Should Canada switch to an inquisitorial system?

[Machjo]

One advantage of the adversarial system is that an accused has at least somewhat more control over his trial than he otherwise would in an inquisitorial system. This could make it easier for him to show the judge only what he wants to show the judge. Unfortunately though, it gives the prosecutor the same kind of control. In some cases, if a person is innocent but finds himself in a compromising situation, he has no way to prove his innocence without the prosecutor's cooperation, and the prosecutor has more control over what to show the judge, he might prefer an inquisitorial system. While that system might give him less control over what he wants to present, it gives the prosecutor less control too. As a result, a judge in an inquisitorial system can sometimes access information that he otherwise couldn't. As a result, it could potentially embarrass the accused; but if that allows the judge to also access information from the police that shows the accused's innocence, that embarrassment might be a small price to pay to give the judge more power to access the available evidence from both sides.

Think of it as a nuclear option: you're found in a compromising situation, you know you're innocent, and you fear that the prosecutor might choose to present only what makes you look guilty. If the prosecutor knows that you have a legal right to opt for an inquisitorial trial, he might hesitate to press charges if he knows that that could give the judge access to exculpatory proof. In some cases, an innocent accused found in a compromising situation might prefer that even if it could potentially bring about some embarrassment.

 

Should a person charged with an offence have the right to an inquisitorial trial?

[Centerpiece]

No.

[Machjo]

15 minutes ago, Centerpiece said:

No.

Why not? If I'm arrested for a crime, I know I'm innocent, and I'm willing of my own free will to forego my right to privacy and silence for the sake of giving the judge more power to call witnesses of his choosing and to access everything the police have on me, should that not be my right?

Yes, I appreciate the right to privacy and to silence. In some cases though, especially when an innocent accused finds himself in a compromising situation, he might willingly forego that in exchange for a more thorough investigation than what an adversarial trial will allow.

 

Sure in an adversarial trial, I have a greater right to privacy (i.e. the police need a warrant to search my home) and a right to remain silent. But of what use would that be if the only proof of my innocence happened to sit in the hands of the prosecutor who's express job it is to present only what makes me look guilty?

Edited September 14, 2018 by Machjo

[Wilber]

Uh, aren't you one of those complaining about judges having too much power over on the GTA thread?  Maybe we should let them do that in all cases, including constitutional. Don't ya think?

[Machjo]

8 minutes ago, Wilber said:

Uh, aren't you one of those complaining about judges having too much power over on the GTA thread?  Maybe we should let them do that in all cases, including constitutional. Don't ya think?

You must be confusing me with someone else. On the GTA thread, my opinion is that the judges do not have too much power since they are bound by the Constitution.

If I were ever accused of a penal offence, I would prefer an inquisitorial trial myself. Yes, it would mean forfeiting my right to remain silent. Yes it would mean making it easier for investigators to search my property. Yes it would give the judge the power to call anyone as a witness. However, all of that would also mean getting everything over with and fast, unlike in an adversarial system.

I have nothing against the adversarial system for those who choose that route. But if I'm innocent, why would I want to waste my time with all of the procedural aspects of an adversarial trial when I could choose the expediency of an inquisitorial one and get it over with sooner? If I'm innocent, I'd have little to hide, no?

Edited September 14, 2018 by Machjo

[Wilber]

By arguing the notwithstanding clause was constitutional (which I don't dispute), I took it to mean you were in favour of its use to bypass allegedly politicized courts. Perhaps I was mistaken.,

[Wilber]

I don't have a big problem with judges asking for more information in a judge only trial but I don't know that you could reconcile this in a jury trial.

[Machjo]

2 hours ago, Wilber said:

By arguing the notwithstanding clause was constitutional (which I don't dispute), I took it to mean you were in favour of its use to bypass allegedly politicized courts. Perhaps I was mistaken.,

It's actually not bypassing the courts in the least. In fact, the courts themselves will uphold it.

[Machjo]

2 hours ago, Wilber said:

I don't have a big problem with judges asking for more information in a judge only trial but I don't know that you could reconcile this in a jury trial.

You might have a point there. I could see a law that would require a police investigator to inform a person of his right to an inquisitorial trial similarly to Miranda rights in the US. Should the person opt for an inquisitorial trial, he'd have to accept a judge-only trial. Also, there would be no turning back. Once he opts for an inquisitorial trial, the trial and any appeal would follow the inquisitorial system from then on. Same if he opts for an adversarial trial. I grant that an inquisitorial trial could be far more uncomfortable, but it would be much quicker too. An innocent person who has a life to live might opt for that.

[Wilber]

35 minutes ago, Machjo said:

It's actually not bypassing the courts in the least. In fact, the courts themselves will uphold it.

Not bypassing the courts would be to appeal the decision.

[Bonam]

You should elaborate on what you mean by an "inquisitorial" system. 

[Machjo]

9 hours ago, Bonam said:

You should elaborate on what you mean by an "inquisitorial" system. 

One in which the judge maintains inquisitorial powers. rather than sit as an arbiter of procedures, he takes an active role in the investigation.

 

For example, in an adversarial system, imagine an immigration process where the person is to be found guilty on a balance of probabilities. The Minister's counsel knows the names of the officers and the witnesses but refuses to repent them and instead insists on presenting only anonymous police reports. The defendant's counsel insists on getting the names of the officers and witnesses so that she can question them. In an adversarial trial, the judge's hands are tied. He still has the power to decide to judge in favour of the accused based on the grounds that the Minister's counsel isn't cooperating. Or he could judge against the accused based on the limited available evidence pointing to her guilt. What he cannot do is to force the Minister's counsel to share information she does not want to share. If the main proof of innocence lies in her hands, the accused is screwed and so must rely on the fair-mindedness of the judge.

In an inquisitorial system, the judge could demand the officers' and witnesses' names and even go out and interview them himself if he must or appoint someone to do so for him. In other words, the Minister's counsel no longer holds the key to the evidence: the judge holds it instead.

 

Now on the flip side, in an inquisitorial system, the judge can ask for witnesses that the accused might not want to share too, granted. In short, it gives him more inquisitorial powers overall.

 

I actually know of one immigration case in Canada in which an accused did find himself facing a situation in which the presented evidence made him look guilty but the Minister's counsel refused to share the officers'  and witnesses' names at the defendant's request. Luckily, the judge ruled in the defendant's favour arguing that while the Minister's council did have the right to refuse to share that evidence, the judge had to take that refusal into account in his decision.

Unfortunately in his case, the Minister's counsel appealed and the second judge decided in favour of the Minister arguing that the Minister had no obligation to share evidence he didn't want to share and that the onus was on the accused to prove the falsity of the police reports even though the only way to do that was to get the names of the officers and witnesses on the scene.

 

In an inquisitorial trial, that would never have happened since the judge could go right over the Minister's counsel's head and demand the names and interview them himself or appoint someone to do so and report back to him if he must. Ha actually has the power to do his job properly in other words.

[Machjo]

10 hours ago, Wilber said:

Not bypassing the courts would be to appeal the decision.

By not appealing, he accepts the court's decision that without the Notwithstanding clause, it violated the constitution. So he corrected his error by using the notwithstanding clause so as to make it conformant to the constitution since the notwithstanding clause itself is part of the constitution.

[Wilber]

26 minutes ago, Machjo said:

By not appealing, he accepts the court's decision that without the Notwithstanding clause, it violated the constitution. So he corrected his error by using the notwithstanding clause so as to make it conformant to the constitution since the notwithstanding clause itself is part of the constitution.

Yes, he circumvented the courts by using the notwithstanding clause. I agree that it is constitutional but it allows him to bypass the legal process.

[Machjo]

1 minute ago, Wilber said:

Yes, he circumvented the courts by using the notwithstanding clause. I agree that it is constitutional but it allows him to bypass the legal process.

It does not allow him to bypass the legal process since the Notwithtanding clause itself is part of that process.

[Wilber]

44 minutes ago, Machjo said:

It does not allow him to bypass the legal process since the Notwithtanding clause itself is part of that process.

No, it is a different process, hence the name.

[Rue]

14 hours ago, Wilber said:

I don't have a big problem with judges asking for more information in a judge only trial but I don't know that you could reconcile this in a jury trial.

Actually in jury trials the Judges can ask questions on behalf of the jury or to seek to clarify issues for the jury. They often do. Their job is to independently make sure all information necessary for a decision gets to the jury and anything immaterial or lacking in probative value is intercepted. The civil and criminal systems do give them an information asking role. Its probably not as active as with judge only trials so you are right, but you'd be surprised it is sufficient for them to assure juries get the appropriate info so in one sense it does try to reconcile the Judge's role to make sure juries have sufficient info, without telling juries how they interpret the info. Sometimes judges have to instruct juries to ignore certain evidence.

Any Judge has to watch how far it goes in re-interpreting any statutory wording  and giving it new meaning other than what is written. The more creative the Judge gets and strays from the actual meaning, the more likely it leaves that interpretation open to an appeal based on it being an error in the application of law.

Some judges take other parts of the statute and say the wording in question must conform to those other parts of the statute so give it a meaning consistent with the other parts of the statute-that is one thing-giving an entirely new meaning out of context to anything in the statute is dangerous.

Judges have overstepped their boundaries and powers and had their interpretations thrown out by higher courts. It happens.

When it comes to interpreting the Charter, the Supreme Court of Canada gave itself the open ended discretion to apply it as widely as possible in favour of someone seeking it as a remedy to protect their rights-thus by doing that, they can not expect provinces to seek a balance with the not withstanding clause. Its to be expected. The question is will the Supreme Court of Canada actually ever make a decision restricting how that not withstanding clause is used? They might but it could trigger a constitutional crisis with all the provinces feeling their power has been taken away by the court.

 

[Machjo]

2 hours ago, Rue said:

Actually in jury trials the Judges can ask questions on behalf of the jury or to seek to clarify issues for the jury. They often do. Their job is to independently make sure all information necessary for a decision gets to the jury and anything immaterial or lacking in probative value is intercepted. The civil and criminal systems do give them an information asking role. Its probably not as active as with judge only trials so you are right, but you'd be surprised it is sufficient for them to assure juries get the appropriate info so in one sense it does try to reconcile the Judge's role to make sure juries have sufficient info, without telling juries how they interpret the info. Sometimes judges have to instruct juries to ignore certain evidence.

Any Judge has to watch how far it goes in re-interpreting any statutory wording  and giving it new meaning other than what is written. The more creative the Judge gets and strays from the actual meaning, the more likely it leaves that interpretation open to an appeal based on it being an error in the application of law.

Some judges take other parts of the statute and say the wording in question must conform to those other parts of the statute so give it a meaning consistent with the other parts of the statute-that is one thing-giving an entirely new meaning out of context to anything in the statute is dangerous.

Judges have overstepped their boundaries and powers and had their interpretations thrown out by higher courts. It happens.

When it comes to interpreting the Charter, the Supreme Court of Canada gave itself the open ended discretion to apply it as widely as possible in favour of someone seeking it as a remedy to protect their rights-thus by doing that, they can not expect provinces to seek a balance with the not withstanding clause. Its to be expected. The question is will the Supreme Court of Canada actually ever make a decision restricting how that not withstanding clause is used? They might but it could trigger a constitutional crisis with all the provinces feeling their power has been taken away by the court.

 

But, in an adversarial system, while he can ask the question or ask for the information, he can't force a prosecutor to present certain information. Yes, a prosecutor's refusal to present easily-accessible information could increase the probability of a judge or jury deciding in favour of the accused just because of that, especially if the accused is adamant that that information be released. However, that's not always the case and when we're dealing with a trial on a balance of probabilities (like in a civil case or immigration trial), that refusal can increase the risk of a wrongful decision if the judge decides to make his decision on the limited available proof without questioning why the Minister's counsel refuses to present this or that information. If the judge questions it, that could go in the accused's favour. If he doesn't and the evidence presented points to his guilt, then no matter how loudly the accused asked for the Minister's counsel to release all available information, he's stuck. In such a situation, the Minister's counsel often holds the key to much of the evidence but has a specific role of proving guilt. At least at immigration tribunals, an accused should absolutely have the right to an inquisitorial trial so as to deprive the Minister's counsel of that kind of power. Some judges in immigration hearings will not question the Minister's counsel's motive for refusing to present this or that information, sometimes even something as critical as an arresting officer's or witness' name so that the defendant's counsel can question them.

[Argus]

5 hours ago, Wilber said:

Yes, he circumvented the courts by using the notwithstanding clause. I agree that it is constitutional but it allows him to bypass the legal process.

He is still appealing the decision. So he is not bypassing it.

[cannuck]

Machjo:

Probably one of not THE most thought provoking posts I have encountered here.

I agree with the ideals of this concept, but where it falls apart is it would depend on having a judge with the skills to do so truly without prejudice and with great ability - things not normally associated with people who chose to make money out of or by creating the missfortune of others.  Of course, this problem already exists within our relatively dissfunctional courts (thinking now of the pre-DNA convictions for murder that an inquisition MIGHT have righted up front - WITH a highly skilled and truly impartial judiciary - but that SHOULD have been the case even as it was, and it was not).

 

Maybe the answer is for the regular petitfoggers and ambulance chasers to get appointed to a primary judicary, but the extremely rare impartial and highly skilled few could remain in an appelate court, where once convicted, they could apply to appeal under inquisitory terms.

Edited September 21, 2018 by cannuck

[Machjo]

5 hours ago, cannuck said:

Machjo:

Probably one of not THE most thought provoking posts I have encountered here.

I agree with the ideals of this concept, but where it falls apart is it would depend on having a judge with the skills to do so truly without prejudice and with great ability - things not normally associated with people who chose to make money out of or by creating the missfortune of others.  Of course, this problem already exists within our relatively dissfunctional courts (thinking now of the pre-DNA convictions for murder that an inquisition MIGHT have righted up front - WITH a highly skilled and truly impartial judiciary - but that SHOULD have been the case even as it was, and it was not).

 

Maybe the answer is for the regular petitfoggers and ambulance chasers to get appointed to a primary judicary, but the extremely rare impartial and highly skilled few could remain in an appelate court, where once convicted, they could apply to appeal under inquisitory terms.

I'm certainly not suggesting that the inquisitorial is perfect or that it would transform a biased judge into an impartial one. However, it would increase the probability (even if not a guarantee) of him accessing more information on which to make his decision. We can hope that more information could challenge any prior bias he might have had.

On the matter of allowing an inquisitorial trial on appeal, one of the greatest strengths of the inquisitorial system is in fact at the pre-trial since, with the judge having more power to authorize search and seizure and to interrogate witnesses (or appoint someone to do so) right at the start makes it more difficult to then speculate about whether or not the accused might have had time to destroy evidence, collude to make up a story, etc. Even if a person is innocent and is telling the whole truth, even just the impression that he might have had an opportunity to destroy incriminating evidence or colluded with someone could hurt him when facing a biased judge.

This means that to fully exploit its advantage in clearing the name of an innocent accused found in a compromising situation, we would want to allow an inquisitorial trial right from the start, with the person being informed of his right to an inquisitorial trial right at the times of his arrest.

That said, I can see a problem even with the inquisitorial system. Since most innocents would tend to choose an inquisitorial trial (so they can get it over with faster) and most guilty parties would opt for an adversarial trial (so as to maintain some control over their circumstances), a judge could develop a prejudice assuming that choosing an inquisitorial trial is somehow proof of innocence and to choose an adversarial one is proof of guilt, and that would be an error in itself. I'll give some examples of when an innocent might prefer an adversarial trial and a guilty party an inquisitorial one.

If a person is innocent of the crime he's accused of but guilty of cheating on his wife let's say, and he fears that while an inquisitorial trial might prove his innocence of the crime we're accusing him of but expose his affair (since it would still be a public hearing), then he might opt for an adversarial trial even though he's innocent of the crime in question since he wants to hide his infidelity from the court so as to prevent his wife from finding out.

If a person is guilty but is particularly confident that he's destroyed all incriminating evidence or that since the police were involved in some corrupt activities themselves during his arrest, he could undermine their credibility through an inquisitorial trial especially by exposing their corruption if their testimony is the main proof against him, he might take the gamble and opt for an inquisitorial trial.

 

So yes, it would be important to ensure that a judge understand that choosing an inquisitorial trial would not in itself prove innocence anymore than to choose an adversarial one would prove guilt. They might even need to undergo some explicit training to counter any such potential bias even though there would be some truth to it. They'd need to understand that there could always be exceptions to that general tendency.

[Machjo]

I think another important point would be to make sure the detainee understands what his choice would mean for him to make sure he understands before making his decision that while an inquisitorial trial would give the judge more power to access information from the police files and interview witnesses, etc. it would also give him more power to search and seize the accused's property than is the case in an adversarial hearing and that he would forego his right to silence and at least to a greater degree than otherwise, to his privacy. he'd need to understand that while an inquisitorial system could work faster and clear an innocent's name faster, it could also be far more intrusive into his personal life.

He would need to understand this before making his decision. But, if he's innocent, and especially if found in a compromising situation, doesn't fear or at least can tolerate the potential embarrassment of discovering things about him that could embarrass him, and he has the stomach for it and wants a faster process, then an inquisitorial trial might be for him.

 

He'd need to understand the pros and cons of it though before he makes his decision.