Ideablawg’s Weekly Connections: Inside The Courtroom

Although criminal lawyers have an intimate knowledge of the courtrooms in which they practice, what do we really know about courtrooms elsewhere? We assume other courts would be all fairly similar but having practiced in Ontario and appeared in a myriad of courtrooms from Toronto, to Windsor, to Lindsay, and beyond, I can say courtrooms do differ. But how do courtrooms in other jurisdictions look? What about other countries? What goes on in them anyway? Well, thanks to the Internet, there are options and tools to help anyone peek into the inside of a court and to see, and perhaps understand more clearly, what exactly is going on inside.

1.   The International Criminal Court (ICC): I have written about the International Criminal Court in previous blogs, most notably here. This past week, the ICC trial chamber has been hearing the Ruto and Sang prosecution. William Samoei Ruto, the Deputy President of the Republic of Kenya and Joshua Arap Sang, head of operations of Kalenjin language radio station KASS FM in Nairobi, are charged with crimes against humanity under the Rome Statute. Ruto and Sang are being tried for their role in the ethnic violence ocurring after the 2007-2008 Kenyan elections. The ICC distributes a video summary of weekly cases in their video series called “In The Courtroom.” The Ruto and Sang matter is this week’s installment showing the courtroom and the various members of the court as well as excerpts of the testimony of a witness, whose identity is carefully protected through use of a pseudonym, facial pixilation, and voice distortion. After the hearing summary, there is a short explanation about the court process including the possible prison terms and where such a sentence would be served. Not only does this video give us an opportunity to experience a totally different kind of criminal court but it gives us a better appreciation of the difficulties surrounding the prosecution and defence of international crimes.

2.   You Be The Judge: This is a great online interactive tool created by the Ministry of Justice in the UK to explain how a judge sentences an accused. The website allows the viewer to observe various criminal cases and to make interactive decisions, based on various factors, to determine the length of incarceration. The viewer/player experiences the courtroom setting and benefits from a number of “asides” from the Bench explaining the process. Through polls taken during the hearing, the viewer can see, in a risk-free environment, if their decisions are consistent with other viewers and with the sentencing judge. I have used this website in my undergraduate criminal justice classes to show how a sentencing judge uses his or her discretion with the rule of law to come to an appropriate and fit sentence.

3.   The Model Court: In a previous blog, I wrote a short piece on the intersection of law and art based on readings from a group of essays in Thousand Eyes: Media Technology, Law and Aesthetics published by Sternberg Press. In the journal are photographs of the “Model Court,” which is a collaborative research project involving a group of artists, Sidsel Meineche Hansen, Lawrence Abu Hamdan (who does some fascinating aural work in the area of the political role of voice in law called Aural Contract), Oliver Rees (he’s so supercool I can’t even describe what he does, so just check out his website) and architect, Lorenzo Pezzani. The project “uses the structure and technologies of the courtroom to interrogate the signifying and controlling role architecture plays in contemporary art and society.” By offering a “model court” as a container of ideas of “jurisprudence, evidence, and the hidden apparatuses that become the essential constituents of tribunals,” the project extends us beyond the courtroom into a representative space, which pushes the traditional four-wall envelope to give us an alternative view of justice. 

War Crimes: Canadian and International Milestones

With the announcement on March 14, 2012 of the first verdict by the UN sponsored International Criminal Court (ICC), it seems fitting to look back at the first prosecution in 1989, R.v. Imre Finta, in Canada under the then new federal Crimes Against Humanity and War Crimes Act. Imre Finta, originally from Hungary and, as a Hungarian police captain, deported thousands of Jews to the death camp Auschwitz in World War II, was the first individual charged under the Act in 1988. Finta, at the time of his arrest, was a retired restaurant owner living in Toronto. 

The Act was conceived as a result of the Deschenes Commission, which was struck in 1985 to inquire into the presence of war criminals in Canada and to provide recommendations on how Canadian laws should respond. At the time of the Commission, Canada’s immigration laws and policies were not stringent enough to keep war criminals from immigrating to Canada. Indeed in 1962, Josef Mengele, or as infamously known as the “Angel of Death,” had applied to immigrate to Canada even though his identity was well known to government officials. Although, Mengele did not in fact enter Canada, it was clear such entrance would have been possible considering the laxity of Canadian laws. It was equally clear at the time of the Commission, there were in Canada at the time of the Commission alleged war criminals from the World War II era.

The final Commission report was tabled before parliament by then Justice Minister, Ray Hnatyshyn, after examining over 800 cases of alleged war criminals in Canada. Although the Commissioner, Justice Jules Deschenes of the Quebec Court of Appeal and formally the Chief Justice of the Quebec Superior Court, recommended some individuals be deported from Canada, he also recommended ways in which the alleged war criminals could be prosecuted in Canada for their crimes. His proposed recommendations, including changes to the Criminal Code to permit such prosecution, culminated in the Crimes Against Humanity and War Crimes Act in 1987.

Interestingly, Justice Deschenes was appointed in 1993 as one of the first Judges elected by the United Nations General Assembly to serve at the United Nations International Criminal Tribunal for the former Yugoslavia, the precursor to the present day International Criminal Court, mentioned at the beginning of this posting.

With the arrest of Imre Finta on various Criminal Code charges such as robbery, manslaughter, and kidnapping the Commission’s recommendations appeared to be finally showing results. The trial commenced before Mr. Justice Campbell and a jury with evidence of Holocaust victims from all over the world. Ultimately, Finta was acquitted after six months of trial. The Crown appealed to the Court of Appeal for Ontario, with five Justices hearing the case, including Chief Justice Charles Dubin.

Typically only three Justices sit on an appeal case but five justices are assigned when it is a matter of great national importance such as when the constitutionality of a piece of federal legislation is at issue. For example, five Justices of the Court of Appeal for Ontario heard the Bedford appeal on the constitutionality of some of Canada’s prostitution laws. The judgment is to be released on March 26, 2012. A five member panel may also be required when new legislation needs judicial interpretation or in the case of a legislative reference (see my prior posting on References) or when the appeal involves issues decided by a previous Court with a request to review that prior decision. An example from outside of the criminal law is the recent five panel Ontario appeal decision on summary judgment motions.

In the case of Finta, the Court struggled with two issues of national importance involving both Charter rights and substantive issues. The Charter arguments were dismissed. In terms of substantive issues, the Court needed to determine the appropriate implementation and use of the new war crime legislation, particularly how a trial judge must instruct himself or a jury on the correct legal requirements of such a charge in the context of criminal law principles. Finta was charged with easily identifiable Criminal Code charges, but was so charged in the context of war crimes committed years earlier in another country. It was this further layer of complexity, which required a panel of five Justices to consider the issues involved.

The Court of Appeal for Ontario came to a split decision on the application of the Act. The majority decision written by Justices Doherty, Osborne, and Arbour dismissed the Crown appeal against acquittal, finding no substantial wrong or miscarriage of justice at trial. The dissent, written by Chief Justice Dubin and concurred in by Justice Tarnopolsky. The dissent was chiefly concerned with the requisite elements of war crimes and their opinion that the trial judge erred in instructing the jury on the legal aspects of those essentials. Thus, the acquittal was upheld, as there was no palpable error of law and without resort to the constitutionality of the legislation.

As an aside, here too we have some interesting connections to international criminal law and human rights. Justice Walter Tarnopolsky had a strong background in human rights and civil liberties as an academic and law professor. Just prior to his appointment to the Court of Appeal, he was a member of the United Nations Human Rights committee. Justice Doherty as a previous Crown Attorney in the appeals division was very well versed in criminal prosecutions. I have spoken of Justice Doherty in a previous posting. Of course, Madame Justice Arbour went on to become Chief Prosecutor for the International Criminal Tribunal for the former Yugoslavia, the very same organization to which Justice Deschenes was connected. She sat on the Supreme Court of Canada as well but after the SCC Finta decision. Most notably, she later served as the United Nations High Commissioner for Human Rights. I have written about Justice Arbour in a previous posting.

The case was further appealed to the Supreme Court of Canada, with similar results. Only seven justices heard the matter, rather than the full quorum of nine. The majority decision written by Justice Cory, upheld the acquittals and dismissed the appeal and the constitutional questions. The majority (a slim majority as 4 justices dismissed the appeal, while three justices would have allowed it) confirmed the substantive charges under the Criminal Code must be proven in conjunction with the additional proof of the essential elements of a crime against humanity as defined by the Act. Thus, as both the substantive offence and the war crime must be proven beyond a reasonable doubt, Finta was properly acquitted as the Crown failed to prove the requisite elements of both offences.

This decision raised the bar in terms of the ability to prove such offences, making such prosecutions extremely difficult for the Crown. The result was fewer prosecutions (many of which were unsuccessful), more extraditions, and even more deportations under the much easier to use immigration legislation. Therefore, the first verdict under the auspices of the ICC is a welcome and much needed addition to the global fight against international crimes. It is hoped Canada will support the efforts of the ICC, while still remaining vigilant in its own efforts to prosecute war criminals.