From the Bench is a collection of papers, articles and speeches, written and presented by members of the Nova Scotia Judiciary and their staff. These papers are intended to provide simplified, general information about issues related to the Canadian Courts and the justice system.
The views expressed here do not necessarily represent the views of any particular judge or Court or the Judiciary as a whole.
These materials are also not a substitute for legal advice.
Removing Barriers to Virtual Court
The Hon. Justice Christa M. Brothers
Supreme Court of Nova Scotia
Published in CBA-NS Nova Voce, Volume 40, September 2021
The word unprecedented has taken on new meaning these past 18 months. Looking back now, it is hard to imagine that virtual court was not always an option available to court participants in Nova Scotia, or anywhere in the country, for that matter.
Moving Towards a More Inclusive Court
The Hon. Chief Justice Michael J. Wood
Nova Scotia Court of Appeal
Published in CBA-NS Nova Voce, Volume 40, September 2021
Courtrooms can be intimidating places. Important and very personal issues are often at stake. This is particularly so at the Nova Scotia Court of Appeal where hearings involve as many as five judges, seated in a way that physically has them above counsel and the gallery. Despite this setup, we try to be as welcoming as possible and to create an atmosphere which enhances the ability of participants to present their case.
MORE
Judicial Stability in the Time of Crisis
The Hon. Chief Justice Michael J. Wood
Nova Scotia Court of Appeal
Published in March 2020
Extraordinary times can test our fundamental institutions. The COVID-19 virus is such an event.
Although we are still in the early days of this pandemic, I am confident our judicial system will be able to meet the challenges that lie ahead.
Reflections on the Art and Science of Decision-Making and Decision-Writing
The Hon. Justice Jamie W.S. Saunders
Nova Scotia Court of Appeal
Presentation to the Maritime Provinces' Law Societies in November 2017
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”.
The Life and Times of Reasonableness
The Hon. Justice Joel Fichaud
Nova Scotia Court of Appeal
Presentation to CIAJ Conference in June 2018; updated in September 2018
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.
Diversifying the Bench
The Hon. Chief Justice J. Michael MacDonald
Nova Scotia Court of Appeal
Published in July 2017
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 Hon. Justice Brian Lennox
Ontario Court of Justice
Published in June 2017
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
The Hon. Chief Justice J. Michael MacDonald
Nova Scotia Court of Appeal
First published in May 2003; updated in August 2013
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
The Hon. Justice Michael J. Wood
Supreme Court of Nova Scotia
Presentation to the Legal Information Society of Nova Scotia in November 2012
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.
A Series of Reflections on Persuasive Writing
The Hon. Justice Jamie W.S. Saunders
Nova Scotia Court of Appeal
Presentation to the Canadian Bar Association's Annual Professional Development Conference in January 2010
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.
MORE
Medical Evidence in General and Experts in Particular
The Hon. Justice Jamie W.S. Saunders
Nova Scotia Court of Appeal
Presentation to the Nova Scotia Medical Legal Society in October 2009
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.
MORE
How To Catch The Judge's Wave
The Hon. Justice Joel E. Fichaud
Nova Scotia Court of Appeal
Reprinted in September 2011 with permission from Westlaw Carswell's Law Source by permission of Carswell, a division of Thomson Canada Limited
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."
Irreverence vs. Disrespect
John Piccolo
Communications Director, Nova Scotia Judiciary
Published in August 2006
If irreverence and disrespect are not identical twins, they are certainly fraternal twins. They look so much alike that distinguishing which-is-which often depends on whether you are the one being irreverent or the one being disrespected. If you look closely, however, you can tell one from the other. It’s in how they act and especially in the consequences of their behaviour.
Bail and Pre-Trial Detention
The Hon. Judge James Burrill
Provincial Court of Nova Scotia
Published in May 2005
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.
Early Release From Jail - The Line of Responsibility
The Hon. Judge Peter Ross
Provincial Court of Nova Scotia
Published in September 2003
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.
Judicial Independence and Impartiality
The Hon. Justice Jamie W. S. Saunders
Nova Scotia Court of Appeal
Published in May 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 doin 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.