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This chapter explores the more general and arguably distinct ethical obligations of those who practice criminal law either as defence lawyers or prosecutors. As you read this chapter, you should ask yourself whether you are satisfied with the justifications offered for the ethical rules that we have carved out for defence lawyers and prosecutors in this context and whether you think we have achieved the right balance. To assist you in thinking about the modern-day ethical roles of criminal lawyers, we begin with two historical cases, one from England and the other from Quebec, which frame the obligations in arguably extreme terms – defence lawyers justified in unbridled zealousness within the bounds of the law on the one hand, and the prosecutor as a “minister of justice” on the other. In reading the descriptions of the cases consider whether you think the duties of defence lawyers and prosecutors should be so different. What would justify that sort of difference? What common framing for the duties of defence lawyers and prosecutors might be available?
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Justice Marc Rosenberg will be remembered as one of Canada’s greatest criminal law jurists by those fortunate enough to have worked with him, to have appeared before him, and now, by those who study and rely on his jurisprudence. He was a jurist who cared deeply about the fairness of the criminal justice system and he strived in every decision to arrive at a just result on the law and the facts. Many of Justice Rosenberg’s judgments reflect a concern for the constant struggle of triers of fact to accurately and fairly assess the credibility and reliability of evidence in determining historical events whether it be the testimony of the accused or central Crown witness. This piece explores three decisions from Justice Rosenberg which highlight the different ways in which stereotyping can distort the assessment of credibility and reliability in sexual assault cases: R v. Levert, R v. Rand and, R v. Stark.An important aspect of ensuring accuracy and fairness for Justice Rosenberg was the need to carefully regulate inductive reasoning: the engine that drives judicial reasoning and, ultimately, fact finding. The tools used for inductive reasoning include the decision maker’s or the law’s application of what it sees as common sense, logic and human experience. As an endeavour that explicitly relies on so-called common sense and generalizations about human experience, which shift with time, inductive reasoning can be highly subjective and can easily become a breeding ground for implicit bias, discriminatory stereotyping and unreliable decision-making.
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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.”