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From: jimomura@lsuc.UUCP (Jim Omura)
Newsgroups: can.politics
Subject: Re: Re: Zundel etc.
Message-ID: <643@lsuc.UUCP>
Date: Fri, 10-May-85 23:50:51 EDT
Article-I.D.: lsuc.643
Posted: Fri May 10 23:50:51 1985
Date-Received: Sat, 11-May-85 04:37:11 EDT
References: <638@lsuc.UUCP> <558@mnetor.UUCP> <2889@garfield.UUCP> <570@mnetor.UUCP>
Reply-To: jimomura@lsuc.UUCP (Jim Omura)
Distribution: can
Organization: Law Society of Upper Canada, Toronto
Lines: 52
Summary: Role of a Jury


     The classic definition of the Role of the jury is to decide the
'facts', while, where there is a jury, the judge decides  the 'law'.
What we mean by this in a criminal case, or a case where there is
an accusation of an offence against a statute of a similar nature,
is (in a normal situation) that the Crown (or the People in the US)
decide what they accuse the defendant of doing (which *must* be an
offence know at law, and since the passing of the Criminal Code,
which abolished all common law offences, *must* be an offence defined
in a statute somewhere, and in a Criminal matter, arguable must be
in the Criminal Code, subject to what I've said before), the judge
looks at the offence and tells the jury that 'these are the facts
which constitute the offence' (which he derives from the statute and
relevant caselaw which helps him interpret the statute is the statute
is not clear or there is some other strong reason for not taking it
at face value--and it had better be a *very* strong reason to make
a judge vary from the most obvious meaning of the statute) and the
jury decides, from the relevant evidence whether the facts which make
up the offence are true.
 
i.e.: -the Crown says X altered the markings on a log in the Fraser River.
(this is a *real* criminal offence and is no joke because if you alter the
markings on a log, it's like stealing it)
 
the judge says that the relevant facts to be proven are:
-1.  the defendant altered the marking on the log
-2.  the defendant did it deliberately for the purpose of claiming it
as his own (I'm making these up, because I don't really know if you have
to prove it was deliberately for this reason)
 
 -the jury hears the evidence of the Crown and by the Defendant and all
the cross examinations and then decides
-1.  we believe that the defendant did or did not alter the marking on the
log.
-2.  we believe that he did it for a joke, or he did it for the purpose
of claiming it as his own (depending...)
 
the judge decides the sentence.
 
     If *all* the evidence shows that the offence has been committed and
*no* evidence has been raised which could provide a reasonable doubt, then
a judge *might* call it a mis-trial.  Again, this only would happen in a
very extremely rare case.  The judges take the role of juries *very*
seriously in Canada.
 
     The prevelent attitude of people who don't come in contact with the
Superior Courts seems to me to be that the judges are stupid, frivolous
and/or capricious.  This attitude is *not* prevelent among lawyers who
do daily work in the courts.  They almost unanimously feel that the judges
are generally sharp and scholarly.  Going in front of one without proper
preparation is asking to be slashed to ribbons (some of them, anyway).