Legal Reform #
Law reform is a constant recurring need, yet tenaciously resisted by those responsible for providing Justice. Major reforms throughout the last 800 years have been slow and tortuous. The Victorian era saw some major progress. Trials from the 1870’s were vastly improved from earlier in the century.
Vital to any vibrant democracy is trust; faith in the:
“fairness and how our legislative and judicial branch can continue to be respected,” Senator Murkowski.
Public goodwill can be imperilled by reactive, anachronistic cultures of Medieval Institutions, long past their use by date. Urgent reforms, in all liberal democracies, need to be implemented for the protection of judicial integrity and independence.
Edward O. Wilson’s claims:
“The real problem of humanity is the following: we have Paleolithic emotions, medieval institutions, and god-like technology.”
Radical top down systematic reform is required to reset the Justice System for modern purpose, restore trust and preserve democracy. Outsiders know that the adversarial system is well past its use by date. The system is too easy to game by lawyers and unprincipled judges.
The Ethical Principles for Judges, (2021) recognised evolving issues faced by Judges and made some significant laudatory reforms but needs to go much further.
The most praise worthy, far reaching reform is in Case Management, where recognition is given to ancillary means of conflict resolution such as settlement conferences and judicial mediation. This is an encouraging radical shift, allowing outside professionals long overdue contributions - a promising initial breach of an adversarial prerogative mindset. It is time to ditch the competitive adversarial system in favour of cooperative truth seeking processes.
The British National Theatre Company’s production of Prima Facie, raises significance issues.
Societies with effective conflict resolution, sound decision making, and harmonious equitable economic redistribution develop better social conditions for all.
Below I outline significant radical and structural changes to our judicial system that basically hasn’t changed in 800 years. These changes are urgently needed to restore faith, confidence and legitimacy to the entire legal process.
The CJC, failing to respond to official complaints, strips all Canadians of inviolable rights, encouraging the kind of vigilantism that is tearing Western democracies apart, evident in the Black Lives Matter protests across the world. It cannot be ignored. Canadian Appeals courts must be totally buffered from lower courts.
Abject failures of accountability and responsibility regarding complaints to the Canadian Judicial Council should be of a concern to all Canadian citizens who value their declining democratic rights due to a lack of responsible Judicial oversight. The only logical conclusion I can reach, due to politicians non responses, is that Canadian Judges enjoy a lack of external overview, leading to a culture of total immunity and impunity, contrary to the provisions of the establishment of the CJC in 1971.
Liberal democracies rely on institutions, commissioned by the people, of the people and for people, to safeguard our freedoms. When these betray us, we know that democracy is under assault, descending into authoritarianism.
The Black Lives Matter is a valuable and necessary protest, but misdirected. A flawed concept of power causes many people to misdirect their attacks. The Police are merely the face of power; the real power lies higher up, invisible, invincible and inviolate – a smug court system, complacent mainstream media and anaemic political leaders who:
……………………..“tell us truths,
Win us with honest trifles to betray’s
In deepest consequence.”
Victor Hugo, in Les Misérables warns us:
The guilty one is not he who commits the sin, but the one who causes the darkness.
The Canadian novelist, Michael Ondaatje articulates it best:
“He was one of the few in power who had something tangible around him. But those with real power had nothing to show for themselves. They had paper. They didn’t carry a cent. Harris was an amateur in their midst. He had to sell himself every time.” Pg. 241-2 In The Skin of a Lion
So much of the dispossessor’s energy is misguided in striking out at the façade of power rather than the heart of it.
The faceless rulers gauge the amount of public discontent carefully to maintain control. They know when to placate, appease or compromise so that public anger does not erupt and threaten their power.
In Sydney Australia, the Supreme Court declared the BLM protest illegal, but 15 minutes before the scheduled start, realising their lack of military authority, rescinded the ban. In the second round, with more police protection, they succeeded, exposing our hypocrisy in our objections to China’s crack down on protesters in Hong Kong.
For some, allegations of a corrupted legal system at the very top, may come as a shock. It seems difficult to imagine that prestigious democratic institutions charged with preserving democratic principles would rampantly rise up to pervert those very principles. Yet this remains my considered contention. The Canadian Judicial Council appears to defiantly thumb its nose to its foundational Act of Parliament by flouting the rule of law.– and our irresponsible Ministers do not appear to care.
Lack of accountability in the legal profession is longstanding, and has proven an intractable problem since Medieval times. My concerns remain about the lack of response to a complaint made to the CJC in 2014.
Despite Trudeau’s assurance that now ” is a time to listen", nothing is forthcoming. Immanuel Kant noted that “powers which make a great show of their piety … drink injustice like water”.
You can’t judge on the basis of limited or restricted knowledge - or as Justice Mary Gaudron claimed: “any lack of full understanding results in jurisdictional error”. It seems there are some things the legal industry cannot or simply does not wish to understand.
Science is a badge of our sophistication, while all other methods are a reminder of our primitivism. Yet some, in the judiciary, entrenched in a Medieval mindset, tenaciously cling to their vaunted discretionary prerogatives of arbitrary justice and legal posturing.
This has to do with the culture of the legal profession. This culture has been built up over centuries, relying heavily on personal networks that by their very nature reinforce the status quo.
Tackling endemic collusive cultures requires a shift in the norms that are known about but ignored – Judges tend to close ranks. The culture tacitly accepts both peer and systemic personal network support.
Reform of the Appeals process #
Radical systematic reform is required to make the appointment of Judges more transparent and restore respect in all Appeal cases.
Systematic reforms of the Appeals process is available due to advances in technology, dragging the Judiciary into the 21^(st ) century.
Here is a proposed practical solution to restore our confidence in the entire legal Appeals process.
All judges need to be fully trained with the latest expert knowledge in the field in which they have jurisdiction. Blind ignorance is no longer tolerated.
All appeals should be remote, independent and anonymous. An executive officer co-ordinates the appeal by secure email to three Appellant Judges from other states/provinces discretely and discreetly.
Names and sources of all participants are redacted to prevent identification.
Each of the anonymous Judges considers the merits of the appeal separately, anonymously and returns their opinions to the co-ordinator.
These are compiled for anonymous circulation to the other appeal judges including the lawyers and Judge of the initial case for consideration and rebuttal.
All responses are anonymously forwarded to the original Appellant Judges who then independently make their final determinations.
The co-ordinator then submits these to the Head of the Appeals Court who considers, consults and publishes the final verdict with all names now disclosed.
This system should go a long way to restore our faith, confidence and trust in our last bastion of defence against tyranny.