Author: James C Morton

Morton's Musings: Why the Judge won’t reply to a Facebook post

I was recently involved in a criminal case. The judge ruled on sentence and the defendant was sent to jail for a long time – longer than I suggested but not quite as long as the Crown asked for. It was a difficult and tragic case but the result sensible and fair.

But wow the criticism online was brutal.

No one attacked me or the Crown but the judge was given a real shellacking. People made some really ignorant comments about the judgment; it was quite clear they hadn’t read the decision and maybe not even the article about the decision.

Another part of the problem was that people who just saw a news story about the case were not there to hear the evidence itself. And a decision based on evidence cannot give the full sense of the evidence. When a judge says “the defendant shows great remorse” it does not convey the heart felt tears that are obvious to everyone in the courtroom. Similarly, if a judge says “the defendant showed no true remorse” it may well be the smirk or rolling eyes of the defendant are unseen except to those present.

As I mentioned the decision in my case was fair and proper. It made sense and complied with the caselaw and precedent.

Judges seem to have a lot of power – and they do – but it is not an arbitrary power. Sentencing is based on earlier court decisions and the specific facts of the offence and the offender. If a judge makes a decision that is inconsistent with prior cases or the facts before the judge an appeal court will likely overturn the decision.

The judge in my case could have easily explained why the sentence was what it was – and yet the judge said nothing. The judge didn’t go on Facebook or Twitter.

Why? Was the judge too lazy or maybe just didn’t care?

Not a bit.

A lazy judge is an oxymoron and judges care a great deal about what is the public perception of justice.

The problem is judges are not allowed to respond to comments or attacks on line. Judges can and do comment on broader issues not related to specific cases – say the need for more judges and Court staff to speed up the trial process – but you will never see a judge discussing a decision of their own in the media.

A judge’s formal decision is the only place a judge is allowed to speak about a case. A judge cannot comment about a decision or explain it further – a judge cannot say anything in reply to online criticism no matter how ill founded. This principle makes excellent sense because a judge’s decision forms the record of the case and is the subject for an appeal. If the judge were seen to vary or to explain a decision by comments in the press or online it would be impossible to have a sensible appeal process.

Of course people are totally entitled to criticize a judge’s decision or reasons. Canada is a free country and people are entitled (subject to the law of defamation) to say anything they like about a decision. But remember the judge won’t reply on Facebook to explain what “really” happened.

Of the Law Societies of Upper Canada and Nunavut

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Morton's Musings: Requirement to make transcript or detailed notes of statement

Criminal disclosure often but not way includes transcripts or at least detailed notes of recorded statements. Such transcripts or detailed notes can form a basis for cross-examination of a witness – they do not govern but they can be put to a witness and if absolutely necessary the actual recording can be played.

But what if no transcript or detailed note is prepared? It appears counsel is required to prepare such transcript or note themselves. (I have had such transcripts prepared for years). Failing to produce such material can lead to a valid ineffective assistance claim.

The Court in R. v. R.S., 2016 ONCA 655 says:

[20] Trial counsel was provided with a CD of M.S.’s statement to the police. He watched the CD, but did not have a transcript of her statement prepared or make notes that would allow him to locate any particular part of the statement should the need arise during the trial. Counsel acknowledged in his cross-examination that he was not in a position to put any part of M.S.’s statement to her at trial should the need arise. Counsel’s inadequate preparation effectively rendered M.S.’s statement to the police useless as a tool in her cross-examination. There were material inconsistencies between that statement and M.S.’s testimony.

Of the Law Societies of Upper Canada and Nunavut

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Morton's Musings: Supreme Court restates Circumstantial Evidence Rule

R. v. Villaroman, 2016 SCC 33:

No particular form of instruction to the jury is required where the evidence on one or more elements of the offence is entirely or primarily circumstantial. However, where proof of one or more elements of the offence depends solely or largely on circumstantial evidence, it may be helpful for the jury to receive instructions that will assist them to understand the nature of circumstantial evidence and the relationship between proof by circumstantial evidence and the requirement of proof beyond reasonable doubt. 

An explanation of the difference between direct and circumstantial evidence is included in most criminal jury charges and rarely causes difficulty. An instruction concerning the use of circumstantial evidence and the reasonable doubt instruction have different, although related, purposes. The reasonable doubt instruction describes a state of mind — the degree of persuasion that entitles and requires a juror to find an accused guilty. An instruction about circumstantial evidence, in contrast, alerts the jury to the dangers of the path of reasoning involved in drawing inferences from circumstantial evidence. Telling the jury that an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits will often be a succinct and accurate way of helping the jury to guard against the risk of “filling in the blanks” by too quickly overlooking reasonable alternative inferences. While this Court has used the words “rational” and “reasonable” interchangeably to describe the potential inferences, there is an advantage of using the word “reasonable” to avoid the risk of confusion between the reasonable doubt standard and inferences that may arise from circumstantial evidence. However, using the traditional term “rational” is not an error as the necessary message may be imparted in different ways.

Of the Law Societies of Upper Canada and Nunavut 

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Morton's Musings: Contempt – Spirit v Form

Chirico v. Szalas, 2016 ONCA 586 raises an interesting point. Contempt can be granted for a breach of the “spirit” of an order . This is hardly new but here the “spirit” has been defined quite broadly; specifically surrender of a dog to a different party was considered to be a breach because both parties were “authorities”. The case will be useful for persons trying to enforce orders:

[52] The test for civil contempt is well established. The order must be clear and unequivocal, the failure or refusal to comply with the order must be deliberate, and the failure or refusal to comply with the order must be proved beyond a reasonable doubt: Boily v. Carleton Condominium Corporation 145, 2014 ONCA 574, 121 O.R. (3d) 670, at para 32.

[53] The test is not in issue. What is in issue is the manner in which the conduct of the alleged contemnor should be analyzed in relation to the requirements of the order.

[54] This court has rejected a formalistic interpretation of the relevant order. It is clear that a party subject to an order must comply with both the letter and the spirit of the order: Ceridian Canada Ltd. v. Azeezodeen, 2014 ONCA 656, at para. 8. That party cannot be permitted to “hide behind a restrictive and literal interpretation to circumvent the order and make a mockery of it and the administration of justice”: Boily, at para. 58; Sweda Farms Ltd. v. Ontario Egg Producers, 2011 ONSC 3650, at para. 21.

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Morton's Musings: Retrospective Criminal Laws

R. v. K.R.J., 2016 SCC 31:

Section 11 (i) of the Charter  constitutionally enshrines the fundamental notion that criminal laws should generally not operate retrospectively. This constitutional aversion for retrospective criminal laws is primarily motivated by the desire to protect the fairness of criminal proceedings and safeguard the rule of law. Rules pertaining to criminal punishment should be clear and certain. To attract the protection of s. 11 (i), the new prohibition measures must qualify as “punishment”. In R. v. Rodgers, 2006 SCC 15, [2006] 1 S.C.R. 554, this Court developed a two‑part test for determining whether a consequence amounts to punishment under s. 11 (i): (1) the measure must be a consequence of a conviction that forms part of the arsenal of sanctions to which an accused may be liable in respect of a particular offence; and (2) it must be imposed in furtherance of the purpose and principles of sentencing.

This test requires two clarifications. First, while not all measures imposed to protect the public constitute punishment, public protection is at the core of the purpose and principles of sentencing and is therefore an insufficient litmus test for defining punishment. Thus, sanctions intended to advance public safety do not constitute a broad exception to the protection s. 11 (i) affords and may qualify as punishment. Second, the s. 11 (i) test for punishment must embody a clearer, more meaningful consideration of the impact a sanction can have on an offender. Doing so enhances fairness and predictability in punishment and is consistent with this Court’s jurisprudence.

Accordingly, the s. 11 (i) test for punishment should be restated as follows: a measure constitutes punishment if (1) it is a consequence of conviction that forms part of the arsenal of sanctions to which an accused may be liable in respect of a particular offence, and either (2) it is imposed in furtherance of the purpose and principles of sentencing, or (3) it has a significant impact on an offender’s liberty or security interests. To satisfy the third branch of this test, a consequence of conviction must significantly constrain a person’s ability to engage in otherwise lawful conduct or impose significant burdens not imposed on other members of the public.

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