and the universities of Windsor and Ottawa are also looking into making changes.
Why Shouldn’t I be able to plead insanity?
Western Law’s Ethics Exam Becomes a Debacle
by Alex Dimson (From the September Issue of Nexus, Western Law’s Student Newspaper)
The mystery of how a final copy of Western Law’s first-year ethics exam made its way to a library photocopier several days before the exam date has yet to be solved but Faculty officials say that no other exam was compromised.
Western Law’s Associate Dean, Academic Grant Huscroft said that the matter of the stolen exam “has been fully looked into” but that the Faculty still does not know how the exam ended up in the hands of students.
“The important thing is not that it happened but that it was noted that the [exam] was leaked and the exam was replaced in time” he said, describing how the Faculty immediately responded to the leak by rewriting an entirely new exam.
In a story so laced with irony it scarcely need be mentioned, a group of students found copies of the final ethics exam lying around an upstairs photocopier in Western’s law library. Sherri Matta, a first-year student who was one of the students who first found the exams told Nexus what she saw.
“There were about 20 of these exams scattered around the photocopier. They were obviously meant to be found. At the same time we were sitting there thinking what is this, a joke? We were laughing at it and we weren’t really sure what to do with it,” she said.
Matta and some friends took the exam to Ethics Professor Randal Graham’s office, where they found that a copy had already been pinned against his door. Subsequent emails from the administration to the first-year class confirmed that the exam was intended to be the final ethics exam.
A student who had seen the first exam, and spoke to Nexus on a condition of anonymity, expressed concern over the format of the new exam, stating the format was not identical to the format that was discussed in class before. Furthermore, the student said that those students who had seen the original exam may have had an advantage, as some of the multiple choice questions were similar. Huscroft disagreed. “Having substituted an entirely new exam I don’t accept that anyone was advantaged,” he said.
The same student also described correspondence that they had with a member of the Faculty who had indicated that because the leaked exam had a cover page, the leak could not have come from Professor Graham’s office but from somewhere further along in the exam submission process, suggesting that other exams could also have been compromised.
Huscroft declined to give specifics on the process of submitting exams for security reasons but said that some professors draft the cover page themselves. He also expressed confidence in the Faculty’s examination process. “There is absolutely no evidence that any other exam was compromised in any way… The security on the exam was tight and done in accordance with the usual process,” he said. Still, he acknowledged that if the leaked exam had the final cover sheet on it then it “makes [the leak] more inexplicable.”
Both Matta and other students expressed a desire that the exam be changed from a graded mark to a pass/fail only exam. Dean Huscroft said that he lacked the ability to make the existing exam pass fail and could not change the evaluation process after the fact. “That’s unfair to anyone who got an A and all of a sudden I say that’s nice I’m going to make it pass/fail. If you got an A you earned an A if you got a C that’s pretty much what you earned,” he said.
The leaking of an exam is an unprecedented event in Western Law’s recent history. Western Law’s Dean Ian Holloway, who declined to be interviewed about the exam because he was on sabbatical last year, said that in the seven years that he has been Dean there have been very few instances of academic infractions. He said there have been two instances of plagiarism and one instance of fraud in a law school application.
I Could Have Been Clearer, Slayton Admits
by Mana Khami (From the October Issue of Nexus, Western Law’s Student Newspaper)
The author of a book on the legal profession says that he has some regrets about the controversy that has erupted since its publication. 
Philip Slayton, who spoke to Nexus from his downtown Toronto penthouse said that while it is not true that he painted all lawyers with the same brush, his book could have been more balanced. “What I should have done and [what] I would do if I were to re-write it, is to make it clear that the legal profession is a very diverse profession, the Former Dean of Western Law said. “Some of the things I say do not apply across the board. I did not make that clear. I regret it.”
Slayton’s book “Lawyers Gone Bad” and his interview with Maclean’s magazine, which went by the title of “Lawyers Are Rats” has touched off a firestorm in the legal community, and has been condemned by numerous organisations, from the Canadian Bar Association to the Ontario Bar Association.
Slayton said that he chose the title of the book himself and that he will take responsibility for it “I could change [the title] to “Some Lawyers Who Go a Little Bad Sometimes”. I admit there is a tinge of sensationalism about it. The worst thing that can happen to a writer is to write a book and no one knows you did it,” he said.
Slayton said that he thought that some of the criticism of the book has not been fair.“I think a lot of people decided based on just the cover that it is a bad thing and they don’t want anything to do with it. And I regret that. And I regret even more that a lot of lawyers have criticized the book when they have clearly not read it… One would hope that well-educated people would not just judge a book by its cover,” he said.
Slayton added that while he is fine with the content of his interview with Maclean’s, he would not have called the article “Lawyers are Rats.” “It is the cover that drove everybody crazy. I had nothing to do with the cover. In fact the first time I saw it was when I walked into the newsstand. … I think that there was an incredible overreaction to it”.
Slayton’s comments on the current state of the legal education have also been subject to much criticism. Western Law’s Dean Ian Holloway for instance has said that Slayton’s critique of law schools are outdated and that much has changed since Slayton was dean of Western 25 years ago. Slayton, when informed that Western Law now offers an ethics course as well as numerous community projects said that they did not change his views on legal education.
“What I say about legal education is that basically legal education largely is value free and trains you to serve the rich establishments … and that is again a generalization. I think it is important to look carefully at what I say”. He then went on to say that it is important that students are helping the community but that he wants more of the lawyers in the downtown Toronto high-rises to do pro-bono work.
Overall, Slayton says that he was taken aback by the fiercest of the criticism against him. His own friends in the legal profession, he assured me, attended the official book launch and seem to be fine with the book. Slayton is currently doing pro-bono work in South Africa and is working on another book, which he says, “the legal profession will be pleased to know that it has nothing to do with the legal profession”.
Public Interest Career Tough But Rewarding
by Alex Dimson (from the October Issue of Nexus, Western Law’s Student Newspaper)
It takes business savvy and a tempering of salary goals but ultimately a career in public interest can be highly rewarding, one of Canada’s most famous public interest lawyers told Western law students recently.
In a talk on public interest careers, Murray Klippenstein discussed the challenges he faced trying to build the law firm that bears his name. What made him successful was not his idealism but rather a “focus on the economics of law office management” he said, noting how he carefully manages his firm’s budget.
Klippenstein, best known for his work defending the estate and family of Dudley George, the native rights advocate killed in Ipperwash provincial park in 1997, also discussed the personal challenges of doing public interest advocacy, noting that he makes only a quarter of what his fair market value is.
“I had to ask myself, can I afford to do this?” he said, acknowledging that it was initially a challenge to watch his peers make high salaries, with the rewards of expensive cars and cottages. Looking back, he said he has no regrets. “The answer is I feel great… and I get to go to all [of my law school friend’s] cottages and I don’t have to worry about maintaining them,” he said to laughter from the audience.
Klippenstein said that he was able to find an inner balance by reading the economic literature on happiness, which maintains that personal income has a limited effect on happiness, and he said that he feels ahead of the curve when it comes to achieving a fulfilling life, citing the personal rewards that come from his practice. Pointing to the presence of Dudley George’s brother Sam in the audience, he said that “his happiness comes from helping real people” and that he has built many long-lasting friendship through his practice.
He also discussed other public interest careers – including a career in academia or in government. He said that neither option is ideal, he said, pointing out that while individuals pursuing either career stand to make a solid income of between $120,000-180,000 government lawyers tend to be locked into their career path and are ultimately beholden to the government of the day, which can sometimes put them on a path directly at others with the public.
Professors on the other hand, face the pressure of publishing and there are never any guarantees that their work is helping the public or even being read, he said. In the end, Klippenstein said that no career choice is ideal and the sacrifices a public interest lawyer must make means that it is not for everyone. Ultimately, he said that students will be able to find their own path and he encouraged students who feel up to it to try articling for his firm and some of the other social justice firms out there.
Early Origins of the Criminal Code in Common Law
The earliest origins of the common law criminal code is Edward Livinston’s Draft Code for Louisiana in 1826. In 1837, Thomas Babington Macauley then used this to create the Model Penal Code, which was introduced to India in 1860.
All common law criminal codes have their origin either in this penal code, or in St. Lucia Criminal Code of 1889 or the Queensland Criminal Code of 1899. The Model Penal Code is still used in India, Pakistan, Sri Lanka, the Sudan and Northern Nigeria.
During the Canadian confederation in 1867, John A. MacDonald was determined to to avoid adopting the dispirate English system, and instead have a unified, federal code. By 1869, a series of nine statutes were passed for the following offences:
- coinage offences
- forgery
- offences against the person
- larceny
- malicious injuries to property
- perjury
- procedure
James Fitzjames Stephen, who studied in India, presented a draft code in 1879 to the Royal Commission based on the Model Penal Code. This then formed the basis of the Canadian Criminal Code, enacted in 1892.
A major reform was conducted in 1955, which reduced the number of provisions from 1100 to 753 and abolished common law offences that co-existed. However, the origins of the modern Criminal Code still can be found outside of Canada – interestingly enough in India – where it is still used.
Resources
H. F. Morris. (1970). How Nigeria Got Its Criminal Code. Journal of African Law, Vol. 14, No. 3. pp. 137-15
Canada’s Criminal Code: A History
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