[2541.AB] Repeal and Replace of the Judicial Act

[Erstavik]

Apologies for the delay in my response. I’ve been quite busy with school, and there’s a great deal to unpack in this bill. For now, I’ll focus solely on the issue of tie votes.

@Welly

As a firm believer in the rule of lenity, I agree with this edit and will implement it.

@KrisKringle

I’m not sure how much sense this makes. If someone submits an appeal on the argument that a given error was made and a majority of the Court does not actually agree with that, why should the appeal be granted?

@Welly

The way I would put the question is–who should win on ties? Generally, the underlying opinion should. But when a criminal conviction is on the line, it makes sense to give the benefit of the doubt to the criminal defendant.

@KrisKringle

By that point the person would’ve been convicted though. The nature of an appeal is that the convicted party is claiming there was a certain error by the presiding justice who originally considered the case. If the full court does not agree with the claim of error, via a majority vote (in other words, the question is whether the first instance court erred) is it really reasonable to rule for the appellant?

@Welly

Yes, I think so. But I will admit that I would like to think about it a bit more. Curious to hear @Erstavik’s views on this as well.

@Welly

Before any substantive responses, I will note that the draft has been updated with all changes to which I agreed in this thread except the criminal appeals issue, on which I would appreciate further input.

Under the system established in this bill, a single justice would hear the case and make an independent determination of the defendant’s guilt. The defendant would then have the ability to appeal that decision to the full High Court, which would review the case en banc, including the presiding justice whose conviction is being appealed. The High Court would, by majority vote en banc, have the authority to affirm, reverse, or remand the decision of the presiding justice. Section 1(1) provides that the High Court should consist of at least three justices, one of whom shall be the Chief Justice. The issue of a tie vote only arises when the number of justices exceeds the required minimum and is even. In a three justice panel, if two justices favor a reversal or remand, they would prevail. However, in a four justice panel where the votes are split evenly, the presiding justice’s decision would be affirmed.

We are effectively merging elements of appellate review and en banc rehearing in way that, in practice, permits a conviction without the support of a majority. To my understanding, typically when an appellate court grants an en banc rehearing, it vacates the court’s original judgment and opinion. That is not the case under this bill, which allows the presiding justice’s decision to prevail in the event of a tie, which includes that justice’s vote. While I agree that it is acceptable not to disturb the presiding justice’s decision in civil cases, criminal cases demand a higer standard. It is a long standing principle that the defendant must be given the benefit of the doubt, and that it is a greater injustice to convict the innocent than to acquit the guilty. It is prudent to err on the side of the defendant when there is a tie vote, especially given that the tie would include the vote of the single presiding justice. To allow a conviction to stand without majority support does not, in my view, serve the interest of justice, nor would it be fair to the accused.