The recent decision of the Supreme Court of Canada in
R. v. St-Cloud has created a buzz in the profession.
Essentially
St-Cloud is a decision that considered the sections of the
Criminal Code in relation to bail (s. 515 (10)(b)(c)), focusing on what is referred to as the “tertiary ground.” This suggests that bail can be denied if detention is necessary for the protection or safety of the public and “to maintain confidence in the administration of justice.” It set out four factors that should be considered therein, for example the strength of the Crown’s case.
Many Crown counsel see it as not really changing much, just an attempt at clarification.
The defence bar is disappointed and apprehensive that it moves the tertiary ground firmly in front of the presumption and right to bail.
Many judges sense a bit of a tremor as it will certainly demand their own interpretation of what the court was saying.
Herein lies the problem. If the profession is split on what
St-Cloud stands for, it is a perfect microcosmic example of one of the problems in criminal justice. With no disrespect to the learned justices who penned the decision, we are left with a simple dilemma. What does it mean?
A chance for the judiciary to offer clear guidance in simple understandable language has been lost.
The communication failures are demonstrative. Judges’ decisions are often taken out of context, misunderstood, and thoughtful reasons evaporate into misrepresented sound bites and headlines.
“Judge sentences repeat offender to probation”
“Lenient sentence for sexual predator”
“Drunk driver gets short sentence, victims outraged”
These juicy headlines sell papers but they are examples of opportunities lost. In each case, thoughtful reasons likely support the decision, but left unexplained, promote misunderstanding, criticism, the erosion of public confidence, and, of course, play right into the hands of soft-on-crime agendas.
This demeans the hard work of the judges who have made the tough decisions. So judges need to explain their decisions in simple language.
Some litigant is always going to be disappointed but judges have the power indeed and should have the skill to have most leave the court feeling that they understand what happened and were treated fairly.
Recently, Justice Shaun Nakatsuru of the Ontario Court received widespread and deserved praise for the remarkable decision in
R. v. Armitage where he spoke in a plain and eloquent fashion to the accused in the milieu of Gladue proceedings.
Perhaps occasionally judges need to speak up for their role, their workplace, and the criminal justice system. I don’t think there is much doubt about the respect and high regard that most Canadians have for our judges.
Having said that, however, political partisan criticism of them as being soft on crime, the erosion of their discretion by government legislation, and shockingly an attack on Chief Justice Beverley McLachlin by the prime minister and Minister Peter MacKay, perhaps all undermine the system they are sworn to protect.
Chief justices in some locations preside over opening of the court ceremonies. They are respectful, yet often self-congratulatory rituals about how many cases are handled and the need for more infrastructure, finances, and appointments. An opportunity is lost on these occasions when the “chiefs” don’t address the constant undermining of our remarkable system.
The business of criminal justice needs to be more efficient. Proper and focused use of court time, judicial resources, and the necessary infrastructure must be owned by the judiciary. It is time across this country to have meaningful case management.
Judges trained in bringing people together who roll up their sleeves to help manage cases, need to replace the few who tick off the box of empty pre-trials completed.
Crown counsel need to be reminded of the reasonable prospect of conviction and assume file ownership, or at least have knowledge of the issues before the trial date.
Defence counsel need to engage in meaningful reviews of the case and communicate with their clients.
Legal aid plans need to properly fund pre-trial conferences. Most importantly, however, judges need to lead the way, not be absent referees.
Cases that collapse at the courtroom door on dates set for trial are not simply the fault of counsel. They represent often ineffective or non-existent case management. The public, of course, may have a right to lose confidence.
With respect, it is difficult to raise this topic but perhaps it must be addressed.
There are unfortunately a few judges who are rude to counsel, indeed to the public, and frankly can disrupt the sanctity of the courtroom and the dignity of the process.
Judges are human, they have bad days, but they have been elevated to the bench. A few don’t choose to come down from that elevation, they remain on a cloud you might say.
It may be up to counsel to carefully protect the record and their client’s interest by correcting a judge who is uncivil but it is a difficult issue and not our responsibility. It is far from the norm but sends the wrong message.
We have a world-class criminal justice system populated by talented and dedicated judges. Both are under attack. Moreover, in an age of social media, those attacks can be swift and long lasting.
It is time for judges to embrace what’s good about our system and shout it out . . . judiciously of course, and in plain language!
