the daily snivel
Three Canadian provinces now legally recognize the freedom of gays and lesbians to celebrate same-sex marriages: Ontario, British Columbia, and Quebec. Today, the Quebec Court of Appeal upheld a 2002 Superior Court decision to recognize same-sex marriages, holding that the traditional definition of marriage is discriminatory and unjustified. The Quebec Court of Appeal is the highest court in that province -- only the Supreme Court of Canada can overturn it. Three provincial courts of appeal have now ruled that traditional definitions of marriage are discriminatory.
Despite the ridiculous attempts in the United States to enact a constitutional amendment prohibiting same sex-marriage (and even conferring marriage-like rights to same sex couples as in a civil union), same-sex marriage is alive and well in Canada. The Supreme Court will decide later in 2004 as to whether draft federal legislation recognizing same-sex marriage nationwide is constitutional (as well as an added question of whether civil marriages are constitutional), but even if the bill died or was ruled unconstitutional (for example, if it limited freedom of religion by forcing churches to celebrate -- 'celebrate' in the legal sense -- marriages, which it doesn't), the marriages will continue. Only a successful appeal to the Supreme Court of Canada by a province affected by the above rulings could change the state of the law, or a provincial or federal statute that invoked the notwithstanding clause of the Canadian Charter of Rights and Freedoms.
There are those of us who will say the courts are engaged in "judicial activism" in reaching such decisions. But what is judicial activism other than a code word for "The court made a decision that I don't like." Democratic nations rely on courts to be the arbiters of controversial disputes each and every day, and we acknowledge the authority to do so even if we don't like the results. It does no good to lament that the bench is too activist when one is, for example, convicted of a crime, or forced to pay damages in tort, if the court relies on legal authority and persuasive evidence in reaching that decision. All cases have winners, and all cases have losers. It is as "activist" to uphold a law that is discriminatory as it is to strike one down. The courts derive their power from the democratically enacted and entrenched Constitution Act, 1982 which states "The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect." We enacted this constitution as a country. We gave judges the power to determine if a law is inconsistent with the Constitution of Canada and, if it is, to strike that law down. The Crown has the burden of proving that a law that violates the constitution can be justified, and if it fails to make that justification then the part of the law that infringes on Canadian rights cannot be saved.
It would take enormous political will to pass a law that banned same-sex marriage in Canada -- moreso to enact a constitutional amendment here. I seriously doubt that will exists because I seriously doubt most Canadians are as strongly opposed to the protection and enforcement of equal rights as a vocal but wrong-headed minority would insist.
Despite the ridiculous attempts in the United States to enact a constitutional amendment prohibiting same sex-marriage (and even conferring marriage-like rights to same sex couples as in a civil union), same-sex marriage is alive and well in Canada. The Supreme Court will decide later in 2004 as to whether draft federal legislation recognizing same-sex marriage nationwide is constitutional (as well as an added question of whether civil marriages are constitutional), but even if the bill died or was ruled unconstitutional (for example, if it limited freedom of religion by forcing churches to celebrate -- 'celebrate' in the legal sense -- marriages, which it doesn't), the marriages will continue. Only a successful appeal to the Supreme Court of Canada by a province affected by the above rulings could change the state of the law, or a provincial or federal statute that invoked the notwithstanding clause of the Canadian Charter of Rights and Freedoms.
There are those of us who will say the courts are engaged in "judicial activism" in reaching such decisions. But what is judicial activism other than a code word for "The court made a decision that I don't like." Democratic nations rely on courts to be the arbiters of controversial disputes each and every day, and we acknowledge the authority to do so even if we don't like the results. It does no good to lament that the bench is too activist when one is, for example, convicted of a crime, or forced to pay damages in tort, if the court relies on legal authority and persuasive evidence in reaching that decision. All cases have winners, and all cases have losers. It is as "activist" to uphold a law that is discriminatory as it is to strike one down. The courts derive their power from the democratically enacted and entrenched Constitution Act, 1982 which states "The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect." We enacted this constitution as a country. We gave judges the power to determine if a law is inconsistent with the Constitution of Canada and, if it is, to strike that law down. The Crown has the burden of proving that a law that violates the constitution can be justified, and if it fails to make that justification then the part of the law that infringes on Canadian rights cannot be saved.
It would take enormous political will to pass a law that banned same-sex marriage in Canada -- moreso to enact a constitutional amendment here. I seriously doubt that will exists because I seriously doubt most Canadians are as strongly opposed to the protection and enforcement of equal rights as a vocal but wrong-headed minority would insist.
My goodness, but it has been busy in my hectic little world!
My first trial, held on March 1, couldn't have gone better -- I mean, except for the part where we lost. Despite having rehearsed all weekend, and despite having run my client through grilling after grilling after grilling, and despite the fact that none of the Crown witnesses remembered hearing anything or seeing anything about the accident that occurred, and despite my client's excellent testimony about what he did and the care he took, he was convicted.
Here's a roughly reproduced version of my very first cross-examination ever:
Me: "Were you alone in the truck?"
Witness: "Yes."
Me: "You were driving by yourself. Was your radio on?"
Witness: "Yes."
Me: You were waiting to turn into the intersection so you really weren't paying attention to what my client was doing, were you?"
Witness: "No."
Me: "Were the windows to your truck rolled up?"
Witness: "Yes."
Me: "In other words, you were in a vehicle well sealed to ordinary outside noise, correct?"
Witness: "Yes."
Me: "It was a warm day and your windows were rolled up. Was your air conditioner on?"
Witness: "Yes, it was."
Me: "So you really couldn't hear any noise outside the truck related to the accident?"
Witness: "No."
... and so on.
Three witnesses, including a police officer, and none of them saw what happened or could contradict my client's evidence that he met all his legal obligations. Unfortunately, there was a victim, who did testify, and that fact creates a lot of understandable sympathy. My client was essentially convicted for being somewhere he shouldn't have been and having the bad luck to accidentally hurt someone while he was there, even though I felt the legal requirements of the offence had not been proven by the Crown. Still, my client got a suspended sentence (no fine), which is a sign the Justice of the Peace was swayed by my arguments and my client's evidence, and even the Provincial Prosecutor shook my hand at the end of the day and told me that I did a very good job. So the result was the next best possible thing to winning even though we didn't, in fact, technically win. We're referring to it as "a victory in disguise."
In any case, I'll doubtlessly have the opportunity to conduct even more trials, as I've been hired by the University of Ottawa Community Legal Clinic to work in the Criminal Division this summer, meaning I'll also be back as a division leader this fall.
Yes, I have a summer job already -- in fact, it's my summer dream job -- and it's all because I am apparently very good at representing clients. I couldn't be more thrilled, and despite my bragging I really was thrilled and shocked and surprised and humbled when they offered the position to me. It's a lot of work and a lot of responsibility, and it means juggling thirty or forty cases by myself, and sharing all the court duties with one other law student in the division, but it also means helping dozens of people over the summer, and defending their constitutional rights, challenging bad evidence, and getting them the best possible resolutions for their matters. Being charged with an offence is a stressful, confusing, and intimidating experience for most people, and they look to their counsel for guidance, competence, and information. I've gained an immense amount of confidence in my abilities this year, and am finding it increasingly easy to work with people in diverse circumstances and also work with court personnel toward a variety of ends.
I think people misconstrue the role of defence counsel as simply "getting crooks off," and only recognize the value once they themselves are charged with something (just wait until you get that next ticket for running a red light). In reality it's a nuanced and complicated role that is easily as important (and I would say more important) to societal interests as prosecuting offences. Rights only have meaning when they are enforced, and if the rights of an accused can be compromised by an illegal search or a violation of the right to counsel or right to silence, or by an illegal detention or unauthorized use of force, then these rights have no meaning for anyone. Being charged with a crime does not equal being guilty of a crime. Charges are withdrawn every single day for a lack of evidence, or because new evidence has been brought to light that puts the original conclusion into doubt. It's also not always clear when a client is innocent or guilty -- and even when they are admitting responsiblity, they have often committed a minor offence and have no criminal record, and the guidance of counsel can steer these people out of the courts and into diversion programs whereby they can perform community service or make charitable donations, and get a second chance without the stigma of a criminal record. I've found that as a law student acting as defence counsel, a huge part of the job is simply negotiation. Our division has seen only a small handful of trials this year, but each week we meet with prosecutors and community organizations and discuss alternatives to going to trial, either because the Crown has agreed this is a matter best suited for diversion, or they can be convinced to make a compromise. It speeds up the courts, it gets a better result for everyone, and it provides closure and often some conciliatory action for society.
Anyway, that's enough of a sermon for me. But you can see I believe strongly in what I'm doing, and am sorely glad for the opportunity to keep with it in the summer and in the school year ahead.
My first trial, held on March 1, couldn't have gone better -- I mean, except for the part where we lost. Despite having rehearsed all weekend, and despite having run my client through grilling after grilling after grilling, and despite the fact that none of the Crown witnesses remembered hearing anything or seeing anything about the accident that occurred, and despite my client's excellent testimony about what he did and the care he took, he was convicted.
Here's a roughly reproduced version of my very first cross-examination ever:
Me: "Were you alone in the truck?"
Witness: "Yes."
Me: "You were driving by yourself. Was your radio on?"
Witness: "Yes."
Me: You were waiting to turn into the intersection so you really weren't paying attention to what my client was doing, were you?"
Witness: "No."
Me: "Were the windows to your truck rolled up?"
Witness: "Yes."
Me: "In other words, you were in a vehicle well sealed to ordinary outside noise, correct?"
Witness: "Yes."
Me: "It was a warm day and your windows were rolled up. Was your air conditioner on?"
Witness: "Yes, it was."
Me: "So you really couldn't hear any noise outside the truck related to the accident?"
Witness: "No."
... and so on.
Three witnesses, including a police officer, and none of them saw what happened or could contradict my client's evidence that he met all his legal obligations. Unfortunately, there was a victim, who did testify, and that fact creates a lot of understandable sympathy. My client was essentially convicted for being somewhere he shouldn't have been and having the bad luck to accidentally hurt someone while he was there, even though I felt the legal requirements of the offence had not been proven by the Crown. Still, my client got a suspended sentence (no fine), which is a sign the Justice of the Peace was swayed by my arguments and my client's evidence, and even the Provincial Prosecutor shook my hand at the end of the day and told me that I did a very good job. So the result was the next best possible thing to winning even though we didn't, in fact, technically win. We're referring to it as "a victory in disguise."
In any case, I'll doubtlessly have the opportunity to conduct even more trials, as I've been hired by the University of Ottawa Community Legal Clinic to work in the Criminal Division this summer, meaning I'll also be back as a division leader this fall.
Yes, I have a summer job already -- in fact, it's my summer dream job -- and it's all because I am apparently very good at representing clients. I couldn't be more thrilled, and despite my bragging I really was thrilled and shocked and surprised and humbled when they offered the position to me. It's a lot of work and a lot of responsibility, and it means juggling thirty or forty cases by myself, and sharing all the court duties with one other law student in the division, but it also means helping dozens of people over the summer, and defending their constitutional rights, challenging bad evidence, and getting them the best possible resolutions for their matters. Being charged with an offence is a stressful, confusing, and intimidating experience for most people, and they look to their counsel for guidance, competence, and information. I've gained an immense amount of confidence in my abilities this year, and am finding it increasingly easy to work with people in diverse circumstances and also work with court personnel toward a variety of ends.
I think people misconstrue the role of defence counsel as simply "getting crooks off," and only recognize the value once they themselves are charged with something (just wait until you get that next ticket for running a red light). In reality it's a nuanced and complicated role that is easily as important (and I would say more important) to societal interests as prosecuting offences. Rights only have meaning when they are enforced, and if the rights of an accused can be compromised by an illegal search or a violation of the right to counsel or right to silence, or by an illegal detention or unauthorized use of force, then these rights have no meaning for anyone. Being charged with a crime does not equal being guilty of a crime. Charges are withdrawn every single day for a lack of evidence, or because new evidence has been brought to light that puts the original conclusion into doubt. It's also not always clear when a client is innocent or guilty -- and even when they are admitting responsiblity, they have often committed a minor offence and have no criminal record, and the guidance of counsel can steer these people out of the courts and into diversion programs whereby they can perform community service or make charitable donations, and get a second chance without the stigma of a criminal record. I've found that as a law student acting as defence counsel, a huge part of the job is simply negotiation. Our division has seen only a small handful of trials this year, but each week we meet with prosecutors and community organizations and discuss alternatives to going to trial, either because the Crown has agreed this is a matter best suited for diversion, or they can be convinced to make a compromise. It speeds up the courts, it gets a better result for everyone, and it provides closure and often some conciliatory action for society.
Anyway, that's enough of a sermon for me. But you can see I believe strongly in what I'm doing, and am sorely glad for the opportunity to keep with it in the summer and in the school year ahead.
