Reflections on the Art and Science of Decision-Making and Decision-Writing
My first assumption is that “decision-making” is a process. It begins with the gathering and presentation of information which is then assimilated by the decision-maker, along with other values, biases and acquired experience and later distilled through various steps of thinking and reasoning until it is ultimately refined and expressed as a recorded result we would recognize as a “decision”.
This paper was first presented as a lecture to those attending a Boot Camp for Decision-Makers organized by the Nova Scotia Barristers’ Society in 2011. This edition has been updated and expanded as a full day presentation, which was delivered on November 9-10, 2017, at the Professional Development Conference for the Maritime Provinces' Law Societies.
The Life and Times of Reasonableness
Standard of review a dry subject. Yet it agitates people. Some of the critical commentary leaves the impression that, at the extremes and depending on your level of esteem for it, standard of review analysis is either a force of nature or a whack-a-mole game.
The vagueness of “jurisdiction”, “reasonable”, “deference”, “justification, transparency and intelligibility”, and “acceptable” outcomes means those terms’ effective features are crafted by an inductive process that is highly responsive to the circumstances in particular cases. The one constant is – if an administrative decision clearly offends the legislative intent, lawyers and judges will find a way to fix it. But we work with terminology. So acute legal minds compose tests until our clutter gets in the way. Then we recoil from the mess, we houseclean, and on it goes. The evolution of the jurisprudence fills the waste basket with crumpled up theories that once seemed ineluctable.
Diversifying the Bench
As Canadians, we are all richer because of our differences. The same goes for our institutions, including the judiciary. The more inclusive we are, the broader our perspectives and the more informed our decisions.
Furthermore, when citizens see themselves reflected at the highest levels of the legal system, they are likely to have more confidence in that system. Such representation can hold even more weight in racialized communities that for decades have been under-represented in the legal profession and over-represented in the criminal justice system.
The Education of a Judge
The education of a judge begins long before judicial appointment. It has many different sources but a single objective: the provision of impartial justice based on principles of law and reason.
That education will continue to change and to evolve, but it is one of the reasons why the Canadian justice system, despite its occasional failings, has become and remains a beacon for large numbers of people in the world who may well go to court but who cannot expect to find impartial justice there.
The Conditional Sentence Option
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.
Access to Justice
"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.
A Series of Reflections on Persuasive Writing
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 from January 2010, Justice Saunders discusses:
The importance of writing persuasively
This paper was first presented as a lecture to those attending the The Canadian Bar Association's Annual Professional Development Conference in January of 2010 in Halifax, Nova Scotia.
Medical Evidence in General and Experts in Particular
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 and 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.
This paper was first presented as a speech to the Nova Scotia Medical Legal Society in October of 2009 in Halifax, Nova Scotia.
How To Catch The Judge's Wave
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."
This article was reprinted in September of 2011 with permission from Westlaw Carswell's Law Source by permission of Carswell, a division of Thomson Canada Limited.
Irreverence vs. Disrespect
..... 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?
This article was reprinted from the August of 2006 edition of "The Record", a publication of the Nova Scotia Barristers' Society.
Bail and Pre-Trial Detention
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.
This paper was published in May of 2005.
Release From Jail - The Line of Responsibility
Chief Justice MacDOnald's paper (see above) addresses 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.
This paper was published in September of 2003.
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.
This paper was published in May of 2003.