6 hours ago

James Morton Law

Drum dancing; Kugluktuk 1959 See MoreSee Less

Drum dancing; Kugluktuk 1959

6 hours ago

James Morton Law

Do we need jails?

Prison is such a standard part of the criminal justice system that it is seldom that anyone thinks about it. And yet the reasons we have jail sentences can be challenged.

Section 3.1 of the Corrections and Conditional Release Act, the law that governs federal prisons reads: “The protection of society is the paramount consideration for the (Correctional Service of Canada) in the corrections process.”

This suggests that prisons are not, at least primarily, intended to rehabilitate or deter but rather to separate offenders from society. Now that is not without value – someone in jail is not tearing up Cambridge Bay. But if separation is the main goal for prisons the prison population should be fairly small; there aren’t that many people who are so dangerous that they need to be kept segregated from society on a more or less permanent basis.

Other purposes proposed for prison are deterrence, rehabilitation and denunciation of crime. These purposes are at least arguably not well met.

Crime is not well deterred by the threat of prison. The certainty of being caught is a much more powerful deterrent than the punishment.
Research shows clearly that the chance of being caught is a vastly more effective deterrent than even draconian punishment. Before a crime people are often very emotional, and often drunk, and a rational cost benefit analysis is just not going to happen. That said people do think about getting caught and that suggests more police will lesser crime better than longer jail sentence.

With regard to rehabilitation prisons, as we have them in Canada today, are only partial effective. Some facilities, the healing centre in Rankin and Makigiarvik in Iqaluit as examples, do have solid programs and help heal some of the brokenness that leads to violence and crime. Replacing BCC with Qikiqtani Correctional Healing Centre may also help. But traditional punishment prisons can make rehabilitation less likely. Inmates do not learn life skills. In fact they learn more effective crime strategies from each other, and time spent in prison may desensitize many to the threat of future imprisonment.

That leaves denunciation as a final goal for prison. And denunciation is not a trivial purpose. Society as a whole is entitled to say to a criminal “what you did was wrong and your actions need to be denounced and marked as wicked”. Healing repentance and forgiveness are important but so is saying that some conduct is unacceptable. Prison is a good way to mark that.

So that leaves us with prison being useful for some people and some crimes only. The federal government is reviewing the use of prison as punishment and may well make prison less used as a punishment. That may well be a good approach. Prison is necessary but not for all cases at all times. See MoreSee Less

1 week ago

James Morton Law

Picking a Jury by Race

In a Canadian criminal jury trial both the prosecution and the defence are allowed to block a certain number of people from sitting on the jury without giving any reasons for excluding them.

The right to block someone from sitting on the jury without any explanation is known as a peremptory challenge. The idea is that the Crown or the accused may have a bad feeling about a specific individual – not something that can be made specific – but something that is real.

I have often had an accused tell me “no, I don’t know what is going on but that guy looked at me funny” and so I exclude the juror.
The Crown and the accused each have a limited number of peremptory challenges, which varies with the offence charged.
The Criminal Code provides:
…the prosecutor and the accused are each entitled to
(a) twenty peremptory challenges, where the accused is charged with high treason or first degree murder;
(b) twelve peremptory challenges, where the accused is charged with an offence, other than an offence mentioned in paragraph (a), for which the accused may be sentenced to imprisonment for a term exceeding five years; or
(c) four peremptory challenges, where the accused is charged with an offence that is not referred to in paragraph (a) or (b).
In the recent Gerard Stanley homicide trial it appears the right to use peremptory challenges was used to exclude any aboriginal Canadians from a racially charged trial. While I have never seen such a case in my own career it is deeply troubling that race would be used as a factor in jury selection.

Excluding people from a jury on the basis of race is appalling but it appears to be lawful. As far back as the 1990s the Osborne inquiry said:

We believe that the exclusion of potential jurors on the basis of their race is an unacceptable and probably unconstitutional practice which should be ended by reform of the method of juror selection. We recommend a considerable overhaul of the jury system in Volume One of our report.

Legislative change can remedy the apparent imbalance. It’s time for the jury selection system to be reformed. See MoreSee Less

 

Comment on Facebook

Obviously peremptory challenge should be amended. All indegenous people need to be included from here on end we are humans just as Qallunaqs are. I can’t understand how qallunaqs are so dominaring. This brings a question to me… How then can "blocking" be amended?

When I was up for jury selection the lawyers seemed to be looking at their computers and not me. Do they check what one posts on social media, or something, to get an idea of with whom they are dealing?

I wonder if there ever was an all aboriginal Jury when a non aboriginal was the one charged in a court room down south? and why if it’s never happened? When Race is non issue.

2 weeks ago

James Morton Law

Chesterfield Inlet, Nunavut, September 5, 1958. See MoreSee Less

Chesterfield Inlet, Nunavut, September 5, 1958.

 

Comment on Facebook

Possibly my grandpa knows these.

Jackie Netser is the school still there?

My uncle and few people use to walk to Chesterfield Inlet to pick up one of there brother there one time from back river at that time and back to back river

Andre Tautu is this your photograph?

Norman W Ford you’ll know them for sure.

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2 weeks ago

James Morton Law

Breaking Up Is (Not So) Hard To Do

When you have a lawyer that lawyer has a duty to protect your interests as best they can.

But your lawyer is your agent and if you do not feel satisfied with what your lawyer is doing you can always fire your lawyer. Similarly, in some but not all circumstances, your lawyer can quit.

Generally, the right to fire your lawyer is unfettered, meaning, you can fire your lawyer at any time and for any reason.

That said, if you fire your lawyer for a tactical reason – say to try to get an adjournment of a case – the Court will let you fire your lawyer but then make you proceed with the case with no lawyer. There is a right to consult a lawyer on arrest or detention but no general right to have a lawyer represent you.

On the other hand, if you fire your lawyer for some other reason – such as you think they are not doing a very good job – usually the Court will delay further proceedings for a short period to allow you to get a new lawyer.

And that’s fair because you do need to have confidence in your lawyer and if you have lost that confidence you should be allowed a little time to get someone new who you do have confidence in.

So firing a lawyer is fairly straightforward legally.

If the lawyer wants to quit, however, it is somewhat more complicated.

A lawyer is not allowed to cause prejudice by leaving a case. That means prejudice, not only to the client, but to the Court, the other side and the process in general. The Supreme Court of Canada has ruled a lawyer cannot withdraw from a case where “withdrawal would harm the administration of justice.”

Nevertheless, sometimes a lawyer is required to stop acting. If, for example, the lawyer has a conflict of interest the lawyer (usually) cannot act. In some rare cases a conflict of interest can be waived but usually if the lawyer has some conflicting duty or interest that lawyer cannot act. A lawyer’s duty must be to the lawyer’s client and no one else.

Another case where the lawyer must quit is where the client asks the lawyer to do something improper or unethical. That is pretty rare but if a client wants to do something that is improper the lawyer cannot assist is doing anything unethical.

A different situation arises where the lawyer is not being paid by the client. Generally, a lawyer is not obliged to work for free and if a lawyer is not being paid the lawyer can ask the Court to allow them to quit. Normally the Court does allow the lawyer to quit but if there is a trial or other matter imminent the lawyer may be required to stay on in the interests of justice. The lawyer should have collected their fee earlier – it’s not a great solution but it’s not unfair to make the lawyer protect themselves.

Obviously if the lawyer gets too sick to work the lawyer can quit. Similarly, if a lawyer is just not capable of acting, perhaps because of a lack of experience or some lack of training, the lawyer must quit.

As you can see a lawyer quitting is more complex than a lawyer being fired! See MoreSee Less