The Role of Judges - Teaching Resources

Making a Judgment From the Streets to the Courtroom
Teaching Resources

People who drive their vehicles in a manner that endangers lives take a big risk; their actions might cause their own or someone else’s death and they may also be charged with committing a criminal offence. If convicted, they are subject to  the penalties set out in the Criminal Code for the offense, which can include a jail sentence or a monetary fine and/or the suspension or loss of a driver’s license.  The goals of sentencing are to punish the behaviour, protect the public from people who have broken the law, and to deter others from committing similar acts. Occasionally, the  public reacts strongly to the sentences imposed on people convicted of criminal acts, especially when the activity (such as dangerous driving)  caused the death of an innocent person. Recent news stories have generated considerable public debate over the appropriateness of the sentences handed down by the courts in cases of dangerous driving.

The following cases illustrate the factors judges consider when sentencing a person convicted of a driving-related offence. In January 2003, the British Columbia Court of Appeal upheld the sentence of a woman who was convicted of impaired driving causing death.  In this case, the woman entered a guilty plea to the charge and was sentenced to three years imprisonment.  The impaired driving resulted in the death of a young woman who was walking home from work. About a month later, two young drivers were each convicted of criminal negligence causing death.  The young men were involved in a street race, driving separate vehicles, when one of the vehicles lost control and struck and killed a pedestrian on the sidewalk.  The trial judge sentenced each of the men to a conditional sentence for a term of two years less one day, followed by probation for a term of three years.    The sentences in the two cases were quite different and it was this disparity that caught the attention of the media and the public.

The following are ideas and questions related to the cases around which to centre classroom discussion. Students can examine both the reasons for judgment  and the media reports, make note of the differences in function and purpose between the media reports in the paper and the judges who hear the facts, review the evidence and apply the law, giving reasons for their decision. Students will compare a  reported case to the media’s report of a case, which provides important information to the general public, but often focuses on the more sensational aspects of the case and the judge’s decision.

Learning Outcomes
Students will:

• Learn how to look up case  reports on the Internet
• Identify important sections of a case  report
• Read and critically evaluate media reports of a case
• Note the difference in purpose and tone between media reports and case reports
• Recognize the importance of reading the case report before forming an opinion of a case

The Queen  v  Khosa and Bhalru
The judgment in this case was released on February 3, 2003. The Vancouver Sun covered the story in a number of articles over the next two weeks. Reactions from the public, politicians and representatives of the judiciary were published. Students should be assigned to search for, read and summarize at least one of the newspaper articles published during the first three weeks of February 2003.

After students have had an opportunity to discuss their findings in small groups, they should read the official  reasons for judgment in the case and compare the portrayal of the facts, the tone and the goals of the two reports.  For the full case report, go to www.courts.gov.bc.ca and search for R. v. Khosa and Bhalru, or http://www.courts.gov.bc.ca/../../../../jdb-txt/sc/03/02/2003BCSC0221.htm

Students may be asked to complete the following tasks in preparation for critical thinking and classroom discussion:

• Summarize the events leading to the fatal accident.

• Compare and contrast how the media reports and case reports present information about street racing as a social problem.

• Determine what conditional sentencing means and what purposes it serves.

In this decision the judge gives considerable attention to the rules set out in the Criminal Code regarding conditional sentences and that, through legislating conditional sentences, the government of Canada has advocated to judges to apply a conditional sentence whenever  appropriate.  The judge also comments on  a number of precedent cases and she considers the characters of the accused and the effect a jail sentence might have on them.  Have students consider the following questions about how laws are being applied in this case.

• Judges are bound to follow  applicable prior cases.  The judge reviews several similar cases in her report. What are some of the reasons she gives for not applying the same sentence?

• The judge lists a number of reasons why she thinks a conditional sentence should be imposed in this case, what are they?
•  What do you think would be the most effective way to discourage young people from street racing?

• Our legal system has established the principle that a judge should function independently of public or political pressure. Why is it important to maintain this principle?

Comparing Sentences
News of the other case was reported during the week following the decision of the street racing case discussed above, even though the decision had been reached by the British Columbia Court of Appeal the previous month [Is this accurate?].  The Court of Appeal’s judgment upheld the sentence imposed on a woman convicted of impaired driving causing death after entering a guilty plea to the charge.  At the sentencing, the judge determined that this was not a case where a conditional sentence should be imposed.  The sentencing judge determined that the woman would serve three years in prison for the impaired driving offense that caused the death of a 17 year-old girl.  In this case, the Court of Appeal was asked to review the sentence to determine if it was justified.

Have students read the Court of Appeal report found at http://www.courts.gov.bc.ca/jdb-txt/ca/03/00/2003BCCA0015.htm. Prepare a summary of the facts and history of the case and discuss the following questions.

• How is this case different than the street racing case in terms of the state of mind of the accused? 

• What factors did the  judge use to determine the sentence?

• What does the Court of Appeal say about the capacity of the sentencing judge to determine the facts and assess the social circumstances surrounding the incident?

• Do you think a period of incarceration will accomplish the goals of the justice system to denounce and deter the kind of behaviour that occurred here?

• How important is it to have decisions in similar cases consistent?

 Do you think the character of the accused should be a factor in sentencing?

By the end of this discussion students will learn the many factors a judge must take into consideration when rendering a sentence in a particular case.  The judge has access to information about the case and knowledge of the law that may not be available to news reporters.  News reports seldom tell the whole story and it would be unwise to base an opinion on the outcome of a case from merely reading or hearing media reports.  Judges are required to undertake a detailed reporting process and that report is the most credible source of information on a case.  Case reports are now readily available on the Internet and students should be encouraged to refer to them when they have questions raised by a report about a trial or judgment in the media.

Teaching Resource 2 - Appealing Judicial Decisions

Overturned on Appeal
The two cases to be considered here illustrate how the Court of Appeal serves as a check on the judgments of the  trial court.  Remember that the Court of Appeal  normally deals only with questions of law or  the application of the law.  The Court of Appeal ensures  that the law is applied correctly, fairly and reasonably and that the trial procedure follows established law.

The first case involves  a person who was injured in a car accident and sued the people he felt were responsible for causing his injuries.  The trial judge in this case made what was considered a ground breaking decision at the time, extending the law and applying it to new circumstances.  The Court of Appeal reviewed the trial judge’s  decision  and overturned it because the Court of Appeal found that the trial judge had acted beyond his jurisdiction. 

In another recent decision of the Court of Appeal, the Court of Appeal ordered a new trial in a criminal case because the trial judge did not adequately control Crown counsel in the Crown’s questioning of the accused.  Both cases help us to understand the supervisory role of the Court of Appeal as it reviews the decisions made in lower courts.

Who’s to Blame?
In February 2001 the Supreme Court of British Columbia heard an interesting case in Vernon called Prevost v. Vetter. The case involved a passenger in a car accident  who was seriously injured and sued the driver and her aunt and uncle, at whose home the driver and passenger (and others)had been drinking before the accident.  In British Columbia, a Supreme Court rule (Rule 18A) allows for a “summary trial” where, if the parties agree, a matter can be dealt with more quickly. Such a procedure dispenses with many of the formal requirements of a full hearing before the court.  The judge on a Rule 18A summary trial reads “affidavits” (sworn written testimony) of the witnesses, considers the arguments of the parties and then writes a judgment.  Adam Prevost, the plaintiff in this case, and the Vetters, the defendants, agreed to this hearing procedure and when the judge made his decision, he felt that the case was significant enough to publish “supplementary reasons for judgment” in addition to his reasons determining that the Vetters were liable to Adam Prevost.  Both reports can be found on the Supreme Court Reports website:http://www.courts.gov.bc.ca/jdb%2Dtxt/sc/01/02/2001bcsc0297.htm [insert address for 2001BCSC312 – full reasons for judgment].

In the report of the case you will find a description of the events leading up to the accident, the injuries sustained by the plaintiff, and the claims that he made against the defendants, along with the written testimonies of the various parties.  Mr. Justice Coultas explained what the courts have determined to be the law in a variety of social host liability cases.  He concludes that Mr. and Mrs. Vetter knew that under-age people were partying at their house on the night of the accident and that young people had done so frequently in the past.  The Vetters  acknowledged  that they usually took care to ensure that the young people who were drinking while on their property had a safe ride home.  On this occasion, the Vetters were asleep when the uninvited youths descended on their property and drank alcohol that they had brought with them.  The Vetters were unaware that their niece, who had consumed a substantial quantity of alcohol, would be driving a group of youths home. Nevertheless, the judge held that because the Vetters had permitted parties in the past and had been known to supervise rides home, they owed a duty of care to the young people using their property.  The judge determined that the Vetterswere negligent on this occasion and therefore liable for the injuries suffered by Adam Prevost in the accident caused by their impaired niece.

The Vetters appealed this decision to the B.C. Court of Appeal. You can find the report of the Court of Appeal’s decision at http://www.courts.gov.bc.ca/jdb%2Dtxt/ca/02/02/2002bcca0202.htm.

The Court of Appeal decided not to address the issue of social host liability feeling that the law was too uncertain to be applied in this particular situation without a full trial.  Instead, the Court of Appeal focused on whether  this trial should have been conducted as a summary trial under Rule 18A.  The Courtdetermined that this case was of sufficient complexity and the law in the matter so uncertain, that the case should not have been heard as a “summary trial.”  Further, the Court of Appeal stated that the Vetters did not have adequate opportunity to defend their position.  The Court was also unable to determine if the plaintiff should have been seeking a remedy solely from the driver of the car.  There are some situations when Rule 18A should not be used and this case was one of them.  The Court of Appeal ordered that a new trial be held to hear the matter in full.  The Court noted that it anticipated that the case was of such importance that the Supreme Court of Canada would eventually  need to  hear it in order to get clarification for all of Canada of the extent to which a court can extend the rules related to social host liability. 

As of this date, there is no indication that the case has been reheard or that it is scheduled for a hearing in the future.  For our purposes, the case demonstrates how judges make decisions on matters, how the judicial system has tried to cut down on lengthy and expensive trials, and how the Court of Appeal reviews decisions  to determine whether the results are just.

Issues for Class Discussion
Besides the matters relating to judicial jurisdiction and the function of the Court of Appeal, a teacher dealing with this case has the opportunity to discuss with students the following issues:

• The implications of getting behind a wheel while impaired
• The meaning of legal liability
• The responsibilities of hosts and property owners when they condone drinking on their premises
• Students could be asked to prepare a brief of the case, debate the merits of holding third parties liable for injuries caused by their negligence.  At the end of the day, the issue is whether a person seriously injured in a car accident is entitled to compensation when he or she knew or should have known that the driver of the vehicle was impaired.
• What risks are assumed when a person agrees to be a passenger in a vehicle with a driver who has been drinking? 
• The judicial process can also be examined by reviewing the case reports of both hearings,especially the judgment of  the Court of Appeal  justices who review the decision of a lower-level judge. 
• Another issue that can be discussed here is the lengthy court process.  The accident happened in June of 1998, the first hearing was in February 2001.  The appeal was heard early in 2002 and still no firm decision has been made about who should be paying for the care that Adam Prevost will need for the rest of his life. 

Regina v. Kelly Ellard
The second case to be considered on this issue is the recent decision of the Court of Appeal  in the case of Kelly Ellard.  Ms. Ellard was convicted by a trial court in Victoria in the murder of Reena Virk.  The Court of Appeal ordered that Ms. Ellard stand trial again because the Court of Appeal  determined that she had not received a fair trial.  Have students read the report of this case. You can find reports of the first trial decision by going to: http://www.courts.gov.bc.ca/jdb%2Dtxt/sc/00/05/s00%2D0564.htm

and the Court of Appeal decision at: http://www.courts.gov.bc.ca/jdb%2Dtxt/ca/03/00/2003bcca0068.htm

In order to follow the facts and issues in this case it is only necessary to read the Court of Appeal’s reasons for judgment.

After considering the cases, have the class discuss the following questions:

• The justices in this appeal are critical of both the crown counsel and the trial judge in this case.  What is the basis of their criticism?
• Why should it be the duty of the crown to prove a person is guilty of a crime?
• What was the effect of the kind of questioning cited in the case report?
• What should the trial judge have done in the circumstances?
• Should the nature of the crime excuse this kind of questioning?
• Do you think Kelly Ellard got a fair trial? 
• Do you think the Court of Appeal has performed a good service in this case to preserve justice from disrepute?
• Do you think that Ms Ellard should have to undergo another trial and what do you think will be the result?

Summary
In each of these cases, judges have demonstrated the challenges they face in decision-making as well as the role that they play in the enforcement of our laws.  It is sometimes perceived by the public that the sentence imposed for a crime is too moderate.  In another case, the public may considera sentence  too severe. Appeal courts sometimes overturn decisions made at the trial court level and are sometimes critical of the way the trial was conducted. In every case, the Court of Appeal adjudicates judges’ work closelyto ensure that trial procedures follow the rules, the law is carefully applied and the reasons for a decision are fully explained.

The courts deal with countless cases that the public never hears about. Occasionally we become aware of a case because it is newsworthy.  Journalists who may or may not have been in attendance at the hearing report on the case, often from the sympathetic perspective of the victim or the victim’s family.  Sometimes a balanced report is not made available through the popular media. Students should be reminded that it is often necessary to look behind the headlines before they form an opinion on a case or on the role of the judge. Because judges normally provide a complete analysis of the facts in a case and give detailed reasons for their decisions and those reports are now readily available on the Internet, it is incumbent on citizens to search those reports so that they can know the full story before they decide whether a judge has made a bad decision.  Even if one concludes that a judgment was wrongly decided, it is important to realize that the judge is  applying the law and perhaps the problem is that the law needs to be changed.  In that case, it is our duty as citizens to go to our elected representatives and persuade them to re-examine and change the law.