Archive for May, 2017

Racial Profiling In Canada

posted by Judge_Burke @ 15:00 PM
May 3, 2017

David M. Tanovich (University of Windsor – Faculty of Law) has posted Applying The Racial Profiling Correspondence Test (66(1) Criminal Law Quarterly, 2018, Forthcoming) on SSRN.

Here is the abstract:

In the landmark Canadian racial profiling case of R v Brown, an unanimous Ontario Court of Appeal firmly recognized that racial profiling is a reality that is “supported by significant social science research.” 

Brown established a correspondence test for proving racial profiling. This paper aims to set out, in some detail, how and when the correspondence test can be applied.

Part I sets out the test from Brown. Part II identifies the different manifestations of racial profiling. Part III examines the relevant indicators that can be used to meet the test. These indicators include context, pretext and lessons learned. Part III also summarizes the recent carding/street check data which reveals the widespread nature of the disproportionate policing of Black and other racialized individuals in a number of cities across Canada. 

It is suggested that this evidence requires a reconsideration of the argument made in Peart v Peel Regional Police Services that there should be a rebuttable presumption of racial profiling in litigation. Parts II and III are presented in a largely non-traditional format to enhance accessibility and appreciation of the nature and scope of the problem. The paper concludes with a discussion of the relevance of the impact of racial profiling in assessing whether to exclude evidence found in breach of the Charter even where there is no finding of racial profiling in the particular case. This is an important contribution to our exclusionary rule jurisprudence and should be relied on in any case involving a racialized or Aboriginal accused. Finally, an Appendix is included which documents twenty-seven (27) positive judicial and tribunal findings of racial profiling by police in Canada in the post-Charter era.

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The Time Has Come: We Must Speak Up on Behalf of Judges

posted by Judge_Burke @ 15:00 PM
May 2, 2017

STATEMENT OF THE AMERICAN JUDGES ASSOCIATION

           The late Chief Justice William Rehnquist once said that criticism of judges and their decisions “is as old as our Republic” and can be a healthy part of the balance of power between the branches of government. Today, however, recent attacks on judges have not only become unhealthy but threaten to undermine the public’s understanding of the role of judges in a democratic society.

           In a democratic society, judges will inevitably make rulings that challenge the authority of the other two branches or that protect the disadvantaged and those without political power.

           Intemperate personal attacks on judges by political leaders are simply wrong. The political leaders of our country have an obligation to foster public understanding of the role of courts, even when they disagree with a court’s ruling.

           Judges have historically been reluctant to respond to unfair attacks. But as far back as Chief Justice John Marshall, there have been times when judges have seen the need to speak up. This is one of those times.

           The leaders of the American Judges Association will speak out in defense of judges who are unfairly attacked, and we encourage others to do so too. Unfair or unseemly attacks on individual judges are not merely an attack on that individual judge—they are an attack on the institution of the judiciary, an institution indispensable to our democracy.

Approved by the Board of Governors at its April 29, 2017 meeting in Arlington, Virginia.

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Happy Law Day…It is May 1st!

posted by Judge_Burke @ 16:11 PM
May 1, 2017

In 1958, when President Dwight D. Eisenhower proclaimed May 1 to be Law Day USA, he stated, “In a very real sense, the world no longer has a choice between force and law. If civilization is to survive, it must choose the rule of law.”

Each year the American Bar Association designates a Law Day theme to highlight an issue that is important. Although we have different roles, each of us who work in the courts contributes to insuring our community has a fair and effective system of justice. Sometimes we deal with difficult people, those who are under stress or with seemingly intractable problems. We might not get it right every time – after all, we are human.

The theme for Law Day 2017 is the 14th Amendment. Since its adoption, the 14th Amendment has been a key to liberty and freedom for a lot of people, but in the end, it is a document used by people like us to make our nation a better place. What we do is important, so in a sense Law Day is a celebration of our contributions to democracy.   

About the 2017 Law Day Theme

The 14th Amendment: Transforming American Democracy

The 2017 theme provides the opportunity to explore the many ways that the Fourteenth Amendment has reshaped American law and society. Through its Citizenship, Due Process and Equal Protection clauses, this transformative amendment advanced the rights of all Americans. It also played a pivotal role in extending the reach of the Bill of Rights to the states. Ratified during Reconstruction a century and a half ago, the Fourteenth Amendment serves as the cornerstone of landmark civil rights legislation, the foundation for numerous federal court decisions protecting fundamental rights, and a source of inspiration for all those who advocate for equal justice under law.

Click here to learn more about the 14th Amendment through the Library of Congress.

Click here to listen to the audio news release.

 

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