Friday, 6 April 2007

From Maxim written submission

(For the rest of the Maxim written submission click on the link above. To see the notes for this click on the link above.)


86. Advocates of repeal of section 59 often argue that the provision should be repealed because it leads to inconsistent and contradictory results, and a particular problem seems to be perceived with some jury verdicts.84 There are a number of points that need to be made in response.
87. Firstly, the perceived inconsistency may be more apparent than real. Judges have established a set of principles applicable to such cases which is generally very consistent. To the extent that results differ in different cases, this is likely to reflect the reality that the factual matrix in every case will be different, so that differing amounts of weight should be given to the same factor in different cases. This makes simplistic comparisons, focusing only on one common factor, dangerous. Thus, for example, a common factor such as smacking, may in one case be protected by section 59 (as in Re M (children)85) and not protected in another (as in R v Donselaar86). These results are not inconsistent when the degree of force used is taken into account.
88. Secondly, it is very difficult to know exactly why a jury reaches its decisions.
This is particularly the case when an acquittal is given and no appeal is lodged. In that case, there is likely to be no document produced that records the evidence placed before the jury and on which its decision may have been based. When an accused is convicted, there will at least be the presiding judge’s sentencing remarks to give an idea of the possible basis of the jury’s decision, and the weight that the judge saw fit to give to various factual elements in imposing sentence. However, the opacity of jury verdicts means we should be very cautious before querying a jury’s decision, as we will not often have access to the same information that the jury did in reaching its verdict. It should also suggest extreme caution in relying on media reports of jury trials.
89. Thirdly, we should not lightly attack the jury system. For centuries, the jury system has been a leading characteristic of common law criminal procedure.
It has great value in maintaining public confidence, and public interest, in the administration of the criminal law. It has great symbolic value as a cherished constitutional safeguard.87 Its importance is recognised by the provision, in section 361A of the Act, of jury trials as the normal mode of criminal trial. It should be noted that in section five of this submission, Maxim Institute does stipulate its support for an amendment to ensure that where no reasonably instructed jury could find the accused to have been reasonably justified in his or her application of force, the Court would be required to direct a conviction.
90. Fourthly, the perceived problem of inconsistency and uncertainty is inherent in the application of any law to complex fact situations. As the Supreme Court of Canada has noted:88
Legislators can never foresee all the situations that may arise, and if they did, could not practically set them all out.
It is thus in the nature of our legal system that areas of uncertainty exist and that judges clarify and augment the law on a case-by-case basis.19
91. Even if there were some merit in the argument about inconsistency and uncertainty, the remarks of the Supreme Court of Canada are again highly relevant:89
However, ‘[t]he fact that a particular legislative term is open to varying interpretations by the courts is not fatal’. … The issue is not whether [the equivalent Canadian provision]has provided enough guidance in the past, but whether it expresses a standard that can be given a core meaning in tune with contemporary consensus.
The fact that borderline cases may be anticipated is not fatal … ‘[I]t is inherent to our legal system that some conduct will fall along the boundaries of the area of risk; no definite prediction can then be made. Guidance, not direction, of conduct is a more realistic objective.’
92. As the Supreme Court’s judgment suggests, there will always be borderline cases where reasonable people may reasonably disagree about the verdict given in a particular case. It must be accepted that this will inevitably be the case; that is the nature of decision-making. The existence of decisions or verdicts about which reasonable people may not agree, whether convictions or acquittals, is therefore not a reason to repeal section 59, where the repeal has the potential for negative consequences for parents and families and would introduce unworkable law.

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