Some recent court cases have called into question whether a judge in Canada can act as independent, impartial, disinterested observer in a criminal trial. In recent months in some court cases judges have been subject to censure after the trial for applying "incorrect" reasoning.
In an Alberta case a provincial court judge Robin Camp was subjected to a Canadian Judicial Council committee of inquiry who ruled that he "should be removed from the bench". The council also ruled that he "committed misconduct while presiding over the trial"
What was this misconduct? Judge Camp's mistake apparently was applying what some might consider thoughtcrime in his reasoning in acquitting a defendant of sexual assault.
With a precedent now established from the judge Camp case, now in a Nova Scotia case there are again calls to remove a judge over a sexual assault verdict, to send judge Gregory Lenehan to "Judicial council review". Again some disagree with the learned judge's reasoning in acquittal, and want the judge removed from the bench.
In the past there were concepts of an impartial judge, an unbiased observer with no personal interest in the outcome of a case. This allowed a judge to weigh the evidence as presented and determine a verdict free from outside pressure.
So what is the takeaway from this for judges and criminal defence lawyers? If I was a criminal defence lawyer with a client facing sexual assault I would not recommend my client go to trial by judge alone. Go with a jury trial. As we have seen, if a judge can be censured and kicked off the bench for acquitting, then it's hard to see how a defendant can get a fair trial by judge alone. If the judiciary is no longer independent then judges have to be aware of what the "expected" verdict and reasoning is before the trial begins. And they will be smart enough to protect themselves and deliver that verdict.
Even with a jury trial, it is still dangerous to the judge. His instructions to the jury could also be subject to this Judicial council review, so judges will be pressured to steer juries to deliver a predetermined verdict. Also once a precedent is established with judges, jury members as well can potentially face repercussions after the trial for coming back not guilty. So they will also now feel pressured play it safe and come back with guilty, to avoid trouble and possibly losing their day jobs as a result of delivering the "wrong" verdict.
The result of everyone having to play it safe is bad for defendants. In order for judges and juries to cover themselves and avoid difficulties after the trial if they acquit, established conventions would change. Presumption of innocence replaced by presumption of guilt. Burden of proof shifted to the defendant to demonstrate at least one of
a) the alleged crime did not occur
b) someone else committed the crime
c) it is impossible for the defendant to have committed the crime
Otherwise it might be "murky" as in the Halifax taxi case and better play it safe and protect your own interest and convict.