Three Ds to Reduce Delay in the Criminal Courts

(This article was originally published April 20, 2017 by Marion Lane on The Effervescent Bubble.)

Federal Minister of Justice Wilson-Raybould is meeting with her provincial counterparts next week to discuss delay in the criminal courts. I am a fully retired judge of the Ontario Court of Justice, appointed in the wake of a similar Supreme Court induced crisis on the same issue over twenty-five years ago (in the case of R. v. Askov). During my twenty-year career on the bench, I spent most of my volunteer time as a judge on the issue of delay. And still the problem remains. I have three systemic suggestions to throw into the discussion.

1. Download more “hybrid” criminal offences from the Superior Court to the provincial courts. During the 1990s, the federal government amended the Criminal Code to increase the maximum sentence possible for summary conviction on “hybrid” offences. These are offences where the crown has a choice to proceed by the more complex indictable route or by the simpler summary conviction procedure. Before, the highest sentence on summary conviction was six months in custody. When the amendment “supersized” the cap on sentence for these hybrid offences to a potential eighteen months in custody, crown attorneys assessed the facts of particular cases in light of the higher penalty and, if appropriate, often elected to go ahead by a summary trial in the provincial court. That meant that trials were held more quickly, and the accused had no right to a preliminary hearing. The result was that thousands of cases were downloaded from the Superior Court to the provincial courts, even high-profile criminal trials like those of Jian Ghomeshi and Mike Duffy. That downloading was successful. If the maximum sentence for summary conviction “hybrid” offences were raised again so that it could incorporate more aggravating facts, I suspect that many more cases would proceed in the lower courts.

2. Divert simple drinking and driving cases to an administrative enforcement procedure such as British Columbia implemented in 2010, which was upheld, with some changes, by the Supreme Court of Canada in 2015. When I sat in the Ontario Court of Justice in Brampton, post-Askov, drinking and driving offences made up 45% of our caseload. Even today, drinking and driving cases are the most hotly litigated of charges, and take months to process through the criminal courts. In British Columbia, the Automatic Roadside Prohibition (ARP) scheme provides that drivers who register a “fail” on a roadside breath test can have their licenses suspended immediately for up to 90 days, those who register a “warn” can have shorter suspensions of between three and 30 days, their cars can be impounded, a fine and mandatory remedial education imposed. Apparently, deaths caused by drinking and driving in B.C. have decreased since the administrative enforcement scheme was put in place, and criminal prosecutions of simple drinking and driving charges are down by about 85%. Where there are aggravating factors, a high roadside breath test reading, a prior record of administrative suspensions or criminal convictions, driving while disqualified, or any injury to persons or property, the criminal process should be invoked and sanctions increased. Apparently even MADD Canada is in favour of the B.C. model and has been lobbying the Ontario government to implement it. Now that driving while impaired by marijuana is being added to the Code, a rethink on how enforcement is to be made effective without swamping the criminal courts is imperative.

3. Give the Chief Justice of the provincial courts direct access to the Court of Appeal by enacting a power to “state a case.” Prior to the mid-1990s, Ontario judges had statutory authority to put a factual case to the Court of Appeal for an expedited decision on a legal issue. That power was taken away, a change which in my view has proven dysfunctional. New laws come first to lower trial court judges who have a duty to apply them to the fact situations before them. Sometimes those fact situations are clear and uncontested. The only issue is whether the fact situation involves a breach of the Charter, or some narrow legal issue which needs a definitive resolution by the highest court authority, as speedily as possible.

I had such a case in 2000. It was a simple police stop on the street, a conversation between two officers and a young man, a delay while the police did a computer check on his identity, and then an arrest on unrelated charges. When the charges came before me for trial, both counsel agreed on the facts and the only issue was whether or not the stop amounted to “a detention” which had Charter consequences. As a lower court decision, my written judgment, although published in the national criminal reports and argued repeatedly, had no value as a precedent within the hierarchical structure of our court system.. But my case crystallized the issue as a systemic matter. With no power to state a case for an expedited definitive decision from the Ontario Court of Appeal, the issue of what constitutes a detention on the street churned around the lower courts until finally, nine years later, the Supreme Court of Canada decided the issue. Nine years is a long time. Too long.

That case had to do with detention on the streets. There were other issues: whether a new drinking and driving law had retrospective application to cases currently before the courts? whether the crown had a Charter duty to disclose repair records of Intoxilyzer machines? Both technical legal issues which, in my view, caused what I can only consider constipation in the lower courts. The enema of an expedited Court of Appeal decision was needed.

The existing criminal appellate process in Canada proceeds in a non-systemic, random manner, totally dependent on whether the crown or a defendant has any interest in an appeal. For many pragmatic reasons, neither may want to appeal a particular case, and the issue churns on, wasting endless hours of redundant argument in the lower trial courts. This ad hoc, leisurely and languid appeal process contributes considerably to delay in the courts. If speedy justice is in the public interest, then the Chief Justice of the provincial court has a systemic interest in cutting through the verbiage and getting some authoritative direction on these types of issues on an expedited basis. For this reason, the Chief Justice should be able to “state a case” for a definitive decision from the Court of Appeal. The faster the provincial Courts of Appeal deal with the issues, the faster they will reach the Supreme Court of Canada if necessary, and the faster the lower courts will know how to deal with the trials before them. What’s the downside?

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A Response to Sean Fine and the Supreme Court of Canada on “Justice Delays”

(This article was originally published March 14, 2017 by Marion Lane on The Effervescent Bubble.)

It was gratifying to read Sean Fine’s overview of how Canada’s criminal “Courts [are] shaken by search for solutions to delays” in Saturday’s Globe and Mail. In an intelligent and engaging analysis, he set out the essential message of last July’s Supreme Court of Canada 5:4 decision in R. v. Jordan: that criminal charges are to be tried within 18 months in provincial courts, and within 30 months in Superior Courts, and delays beyond those time periods shall be presumed to be unreasonable. He described the differences of opinion between the different Supreme Court justices, the reaction of the criminal justice system across the country to the new timelines, and the context of this particular decision over time. I commend his report to you.

This is not the first such crisis in the criminal courts. In R. v. Askov (1990), when the Supreme Court also defined what constituted “a reasonable time to trial,” the Ontario crown withdrew thousands of charges because of obvious delay, and thousands more came before the courts when accused persons made their own applications for a stay because of delay. In Ontario, I was one of 36 new judges, and at least two dozen new crown attorneys, appointed by the provincial government to help deal with the existing backlog in the criminal courts, and avoid the situation from recurring. Over 25 years later, Jordan is another SCC decision on the same subject, and another “kick in the pants” from the Supreme Court to all the courts across the country bound to apply their ruling. Equally if not more important, the Supreme Court decision is a clarion call to the federal government responsible for defining the criminal law and to the provincial governments charged with the administration of criminal justice. The Supremes are saying that delay in criminal courts must become a priority.

Sean Fine points out that the Supreme Court agreed on the facts of the particular case before them (that 49.5 months to trial on a charge of possession for the purpose of trafficking is unreasonable), but disagreed on almost everything else. In the fall-out from Jordan, all sorts of questions are being discussed. Some say there is a need to change “a culture of complacency” which exists in the court system; others deny that any complacency exists. Do away with preliminary hearings, implement a triage system, divert less important cases out of the system, require crown attorneys to lay charges and not the police, inject more resources into the system, speed up appointing judges; all are bandied about as obvious “solutions” to the problem.

Finding enduring solutions, however, requires appropriate empirical data about the different ways the system is actually working across each province and across the country. As Professor of Criminology Tony Doob noted in a recent Globe and Mail article with respect to preliminary hearings, such data is non-existent.

Throughout my 20 years on the Ontario Court of Justice, the 1990 Askov “kick in the pants” was a continuing incentive to reform within the Ontario criminal court system. The provincial government appointed more judges and crowns; the provincial bench became more diversified. In 1991, the Supremes mandated full disclosure of the crown’s case to the defence. For a variety of systemic reasons, making that aspiration real took more time and effort than would ever have been anticipated, and still sometimes falls short in particular cases. Thousands of charges were downloaded from the Superior Courts to the provincial courts, eliminating the possibility of a preliminary hearing and inherently ensuring a more speedy trial. This was done by the simple statutory expedient of “supersizing” the possible penalties available for “hybrid” charges (such as assault and sexual assault) where the crown can elect to proceed by summary conviction.

Numerous scheduling changes were attempted to reduce delay. We tried two tiers of courts: one in the morning and another in the afternoon; that didn’t work. Special plea courts with judges known to be lenient on sentencing were set up; that helped. Plea courts for early resolution of cases are now the norm. We implemented an intake cycle system where a single judge and crown took ownership of blocks of cases coming into the system with the expectation that they would be resolved or adjudicated within four months. That system was abandoned after several years without any formal outside evaluation. The administration monitored “time to trial” statistics and, routinely, assigned temporary judges to run “blitz courts” to clear local backlogs of cases in overworked or understaffed courts. “Shadow courts” were established with “shadow” dockets of cases which were fed into the trial courts offering help after their regularly assigned cases were completed. Experienced crowns were placed into intake courts to “take ownership” of cases, encourage early resolutions and ensure that multiple adjournments did not bog down the set date process.

Numerous task forces and commissions (both local and province-wide) were set up and recommendations made for changes in practices: early vetting of cases by experienced crowns, early resolution discussions, diversion of simple cases out of the system and to special programs, mandatory judicial pretrials to narrow the issues and encourage resolutions, rules requiring notice about witnesses and issues to be addressed on prelims, prelims moved out of courtrooms and witnesses examined on the record without a judge being present, special training and procedures for complex cases and for dealing with unrepresented accused, the use of trial coordinators to set dates outside of court, specialized crowns handling specialized courts with specialized procedures (e.g.: domestic courts, courts for children, drug courts, mental health courts, courts for Indigenous people), dealing with impaired driving administratively rather than through the courts.

There has been no shortage of problems identified nor recommendations made about how the system could be improved. The problem has been making reforms happen, and the systemic failure to evaluate the effects.

The criminal justice system, like the health care system, is a very complex institution with multiple ever-changing stakeholders, little routine outside evaluation, and, in my time, a woeful lack of institutional memory. The federal government defines the criminal law but it is not responsible for the administration of justice. Our constitution makes provinces responsible for the operation of the courts. The actions of one affect the other, and vice-versa. One obvious example: When the federal government cut its financial contribution to the Ontario Legal Aid Plan, the number of defendants able to obtain counsel through Legal Aid went down, and the number of accused persons representing themselves went up. Without counsel, there were fewer pre-trial resolutions and the time taken for trial, even for simple matters, increased. What else would one expect? Defence counsel are essential players in the system. Apart from the detriment to individual rights, cutting them back removed the grease that makes the legal system work.

Don’t get me started…. It’s a big issue. How the time limitations imposed by the Supreme Court of Canada will withstand the reality of fact situations coming before Canadian courts in the immediate future, only time will tell. Maybe, as in 1991, the jurisprudence will become nuanced. In my view, it is a very good thing that the Supreme Court has put on the pressure to make “speedy justice” a priority. We’re finally talking about delay, the real issue which has faced our courts for decades. Maybe this time, there will be a major rethink.

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Preliminary Hearings: Prohibition or Reform of Practice?

(This article was originally published March 04, 2017 by Marion Lane on The Effervescent Bubble.)

The media has been full in recent weeks of proposals to do away with preliminary hearings (called prelims for short) and so, reduce delay in the criminal courts. The 5:4 Supreme Court of Canada decision in R. v. Jordan in July set presumptive deadlines of 18 months for trials to be concluded in provincial courts, and 30 months in Superior Courts. Several high-profile cases have occurred where judges applying the new guidelines have stayed very serious charges because the time taken to get to trial was so long. When accused persons are not tried on the merits of their charges, the public is understandably upset.

The Ontario Attorney General is apparently encouraging more “direct indictments” whereby the crown refers serious matters directly for trial in the Superior Court (without a prior prelim in the lower court) and making demands to do away with most prelims. Manitoba’s three Chief Justices and its Attorney-General are proposing to eliminate all prelims. Minister of Justice Wilson-Raybould is saying that “Preliminary inquiry reform is a divisive issue…” and that committees in both the House of Commons and the Senate are looking at the issue.

What is a preliminary hearing? The Criminal Code provides that any person charged with an indictable offence (typically a serious charge to which a more elaborate procedure applies) has a choice: 1) trial by judge alone in the provincial court, 2) trial by judge alone in the Superior Court, or 3) trial by judge and jury in the Superior Court. If the accused elects trial in the Superior Court, he or she may request that a prelim be held. This means that a judge of the provincial court will conduct a hearing to decide if the crown has enough evidence for the defendant to be committed to stand trial. The “test for committal” is low: whether there is any evidence upon which a reasonable jury properly instructed could convict the accused of the charge or charges before the court. The prelim judge cannot assess the credibility of witnesses, nor can he or she hear any application for any potential Charter breach.

The limited jurisdiction of the prelim judge does not mean that prelims cannot be useful. Although the defendant will have received full written disclosure of the crown’s case well in advance, there may be much relevant information that defence counsel (and crown counsel for that matter) will not have. Neither will know, for example, how the complainant will appear as a witness and how he or she will respond to cross-examination. Neither will know information from the arresting officer or other crown witnesses that the defence might use to support a later application for exclusion of evidence under the Charter or otherwise. A prelim provides a chance to examine and cross-examine witnesses on essential points and get their responses on the record. Should they later testify differently at trial, the inconsistencies would go to their credibility. After hearing the evidence on a prelim, some judges offer the parties an opportunity to resolve the matter there and then without the need for any further trial. Resolutions at this stage are not uncommon.

It was also my experience, sitting as a judge in various courts in and around Toronto, that the use of prelims as a delay tactic has almost entirely disappeared. In the 1980s and early 1990s, defendants routinely elected prelims and then consented to committal at the prelim “without hearing any evidence.” The practice clogged court dockets and was then a primary cause of delay. In the 1990s, the Criminal Code was amended to allow higher penalties for certain offences (e.g.: sexual assault) where the crown could choose to proceed by the simpler summary conviction procedure. Thereafter, thousands of cases were downloaded to the provincial courts for trial and the defendant had no right to a prelim. Still later, court rules were put in place requiring a judicial pretrial where anyone seeking a prelim had to show precisely what witnesses he or she needed to hear and what issues were in play. If committal on the very low test were not contested, the crown might not need to call any of its case. Where multiple defendants were joined together and there may be little evidence relevant to one or two, the only evidence heard at the prelim would be with respect to those defendants. The prelim weeded out many problematic charges and focused the issues, both measures that would save time and resources down the road in the Superior Court.

The most intelligent piece I have read yet is the article by criminology professor Anthony Doob in the Globe and Mail on February 27th entitled “Preliminary inquiries: a debate that needs better data.” His essential point is that practice on prelims varies widely across the country and that what little data exists (reported in 2005) shows that prelims are often used instead of trials, and involve very few court appearances. He says that it is not clear why prelims “are seen as the Achilles heel of the court system” with respect to delay. He concludes that “data such as those provided by Statistics Canada in 2005 are no longer available. For explicable but stunningly short-sighted reasons, Statistics Canada has made it almost impossible to get a good picture of the use of the preliminary inquiry in Canada… (so that we know) less now than we did in 2005. … Those… on all sides of the debate can all claim that they are correct. They can make their arguments without even being forced to resort to the use of alternative facts, since the alternative—real up-to-date facts—don’t exist.” Someone is finally calling for “evidence-based” policy development with respect to delay in the courts. It’s about time.

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Summary of the Jian Ghomeshi Judgment

Justice William Horkins’ recent decision in the high-profile sexual assault and choking case of R. v. Ghomeshi is well worth a read. It is available on the internet. The Supreme Court of Canada requires that all judges give reasons for their decisions that are clear and comprehensible to the litigants, the public and to any potential appeal courts. As I said in my post at, I consider Justice Horkins’ decision masterful, and a model of its kind. He is clear in his analysis, comprehensive in his review of all the relevant issues, and unusually eloquent in his language.

He comes down unusually hard on the complainants in this particular case, not because of their after-the-fact actions with Mr. Ghomeshi, but because they were shown as dishonest and manipulative in hiding this evidence from the police, Crown counsel, and the Court. In my view, R. v Ghomeshi is a case study in what complainants in these types of cases should NOT do before and at trial. Advocates who miss that message do women no favours.

Anyone wanting to know how the criminal justice system works will learn much from reviewing this decision. What follows is a summary of Justice Horkins decision.

  • An outline of the charges (paragraphs 1-4)
  • The elements of the offences of “sexual assault” and of “choking with intent to overcome resistance” (paras 5-7)
  • The background context of the case (paras 8-11). Justice Horkins notes that as each charge is based entirely on the evidence of each complainant, his judgment depends on an assessment of the credibility and reliability of each complainant as a witness.
  • The complaints of L.R. as related in her evidence-in-chief (paras 12-24), one describing his grabbing her hair while they were kissing in his car, the second at his home with him suddenly grabbing her hair, punching her in the head several times, and pulling her to her knees, “such that she felt like walking into a pole or hitting her head on the pavement,” and she “thought she might pass out.” She went home in a cab and she said she never saw him again after this incident.
  • Justice Horkins then sets out several areas of concern in L.R.’s evidence, identified in cross-examination (paras 26-44):
    • a) “evolving facts” which changed from her three media interviews, to the police statement, and then at trial
    • b) her changed position on whether she was wearing hair extensions, which she falsely said she had disclosed to the crown
    • c) her inconsistencies on whether he smashed her head against the car window, and her conclusion that she was simply “throwing thoughts” at the investigators
    • d) changing renditions of what happened at the house
    • e) her “clear memory” of the bright yellow car he drove, which Justice Horkins found “is simply wrong.” Justice Horkins writes (para 36) that “this demonstrably false memory weighs in the balance against the general reliability of [her] evidence as a whole.”
    • f) Although “firm in her evidence that… she chose never to have any further contact with Mr. Ghomeshi,” she later sent him two flirtatious emails which she never disclosed to the police or the Crown. (paras 37-44). As Justice Horkins wrote (para 43), “the expectation of how a victim of abuse will, or should, be expected to behave must not be assessed on the basis of stereotypical models.” Nevertheless, he found her behaviour “at the very least, odd.” Justice Horkins concluded that the “… inconsistencies, and [her]… deceptive conduct…as a witness willing to withhold relevant information from the police… the Crown and… the Court…[made] it clear that she deliberately breached her oath to tell the truth” and that “her value as a reliable witness is diminished accordingly.”
  • The complaint of Lucy DeCoutere (paras 45-55) sets out the history of interactions between her and Mr. Ghomeshi and the “out of the blue… kissing… and choking and slapping her in the face,” which occurred at his home one weekend.
  • Again, Justice Horkins discussed the problems in her evidence. (paras 56-94):
    • a) He describes her inconsistencies in recounting the alleged assault in many media interviews, her police statement and at trial, all of which “suggests a degree of carelessness with the truth that diminishes the general reliability of the witness.”
    • b) Her late disclosure of material information to the police and the Crown “despite having the assistance of her own counsel” and “a well-established… line of communication with the investigating officers and Crown counsel” in the months leading up to the trial
    • c) Her other evidence of a continued relationship with Mr. Ghomeshi which was only revealed in cross-examination led to Justice Horkins’ concluding that, despite direct questions from the police and giving a statement to them after a caution and under oath, she had engaged in “a manipulative course of conduct,” “the suppression of evidence,” and “deceptions maintained under oath” which “drive my concerns about the reliability of this witness.”
    • d) Sending flowers and a thank you note to Mr. Ghomeshi after the alleged choking “might be part of her effort to normalize the situation… (whether unusual or not) this was very clearly relevant and material information in the context of a sexual assault allegation” and “the deliberate withholding of the information reflects very poorly on… [her] trustworthiness as a witness.”
    • e) Her multiple emails sent to Ghomeshi and a hand-written love letter, five days after the alleged choking, showed that her testimony in court (which she gave under oath as her “guarantee” that she had no romantic feelings for Mr. Ghomeshi afterwards) was “simply not true” and was “out of harmony with her evidence-in-chief and her multiple pre-trial statements to the media and the police.” Justice Horkins questioned whether her conduct in suppressing evidence may have motivated by “her role as an advocate for the cause of victims of sexual violence.”
  • The evidence of Ms. Dunsworth that Lucy DeCoutere spoke to her about the choking incident about ten years ago was admitted to offset any implied allegation of “recent fabrication.” This evidence addressed a concern Justice Horkins had, and was not one raised by defence counsel. (paras 95-99)
  • The complaint of S.D. tells of them kissing on a park bench after a dinner date when “she felt his hands and his teeth on and around her neck… [which was] rough… unwelcome… ’not right’… and… caused her difficulty in breathing.’ She said nothing about it at the time and socialized with him two or three times thereafter. (paras 100-104)
  • Assessing her testimony (paras 106-119), Justice Horkins observed that, although “some lack of precision is to be expected of any report of conduct from over a decade earlier… it is reasonable to expect that a true account… will not vary too dramatically from time to time in the telling” such that there is “sufficient clarity in the evidence to allow a confident acceptance of the essential facts” (the standard of proof in a criminal trial). Her evidence was too imprecise to meet that standard (e.g.: para 106). The judge was also concerned about possible collusion with Ms. DeCoutere (paras 107-110). He also noted that she met with Crown counsel five times in the year prior to the trial, was reminded each time of the need to be completely honest and accurate, and only at trial did she reveal she had a sexual encounter with Mr. Ghomeshi at her own home, after the incident. Justice Horkins wrote that her “decision to suppress this information until the last minute, prior to trial, greatly undermined the Court’s confidence in her evidence. In assessing the credibility of a witness, the active suppression of the truth will be as damaging to her reliability as a direct lie under oath.” (para 114). He went on to write, “I accept [defence lawyer, Marie] Ms. Henein’s characterization of this behaviour…. S.D. was clearly ‘playing chicken’ with the justice system. She was prepared to tell half the truth for as long as she thought she could get away with it.” (para 118)
  • In a key admonition to all witnesses (para 119), Justice Horkins writes that “S.D. offered an excuse for hiding this information… that this was her ‘first kick at the can,’ and that she did not know ‘how to navigate’ this sort of proceeding. He replies that ‘navigating’ this sort of proceeding is really quite simple: tell the truth, the whole truth and nothing but the truth.”
  • The Framework of his Analysis is stated clearly as “it plays the central role in the determination of this matter.” (para 120) It starts with the presumption of innocence (para 121), “which is the fundamental right of every person accused of criminal conduct.” Interwoven is the standard of “proof beyond a reasonable doubt” imposed on the Crown (paras 122-124), which is the highest standard of a spectrum of degrees of proof used in the legal system and is defined by the Supreme Court of Canada in R. v. Lifchus [1997] 3 S.C.R. 320. Horkins recognizes the challenges posed by the historical nature of the complaints and states the clear law that “there should be no presumptive adverse inference arising when a complainant in a sexual assault case fails to come forward at the time of the events.” Similarly, the law recognizes that “there should be nothing presumptively suspect in incremental disclosure of sexual assaults or abuse.” He notes that “each case must be assessed individually in light of its own unique… circumstances.” (paras 125 and 126) He indicates that similar fact evidence of propensity to commit a particular type of crime is generally inadmissible and that, in this case, the Crown had expressly agreed that each complaint must be determined on its own merits. (para 127)
  • Conclusions (paras 128-141) Although he notes the similarities between the three complaints, he indicates that he “very deliberately considered the evidence relating to each of the charges separately.” (paras 128-130) He says that there is “no legal bar to convicting on the uncorroborated evidence of a single witness….” (para 131) In this case, he found that “The cross-examination dramatically demonstrated that each complainant was less than full, frank and forthcoming in the information they provided to the media…the police… Crown counsel and… this Court.” (para 132) His role was to assess the reliability and credibility of the complainant, when measured against the Crown’s burden of proof, and to ask: Does the evidence have sufficient quality and force to establish the accused’s guilt beyond a reasonable doubt? (para 133). No adverse inference can arise from the decision of an accused to remain silent and put the Crown to the strict proof of the charges. (para 134) Courts must be “very cautious in assessing the evidence of complainants in sexual assault and abuse cases;” “must guard against applying false stereotypes concerning the expected conduct of complainants,” and “… need to be vigilant in avoiding the equally dangerous false assumption that sexual assault complainants are always truthful. Each individual and each unique factual scenario must be assessed according to their own particular circumstances.” (para 135)
  • The after-the-fact conduct of each complainant seems “out of harmony with the assaultive behaviour ascribed to him” and caused the judge “considerable difficulty when asked to accept their evidence at face value.” (para 136)
  • Most troubling to the Court was his finding that “each complainant demonstrated, to some degree, a willingness to ignore their oath to tell the truth on more than one occasion.” (para 137) The Court was unable “to accept each complainant as a sincere, honest and accurate witness“ because “the evidence of each complainant suffered not just from inconsistencies and questionable behaviour, but was tainted by outright deception.” (para 138) “The harsh reality is that once a witness has been shown to be deceptive and manipulative in giving their evidence, that witness can no longer expect the Court to consider them to be a trusted source of the truth…. Put simply, the volume of serious deficiencies in the evidence leaves the Court with a reasonable doubt.” This conclusion “is not the same as deciding in any positive way that these events never happened. At the end of this trial, a reasonable doubt exists because it is impossible to determine, with any acceptable degree of certainty or comfort, what is true and what is false. The standard of proof in a criminal case requires sufficient clarity in the evidence to allow a confident acceptance of the essential facts.” Where “the bedrock foundation of the Crown’s case is tainted and incapable of supporting any clear determination of the truth… the evidence fails to prove the allegations beyond a reasonable doubt” and there will be a finding of not guilty on all charges. (paras 140-142)

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The Mike Duffy Trial #2: Cameras in the Courtroom?

The Mike Duffy trial has attracted unprecedented public interest and a mass of media attention. The Ottawa courtroom where the trial is being heard is not large enough for all the spectators who want to watch the proceedings. As is customary in “high profile” cases, an adjacent courtroom equipped with live streaming has been opened to accommodate the overflow. At the beginning of the trial, Justice Vaillancourt warned onlookers that televising, recording or taking photographs in the courtroom is unlawful. The National Post, in a recent editorial, renewed its demand to “open Canada’s courtrooms.” Two days later, CBC Radio on Day 6 with Brent Bambury aired a vigorous debate between media lawyer Paul Schabas and defence counsel David Lutz on “the case for cameras in the courtroom.” This is a recurring issue.

The argument for opening the courts to cameras and recordings is based on the principle that courts are open to the public, that the more justice is seen to be done, the more the process will be demystified, and the better the accountability of all participants. In an age when most people get their information from television, “broadcasting the proceedings,” as the National Post says, “in a sober, no-bells-and-whistles fashion, is simply an extension of that principle.” Besides, “if the Duffy trial can be live-tweeted, why can’t it also be broadcast?”

The Supreme Court of Canada was a pioneer in permitting camera access to the courts. In 1981, it allowed cameras to broadcast argument of the Patriation Reference. Twelve years later, it did the same thing in the Sue Rodriguez assisted suicide appeal. Since 1995, CPAC, the Cable Public Affairs Channel, has broadcast all their proceedings, using small, remotely operated cameras affixed to the walls of their main hearing room. Beginning in 2009, those proceedings have also been webcast and are available to anyone, anytime, from the archive on the Supreme Court’s website. Some Canadian Courts of Appeal have allowed video coverage of occasional high-profile cases on an case-by-case basis. A pilot project in the Manitoba Superior Court last year created a presumption that proceedings in certain courts could be broadcast “absent compelling arguments to the contrary,” but excluded the testimony of witnesses and jury trials. In the United States, all 50 states allow some camera access in state courts, but none is allowed in federal proceedings or the US Supreme Court. In Britain, limited video coverage occurs only in Scotland; elsewhere there have been some experiments. Following a three-year pilot project in New Zealand, all levels of courts there permit the use of cameras. Similarly in Australia, but on a more restricted and ad hoc basis.

Opponents of cameras in the courtroom are concerned about the effects on witnesses, jurors, lawyers and judges. Witnesses never want to testify. The possibility of appearing on television can only add to their stress. And how can the court protect their privacy? Or give any oversight as to how the media will use what they have filmed? Existing powers under the Criminal Code to impose a ban on the identification of witnesses and to exclude the public from particular testimony are limited. There is the danger that edited snippets of evidence taken out of context will misrepresent what actually happened. Electronic coverage of jury trials would have special problems: juries may need to be sequestered to avoid contaminating what they see and hear, or finding an impartial jury for a possible retrial could be more difficult. Citing the notorious O.J. Simpson trial, isn’t there a danger of lawyers and judges playing to the cameras and making a mockery of the judicial system? Or of multiple cameras undermining court decorum? From a marketing perspective, televising entire trials in real courtrooms in real time is not like the tv program, Law and Order, or the popular “This is Wonderland” series about the Old City Hall court in downtown Toronto which entertained viewers for three seasons a few years ago. For all the moments of high drama, court proceedings can be static, boring, hard to understand, “like watching paint dry.”

Before I was a judge, I was in the “open courtroom to cameras” camp. Early after my appointment, however, a disciplinary hearing for a fellow judge alleged to have kissed a crown attorney without her consent was televised by a local cable company. The results were horrific. Pictures of the complainant were repeated over and over again as all the media piled on to the coverage. Ten second clips taken out of context re-victimized the complainant, destroyed her privacy, and added nothing to any public understanding of what was actually going on. This was a classic worst case scenario over which the court had no control.

It strikes me that the existing distinction between cameras in trials where the rights of witnesses could be jeopardized and cameras televising appeals where lawyers are only making argument is a valid one. Perhaps existing absolute bans should be nuanced to reflect that practice in trial courts: electronic coverage to set the court scene and during argument and final submissions, but not while witnesses are testifying. For the rest, the public would need to attend in person or rely on court sketches and summaries from reporters. Pending any change, those interested might want to check out CPAC’s coverage of Supreme Court of Canada hearings. Those in the know say it’s a good way to fall asleep.

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Carter #2: A Template for Future Charter Appeals

Why Carter v. Canada Was So Speedy:

The Supreme Court of Canada (hereafter “SCC”) produced the Carter decision on assisted dying, one of the most important in its history, in record time, slightly over three and a half months. It strikes me that they were able to do so because they had already decided two key technical legal issues in their earlier decision of Canada (Attorney General) v. Bedford (the prostitution case reported at 2013 SCC 72). In Carter, they simply applied to themselves the approach they had defined in Bedford for how all appellate courts should deal with these types of cases.

Bedford and Carter are companion pieces.

Both are applications under s. 52 of the Constitution Act for a declaration that particular provisions of the Criminal Code were contrary to section 7 of the Charter.

Both dealt with issues which, on the surface, appeared to have been decided by earlier SCC decisions. Both attracted many intervenors. These are organizations interested in the issue who wanted to put their perspective before the court.

Both had massive amounts of evidence including affidavits of plaintiffs, cross-examinations, social science studies, reports, expert evidence, and a host of other social and legal materials.

Both trial judges found that, in law, they could “distinguish” the earlier SCC precedent, and declare the relevant provisions of the Criminal Code unconstitutional.

Both were overturned on appeal by their respective Courts of Appeal primarily on technical grounds. Both trial judges were upheld, in whole or in part, by unanimous (9:0) decisions of the SCC.

The ultimate result of both cases was that the Supreme Court’s declaration of invalidity was suspended for twelve months to allow Parliament to pass new laws to fill the void if they so chose.

The technical issues at stake are important and will have significant effects in future such Charter litigation. Together, Bedford and Carter  form a package which tells lower courts (Courts of Appeal and trial courts) how these types of cases are to be handled in the future.

What are these two key technical issues? 1) That trial judges could revisit SCC precedents in certain limited circumstances. 2) That appeal courts should defer to all findings of fact of trial judges “absent palpable and overriding error.” In other words, if the findings of the trial judge are “reasonable” and “supported by the evidence,” appellate courts should not interfere.

Let me explain.

Whither stare decisis?

The doctrine of “stare decisis” (which means “to [stand] by decisions and not to disturb settled matters”) is a fundamental principle of our common law legal system. It has two meanings: that lower courts must follow decisions decided by higher courts in the hierarchy (“vertical stare decisis”), and that cases must be decided the same way when their material facts are the same (“horizontal stare decisis”). Clearly, the rule is designed to promote consistency, predictability, and certainty. If any judge could determine any matter however he or she wanted, without considering “stare decisis,” ours would not be a system characterized by the rule of law.

That being the case, how is it that the SCC would uphold the right of a trial judge like Justice Smith of the BC Supreme Court to deviate from their earlier decision against assisted dying in the Rodriguez case (1993)?

They did so because: 1) new legal issues were raised in Carter that had not been before the court in Rodriguez, and 2) there was a change of circumstances or evidence that ‘fundamentally shift(ed) the parameters of the debate.”

Justice Smith was not allowed to “overrule” Rodriguez, but she was permitted to “distinguish” it. In so doing, she had to consider what it was that Rodriguez actually decided and determine whether there was any room for further consideration.

The trial judge found, and the SCC agreed, that although the “who, what, when and where” (the “adjudicative facts”) of the plaintiffs in Rodriguez and Carter were the same, the context of their situation was different.  The law argued by counsel, and “the legislative and social facts” in the evidence before the court were not the same.

“Legislative and social facts” are all the other evidence including facts about society at large, established by complex social science evidence, the experience in other jurisdictions where assisted death was now legal, evidence of current Canadian palliative practices and prosecution policies, and medical ethics.

The law which had developed since 1993 were new legal principles defining the Charter, particularly principles relating to “overbreadth” and “minimal impairment.” In 2012 when Carter was heard before Justice Smith in the BC Supreme Court, counsel argued these  principles and the trial judge was obliged to consider them.

As the SCC said in Carter (para 44), “stare decisis is not a straitjacket that condemns the law to stasis.” The dictionary meaning of “stasis” is “a slowing or stopping of the normal flow of bodily fluids,” a condition of no action or progress, “an abnormal state in which the normal flow of blood is slowed or stopped.”

By rejecting the notion that all lower courts must “rigidly follow (SCC) Charter precedents unless and until this Court sets them aside(para 43),” the court recognized the reality of our common law legal system. It is best thought of as a living tree, rooted in fundamental principles, but which is constantly evolving as lower courts apply new law to new evidence before the courts.

Sometimes these cases go up to the hierarchy on appeal, perhaps even to the SCC. More often they do not. Together they form the “jurisprudence” which is the common judge-made law on the issue in Canada.

Modelling a doctrine of appellate restraint

In the past, Courts of Appeal applied a rule to the effect that they should show deference to the findings of trial judges on the credibility of witnesses and the objectivity of expert witnesses. The rule also said that appellate courts did not need to defer to the trial judge’s findings on social and legislative facts. The SCC expressly rejected that approach in both Bedford and Carter.

The SCC’s position on this is clear: “Absent reviewable error in the trial judge’s appreciation of the evidence, a court of appeal should not interfere with the trial judge’s conclusions on social and legislative facts. This division of labour is basic to our court system. The first instance judge determines the facts; appeal courts review the decision for correctness in law or palpable and overriding error in fact….” (Bedford, para. 49)

The SCC goes on to note “two important practical reasons” why this should be the practice.

1) If it were not the case, appeal courts would be required to “duplicate the sometimes time-consuming and tedious work of the first instance judge in reviewing all the material and reconciling differences…. In a review for error—which is what an appeal is—it makes more sense to have counsel point out alleged errors in the trial judge’s conclusions on the evidence and confine the court of appeal to determining whether those errors vitiate the trial judge’s conclusions.” (Bedford, para. 51)

2) As social and legislative facts may be intertwined with the adjudicative facts and with issues of the credibility of experts, it is impossible to apply different standards of review to the different types of facts. Since social science evidence is best presented through experts and the assessment of expert evidence relies heavily on the trial judge, there is no longer any rationale for different standards of review. (Bedford, paras 52-53).

In Carter, the SCC applied this doctrine of judicial restraint to themselves.. In doing so, they were modelling what they now expect from trial courts and appellate courts across the country. Among other developments, these technical decisions will likely streamline how our legal system handles these types of cases in the future, making it more efficient and more modern.

If the SCC can deal with one of its most important and most sensitive cases in such record time (three plus months), how can other courts not do the same?

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Carter v. Canada (Attorney General) #1: Judicial Restraint at its Best

The Supreme Court of Canada (hereafter SCC) decision in Carter v. Canada (Attorney General), released February 6th, is of vital importance. This decision has grabbed the headlines and stirred public discussion. About the pros and cons of assisted death. About the role of the SCC. About the relationship of the Court to legislators. These are big issues, now squarely on the agenda in the year ahead.

My focus is not assisted death in substance; reasonable people differ on that subject. My interest is in what the decision tells us about judicial restraint. Andrew Coyne, in the National Post (February 14th), under a headline proclaiming “The Death of Judicial Restraint,” cited Carter as an example of judges changing the law “only because they wanted to.” He lamented “the fading notion that the courts, in interpreting the law, should be bound by…something—the written text, the historical record, precedent, logical consistency. …[and]…with the legalization of ‘assisted death, (the court) has slipped free [from these constraints] altogether.” I emphatically disagree.

In my view, the decision of the SCC in Carter is a model appellate decision demonstrating that the legal process in Canada is alive and well, and that the SCC is doing its job superbly. In a totally focused judgment, the SCC only decided what they had to decide, to review the decisions of the trial judge and the BC Court of Appeal, in this particular case.

Repeatedly, they declined to decide what was not necessary for their immediate purpose. Their focus was on the evidence put in at trial and on the findings of fact of the trial judge. This included evidence of the effect of the existing law on the plaintiffs before the Court, and evidence of the plethora of contemporary experience on the issue, since the issue was last considered by the Supreme Court of Canada, itself, in 1993. All relevant to the precise Charter issue before the court. Their reasons are replete with references to the jurisprudence which shaped their decision.

In my view, faced with the unenviable job of dealing with a matter known to be highly contentious, they had the courage to make the decision required by law and, out of deference to Parliament, the wisdom to make it as narrow as possible.

In this post today and others to follow, I will discuss what the SCC actually said in Carter, and what it teaches us about the nature of Canada’s legal system. I am interested by the fact that their decision, although argued as recently as October 15th, 2014, was produced so soon. Also that it was a unanimous 9:0 decision, written not by one judge but by the Court as a whole, including eight out of nine judges appointed by Conservative governments. I think that the Court was able to render their judgment so quickly precisely because it is a very narrow decision characterized by extreme judicial restraint. The sad truth is that a commentator as smart and well-informed as Andrew Coyne cannot see “judicial restraint” when it is staring him in the face.

In this post, I will unpack the decision for those of you who are not legally trained (and for lawyers who may be intrigued by my argument). What were the issues before the court? Where did the case originate? What did the SCC actually decide? What supports my view that the SCC was extremely restrained in their approach to the case?

Blog posts are generally short, such that each of these topics could be a post unto itself. Because the topics are inter-related and essential information, however, I thought it best to keep the discussion together. The result? A post which is essentially a mini-essay. The easiest way to read it may be to print a hard copy.

History of the case

Carter began as a “test case” before Justice Lynn Smith of the British Columbia Supreme Court in the fall of 2011. The plaintiffs included Gloria Taylor, who had ALS, and Lee Carter, whose mother Kay Carter had suffered from advanced spinal stenosis and had travelled to Switzerland in 2010 to secure an assisted death legally.

They sought a judicial declaration that the absolute ban on assisted death in the Canadian Criminal Code was contrary to their Charter rights. The absolute ban is found in s. 14 and s. 241(b) of the Criminal Code. Section 14 says that “No person is entitled to consent to have death inflicted on him… .” Section 241(b) says that “Everyone who… aids or abets a person to commit suicide is… liable to jail for up to fourteen years.”

They argued that these provisions denied them the assistance of a physician should they want to end their own life and, by doing so, violated their rights under s. 7 and s. 15 (1) of the Canadian Charter of Rights and Freedoms.

Section 7 provides that “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” Section 15 (1) says that “ Every individual is equal… under the law and has the right to the equal protection and equal benefit of the law without discrimination… based on… physical disability.” Also relevant to a Charter challenge is section 1 of the Charter which “guarantees the rights… subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

Canadians who assert in court that they have a right under the Charter have the burden (known as “onus”) of proving that some law or state action violates or violated their right or rights. If they are successful, the onus then shifts to the government to prove that any violation is “justified in a free and democratic society.”

Don’t worry if you do not understand the significance of the lingo used in the Charter. The Charter was enacted in 1982 and, over the succeeding 32 years, thousands of judges from the SCC to the Provincial Courts have grappled with the meaning of the Charter in individual cases before them. This body of law (known as “jurisprudence”) is sophisticated and constantly changing. In Carter, you will learn about the meaning of s. 1 and s. 7 of the Charter. You will also learn how courts approach a Charter analysis. Informed lay people do not need to know all the details. It is sufficient to understand what the heck is going on. I hope this post will help.

Getting back to the history of the case, the plaintiffs wanted a Declaration suspending the existing law until Parliament could pass a new one. In the interim, they sought a constitutional exemption from prosecution for Gloria Taylor and anyone who assisted her in dying.

The defendants were the Attorneys General of Canada and of British Columbia. They argued that Justice Smith was bound by the 1993 decision of the SCC, in Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519, which had upheld the same sections of the Criminal Code in a similar case. They said that the trial judge had no option but to dismiss the application.

In June 2012, Justice Smith released her 1416-paragraph decision: Carter v. Canada (Attorney General) 2012 BCSC 886. After an “exhaustive review” of all the evidence and after considering the legal arguments of counsel, she held that she could “distinguish” Rodriguez. That means that, on the new law argued before her and the facts proven in the evidence at trial, there was room for her to reconsider Rodriguez. She concluded that the absolute ban in the Criminal Code violated the s. 7 and s. 15 Charter rights of Gloria Taylor and those who might assist her, and that the plaintiffs should be granted the relief they sought. She later ordered special costs against Canada and British Columbia.

The Attorney General of Canada appealed to the British Columbia Court of Appeal. The majority of that court (2:1), in 2013, held that Justice Smith was wrong, that she was bound by Rodriguez, and set aside her orders [Carter v. Canada (Attorney General), 2013 BCCA 435 at para 352]. On January 18, 2014, the SCC granted leave to the plaintiffs to appeal that decision. The SCC properly agreed to hear their appeal as it clearly raised issues of national importance.

The Supreme Court Decision in a Nutshell
(paragraph numbers of SCC decision are in parentheses)

The SCC found s. 14 and s. 241(b) void, “insofar as they deprive a competent adult of such assistance where the person (1) clearly consents to the termination of life, and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.” (paras 4, 147)

The Court found that the plaintiffs had met their onus of showing that the absolute ban on assisted death violated the s. 7 Charter rights of Gloria Taylor and people like her to “life, liberty and security of the person….” All three s. 7 interests as defined by the caselaw were affected.

(1) With respect to the right to life, the SCC noted the evidence that people in the position of Gloria Taylor had no option but to suffer “severe and intolerable suffering” until they died of natural causes or to take their own lives prematurely while they were still competent to do so. (para 1). This fact was not disputed by any of the parties before the Court. In these circumstances, the existing caselaw applied to the effect that “the right to life is engaged by the threat of death… where law or state action imposes death or an increased risk of death, directly or indirectly.” (paras 57-63)

(2) With respect to liberty and security of the person, the SCC agreed with the trial judge that “the law has long protected patient autonomy in medical decision-making” and “the right to make fundamental personal choices free from state interference.” (paras 64-68)

As to the meaning of “the principles of fundamental justice,” the SCC explains that laws impinge on “life, liberty and security of the person” all the time. When they do, however, the caselaw has recognized three “principles of fundamental justice” which are central: laws “must not be arbitrary, over broad, or have consequences that are grossly disproportionate to their object.” (paras 71-72)

To see whether the law meets these minimum standards, the court must identify the object of the law. In this case, what is the purpose of the absolute ban on assisted dying? (para 73). The SCC found that the majority in Rodriguez had “concluded that the object of the absolute ban was to protect vulnerable persons from being induced to commit suicide at a time of weakness.” (paras 74-82). The SCC found no legal reason to disagree now. The fatal flaw of the absolute ban was not that it was arbitrary, but that it was overly broad, because it swept into its ambit people like Gloria Taylor, who clearly were not “vulnerable.” (paras 85-88)

Turning to whether the breach was justified under Section 1 of the Charter, the only question was proportionality. (paras 94-101). The key issue? Whether the absolute ban “was the least drastic means of achieving the legislative objective?” The Court found no error in the trial judge’s conclusion that, on the evidence of current practices in Canada and in permissive jurisdictions elsewhere, “the risks associated with physician-assisted death can be limited through a carefully designed and monitored system of safeguards.” (paras 102-121). Since the evidence did not show that the absolute ban was minimally impairing, the SCC agreed with the trial judge that the government had not met its onus of proving that s. 1 justified the breach.

To allow Parliament, Legislatures and professional colleges time to respond to their decision, the SCC suspended the effective date of its decision for one year. (paras 126, 128, 147)

The SCC held that nothing in their declaration of invalidity would compel physicians to provide assistance in dying and “the Charter rights of patients and physicians will need to be reconciled.” (para 132)

It upheld the order of the trial judge for special legal costs against Canada for the entire proceeding, and against British Columbia for 10% of the costs of the trial. (paras 133-146)

Examples of Judicial Restraint

The SCC is very clear that their decision only applies to the factual circumstances of the plaintiffs before the court. (para 127). The SCC refused to comment about other situations when other classes of people may seek assisted death. This was the narrowest basis upon which they could deal with the case before them.

The SCC rejected arguments from the plaintiffs seeking a more expansive definition of the existing caselaw. Three examples:

  1. They declined to alter the existing law that both the feds and the provinces have concurrent jurisdiction over the issue for different purposes. (paras 49-53).
  2. They upheld the existing legal definition of the s. 7 “right to life,” that it implies a threat of death, and refused to adopt a broader, qualitative approach to the “right to life.” (paras. 59-63).
  3. They refused to consider any principle of parity because such a principle was “not yet recognized in the jurisprudence.” (para 92)

They limited their discussion of the “liberty” interest only to those who seek assistance in dying, and did not consider those who might provide such help. (para 69)

In defining the object of the existing Criminal Code ban, they rejected federal government submissions’s to broaden the definition beyond that adopted by the majority decision in Rodriguez, that the object was “to protect vulnerable persons from being induced to commit suicide at a time of weakness.” It noted that “all the parties except Canada accept that formulation of the object.” (paras 73-78).

The SCC noted that the federal government at trial had conceded that the present law caught people outside the class of people intended to be protected by the objective of the law. (para 86). This basic finding of fact helped ground the decision that the law was overly broad.

The SCC refused to consider additional legal claims or doctrines that were “unnecessary.” Three examples:

1) Having found a “severe” violation of s. 7, that decision was sufficient to deal with the case. Unlike the trial judge, the SCC declined to deal with any alleged equality rights of the plaintiffs under section 15 of the Charter. (para 93)

2) Having found a “severe” violation of s. 7 because it was “overly broad,” the SCC refused to discuss “gross disproportionality” as an element of the s. 7 analysis, as it also was “unnecessary.” (para 90)

3) Having found that the existing absolute ban did not meet the basic Section 1 Charter requirement of “not minimally impairing,” the SCC declined to “weigh the impact of the law on the rights of the appellants against the beneficial effect of the law on society.” On the well-established caselaw (Oakes, 1986), this step in the analysis also was “not necessary.”

The SCC clearly recognized when the SCC should defer to Parliament and the Legislatures, and that the standard expected from the state was not “perfection” but only what is “reasonable.”  Where there is a “complex regulatory response,” a high degree of deference is owed to…Parliament.….” The contested sections of the Criminal Code were not such a response.

As it did in Canada (Attorney General) v. Bedford 2013 SCC 72 (the prostitution case), the SCC delayed the effective date of their decision for one year. Why? “… for Parliament and the provincial legislatures to respond, should they choose to do so, by enacting legislation consistent with the constitutional parameters set out in these reasons.” ( para 126).

The SCC followed their decision in Bedford (2013), that the trial judge did have legal authority to reconsider Rodriguez and that the SCC should defer to her findings of fact as “they were reasonable and open to her on the record.” (para 109). More on these issues in my next post.

You Decide

Who is right? With this, and the post to follow (shorter I promise), you can decide. Better still, read the judgment itself, reported on the Court website at Carter v. Canada (Attorney General), 2015 SCC 5. Do not be intimidated! The first few pages are the standard mechanics of any court decision: the parties, the date of the hearing, a short summary of the judgment called a headnote, the citations, and a list of counsel who appeared at the hearing of the appeal. The actual judgment of The Court starts with a Table of Contents and paragraphs numbered sequentially from paragraph 1-148. The Court writes very well, and you will be surprised at how accessible their judgment is to read. One of the duties of judges is to write reasons for their decisions, so that litigants and the public can understand why they came to the decision they did. You decide if The Court did its job.


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