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With over seven decades of cumulative experience, Rosen & Company Barristers is one of Canada’s leading defence firms.
Criminal Code reforms being rolled out this fall include the elimination of peremptory challenges — where trial participants can reject a certain number of potential jurors without stating a reason — which Toronto criminal lawyer John Rosen says will cause “chaos in the courts.”
“The federal government’s legislation, Bill C-75, has a number of issues with it and the major one for me is the abolition of peremptory challenges,” says Rosen, founder of Rosen & Company Barristers. “It’s clearly going to cause chaos in the courts and affect the manner in which juries are selected.”
Without the peremptory challenges, he says lawyers will be left with challenging a potential juror for cause or another technical issue.
“It also puts the judge in charge of the process,” Rosen tells AdvocateDaily.com. “Unlike the United States, which has extensive voir dire of the jurors, with plenty of questioning, the history in Canada under the challenge-for-cause section has been narrowly interpreted.”
In the Canadian judicial system, each side has a number of peremptory challenges — in second-degree murder trials it’s 12, and first-degree murder it’s 20, he says.
“There may be plenty of reasons — in a sexual assault case I may not want a nurse on the jury, or an accountant in a fraud trial. The Crown will look at a prospective juror because they want an intellectual jury or working-class jury, it all depends,” Rosen says.
In a challenge-for-cause situation, you’re only allowed to ask questions that have been pre-screened by the judge, and only two or three questions are allowed, he says.
“This creates a problem on counsel because we’re going to be asking for a much wider ambit of questioning,” says Rosen.
There’s also a provision in Bill C-75 that the judge will control the questioning, which he says suggests that Canada may be getting closer to the American jury-selection model.
“The judge now has the power, as the jury is being selected, to stand people aside because he or she thinks that the person isn’t representative of the community. All of a sudden, you now have the judge picking the jury as opposed to the participants. This is very troubling because the right to a trial by jury and the right to a fair trial is enshrined in the Charter, and this is tampering with that Charter right,” Rosen says.
He says he expects pushback from both Crown and defence counsel concerning this shift in focus which gives more responsibility to the judge in the selection of jurors.
“Are the judiciary ready for this? I doubt it very much. They are expecting an onslaught of Constitutional challenges,” Rosen says.
However, the real issue procedurally is how will it play out to ensure an individual receives a fair trial? He says the change undermines that right in a number of ways. First is the peremptory challenge itself, which Rosen says was always used as a “shield and never a sword.”
“Up until now, the accused always felt they were participating in the selection of the jury. Now it’s totally out of the accused’s hands — a jury is being selected for the accused, which means it is going to undermine the confidence of the public in the judicial system,” he says.
Rosen says concerns that lawyers can structure a jury in a certain way are unfounded. The federal government stepped in to address the issue after it was raised in the 2018 trial of a Saskatchewan farmer acquitted of second-degree murder in the death of a 22-year-old Cree man. During jury selection, potential jurors who appeared to be First Nations were rejected under the peremptory challenge provision, and an all-white jury was chosen.
“The federal government says that its own studies are based on media reports of this trial and nothing else. There is no empirical study to base this on,” he says. “I don’t think there were any Aboriginal people who felt they had been challenged unfairly.”
Rosen says that by allowing an accused and the Crown to have peremptory challenges provides a “safety valve.”
“People who may not be prejudiced or biased in a general sense may come to be jurors in circumstances where, in a particular case, maybe they shouldn’t be jurors — they may come to it with certain expertise or other knowledge — and now we have no safety valve,” he says.
Rosen advises that accused persons will have to be “very careful” in obtaining counsel to ensure they have the experience in protecting their rights and dealing with the changes in the law.
“You can’t have someone with limited experience walking into this. They’ll get run over,” he says.
Will this cause more appeals?
“The answer is absolutely yes, and that applies to both sides. The reason is that selection of jurors is the decision of basically judges in the case — it goes to the very jurisdiction to have the trial in the first place. If there is a legal flaw in the selection process the entire trial is nullified,” Rosen says.
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Drawing on five decades of experience in representing people accused of murder, Toronto criminal lawyer John Rosen says Ontario’s judicial system has evolved into one of the best in the world.
“It is a dynamic system, where every participant — defence counsel, Crown attorneys, judges, and police officers — all strive to do their very best, and then some,” says Rosen, founder of Rosen & Company Barristers.
“Over the almost 50 years that I have been privileged to practise, there has been a noticeable improvement in the thoroughness of investigations, thanks in part to advancements in forensic science, blood and fingerprint analysis, and pathology,” says Rosen, who has defended more than 300 clients accused of murder, including serial killer Paul Bernardo, and kidnapper and child killer Min Chen.
He has special praise for the Toronto Police Services homicide squad, calling it “one of the best in the world.”
Rosen, who will celebrate his 50th anniversary as a barrister in March 2020, says trials have become more protracted over the years, but it’s necessary to ensure everyone is given the protections they are entitled to under the Charter.
With Ontario’s strong judicial system, he says people feel confident justice has been done when a jury reaches a decision.
“If you have a weak system, everyone’s afraid of wrongful convictions, but the public also doesn’t want to see wrongful acquittals,” Rosen says, adding that both arise from negligence in investigations, mismanagement of the trial process, the inexperience of counsel or flaws in the law.
“Sometimes wrongful acquittals happen not because of an absence of evidence or the strength of the defence, but because there was incompetence somewhere along the line,” he tells AdvocateDaily.com. “Everybody in the system is dedicated to ensuring those mistakes are not made.”
Rosen recalls that capital punishment was still on the books in Canada when he started work in 1970. Prior to Sept. 1, 1961, any person convicted of murder was sentenced to death, and it was carried out unless the governor-general commuted it to life imprisonment. The last two men convicted of capital murder were put to death by hanging in Toronto’s Don Jail in 1962.
In 1961, he says the Criminal Code was amended to create capital murder with the penalty of death for the killing of a protected person such as a police officer; and non-capital murder, with a penalty of life imprisonment.
In 1976, Parliament replaced these designations with first- and second-degree murder, both carrying a mandatory life sentence. First-degree murder allows for parole after 25 years and second-degree after 10 years. The penalty of capital punishment was also eliminated that year.
Soon after, the 10-year minimum sentence for second-degree murder was changed to provide for a range of 10 to 25 years, at the judge’s discretion, Rosen says. He recalls a conversation at that time with fellow lawyer Sidney Linden, who later became the chief judge of the Ontario Court of Justice.
“Sid predicted that the 10-year parole eligibility for murder would steadily creep up to the point where nobody gets it, and boy was he right,” Rosen says, noting that the minimum parole eligibility is now the exception, not the rule. “So now, there is even more at stake when someone is accused of murder and faces a life sentence.”
Rosen’s second murder trial lasted six weeks, which he says was a long time back then.
“Six weeks for a murder trial is nothing today as we have to be sure that witnesses are heard in full and evidence is placed properly before the jury,” Rosen says.
He recalls former Crown attorney Steve Leggett describing a murder “as just an assault causing death, with some complexity.”
“On a basic level he was right,” Rosen says, explaining the difference is that the justice system puts more resources into murder cases.
“We tend to treat homicides differently,” he says. “In our society, life is precious, so we can’t have people taking other people’s lives, unlike in countries where they have the death penalty, as that seems to foster an attitude of indifference.”
Rosen recalls the words of retired Crown attorney Frank Armstrong, who practised into his 80s and who said, “With every homicide, you have an intersection of lives where one ends and the others continue.”
“It's what makes murder cases so interesting for lawyers and the public — there is always a missing witness,” says Rosen.
For the public’s sake, he says the justice system has to find out what happened, and if there is a way to prevent similar deaths.
Murder trials are fairer now, Rosen says, thanks to the efforts of the police and all the other players in the trial, but it really comes down to the jury.
“As representatives of the public, juries are now more sensitive to the rights of the victims as well as the accused,” Rosen says. “When people sit on a jury, something happens, where they just want to do the right thing. Jurors really are the great equalizers.”
The decision by the dean of Harvard College to not renew the appointments of two faculty deans because one of them is representing a reviled criminal defendant is "outrageous and an affront to the fundamental principles of criminal justice necessary for any free and democratic society," says Toronto criminal lawyer John Rosen.
The determination to not renew the appointments of law professors Ronald S. Sullivan Jr., an accomplished lawyer and the director of Harvard's criminal-law clinic, and his wife, Stephanie Robinson, a lecturer at the Harvard Law School, was announced by Dean Rakesh Khurana on May 11.
The decision came after student outrage over Sullivan joining the defence team of Hollywood producer Harvey Weinstein, scheduled for trial in September in Manhattan on rape and related charges, the national news agency says.
"The position of the students and the cowardice of the administrators are untenable and represent a growing trend in our society that undermines the fundamental principle of western criminal justice," Rosen, founder of Rosen & Company Barristers, tells AdvocateDaily.com.
Sullivan and Robinson have been the faculty deans of Winthrop House, one of Harvard's residential houses for undergraduate students, since 2009 and were the first African-Americans to hold those positions in Harvard's history, Reuters reports.
After he joined Weinstein's defence team in January 2019, many students expressed dismay, saying Sullivan's decision to represent a person accused of abusing women disqualified the professor from serving in a role of support and mentorship to students, The New York Times reports.
The news agency says student protests began with the spraying of graffiti on Harvard's buildings, which read "Our rage is self-defence" and "Whose side are you on?"
An online petition calling for Sullivan to resign included an assertion by one student that it would be repugnant "to accept a diploma from someone who for whatever reason, professional or personal, believes it is OK to defend such a prominent figure at the center of the #MeToo movement."
Members of the Association of Black Harvard Women said in a public letter addressed to Sullivan: "You have failed us."
Faced with a student sit-in and a lawsuit sparked by a clash between protest leaders and staff, Harvard administrators "buckled to the pressure," turning their backs on a foundational principle of the justice system, Rosen says.
"Any and every accused person is presumed to be innocent of the charge, and is entitled to have their guilt or innocence determined in a fair and public hearing, with the benefit of a fearless and independent counsel of their choice, by an independent and impartial tribunal," he says.
Rosen, who has litigated more than 300 murder cases in his five-decade career, including representing serial killer Paul Bernardo, says it comes down to equality.
"I treat everybody the same, no matter what the charge and so should the courts," he says. "If someone is high profile, that puts more pressure on me, but I approach it the same way."
Representing people who have already been convicted in the court of public opinion can be difficult, Rosen says, noting the recent controversy regarding Sullivan.
However, he says, the right to a fair trial is underpinned by the idea that people who appear before the courts are treated equally, no matter their income, social status or public profile.
"The president of the United States should get the same trial as the person everybody thinks is a monster.
"But to have a fair trial, every accused is entitled to be represented by a competent and independent lawyer. To punish the lawyer for accepting the retainer demonstrates gross ignorance about the fundamentals of criminal justice," says Rosen, who cautions those who casually deprecate the basics of the justice system, because they may have to depend on those tenets one day.
"If they find themselves, or someone close to them, in jeopardy, then they will have to rely on the fairness of the system, including finding a fearless advocate who cannot and should not be punished for representing any accused person," he says.
"Don't ever say, 'It's never going to happen to me,' because it might. Then where will you find a lawyer if they are too afraid of personal consequences to accept controversial retainers?" Rosen says.
Ontario lawyers are already obliged to uphold the law in an unbiased and impartial manner, whether with their colleagues or the public, so it is understandable why many are upset that they have to endorse a statement of principles addressing equality, says Toronto criminal lawyer John Rosen.
"The Rules of Professional Conduct set out by the Law Society of Ontario (LSO) require lawyers to act in professional and ethical manner, which means we must be colour blind and blind to everyone’s gender, race, religion, and ethnicity, so is it any wonder that many of my peers are asking, 'Why do we need this statement?'" says Rosen, founder of Rosen & Company Barristers.
He explains that every lawyer in Ontario has to fill out an annual report, detailing basic information about their practice. The report requires lawyers to declare their confirmation of a statement of principles "that acknowledges my obligation to promote equity, diversity, and inclusion generally, and in my behaviour towards colleagues, employees, clients and the public," he says, adding that lawyers who do not agree to abide by the statement could face discipline.
He points out, however, that when it comes to self-declarations as to race, religion, ethnicity, and gender, the obligation to answer is voluntary.
“What makes the obligation to confirm the statement of principles different,” he asks?
"Furthermore, forcing us to endorse this statement is a form of forced speech, not free speech," Rosen tells AdvocateDaily.com.
He says a historical parallel can be made to British lawyer Sir Thomas More, who in 1530, refused to take the Oath of Supremacy, which required a pledge of allegiance to the king (Henry VIII) and his heirs, including those produced through his marriage to his second wife, Anne Boleyn. More refused to take that oath, and was eventually convicted of treason and executed.
"More was forced to acknowledge a marriage that he did not accept was legitimate and contrary to his principles, which was also a form of forced speech," says Rosen.
Opposition to the LSO's declaration came to a head during this year’s bencher elections, with 22 of 40 people elected vowing to scrap the statement of principles, he says.
At their June meeting, Rosen says benchers will decide whether to replace the current treasurer.
He explains that the person in that position "really is the CEO of the law society’s board, but for historical reasons, they are called the treasurer."
After that election, the statement of principles will then be put to a vote, "and I suspect it will be gone," says Rosen.
In a recent Globe and Mail column, one bencher argues for keeping the statement.
"Racialized lawyers are underrepresented in the legal profession and as law firm partners, and are overrepresented as solo practitioners," the bencher writes.
"Forty per cent of racialized licensees identified their racial/ethnic identity as a barrier into practice, compared with three per cent of non-racialized licensees," the bencher adds.
Rosen says that if racism and bigotry are issues in the legal community, adherence to or adoption of a statement of principles will not solve the problem.
“As the saying goes, judge me not by what I say but by what I do,” he says. "If there is racism and bigotry in the profession, I don’t have the final answer for how to suppress that. I just don't think this declaration is going to help improve the situation."
"This declaration doesn't break down any barriers," Rosen says. "The big firms are going to hire on merit, and nothing else."
He describes Ontario’s legal profession as a meritocracy. "The smarter you are and the harder you work, the more opportunities you're going to have.”
Rosen notes that Jewish lawyers had to deal with rampant anti-Semitism over the years, which appears to be on the rise again. He says a statement of principles would not have helped then, and will not help now.
"I would rather see a program of real mentorship and other educational and experiential efforts within the profession that would foster inclusion rather than a mere declaration that may prove hollow at best.”