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“From the Bench” is intended to provide simplified, general information about matters related to our justice system. Over time we will assemble a collection of papers written by members of the Nova Scotia judiciary and others on varied topics thought to be of interest to our readers.

It is our hope that “From the Bench” will contribute to improved understanding of the Canadian and Nova Scotia justice systems by providing accurate and balanced information on selected legal topics.

All papers that appear on “From the Bench” have been approved by an editorial board of judges from the Provincial, Supreme and Appeal courts. However the views expressed do not necessarily represent the views of any particular judge or court.

The papers are provided for general information purposes only and are not a substitute for legal advice. If you have a legal question, please consult a lawyer.

 

THE CONDITIONAL SENTENCE OPTION
By: Chief Justice Michael MacDonald

(First published in May, 2003 - Updated in August, 2013)
As a result of an amendment made to the Criminal Code in 1996, judges are now permitted to order that a term of imprisonment of less than two years be served in the community on conditions. This sentencing option was sharply circumscribed by Parliament through An Act to Amend the Criminal Code (Conditional Sentence of Imprisonment) and The Safe Streets and Communities Act, which came into force in late 2007 and 2012 respectively.  Conditional sentencing continues to be the subject of healthy public debate. Appellate Courts, including the Supreme Court of Canada, have helped delineate the role and responsibility of trial judges who are called upon to consider this form of sentence. This paper will proceed from a short background discussion to a brief consideration of some frequently asked questions.
Read The Paper >>
 
Access to Justice
Justice Michael J. Wood

"One way in which access to justice can be improved is the simplification of court processes.  This will benefit litigants whether they are represented by lawyers or not.  The objective would be to reduce the time and expense of a proceeding without compromising fairness."
This speech was presented as opening remarks for a panel discussion hosted by the Legal Information Society of Nova Scotia in November of 2012.

Read The Speech >>
 
Reflections on the Art ... and Science of Decision Making
Mr. Justice Jamie W.S. Saunders
Decision-making is a process. There is a beginning and an end. It is a continuum, a spectrum, one stage leading to another, to another, and so on.
The decision imposes a legal result. Thus, the “decision-making” is intended to address the resolution of disputes in way that will have had a dispositive impact upon an individual or an institution.
In this paper, first presented as a lecture to those attending a "Boot Camp" for Decision Makers held in Halifax on February 4 & 5 - 2011, Justice Saunders discusses the process of distilling conflicting information into a final judgment and offers some very practical techniques concerning the discipline and quiet reflection required.
<< Read The Paper >>
 
A Series of Reflections on Persuasive Writing - Mr. Justice Jamie W.S. Saunders
We have all heard the expression that advocacy is the art of persuasion. In a courtroom, a lawyer’s principal objective is to persuade the trier – whether judge or jury .....
.....writing must persuade. Persuasive writing consists of choices.
In this speech to The Canadian Bar Association Annual Professional Development Conference on January 8, 2010, Justice Saunders discusses:
~ The importance of writing persuasively
~ Keys to preparation
~ Tips for style and structure
~ Writing to win
~ Reciprocity and the Big Picture
<< Read Speech >>
 
Medical Evidence in General and Experts in Particular - Justice Jamie W.S. Saunders

A judge traces the history of experts in courts of law and shares his experience concerning the important role experts, particularly physicians play in litigation, as well as the rules that have been developed to safeguard the admissibility & use of opinion evidence. The qualities of what makes an impressive expert are discussed. The judge also looks ahead and imagines the kinds of expertise that might be offered in future cases. 

Note: some decisions cited in the PDF document described above are also links to the actual full-text decisions. Click on the citation to see if it links. << Read Speech >>
 

How To Catch The Judge's Wave - Justice Joel E. Fichaud

Six suggestions on the art of persuasion in the courtroom.
" ..... Administrative law is a textured field. Judicial review follows the pragmatic and functional approach. Direct litigation filters through Weber and Vaughan. But administrative law is not unique. Lawyers practice generally in a world of matrices, not bright lines."
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Irreverence vs. Disrespect - John Piccolo, Communications Director
..... can we say with absolute certainty that the disrespect for the keepers of the rule of law being shown more frequently in some press and media coverage of the justice system has no effect on the public’s –especially young people’s - respect for the rule of law? more>>
 
Bail and Pre-Trial Detention - Judge James Burrill
When individuals are arrested and charged with a crime, will they be released pending their trial or will they be held in custody? Who decides? On what basis are the decisions made? These are questions that the following article is intended to address. It is not intended to be an exhaustive examination of the law of bail, but instead is designed to give the reader a brief overview of the issues that face those who must make decisions regarding the release or detention of an accused pending trial. more >>

Early release from jail - the line of responsibility - Judge Peter Ross
A previous article appearing on this page concerned the “conditional sentence” , a form of punishment enacted in 1996 which permits courts to sentence certain offenders to non-institutional imprisonment. The following is intended as a brief commentary on another aspect of incarceratory sentences - the release of offenders from provincial jails or federal penitentiaries before the full expiration of the sentence imposed by the court. more>>

Judicial independence and impartiality - Mr. Justice Jamie W. S. Saunders
These lecture notes are not intended to be a treatise on the subject. Entire books have been written on the history, meaning, breadth and implications of judicial independence and judicial impartiality. All one can do in a brief set of notes is highlight the points or themes judges in Canada would consider to be essential to a proper understanding by a well informed citizenry. more >>

Why some evidence is excluded - Mr. Justice J.E. Scanlan
This paper is intended as a cursory review of some types of evidence which are excluded; no single paper could look at all the rules on areas of exclusion in depth. The rules or statutes which limit the admissibility of evidence are rooted in the decision to ensure that accused persons have a fair trial based only on the most reliable evidence available. This means guilt or innocence is not based on rumor, speculation or reputation. An accused as we will see is not tried based on what he/ she may have done before but instead on the evidence related to the matter in issue. more >>

 

The information on the Courts of Nova Scotia web site is provided for information purposes only and is not intended to constitute legal advice. If you have legal questions, please consult with a lawyer.