RSS FeedAccess to justice and elected judges (conclusion)
(Part 1)
So anyone demanding the election of judges should understand this: there is a conflict between accountability and impartiality. It’s often hard to get the judges both to be independent and to answer to the people. For example, when the government throws a citizen to the wolves in a foreign country, an independent judge will lawfully award her damages. A judge worried about re-election may cave to his sense of the mood among the majority of taxpayers.
When judges apply straightforward law to straightforward facts, the accountability argument is especially weak. The law is an expression of the majority’s will. When legislatures pass laws, their straightforward applications are obvious. We expect judges to apply such laws almost mechanically. In these cases, judges are pretty much delegates of the legislature. They don’t make any law so they should not be accountable beyond the basic professional standards.
And don’t forget the Constitution—the super law. Its very purpose is to protect some principles against the majority’s will. In Canada, these principles include the makeup of our political system and the fundamental human rights. Judges can strike federal laws when they overstep the constitutional bounds. This is an awesome power of the judiciary. It usually uses it against the majority, so how can anyone expect it to be accountable to the majority at the same time?
When judges apply ambiguous non-constitutional rules, the accountability appears more important. The legislature, either intentionally or accidentally, leaves gaps in the law. It is up to the judiciary to choose one interpretation of the law when some new, unusual dispute finds a hole in the rules. Trial judges have another important power that may need accountability. They are free to decide what facts to take as the truth and what facts to ignore after hearing both parties. Sometimes, juries of ordinary citizens do this job, but in Canada usually judges “find facts”.
But even when accountability is reasonable, it is practically too difficult to have. Judges are different from politicians. Majorities have a right to call the government to account on every political decision. But as we just saw, citizens can claim a right to scrutinize only some judicial rulings. This brings difficulty and uncertainty. Most people do not have legal training. Citizens will have a hard time telling decisions open to their scorn from untouchable rulings. Using more government resources to explain or filter judicial decisions will overburden a system that is already bursting at the seams.
The good news is there are alternatives to the judiciary’s direct accountability through elections. First, we can choose judges very carefully. The Parliament is free to set standards for judicial selection. Second, we can monitor the judiciary for obvious abuse. The police are free to investigate judges suspected of crimes. The Crown is free to charge them if there is enough evidence. Third, we have the appeal route when judges make errors of law. It’s a time-tested but expensive mechanism. Finally, perhaps we should have more juries to make fact-finders more representative of the general population. Unlike the US, Canada has very few jury trials. When a jury makes a verdict, it’s one fewer judge to accuse of being unaccountable to the people.
There are good reasons to demand election of our judges. But the reasons not to are even better. In conclusive cases and in many constitutional disputes the judges should not owe any accountability to the majority. Telling the difference could be too costly for the public, but any mistakes can undermine the administration of justice or the Constitution. Judges protect us not only from illegality but also from ourselves. It’s a huge role. Much accountability is already there through law enforcement and regulation of the bench. If that’s not enough, we could use juries more often. Beyond that, we will have to trust our judges. They have usually been doing a good job anyway.
Abdelrazik seeks justice
Spy watchdog to probe CSIS conduct in Abdelrazik case
The probe pulls the agency closer to the centre of the Abdelrazik controversy. A federal judge, in ordering Ottawa to bring Mr. Abdelrazik home from Sudan, concluded CSIS was “complicit” in his detention. Mr. Abdelrazik has offered chilling accounts of his treatment by CSIS agents in Canada and during his imprisonment in Sudan.
Another Black Canadian stuck abroad
The Toronto Star reports Suaad Mohamud Haji, a woman from Toronto, cannot leave Kenya where she was visiting her sick mother. Kenyan officials allege she does not look like her Canadian passport photo. The photo is more than four years old. Her son, ex-husband, and a neighbour, all in Toronto, spoke with her on the phone and recognized her voice.
Ms. Haji was detained on May 17 when she tried to board her flight back home. She is out on bail now with the next court hearing due on July 21. According to Ms. Haji, she tried to get Canadian consular officials’ help: ”I phone them three times again today and nobody calls me back.” Foreign Affairs in Ottawa said that they are “working with Kenyan authorities to verify the identity of the individual.”
What exactly they are doing and why it has taken almost six weeks, the Foreign Affairs spokesman did not say, according to the Star.
I don’t know what to say to Ms. Haji, stuck in Kenya.
Happy Canada Day?
(post sponsored by advicescene.com)
What country has the strongest civil liberties?
There is a lively discussion on Slashdot about which countries are best for civil liberties and privacy. It all started when someone from the UK said s/he was unhappy with growing restrictions and wanted to emigrate.
It struck me how little Canada came up in the discussion. Why? We have the Charter; reasonable, independent, strong courts; decent privacy laws; evidence of the judiciary keeping the government on its toes. I guess the world just doesn’t know Canada that well.
Do you have other ideas why Canada is not mentioned? Any other countries you think are better?
The Conflicted Relationship between Lawyers and “Indians”
[The following piece was sent to us by a reader. Reproduced with permission of the author.]
An Identification of the Conflicted Relationship between the Indigenous Nations and the Legal Profession in North America
by Bruce Clark, LL.B., M.A., Ph.D.
An Indian goes into a law office and says, “Since my traditional government never agreed by any treaty to be governed by your government, why does your legal system apply your government’s laws to me on my indigenous nation’s unceded national territory?”
If he lives in Canada the Indian is likely to be aware of the fact that the original constitution for all of British North America (the Royal Proclamation of 1763) reiterated the stipulation that the first principle of all land occupancy and jurisdiction law is, “that the several Nations or Tribes of Indians with whom We are connected and who live under our Protection should not be molested or disturbed in the Possession of such Parts of Our Dominions and Territories as not having been ceded to or purchased by Us are reserved to them or any of them as their Hunting Grounds.”
Canadian / US Law Outline Wiki
A new Wikipedia-type site for law outlines has been created by law students at Queen’s University.
Law students across Canada and the USA can post to the wiki, which works just like Wikipedia; anybody can post, and anybody can edit.
The hope is that it will be used to help students collaborate and share ideas.
There are already a few outlines on the site. The tricky part is formatting them so they look good in wikipedia language.
Students are encouraged to convert their outlines to text using a .doc to .txt converter and post them on the site for others to edit. Anybody can then fix up the formatting and correct any mistakes.
Articles should be named using the following method: “School-Course” or “School-Course-Professor”.
For example, an outline for Queen’s University’s Commercial Law outline is named “Queen’s Commercial Law”. Students can also create outlines that are not specific to a school or a professor by simply naming the article by its course name.
Most law schools have a database of outlines, but nobody checks them for accuracy, and they’re usually out-dated. Now everybody will be able to help keep them up to date, and anybody with a computer will able to access the information for free.
Letter to Harper regarding Omar Khadr
Below is a letter that I have written to Mr. Harper to protest the Canadian government’s treatment of Omar Khadr, one of its citizens. If you are not familiar with the story, you can find some excellent background at The Globe and Mail.
credit where credit is due: I received assistance from the staff of this blawg, but because this letter does not necessarily reflect their views, I have respected their wishes and not added their names.
A Letter to the Right Honourable Stephen Harper
Office of the Prime Minister
80 Wellington Street
Ottawa K1A 0A2
Dear Mr. Prime Minister Harper:
Re: Repatriation of Omar Khadr
I am writing to you to ask that you immediately issue a request to the relevant American authorities to have Omar Khadr repatriated to Canada.
Facts bearing on the problem:
- Omar Khadr holds Canadian citizenship;
- he was a minor at the time of his detention by American authorities;
- he has been detained at Guantanamo Bay since 2002;
- during his six years in custody, Omar Khadr has been denied habeas corpus and the due process of law; and,
- he has been subjected to, at the very least, psychological abuse amounting to torture.
The right of any person to be presumed innocent until proved guilty is fundamental to our justice system and is a principle embodied in our constitution. Thus, Mr. Khadr is an innocent Canadian citizen being tortured at the hands of the American authorities.
In addition, a number of incidents have exacerbated the situation further. Military interrogators have been caught destroying important evidence. And alternative reports have indicated that Khadr was not alone at the time of his capture, undermining the assumption that he was directly responsible for any deaths.
Ultimately however, the question of Mr. Khadr’s guilt or innocence is not relevant to whether Canada should request his repatriation. This is a question of Canada’s prestige and credibility on the international stage. Canada remains the only industrialized nation that has failed to intervene on behalf of its citizens.
There is no benefit to be gained from allowing Mr. Khadr to remain in American custody. There would be no diplomatic cost to requesting repatriation. The United States has explicitly indicated its willingness to hand over Mr. Khadr should Canada issue a request.
Conversely, the costs of failing to act are significant.
By failing to take action, when all that would be required to put an end to Mr. Khadr’s torture is a simple diplomatic request, Canada is being complicit in the gross violation of the basic human rights of one of its citizens.
In 1948, Canada became a signatory to the Universal Declaration of Human Rights. It is a source of great national pride that a Canadian, John P. Humphrey, was the principle drafter of the Declaration. Because of our extensive history of contributions to the field, Canada has been recognized as a worldwide leader in human rights.
Our policy with respect to Omar Khadr is a tarnish on this international reputation. Our inaction is interpreted by the international community as a silent endorsement of the activities at Guantanamo, including controversial acts of torture. Domestically, the faith of Canadians in this country’s commitment to human rights and the protection of its own citizens is undermined. History will judge us harshly for failing to act.
I therefore ask that Canada request repatriation of Omar Khadr and that he be tried for his alleged crimes in this country.
As a Canadian citizen and a strong believer in human rights and dignity, I cannot ignore what is happening to Mr. Khadr. Respectfully, I feel that a vote for the Conservative party in the next election would represent my own sanctioning of the policy towards Mr. Khadr. I refuse to condone the inaction of this government. Today, I am ashamed of the country I so dearly love.
Yours very truly,
[signed]
Lawrence A. Gridin,
Law Student
SCC constitutionalizes diminished criminal responsibility for youths
If I have a theme for this week, I guess it would be “implied constitutional principles.” Following up on the California gay marriage ruling, I have another post today, this time from much closer to home.
The Supreme Court of Canada this morning issued a landmark decision on sentencing under the Youth Criminal Justice Act (YCJA). Before I get into the constitutional (and political) implications of SCC’s decision in R. v. D.B., 2008 SCC 25, I’ll start with a bit of background.
The Harper government campaigned on a promise of amending the YCJA to impose tougher sentences on youth. In particular, the Conservatives seem to have taken issue with the Supreme Court’s decision in R. v. B.W.P.; R. v. B.V.N., 2006 SCC 27 that deterrence and denunciation are not goals of sentencing applicable to youth.
Instead, the court ruled that youth sentences must be aimed at “rehabilitating and reintegrating young persons into society … by holding young persons accountable through the imposition of meaningful sanctions related to the harm done” (para 4).
Beyond the government’s desire to make deterrence a principle of youth sentencing, the Conservatives have also been trying to implement automatic adult sentences for youth convicted of violent crimes or repeat offences.
Today’s ruling in R. v. D.B. will throw a monkey wrench into Harper’s plans. Allow me to explain.
When sentencing youth under the YCJA for so-called “presumptive offences” (e.g. manslaughter), the onus was on the youth to prove why they shouldn’t be treated as an adult. D.B. was charged with manslaughter, and he brought a Charter application claiming that these reverse onus provisions of the YCJA were unconstitutional and should be struck down. The Supreme Court, by a narrow 5-4 margin agreed with him.
So the reverse onus provisions are now unconstitutional. It sounds like a rather unimportant decision that will not have a particularly large practical impact on youth criminal justice in general.
But here’s where it gets interesting.
In coming to its decision, the Supreme Court recognized a new principle of fundamental justice: an implied constitutional principle.
According to Abella J., who wrote for the majority, it is a “principle of fundamental justice that young people are entitled to a presumption of diminished moral culpability” (para 70).
Justice Abella also wrote (at para 68) that:
… a broad consensus reflecting society’s values and interests exists, namely that the principle of a presumption of diminished moral culpability in young persons is fundamental to our notions of how a fair legal system ought to operate.”
Since a new principle of fundamental justice has been implied into our constitution, the courts are now empowered to strike down legislation that violates it. Whatever attempts the government makes to amend the YCJA, they will now have to be consistent with the notion that young people have diminished moral culpability.
Conservative criticism of the decision has been swift and harsh. Check out Colby Cosh’s comments in the National Post Blog, where he says that the Supreme Court:
“… gave a command performance in the role … [of] a gang of aggressive fanatics determined to push the pace of social “progress” to a sprint, thwart the parliamentary balancing of public interests, and permanently enshrine every liberal legislative mistake of the past.”
Snappy!
