Thanks again to Judge Wayne Gorman, we have another interesting case from Canada.

In Canada, the prosecution can appeal a finding of not guilty, unlike the law in the United States. But, this opinion coming out of Canada should be of interest to all of us.  For example, if the prosecution in the United States presented a carefully crafted jury instruction that it is proper to consider the complainant’s distraught condition shortly after the event, would you grant the request and give the instruction?

In R. v. James, 2014, SCC 5, January 17, 2014, the Supreme Court of Canada overturned an acquittal entered by the trial judge in relation to a charge of sexual assault. The Supreme Court concluded that the trial judge had erred in considering evidence (a statement provided to the police by the accused) that had not been entered at the trial.

The interesting comment in the case involves the Supreme Court having indicated that “the trial judge failed to consider the complainant’s distraught condition a short time after the event when she reported the alleged sexual assault to the police.”  This type of evidence is admissible, but its weight has been a matter of debate (see R. v. Griffiths, [2013] N.J. No. 63 (P.C.), at paragraph 45 and R. v. J.A., [2010] O.J. No. 2902 (C.A.), at paragraphs 16 to 18).

The Supreme Court’s entire judgment follows:

Moldaver J. — We agree with the majority of the British Columbia Court of Appeal that there must be a new trial in this matter.

In assessing the crucial issue of consent, the trial judge found that the complainant was suffering from some sort of memory loss at the time the appellant claims that “she gave him her consent for sexual relations” (2011 BCSC 612, 86 C.R. (6th) 107, at para. 45).

With respect, the appellant gave no such evidence of consent.  Only in his statement to the police did he claim that the complainant consented.  But that statement was not admitted into evidence and formed no part of the record.  At trial, the appellant maintained that he had virtually no recollection of the events on that evening due to alcohol and drug consumption.  He did not testify that the complainant consented to sexual relations.

In our view, the trial judge’s reliance on evidence that did not form part of the record may have coloured his thinking on the issue of consent, particularly in assessing whether the complainant may have consented to sexual relations but forgot that she had done so due to memory blackout, or, as she claimed, that she was unconscious at all material times and never consented to sexual relations.

In addition to this error, in assessing the issue of consent, the trial judge failed to take into account the several occasions throughout the evening when the complainant made it known to the appellant that she was not interested in having sexual relations with him.  Her evidence in this regard was confirmed in part by an independent witness found by the trial judge to be credible.  Similarly, the trial judge failed to consider the complainant’s distraught

condition a short time after the event when she reported the alleged sexual assault to the police. [my emphasis added]

For these reasons, we agree with the majority of the Court of Appeal that a new trial must be ordered.  Accordingly, we would dismiss the appeal.

For decades there was a restrictive endorsement on the paychecks of Minnesota judges.  In order to cash the check, the judge had to swear that there were no matters under advisement for more than 90 days.

There were “creative” attempts to get around the restrictive endorsement requirement.  One judge took out short term bank loans and pledged the check as collateral.  (Perhaps it might have been easier to just decide the case and issue the order).  With the advent of direct deposit, most judges in Minnesota likely don’t even know this bit of judicial pay history.  But, now there is another state attempting to address getting timely orders from judges.

Concerns over the timeliness of judicial opinions are nothing new; however, one member of the New York Assembly wants a codified deadline coupled with a definitive punishment.  Under AB 8408, judges considering motions or verdicts in non-jury trials would have 9 months from submission of the motion/case to render an opinion.  Failure to meet the 9 month deadline would result in the clerk of the court reporting the delay to the state’s State Commission on Judicial Conduct.

The Commission would be required to remove a judge from office if:

•           the judge failed to meet the 9-month deadlines 5 times or more

•           took longer than 2 years to render a decision in any one case/motion

In addition, if passed, AB 8408 would give all judges 6 months from enactment to render decisions in all pending matters over the new 9-month deadline.

A San Diego paper covered how motorists given $35 speeding tickets actually end up owing the state $235 (including a criminal conviction fee, a state court construction charge, and a DNA identification fee).

Recently, The St. Louis Post Dispatch reported another, all too typical story:

Wakita Shaw’s troubles started with a $425 payday loan, the kind of high-interest, short-term debt that seldom ends well for the borrower . . .  Shaw was surprised in May of last year to hear that the St. Louis County police were looking for her. She and her mother went to the police station. They arrested her on the spot. They told her the bail was $1,250 . . . People do go to jail over private debt. It’s a regular occurrence in metro St. Louis, on both sides of the Mississippi River.

So, a recent split decision by the Seventh Circuit Court of Appeals is likely to be of interest to more than a few people.

Wis. judges on 7th Circuit uphold jail booking fee, over strong dissent:  Bruce Vielmetti has this post on the “Proof & Hearsay” blog of The Milwaukee Journal Sentinel, reporting on the ruling made by the U.S. Court of Appeals for the Seventh Circuit.

For a broader discussion, the Brennan Center has a great report here.

We know that shame and humiliation are part of the law, albeit no one is particularly comfortable with it and it is rarely discussed by judges.  So, this new paper by Michael L. Perlin and Naomi Weinstein, now available via SSRN, is an interesting development.

Here is the abstract:

This paper considers the intersection between law, humiliation and shame, and how the law has the capacity to allow for, to encourage, or (in some cases) to remediate humiliation, or humiliating or shaming behavior.  The need for new attention to be paid to this question has increased exponentially as we begin to also take more seriously international human rights mandates, especially — although certainly not exclusively — in the context of the recently-ratified United Nations Convention on the Rights of Persons with Disabilities, a Convention that calls for “respect for inherent dignity,” and characterizes “discrimination against any person on the basis of disability [as] a violation of the inherent dignity and worth of the human person…”

Humiliation and shaming, we believe, contravene basic fundamental human rights and raise important constitutional questions implicating the due process and equal protection clauses.  Humiliation and shaming practices include “scarlet letter”-like criminal sanctions, police stop-and-frisk practices, the treatment of persons with mental disabilities in the justice system, and the use of sex offender registries.  Humiliation and shame are detrimental in the ways that lead to recidivism, inhibit rehabilitation, discourage treatment, and injure victims.  They also directly contravene the guiding principles of therapeutic jurisprudence, especially in the context of its relationship to the importance of dignity in the law, and potentially violate international human rights law principles as well.

In this paper, we will explore how humiliation and shaming are bad for all participants in the legal system, and bad for the law itself.  We will urge that humiliating and shaming techniques be banned, and that, this ban will enhance dignity for the entire legal system and society as a whole.  First, we consider the meaning of shame and humiliation.  Then, we briefly discuss principles of therapeutic jurisprudence (TJ) and its relationship to the significance of dignity, and then consider recent developments in international human rights law, both of which are valuable interpretive tools in this conversation. Next, we consider how the United States Supreme Court has considered these concepts in recent cases.  Following this, we consider several relevant areas of law and policy from the perspective of how overt shaming is employed: scarlet letter punishments, use of the police power, treatment of institutionalized persons with mental disabilities and elders, and sex offender registry law.  We then, using a TJ filter and drawing on international human rights law principles, examine why these shaming tactics are contrary to bedrock principles of the legal system: the mandates to honor dignity, to minimize recidivism, and to enhance rehabilitation.

Defendants in Comal County, Texas, will get vouchers to pay qualified lawyers of their choice, the New York Times reports. The county calls the pilot program “client choice,” while the Times offers another name:  Gideon vouchers.

James Bethke, executive director of the Texas Indigent Defense Commission, told the New York Times he got the idea from an article by law professors Stephen Schulhofer of New York University and David Friedman of Santa Clara University.

“The juror was a father of two who initially declared that he could fairly decide the fate of a man charged with viewing child pornography, despite strong reservations. Hours later, he left a telephone message with a courtroom deputy:  “There is just no way I’m going to be able to view these pictures or video.”

Even though the man kept insisting he wouldn’t look at evidence at the heart of the case, U.S. District Judge David Dowd Jr. of Ohio’s Northern District kept him on the panel. That decision cost the judge a rebuke by the U.S. Court of Appeals for the Sixth Circuit, which on Jan. 7 vacated Dowd’s 14-year prison sentence for Trent Shepard.

“[T]he role of the district judge is not to gloss over serious issues for the sake of preventing additional work for the court,” Senior Judge Martha Craig Daughtrey wrote, joined by judges R. Guy Cole Jr. and Julia Smith Gibbons. Trial judges, she stressed, must safeguard the accused’s constitutional rights “from the whims of public opinion, prejudice, and expediency.”

Read more here (login required).

The opinion itself can be found here (login required).

The Los Angeles Times reports:

A federal appeals court decided Tuesday that lawyers may not exclude a potential juror solely because he or she is gay, extending a protection once reserved in federal courts for race and gender to sexual orientation.

The unanimous decision by a three-judge panel of the U.S. 9th Circuit Court of Appeals overturned a jury verdict in a federal antitrust trial that involved an AIDS medication because a gay prospective juror was struck.

In this trial, SmithKline Beecham Corporation v. Abbott Laboratories, Abbott used its first peremptory strike during jury selection against the only self-identified gay member of the venire. GSK challenged the strike under Batson v. Kentucky, 476 U.S. 79 (1986), arguing that it was impermissibly made on the basis of sexual orientation. The district judge denied the challenge.

The opinion is an interesting read beyond the substantive holding for it is clear that the trial counsel made some tactical errors in responding to the Batson challenge:

Abbott declined to provide any justification for its strike when offered the opportunity to do so by the district court. After the judge stated that she might reject the Batson challenge on legal grounds that were in fact erroneous, she told Abbott’s counsel that he could adopt those grounds, although she advised him that “it might be the better part of valor” to reveal the basis for his strike. Abbott’s counsel replied that he would rely on the grounds given by the judge and further explained, “I don’t think any of the challenge applies. I have no idea whether he is gay or not.” He later added that he could not have engaged in intentional discrimination because this was only his first strike.

The full 9th Circuit opinion can be found here (login required).

Thanks to Judge Wayne Gorman!

In R. v. Tran, 2013 BCCA 9, January 10, 2013, the British Columbia Court of Appeal considered the “application of the Charter beyond Canada’s borders.”

In Tran, the accused was convicted before a judge sitting alone of the offence of second degree murder. The murder took place in British Colombia, but a statement was obtained from the accused in Malaysia by the Royal Canadian Mounted Police. The accused argued that the statement should not have been admitted by the trial judge at his trial because it was obtained by the Canadian police in contravention of the Canadian Charter of Rights and Freedoms.  This contention required a consideration by the British Columbia Court of Appeal of the extraterritorial effect of the Charter.

The British Columbia Court of Appeal noted that the Supreme Court of Canada’s decision in R. v. Hape, [2007] 2 S.C.R. 292, is “the jurisprudential centre of gravity for the law on extraterritorial application of the Charter.” After referring to Hape in detail, the Court of Appeal stated that put simply “the Hape principle is this”:

…the Charter does not apply extraterritorially to Canadian authorities. This is subject to two exceptions. The first exception is state consent. If the foreign state consents to the application of the Canadian constitution, then s. 32 is not an issue and the Charter may apply. The Court did not define the meaning of consent. The second exception, described above, suggests that even without consent of the foreign state, violations of Canada’s international human rights obligations may justify a remedy under the Charter (at para. 101).

The British Columbia Court of Appeal noted that there “is a paucity of cases from provincial appellate and trial courts considering the Hape principle and the meaning of consent in the circumstances of an investigation carried out by Canadian authorities extraterritorially.”

The Court of Appeal considered the foreign consent issue and held, at paragraphs 57 and 58, that Hape “stands for the proposition that in order for the Charter to apply, the foreign state must consent.  In order for a state to consent to the extraterritorial application of Canadian constitutional law, the expression of consent must be from a valid sovereign authority of that state…Hape stands for the proposition that the principle of sovereignty and non-interference preclude the extraterritorial application of the Charter, then only officials with the authority to bind the state in question, or an expression of that state’s sovereign will, can establish consent.”

At paragraph 64, the Court of Appeal set out a non-exhaustive list of factors which a trial judge should consider in determining if the requisite consent existed:

The foreign official or entity purporting to give consent to the application of Canadian constitutional law must be an agent or “state organ” of the foreign state (Articles 4-6 of the Articles on State Responsibility);

The foreign official or entity purporting to give consent must have apparent or actual authority to consent to the application of the Canadian Charter to an investigation by Canadian authorities in that foreign territory. Obviously, officials with “full powers” to make international treaties suffice (Articles 7 and 8 of the Vienna Convention), but in most cases, the issue will not be as clear. The Court must determine whether the official or entity at issue is able to agree to the Canadian investigation and the application of Canadian law. In other words, the question is whether this official or entity purporting to proffer consent has the apparent or actual authority to give a binding expression of the sovereign will of the state.

Consent of the foreign state must be informed and freely given; error, coercion, fraud or corruption vitiate consent (Commentaries on Articles of State Responsibility);

The consent must be in accordance with any domestic laws of the state purporting to give consent (see Amnesty); and

The foreign state must specifically consent to the application of the Canadian Charter (see Amnesty).

AN APPLICATION OF THESE PRINCIPLES TO THIS CASE

The British Columbia Court of Appeal concluded that the “evidence indicates that Malaysian authorities viewed their law relating to searches and seizures as operative, and not the Charter.”  The Court of Appeal concluded that the Charter did not apply to the Canadian police in Malaysia in this case (at paragraphs 73 to 75):

Herein lies the problem with the argument of the appellant. In my respectful opinion, it would not respect the sovereignty of Malaysia to conclude on the basis of the testimony of a RCMP officer that Malaysia consented to the application of the Charter. The evidence here is scant. Aside from the second-hand statements of Chief Inspector Singh, of whom no evidence with respect to his authority to grant consent was adduced, there is no evidence of any consent that would satisfy the Hape principle of sovereign non-interference. There is, furthermore, no evidence that Malaysian law enforcement entities or officials – for example, the Director of the Criminal Investigation Unit – consented. Nor is there evidence that that official was in a position to consent. In short, there is no evidence that the officials named by the appellant are in a position to express the sovereign will of the Malaysian state.

In my view, the trial judge was correct in his conclusion that the “evidence fell well short of establishing even a prima facie case that there was any agreement to apply Canadian law.” To engage the application of the Charter to the conduct of Canadian officials operating in a foreign state, an accused must tender evidence that a foreign official, possessed of the proper authority, consented to the application of the Charter.

In my view, the trial judge did not err in concluding that the Charter was inapplicable to the RCMP’s conduct in Malaysia. As such, he was correct to decline to hold a voir dire into whether the RCMP breached Mr. Tan’s Charter rights by failing to obtain a warrant before requesting Malaysian assistance to collect his fingerprints.

Efforts are expanding to keep those who overindulge on weed from getting behind the wheel — and punishing those who do.

A $400,000 grant from the National Highway Traffic Safety Administration is being used for an anti-imbibing and driving campaign and to train more law enforcement officers to spot pot-impaired drivers.

“It’s ironic we’re using federal funding for something that is illegal federally,” Colorado Department of Transportation spokeswoman Emily Wilfong said. “But they (federal officials) do realize this is a traffic safety issue and needs to be addressed.”

A chunk of the money will go toward television advertising. Posters warning of the danger of impaired driving will be distributed to stores that sell pot. The media push starts in March.

Owners of medical marijuana dispensaries and recreational pot shops, and some users, who want to keep pot use on the straight and narrow are helping develop the campaign by participating in focus groups, Wilfong said.

Continue reading:  Federal grant funds Colorado effort to fight driving while high on pot, The Denver Post 

Judicial feedback is good.  It can point out to judges where there are strengths in performance and where there are areas in need of improvement.  But, a fear many judges have is of bias that may show up in surveys.  That appears to be the case in a recent Las Vegas experience according to an article by Rebecca Gill in the Las Vegas Review Journal:

The results of the Review-Journal’s most recent “Judging the Judges” surveys are in. For women, they are not good.

The Judging the Judges survey is one of the main sources of information that Clark County’s voters have when they head to the polls to choose judges. Our nonpartisan judicial races are mostly low-key affairs that focus on generalities like integrity, experience and fairness. This provides very little useful information to voters.

Judicial performance evaluations such as the “Judging the Judges” survey were developed in part to provide voters with reliable, unbiased information about the quality of their judges. Similar evaluations are currently implemented by 22 states, as well as a large number of local bar associations and media outlets. These evaluations focus on things such as legal ability, communication skills and integrity. They are intended to capture specific information about the actions of the judges to keep them from being evaluated based on inappropriate criteria, including their wealth, political connections or immutable traits such as gender and race.

Unfortunately, it’s not clear that these well-intentioned performance evaluation instruments provide this kind of unbiased information. This year, as in the past, female judges did not fare well in the Review-Journal’s survey. The average retention score for women was 67 out of 100, which is significantly lower than the average score of 75 for men. Only one woman scored in the 90s, compared with seven men, despite the fact that there are nearly equal numbers of male and female judges.