Criminal Law

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Criminal law is not necessarily a moral law. Verdicts are always somewhat uncertain. When the judge convicts a person, it does not mean the judge is absolutely certain that the person is guilty. It means rather that the judge is persuaded to a "near certainty"(R v Starr SCC) that the person is guilty. There is a built-in margin for error. This is especially so where the conviction is based entirely on testimony and the trial judge has had to make findings of credibility.  

The criminal law is the tool democracy uses to enforce the will of the majority. It is not necessarily a moral law, although often it does share similarities to morality, it is simply a manifestation of what the majority deems, at any given time, to be unacceptable conduct and subject to penalty.

Some feel the police are the enforcers of our criminal law. I disagree. In a democracy, the police are only "conditional enforcers". They can make arrests, lay charges, and cause persons to be brought before the court.

The real power of enforcement lies in the trial judge. The judge possesses one of the most powerful legal positions bestowed upon any human by a democracy. It is the judge who has the power to determine whether the very liberty of the person is to be taken by the state.

Judges are the same as you and me, more or less. In my experience, all human beings have the capacity for wrongdoing, ... all humans will commit wrongful acts, to some degree, and with varying frequency.

However, not every human being is capable of good ... but most are capable of some measure of good, to some degree.  Given the human condition, judges are selected by their fellow, frail, humans to try to do their best in an extremely difficult job, in difficult circumstances.

In my experience, the best trial judges are not necessarily the smartest. By the time a lawyer gets out of law school, engages in the practice of the law for a sufficient number of years to qualify as a judge, and then to be selected by a committee of qualified persons to be a judge, the judge is usually smart enough to do the job.

In my respectful opinion, all other things being equal, the most important quality in a trial judge is simple, genuine, (all too uncommon) common courtesy.

Even if an accused person receives a disappointing result, the result is more easily accepted if the judge has been attentive and considerate. This quality manifests itself with the ability to listen patiently as legal counsel present evidence and as the witnesses testify.  Although a busy trial judge may have heard a particular legal argument a hundred times, a courteous judge will understand that it will be the first time the accused person has heard the argument, ... raised in the context of his or her particular trial.  Rather than a "roll of the eyes" in boredom, such a judge will be attentive is counsel presents the argument.

Such a judge does not cut off counsel midpoint in a presentation because this gives the impression that the judge has either pre decided the issue, or is not prepared to fully hear and address the argument.

It is also evident in the manner in which the judge renders the decision.  Such a judge will be respectful to an accused person, and where the decision is highly technical, the judge will make an effort to provide "a plain language sum up" of the decision.

In the event of the passing of a sentence, although in Canada one of the purposes of sentencing is to denounce criminal conduct, such judges understand that the accused has already suffered the legal process to that point, and will further undergo a sentence. The denunciation may well point out the wrong that has been done, but there will not be a "rubbing it in", "self-righteousness" in the denunciation.  

There will be no extreme warning to a convicted person, i.e.; "if I ever see you again in this court, etc".  Notwithstanding the reservations and qualifications that may be given, such a judge understands that if the person should be so unfortunate as to be charged and placed on trial before the same judge, there will be an unavoidable sense in that person that the judge will be biased. This is not a legally correct position, but it is a situation I've seen time and again in persons who have been strongly warned by trial judges.  They have the real fear that the judge will not fairly deal with them the second time around. As a trial lawyer, I know most judges I have appeared before not be so biased. But the average person does not have my experience, and so I think their fear is one of common sense and fully justified.

In my respectful opinion, such warnings serve no useful purpose. It is part of the common experience of humanity that repeated wrongful acts normally attract increasing penalties. This is true in the way children are raised, and it is mirrored in the manner in which the criminal law is enforced.

Jim O'Neil, LL.B.

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