Interrogation Trilogy
The interrogation of criminal suspects has long been regarded as a useful and expedient investigative tool. Given the inherently coercive nature of interrogation and the concomitant risk of false confessions, interrogation, as an investigative tool, has proved to be flawed. Investigative interrogation has failed to ensure that confessions are only obtained from the actual perpetrator of the crime. Confessions elicited through interrogation have too often resolved the investigation, but not solved the crime.
Between 2000 and 2010, the Supreme Court of Canada issued Oickle, Singh, and Sinclair, and established the law governing the interrogation of individuals detained in custody. The ‘interrogation trilogy’ provided the Supreme Court with the opportunity to address the recurring problem of wrongful confessions.
While the Supreme Court acknowledged the emerging reality that interrogations were producing false confessions, it endorsed the role of interrogation in the Canadian criminal justice system and, in order to accommodate it, curtailed the accused’s rights to silence and counsel. In this paper, I argue that, in so doing, the Court created an untenable disparity in the protection of Charter rights by safeguarding the presumption of innocence and the protection against self-incrimination in the public courtroom, but offering insufficient protection for individuals physically detained behind the locked doors of the interrogation room and separated from counsel.
Advances in modern forensic investigative tools and technology offer more objective and reliable evidence and should be utilised more readily in addition to, or in place of, confessions obtained through interrogation.
I wrote this paper because I believe strongly that the principled and consistent protection of Charter rights is fundamental to the reputation of the administration of justice and that erosion of the former necessarily results in erosion of the latter.
Civility in the Courtroom
There is widely held concern that civility in the legal profession has declined markedly, particularly in the context of opposing counsel in the courtroom. In response, a movement has emerged to restore civility through increased awareness of civility’s fundamental role in the administration of justice and through redoubled efforts to regulate uncivil behaviour. In Marchand, the Ontario Court of Appeal offered support for the civility movement by stating that civility is a ‘shared responsibility of profound importance to the administration of justice and its standing in the eyes of the public it serves.’
Notwithstanding this judicial endorsement, the civility movement has endured pointed criticism. Detractors argue that the current notions of civility and professionalism are unduly broad, outdated, discriminatory, and incompatible with a modern, diverse bar and that the requirement of ‘civility’ restricts freedom of expression and hinders fierce advocacy.
In this paper, I argue that much of the criticism of the civility movement must, in fact, be heeded in order to ensure its success. I suggest that the notion of ‘civility’ must be simplified to a definition founded not on complex rules, but on the fundamental notions of courtesy and respect and pursuing outcomes based on principles of fairness and equity, rather than achieving results through intimidation or condescending, demeaning behaviour. Civility, redefined in this manner, complements effective advocacy, is integral to the orderly administration of justice, and encourages and facilitates the pursuit of a modern, diverse, and inclusive legal profession.
I wrote this paper because I believe strongly that civility and professionalism are essential to the administration of justice. The paper demonstrates the analysis of case law and subject matter relevant to civility’s role in the day-to-day administration of the courts. Where parties have been unable to resolve their dispute in a courteous, principled, and respectful manner, the justice system must ensure that it will.
Substantive Fairness in Mediation
The pressures of unwieldy court dockets and the consequent need to streamline the administration of justice have led courts and other adjudicative bodies to turn to alternative methods of dispute resolution to bolster their case management efforts. Mediation specifically has been highly regarded for its inherent capacity to facilitate conflict resolution and has become increasingly relied upon to enhance the efficiency of the civil litigation process. In 2010, Chief Justice of Ontario, Warren K. Winkler, wrote that ‘mediation…is the most significant change to occur in the civil justice system in the past 50 years.’ He expressed the view that mediation ‘is now considered by most to be such an essential service that it ought to be embedded at long last within our civil justice system.’
With public, adversarial, and position-based litigation on one hand and confidential, resolution-oriented, interest-based mediation on the other, two firmly divergent methods of dispute resolution have become intertwined. This has led to a growing two-fold concern, first, about the quality of justice resulting from the resolution of disputes through mediation behind closed doors and, second, about the dilution of mediation’s fundamental character as a flexible and confidential method of dispute resolution.
In this paper, I argue that this expanded role of mediation in the civil litigation context will require concerted focus on fairness, both in the manner in which mediation is conducted and in the mediated outcomes. To this end, I argue in support of a unified Code of Conduct for mediators, which would include a requirement that the parties obtain independent legal advice in relation to settlement agreements as a means of ensuring substantive fairness, while preserving the fundamental underpinnings of mediation practice.
One Ombuds in the Canadian Banking Industry
Alternative dispute resolution practice has grown profoundly in North America over the last several decades including, more recently, a focus on designing comprehensive and integrated systems for managing and resolving large numbers of disputes within an organisation or institution. A systemic approach to dispute resolution seeks to ensure that organisational or institutional conflict is resolved efficiently, meaningfully, and in a way that understands conflict in order to prevent it. These overarching goals are accomplished by systems that are transparent, accountable, and reflective.
In this paper, I examine the role of the ombuds in modern conflict management systems. Howard Gadlin wrote that ‘ombudsmen give voice to people who might otherwise be disadvantaged in their dealings with the management and bureaucracy of the institution within which the ombudsman functions.’ The ombuds is uniquely positioned to achieve fairness and fulfil its role because of its independence and impartiality, the reputation of its office in the eyes of the public, and its ability to adopt a systemic approach to conflict management.
In December 1996, in response to market conditions in the Canadian financial industry, the Minister of Finance appointed the Task Force on the Future of the Canadian Financial Services Sector to conduct a comprehensive review of the financial services industry. The Task Force released its report in September 1998 and made a number of recommendations with a view to ‘reducing the information and power imbalance between [financial] institutions and consumers.’ Unfortunately, key aspects of the report were disregarded. In this paper, I argue in favour of establishing a single, not-for-profit ombuds within the Canadian banking industry with mandatory participation in its services by all of Canada’s banking institutions.