Saturday, February 8, 2014

Judge shopping offensive

R. vRegan, [2002] 1 S.C.R. 297, 2002 SCC 12:

60                               This Court has adverted to the impropriety of trying to influence the outcome of a proceeding by trying to "select" the judge.  Where it appeared that the Crown had abandoned a case before one judge to avoid an unfavourable ruling, and then reinstated charges at a new trial before a new judge, McLachlin J. was quick to point out the affront to the integrity of the system (Scottsupra, at pp. 1008-9):


The concern with "judge-shopping" arises from the use of the stay to avoid the consequences of an unfavourable ruling.  Normally, Crown counsel faced with an unfavourable ruling is expected to accept it.  The remedy is by way of appeal. . . .


Such conduct also raises concern for the impartiality of the administration of justice, real and perceived.  The use of the power to stay, combined with reinstitution of proceedings as a means of avoiding an unfavourable ruling, gives the Crown an advantage not available to the accused.


61                               The judge shopping in this case was equally offensive.  It illustrated another inequality between the Crown and defence, in that only the Crown has the power to influence which judge will hear its case by manipulating the timing of the laying of the charge.  Even if this advantage was not ultimately exploited, it must be reasserted that judge shopping is unacceptable both because of its unfairness to the accused, and because it tarnishes the reputation of the justice system.  Furthermore, it should not infect the investigative process by involving police in a conspiracy to manipulate the process.  The trial judge quite properly was seriously troubled by this evidence.  He nevertheless was mindful that this single comment was not acted upon, and did not find it determinative in his ultimate conclusion that the process against the accused had been abusive to the point of necessitating a stay of proceedings.

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