Judges oppose new laws on pre-trial custody

[Wilber]

The point that I was trying to make is that our Constitution allows the judicial arm the flexible interpretation of laws as it feels applies. I do believe that the judicial system could not be a check or balance in our form of democracy if it was not allowed that flexibility. There have been many court decisions which I have thought to be too "lenient" and others too "harsh" but I accept those decisions as the cost of maintaining the integrity of our system. I personally do not feel that judges or juries should have their hands tied by minimum or maximum sentences. I especially distrust a judicial system that is prone, influenced or directed by the far left or far right leanings of the current dogma of a political party temporarily in charge of the government.

Yes they are allowed a lot of flexibilty which makes them just as responsible for the system as government if not more, as it is their precidents that form so much of our law. They like to whine about what they feel is government stepping on their turf but don't like to take any responsibility in the gridlock that is our legal system.

Edited February 15, 2014 by Wilber

[Remiel]

I always find it odd that people are so keen to debate on whether the current "compensation" to the guilty for what they served before being convicted but no one ever talks about just compensation for the people who are not guilty. I do not mention this from the conservative position of, "Let the guilty rot," but rather as a criticism of that vigour not being applied in an orderly way to everyone else.

Now, it may the case that sometimes you can sue. But why should you need to? That sort of thing should have a codified baseline.

[TimG]

no one ever talks about just compensation for the people who are not guilty.

Part of the problem is being found not guilty does not mean you are innocent - just that you could not be convicted. What this means have no process other than after the fact civil suits distinguish between people who are really innocent and those that get off on technicalities. Perhaps we need a simpler process where a judge can review the evidence to determine if someone is 'innocent beyond all reasonable doubt' in addition to the not guilty virdict. Edited February 16, 2014 by TimG

[Wilber]

Scotish courts have a third option. Not Proven, basicaly meaning, we think you are guilty but can't satisfy the law's burden of proof. Otherwise known as the, "not guilty but don't do it again" verdict. In many cases probably a more accurate description of what our legal system does.

[Remiel]

Part of the problem is being found not guilty does not mean you are innocent - just that you could not be convicted.

See, as far as I am concerned there is something fundamentally wrong with that statement. Not something that I am saying is your fault: it is a common rejoinder I think. But here is the thing: We do not say that there is a presumption of not guilty until proven guilty. We say there is a presumption of innocence until proven guilty.

There are so many things that are complained about as injustices that are completely trivial compared to the fact that your entire life many be ruined by the government without any recourse because preliminary evidence pointed to you as a strong suspect in a crime. What you are effectively doing is making the prosecution a pseudo-judicial/juridical actor where being charged with a crime is of near-equal practical relevance as being convicted of one.

Having a post-facto verdict of innocence, where after a finding of not-guilty a different judge reviews the evidence and can "upgrade the verdict" could perhaps be an equitable way to go.

[TimG]

Having a post-facto verdict of innocence, where after a finding of not-guilty a different judge reviews the evidence and can "upgrade the verdict" could perhaps be an equitable way to go.

Our system has numerous checks and balances to keep it fair. For example, if police seize evidence without a warrant that evidence cannot be used even if it clearly shows guilt and I think that is a fair system. But we also don't want people let go because of that to be given compensation as if they were innocent. A second review would be able to take into account any excluded evidence before upgrading the verdict to innocent.

Personally, I think there is a need to do more for people who are truly innocent but were not the victims of a malicious prosecution. The question is how to determine who is "truly innocent".

Edited February 17, 2014 by TimG

[Wilber]

See, as far as I am concerned there is something fundamentally wrong with that statement. Not something that I am saying is your fault: it is a common rejoinder I think. But here is the thing: We do not say that there is a presumption of not guilty until proven guilty. We say there is a presumption of innocence until proven guilty.

Yet the only possible verdicts are guilty and not guilty. There is no verdict of innocent.

[Big Guy]

The major flaw that I have seen in our judicial system is the identification and publication of the names of people who have been “arrested for” and/or “charged” with a crime. When the name is published, most members of the public assume that they are guilty unless proven innocent. After all, they would not be charged if there were not good grounds and we all know that “where there's smoke there's fire!” Don't we?

Unfortunately, the announcement of the arrest and charging of the individual usually appears on page one and a subsequent dropping of charges or a finding of “not guilty” ends up on page ten – if reported at all. This process is especially unfair and damaging in cases of suspected child molestation or abuse.

When a person (especially a teacher) has been accused by a child or adolescent of physical or sexual abuse then that person is immediately removed from contact with children. The police are responsible for investigating the charge so in most cases they inform the media of the allegation and identify the individual to the media. They do this as part of the investigation to reach any other children who may have been “abused” by that individual. Often, the description of the suspected perpetrator is very detailed as to the area where they lived and where they worked in the past. The individual is instantly labelled as a potential predator. Later, if/when the accusation has been proved groundless then that information is announced and published somewhere in the jumble of unimportant news.

I have seen this happen too many times to teachers and child care workers. Child makes accusations, police publish name of suspect, child retracts accusation, police drop charges and release innocent person. A reputation ruined and no one takes responsibility.

Should the name of an accused be published?

If so, then for what crimes?

Should there be compensation for those accused but found not to be guilty?

Edited February 17, 2014 by Big Guy

[Argus]

My understanding is that the Constitution and the Charter of Rights ARE what give the judicial system the right to interpret and apply those laws that have been passed by Parliament. Our Constitution and Charter of Rights super cede the laws that Parliament passes. The other strength of the judicial system is that it has the power to declare any law that Parliament passes to be null and void because it contradicts the judicial systems interpretation of the Constitution and Charter of Rights. I believe that too is one of the checks and balances that have been built into our form of democracy.

Not really. Our form of democracy has existed far longer than the constitution. What is new, since this constitution, is a form of judicial political and social activism which, given their ablity, as you say to 'interpret' the law any old way they feel like interpreting it, often allows these unelected people - most of whom are nothing more than political patronage appontees - to overrule the elected parliament and substitute their own moral, social and ideological beliefs for those of legislators. That is not something anyone should consider to be good for democracy.

[Argus]

The charter does grant the right to not be subjected to cruel and unusual punishment. Given that wording, what constitutes cruel and/or unusual punishment is left to interpretation. Whatever interpretation becomes most commonly employed by courts becomes the convention. That is, until cabinet or parliament create a law stating otherwise.

I think any neutral party would consider that term 'cruel and unusual punishment' to be about whipping, beating, tortures, waterboarding, freezing, starving, etc. I don't think it should be used because there isn't any big screen TV or college courses available.

[Argus]

I thought the prison where the person had been detained factored into the decision. The Don Jail, for instance, was regarded a horrendous place and judges gave people who'd been held there while awaiting and through trial double or triple credit.

In what way was it horrendous?

[Argus]

IMeanwhile, our judicial system will continue to interpret our Constitution in an objective manner and maintain a check and balance on Parliament as it continues to change hands.

And what happens if it's NOT objective?

[Argus]

See, as far as I am concerned there is something fundamentally wrong with that statement. Not something that I am saying is your fault: it is a common rejoinder I think. But here is the thing: We do not say that there is a presumption of not guilty until proven guilty. We say there is a presumption of innocence until proven guilty.

Theoretically you are correct. Realistically, well, the police know who the members of the Hells Angels are. They know who the mafia guys are too. I don't think any of these people are innoncent, and I would presume in any dealing with any of these people, that they are violent criminals and act accordingly.

In other words, we know very well some people are guilty of criminal activity, regardless of whether a court has pronounced on the subject.

[Argus]

Our system has numerous checks and balances to keep it fair. For example, if police seize evidence without a warrant that evidence cannot be used even if it clearly shows guilt and I think that is a fair system.

I think it's a foolish system. I think the evidence should be used, and then the police who obtained it illegally should get a hearing to determine if they did so knowingly, and if so what their punishment ought to be. Frankly, if I have an ideology it is practicality. If there is evidence of criminal activity the person should be punished for it, without regard to how that evidence was obtained.

[Wilber]

Our system has numerous checks and balances to keep it fair. For example, if police seize evidence without a warrant that evidence cannot be used even if it clearly shows guilt and I think that is a fair system.

Fair to who?

[guyser]

Our system has numerous checks and balances to keep it fair. For example, if police seize evidence without a warrant that evidence cannot be used even if it clearly shows guilt and I think that is a fair system.

Actually that is not correct.

Police can and do use evidence gathered without a warrant all the time,thankfully criminals are quite dumb a lot of the time.

Of course they will either be exonerated on the evidence or it will be ruled inadmissable,and the Judge has to rule on this.

At times a Judge can rule admissiable even though the Police came about this evidence the wrong way.

[g_bambino]

I don't think it should be used because there isn't any big screen TV or college courses available.

While it's probable nobody was regularly whipped at the Don Jail, the conditions were worse than simply the absence of high-end televisions and post-secondary education.

I'm not saying it's necessarily right that someone held in such a prison should be deemed to have served twice or three times the amount of time they actually spent there; but, I see the rationale.

[g_bambino]

In what way was it horrendous?

It had the facilities of a 19th century prison and overcrowded to boot.

[Argus]

While it's probable nobody was regularly whipped at the Don Jail, the conditions were worse than simply the absence of high-end televisions and post-secondary education.

I'm not saying it's necessarily right that someone held in such a prison should be deemed to have served twice or three times the amount of time they actually spent there; but, I see the rationale.

I see the 'rationale' but to agree with that rationale you have to agree with the judges who say that staying at the Don constitutes cruel and unusual punishment.

And if it did, they should have ordered all prisoners out a long time ago.

[Argus]

It had the facilities of a 19th century prison and overcrowded to boot.

Specifics? Lots of places are overcrowded. It had a cell, it had heating and plumbing, it had food, right? The prisoners had cots to sleep? Medical attention was available?

No gym equipment? Not a big enough library? What exactly were the issues which should allow double or triple time? In any case, given the Don is closed, what are the issues now that should allow double and triple time?

[guyser]

Rats, cockroaches, no beds ,communal dorms, stench of raw sewage, grossly overcrowded, inmates with mental issues tied to beds, no toilets available, massive understaffing, sadistic guards, black mould.

[g_bambino]

[T]hey should have ordered all prisoners out a long time ago.

Indeed. Or renovated the jail.

[guyser]

Or renovated the jail.

Pretty much an impossibility due to the age and structure.

Its now (at least in part) part of a new hospital

[g_bambino]

Pretty much an impossibility due to the age and structure.

Not impossible, but very expensive. A cost no politician would want to be responsible for.

Its now (at least in part) part of a new hospital

The original, 19th century part, yes. I walked past it a couple of times during construction.

[PIK]

Fair to who?

Exactly.