Saaditi v Moorhead: Case Comment

Cod. Guelf. 3.1 Aug. 2°

In Medieval Europe, deciding guilt or innocence was sometimes decided by trial by ordeal. It was believed that the holy water would reject a liar. So they would tie up an accused person and throw him in the water. If you floated, you were guilty. If you drowned, you were innocent.

Has the law evolved much further from this barbaric custom? Many think we have.

In Unfair: The New Science of Criminal Injustice, law professor Adam Benforado begs to differ. He points out that the law of evidence hasn’t caught up with neuroscience. That the way we decide cases isn’t always justifiable. And he gives examples of how we are blind to problematic reasoning.

As we uncover the secret world of detectives, judges, prisoners, and others, we will confront challenging questions. What if our legal rules and practices not only are blind to the real influences on human behaviour but serve to actively perpetuate myths that neuroscientists and psychologists have revealed to be false? What if the structures and frameworks of criminal law that we have adopted to eliminate bias actually make matters worse? And if most people are unfamiliar with the complexities of our hidden minds, might there be power players out there taking advantage of this knowledge to stack the cards in their favour at the expense of the weakest?… Do we care that the path through our system is greased for some and tarred for others, owing to the cognitive biases of police officers, jurors, and judges? Does it matter that certain people are disadvantaged front the outset simply because of their structure of their brain or the shape of their face? … Is justice really blind? [Or is lady justice taking in a lot of information and once she has a picture of you, there’s not much you can do to change it?]… We are masters at jumping to conclusions based on an extremely limited amounts of evidence.

Is it time we rethink the way we establish facts in courtrooms? What role should science have in evidence law?

Interestingly, most rules of evidence are based on judicial decisions. Judges making rulings on a set of facts. They are not rooted in science. They are not thought out by bureaucrats. They are not meticulously updated to keep up with scientific developments. In fact, there is a tension between judges and science.

I remember first entering law school, being surprised that judges did not rely on secondary material, like research papers in coming to conclusions. Rather they were restricted to case law and witnesses. But is that justifiable? How should the scientific method influence judicial decision making? Are the senses really enough to judge a case? How should science and law influence one another?

In Saadati v Moorhead, 2017 SCC 28 the Supreme Court of Canada narrowly considered this question. At issue in the appeal was the necessity of medical expert evidence. The trial judge found that a series of motor vehicle accidents caused the plaintiff psychological injuries. However, no expert evidence was put forth to establish the mental injury.

Ultimately, the Supreme Court welcomed expert evidence. But said it wasn’t necessary to prove mental injury. It also wasn’t necessary to confine a mental injury to a psychiatric disorder.

Justice Brown  stated at paragraph 2:

[2]                              This Court has, however, never required claimants to show a recognizable psychiatric illness as a precondition to recovery for mental injury. Nor, in my view, would it be desirable for it to do so now… recovery for mental injury does not require proof of a recognizable psychiatric illness. [Requiring proof of psychiatric illness is] premised upon dubious perceptions of psychiatry and of mental illness in general, which Canadian tort law should repudiate…

At paragraph 31, Justice Brown states that confining compensable mental injury to a medical condition is “suspect as a matter of methodology”. And that the categories identified as psychiatric disorders are constantly changing and evolving.

Although I agree that lawyers and judges shouldn’t abdicate their critical thinking to hired guns and that it shouldn’t be necessary to adduce expert evidence to show an injury, I strongly believe that we need to rethink the rules of evidence. The rules of evidence and how we apply these rules need to be grounded in science.

(Views are my own and do not represent the views of any organization.)

Do Judges have a Public Relations Problem?

Recently the TV show This Hour has 22 Minutes did a piece on Canadian judges. It’s a riveting piece on the public’s perception of judges.

The skit called “Judges: a Danger to Canadian Women” can be viewed here: http://www.cbc.ca/22minutes/videos/clips-season-24/judges-a-danger-to-canadian-women. At first viewers think the show is commenting on xenophobia, then it turns out to be about judges.

The judiciary should take this piece seriously. It is a current temperature read on the public’s feelings towards judges.

Is it fair that judges are seen negatively?

No. Most judges are excellent, care about justice, and are deeply competent.

Despite this, the public sees things differently. The internet has transformed the way we receive information. However, our courts have failed to reflect this change. Simply rendering decisions in dense, legalese is not enough. The public expects and requires our courts to communicate with them in a way that they understand.

I hope that our courts can adapt new ways of explaining itself to the public. Including explaining our judicial system, explaining the law, and explaining their decisions in novel ways.

To find new ways of doing things, we need to ask questions. Why are decisions only provided with written reasons? We now can create videos. We can create flowcharts. We can create graphics. We can use social media.

Also, why do we televise Supreme Court proceedings and not others? What about matters at the Ontario Court of Appeal? What about trials of national importance or of great public interest? Wouldn’t seeing great lawyers and great judges in action increase our faith in our judiciary?

Of course the medium would need to be adjusted accordingly. But if our courts want to continue to maintain the public’s trust, then it needs to look seriously at how it communicates with the public. Public trust in the judiciary is integral to democratic order.

(Views expressed in this blog are my own and do not reflect the views of any organization.)

Critiquing the Judicial Narrative

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In Abdulaali v Salih, 2017 ONSC 1609, Justice Pazaratz controversially wrote:

  1. The next time anyone at Legal Aid Ontario tells you they’re short of money, don’t believe it.  It can’t possibly be true.  Not if they’re funding cases like this.
  2. The facts are simple.  There are no complicated legal issues.  Hardly worth a written endorsement, really.
  3. But every now and then taxpayers ought to be told how their hard earned dollars are spent.
  4. The Applicant wife is 32 years old.  She came to Canada from Iraq five years ago.  She has never worked in this Country.  She receives monthly assistance from the government through the Ontario Disability Support Program.
  5. The Respondent husband is 43.  He came to Canada from Iraq seven years ago.  He has never worked in this Country.  He receives monthly assistance from the government through the Ontario Disability Support Program.
  6. They met in Canada.  They were married here on September 19, 2014.  They separated five months later on February 6, 2015.
  7. They have no children.  No jobs.  No income.  No property.  Nothing to divide.
  8. It should be a simple case.
  9. They appeared before me March 9, 2017 both wanting a Divorce.  Again, simple enough.    
  10. But the matter was contested because the Applicant wife also wanted a restraining order against her husband.  He opposed the request…

Many are saying that Justice Pazaratz crossed the line. First by commenting on the use of government resources. And second by implying that the parties were unworthy of legal aid. (I agree that Justice Pazaratz crossed the line on commenting on matters beyond the issues between the parties. )

But at what point does criticism of judicial commentary take on a chilling effect?

Regardless of political leanings, judges should be allowed to comment on the implicit premises their cases touch on.

The law does not operate in a vacuum. All decisions have political statements hiding beneath the surface. Whether it be assumptions about how property should be held, what equality means, how gender should be expressed, how government programs should be funded and so on. So to make the implicit explicit is to breath openness and honesty into judicial writing.

Judges should be honest about the real reasons behind their decisions.

(Views expressed in this blog are my own and do not reflect the views of any organization.)

Is Justice Blind?

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Justice is blind or so they say. It is supposed to pay “no heed to the social status or personal characteristics of the litigants”.

But this simply is not true.

Race, gender, religion, socio-economic background, sexuality, ethnicity, ability, education, family upbringing, all play a role in the way judges assess the cases before them. But to what extent should a judge’s personal identity and experience be brought to bear in administering justice?

In the decision R. v. Pelletier, 2016 ONCJ 628, judge Justice Nakatsuru explicitly acknowledges his own identity and the identity of the offender in assessing the case before him. In R. v. Pelletier, Ms. Pelletier was sentenced to jail for 3 years for two robberies, arson, and an assault. In addition to jail time, she was ordered to undergo supervision. While undergoing this supervision, she tested positively for cocaine. And in doing so, was in breach of a court order.

In determining her court sentence, Justice Nakatsuru wrote:

[7] You are an indigenous person… As you know, I myself was raised on the prairies. I know firsthand the discrimination suffered by indigenous peoples in that part of our country. It is something all right thinking people are ashamed of…

[20] In addition, the risk of re-offending in your case is not just connected to an untreated addiction. It is connected to the historical injustice done to indigenous people. It is connected to your own personal indigenous history. Connected to the abuse you suffered…

[25] I find that rehabilitation is an important principle in my sentence. I find that restraint in imposing jail is important. Obviously it is important for you Ms. Pelletier. But is also important to deal with the problem we have in this country of sending too many indigenous offenders to jail. The courts recognize that problem. I have to address it in my sentencing of you.

[30] After careful reflection, Ms. Pelletier, I am sending you home. I wish you all the best in your life.

[31] After taking into account time served, the sentence will be 1 day.

It is a well written decision. It acknowledges the background of Ms. Pelletier, and it acknowledges the background of the judge. But if theoretically justice is to be blind, then it begs the following questions. To what extent should a judge’s personal background play in deciding a case? To what extent should the personal background of the litigant play in deciding the case? To what extent should justice really be blind?

Dressing for the Law

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“Vain trifles as they seem, clothes have, they say, more important offices than to merely keep us warm. They change our view of the world and the world’s view of us.”- Virginia Woolf

Clothing defines us. It marks us. It deceives us. In “January: A Woman Judge’s Season of Disillusion” by the Honourable Marie Corbett, she discusses the process of robing, and it’s transformative power.

“…—attire that served to advertise the social, professional, or intellectual standing of the wearer like “labels in a grocer’s shop,” with every button, rosette, and stripe having significance. Woolf describes a judge chiding a woman litigant for imprudent dress while he himself is wearing a scarlet robe, an ermine cape, and a vast wig of artificial curls. He lectured the woman without any consciousness of sharing her “weakness.”
I finished garbing myself and glanced in the mirror. Woolf’s concept notwithstanding, there I was—in men’s clothes, ready to administer men’s laws.”

While reading January, the power of the judge’s uniform becomes increasingly apparent. The judicial robe strips judges of their individuality and marks them with power. All while separating them from their former lawyer peers, making judging an incredibly isolating process.

In January, you can sense the isolation that Corbett faces throughout her rigid, routine days. She describes dressing and undressing repeatedly throughout the day. Dressing to go to work. Dressing to appear in court. Dressing to go to lunch. Dressing to go back to court. Dressing to go home.  A day of dressing and undressing. A day of small transformations. And after years of this routine, Corbett no longer thought of her role as searching for the truth. Instead, she describes herself as “the impartial referee, the decider of facts on the evidence that the lawyers brought before me. No, not a search for truth.”

Judges only know what lawyers present. They are tied to the strength of their skills. They cannot research the facts on their own. She describes  moments of bad lawyering before her, futile cross-examinations, poor opening arguments, tedious presentations of evidence.

“University Avenue gave me time to think about the hospital, where the ill and the injured sought health and recovery, and the courthouse, where the wronged and the accused sought justice and truth. Two hives of dis-ease: one physical, the other social. I was moving from one pathological environment to the other: from doctors to lawyers—from white to black—from cancer to crime.”

January is an incredible book. It provides an opening into the minutia of judging, humanizing the people behind the judicial garb.