Brooks & Doob; Morgantaler, Smoling and Scott v. The Queen; R. v. Williams
The Big Picture:
1. Jury trials are relatively uncommon
2. Juries infuse trial process with community sentiments
3. Juries can be impacted by considerations which are legally irrelevant,
making juries risky!
Juries can bring in the community feeling that judges can’t; community move
towards the ‘good things’, can be just and unjust
History of jury
Jury selection process: eligibility, exclusions, empanelling (ss.629699
Challenging prospective jurors:
errors in selection, R. v. Neepoose, R. v. Born with a Tooth
for cause, R. v. Williams: 4 classes of prejudice (interest, specific,
Peremptory: depend on offence at trial
Brooks & Doob:
Primary functions of the jury:
Institution ensuring accuracy in factfinding
Institution with right to construe or ignore a relevant rule of law if
this will lead to ‘just’ result
Problem with juries: they are human!
Jurors impacted by appearances (Fran, 1974; Dion, 1972; Landy &
Aronson, 1969; Taylor & Butcher, 2007); perceptions of character,
and nature of the penalty following from conviction.
Juries trial by the fact, lawyers trial by fault
Juries are impacted by appearance, character, nature of the conviction
(death penalty being problematic thing)
Readings: Laskin, “The Meaning and Scope of Judicial Independence”; Lamer,
“Should Judges Hold Their Tongues?”; Wilson, “Will Women Judges Really
Make a Difference?”; R. v. S. (R.D.); Re Conduct of Honorable Paul Cosgrove of
the Ontario Superior Court of Justice; Gavels, “Microphones Don’t Mix”, Globe
and Mail editorial; “Stupid Judge Tricks”, Sandra Martin.
Judges appointed under the authority established in ss.96101 Constitution Act,
This authority provides for three types of courts, including:
i. Federal Courts est. under s.101, with federally appointed judges;
ii. Provincial courts est. under provincial legislation passed pursuant to
s.92(14), with federally appointed judges; higher level
iii. Provincial courts established under provincial legislation passed pursuant
to s.92(14) with provincially appointed judges lower level courts No elected judges in Canada! [U.S.] concern: that appointment, political process,
input from the member from the bar [not answerable to the public]
11 processes of appointment: 10 provincial processes plus one federal process ;
mindful of the fact that they will have to seek reelection after a period of time
How does appointment happen?
Good candidates nominated by their peers or simply apply
Committee is struck to review candidates – consists of the members of the
bar association, jurisdictions of the community representation
Good review will lead to candidate contact to determine whether they are
interested in consideration for appointment
If candidacy confirmed, committee will move to deeper scrutiny of
candidate and decide upon appointment
Candidate called & informed of appointment; given time to order affairs
What are the qualifications to be a judge?
3 categories of Federal appointment criteria:
professional competence and experience
personal characteristics – honesty, fairness, tolerance, common sense
social awareness – sensitive to gender and race related issues, monetary
and emotional cost, involved in the public service
What criteria might bar appointment?
Civil or criminal cases, healthy (longhours and demanding work any