A tale of two trials: Time to re-think common law justice?

Lawyers are taught our adversarial system is peerless. Who wants Europe’s “inquisitorial” judge-led system?

Unconvinced, I attended trials in France.

In major criminal cases, a trial-preparation judge assembles the evidence. A separate panel adjudicates. Lesser charges are prepared by prosecutors and police.

The judge questions witnesses in chambers with a court reporter. Defence lawyers nominate witnesses and suggest questions. A separate prosecutor makes recommendations. Trial preparation decisions can be challenged in judicial review.

French presumption of innocence law has three witness categories. Some witnesses are not suspects.

Those charged have the right to remain silent and can’t be questioned before meeting their lawyer. Lawyers can see the accused’s file — more transparent than here in Canada, where the Crown’s duty of disclosure is only before trial.

When complaints are made or suspicions aroused, “assisted witnesses” have the right to retain a lawyer and confront the complainant. The lawyer has access to the file.

An organizing principle of French justice is the right of contradiction. Contradictoire guides the training of judges and prosecutors, as well as rules of procedure.

This looks like an adversary system. And it is.

In Law Society of Ontario Professional Conduct Rule 5.1.1, the lawyer’s “Role in adversary proceedings” is  Rôle dans la procédure contradictoire.

Quebec entrenches adversary procedure in Code of Civil Procedure Section 17. ”In any contentious matter, the court, even on its own initiative, must uphold the adversarial principle and see that it is adhered to until the judgment and during execution of the judgment.”

France’s code of civil procedure says, “The judge must in all circumstances ensure compliance with the adversary principle, and do so himself.”

Nanterre is a rich suburb of Paris, where l’Oréal heiress Liliane Bettencourt, turning senile, lived. Her net worth was $69 billion.

Bettencourt’s butler planted a microphone in her armchair. There was a parade of supplicants interested in her money, led by a photographer, François-Marie Banier. He was gifted €800 million in money, art and real estate.

Financial advisor Patrice de Maistre got a $3-million annual retainer, while lawyer Pascal Wilhelm diverted funds to another client’s business. Politicians came for contributions to Nicolas Sarkozy’s re-election.

A Nanterre judge was assigned trial preparation. When investigation details leaked, the file was transferred to Bordeaux.

The Bordeaux courthouse is a columned national monument. Nearby is l’École nationale de la magistrature, where all judges are trained. Judging is a separate career. Prosecutors must also be trained as judges.

The main trial courtroom is a shoebox, laid out like Canadian courts. Twenty feet of trial preparation files are arrayed below the bench of three judges.

The evidence is not all spelled out at trial. The tribunal has identified key points. There was sometimes disagreement from defence counsel, who brought up other facts. Trial preparation was as much on trial as the accused.

As each issue was raised, a defendant, assisted by counsel, was courteously invited by the presiding judge to comment. Defendants are not sworn; there is no risk of perjury. Hearsay is permitted, so Banier could report affectionate things  Bettencourt had said to him. In civil law, hearsay does not support knee-jerk exclusion or cross-examination. A trained judge has other ways to appraise veracity and significance.

The panel’s selection of issues reveals something valuable to defendants: how the adjudicators are thinking, before a decision is taken.

The Bordeaux trial of eight accused lasted five weeks. The verdict was announced three months later. Banier, his male companion and heir, the investment advisor, the lawyer and the tropical-island-estate administrator were sentenced to fines and jail time. Others got lesser punishments. Two were acquitted.

Back in Canada was another taped conversation trial. Chiheb Esseghaier and Raed Jaser were charged with a terrorist plot to derail VIA Rail trains.

The wired FBI informer, pseudonym Tamer el-Noury, testified for 10 days. The jury heard 25 hours of taped conversations. They viewed surveillance videos of the accused investigating target sites.

Periodically, the trial was suspended and the jury sent out while counsel clashed.

No defence witnesses were called. Esseghaier argued he should be tried under the Muslim Qur’an, not the Criminal Code. The judge rejected that. Esseghaier’s statement was read to the jury by a court-appointed lawyer.

The Crown took four hours to summarize the prosecution case.

The trial judge spent three-and-a-half days delivering 300 pages of instructions to the jury.

This trial took seven weeks, plus three more weeks for a sentencing hearing, for a total of 10 weeks.

Both were convicted and sentenced to life in prison.

French justice is by no means perfect. However, three efficiency features impressed me.

Trials take less time because only critical evidence is tested in a full courtroom procedure. Judicial trial preparation permits low-cost appeals on both facts and law. Canadian appeals that defer to facts found at trial can produce injustice. The Bettencourt appeal lasted two weeks. Finally, in France, both criminal and civil liability on the same facts can be tried at the same time. In Bordeaux,Bettencourt’s  family sought restitution, adjudicated with the criminal charges.

Legal systems in the Netherlands, Germany and Nordic countries appear to exhibit even greater efficiencies. Common law courts could learn valuable lessons from these fellow adversarial systems.

Kenning Marchant is a former chaimanr of access to justice for the Ontario Bar Association, also admitted in England. His views are his own. @KenningMarchant