Comparing 'appels' and oranges: evaluating the link between appeal processes and judiciary structures in Canada and France.

• Author: Madden, Mike

1. INTRODUCTION

   In this essay, I will attempt to explain why criminal appeal processes in France and Canada are so fundamentally different. At first glance, this is a simple question, with an obvious answer. Sometimes, however, obvious answers to simple questions can lead the academically minded among us onto long journeys of inquiry, in our efforts to uncover, beyond the obvious, why things exist or are done in a certain way.

   By way of example, consider that "[a]ppeals ... are not a logical corollary of the exercise of judgment." (1) Indeed, as Dean Jurtas has pointed out,

   there is nothing inherent in the notion of decision-making which requires that every decision be reviewable by a second decision-maker. From the perspective of institutional design, the possibility of appeals--that is, the possibility of having a second person decide on the same issue after an original decision has been made--and the scope of appeals are matters of choice. (2) In other words, the simple question "Why do appeals exist at all, or in given form?" can be answered with the obvious statement "For different reasons that we have, institutionally, settled upon." One cannot argue with this conclusion; it is undoubtedly true. But from a scholarly perspective, it is also somewhat unsatisfying: It leaves us wondering, again and again, why? Why has a particular form of appellate law developed in a given jurisdiction? What logic underlies the choices that have been made in adopting a certain mechanism for appeals?

   This type of probing intellectual inquiry is perhaps most common among comparative law scholars, who, by the nature of their work, must often confront and account for differences in laws across jurisdictions. Thus, when a comparative law scholar asks why Canada and France have such markedly different criminal appeal processes, that scholar will not likely accept the obvious response that the laws enabling appeals in each jurisdiction provide for different forms of appeal. The truth of that obvious assertion does not ensure its sufficiency as a response to the question that was originally asked.

   My goal in this essay, therefore, is to probe beyond the superficial in order to ascertain why criminal appeals in Canada and France exist in such distinctly different forms. The first part of the ensuing discussion will briefly review some of the theory explaining, generally, why appeals exist within legal systems. In Part III, the law dealing with criminal appeals in Canada and France will be summarized. Next, in Part IV, the Canadian and French criminal judiciaries will be described. Finally, in Part V, I will attempt to demonstrate that a link exists between the design of the appellate processes and the design of the institutions of the judiciary in both Canada and France. Ultimately, I will argue that criminal appeals in Canada and France are different because the two jurisdictions train, educate, and view the abilities of judges in very different ways, and because each appeal system is therefore built around distinct assumptions about the capacities of judges to perform their functions at trial and on appeal.

2. THE THEORETICAL BASIS FOR APPEALS

   As I have already suggested, the decision to permit criminal appeals in one form or another is, at least in Canada and France, a matter of legislative choice. It is important to understand, however, that there may be valid reasons to restrict or withhold a right to appeal, as much as there may be reasons to grant such a right. For instance, one could argue that, in order to "promote the autonomy and integrity of proceedings" (3) at the trial level, there should not be recourse to an appellate court for a decision on the same matter. After all, if parties to a proceeding know that any trial decision is subject to appeal, then there is a danger that they will treat the trial as a sort of dress rehearsal for the appeal that may inevitably follow, which would tend to undermine the authority of the trial court. (4)

   Alternately, one could argue that, in a society with limited resources devoted to justice functions by government, it would be irresponsible or inefficient to commit a portion of those resources toward appeals of matters that have already been adjudicated before a competent trial authority. (5) Rather than constituting appeal courts to re-evaluate trial decisions, perhaps society would be better served by constituting more trial courts, so that participants in criminal justice systems could be dealt with more expeditiously.

   Notwithstanding the persuasiveness of the above arguments, there are probably more compelling reasons why appeals, at least in criminal matters, should be permitted. To begin with, human beings, including trial judges, are fallible: "[H]umans do not always work to capacity. Being human, they err." (6) One of the purposes of appeals and reviews, therefore, is to detect and correct errors that might have been made by the court of first instance. As Justice Arbour of the Supreme Court of Canada pointed out in Moreau-Berube v. New Brunswick (Judicial Council), (7) the appeal process "is designed to correct errors in the original decision and set the course for the proper development of legal principles." (8) This obvious error-correction role of appellate courts is a necessary one if the integrity of our justice system is to be maintained, as it would be difficult to defend a system that permits legal errors to be upheld. In any event, if we accept that trial judges can make mistakes, then it is easy for us also to accept that appellate authorities must, from time to time, be permitted to intervene to correct these mistakes.

   Appellate courts arguably also have a duty to standardize the application of laws within their jurisdictions, so that like cases can generally be decided alike. As the SCC explained in Housen, "the primary role of appellate courts is to delineate and refine legal rules and ensure their universal application." (9) This standardizing role, or "call for universality" that extends to appellate authorities, "has both a time and a place component." (10) That is to say, the law should be standardized such that the same result obtains both today and in the future (the temporal component), just as it obtains equally in a major metropolitan centre as much as in a small countryside community (the spatial component). In this respect, appellate courts serve as centralized coordinating authorities that prescribe overarching rules of law for application by each court within their respective jurisdictions. Thus, appeals are necessary in order for higher courts to give guidance, and to ensure that their guidance is being properly incorporated into the decisions of trial courts.

   Finally, a theoretical basis for appeals exists once it is recognized that higher courts can have a law-making, or developmental role to fulfill. The developmental role of appellate courts is conceptually difficult to understand, because, at first glance, this role appears to operate at cross-purposes with the courts' standardizing role: How can the law be applied consistently by an appellate court if that body is also responsible for leading the law through periodic phases of evolution? Nonetheless, this law-making role has been acknowledged by the SCC in numerous decisions, through references to a duty of appellate courts to "refine legal rules," (11) or to "set the course for the proper development of legal principles." (12) It is perhaps easiest to reconcile the competing roles of appellate courts by viewing law not as a static body of rules, but as a process subject to continuous modification. This process, as Kerans and Willey have explained, requires appellate judges to engage in creative interpretations of past statements of the law, so that these statements can take on meanings that are consistent with a society's changing expectations of the law. (13) Again, as appellate courts have a duty to standardize laws, then the higher courts should also be vested with the duty (if such a duty is to exist) of leading changes in the law when it becomes apparent, through review of a trial decision, that such changes are necessary.

   Not all of the above justifications for permitting appeals will be relevant to the same degree in every jurisdiction and every legal tradition. (14) For instance, the developmental role of appellate courts would likely not be recognized within civilian legal systems (such as the French system), where the law is said to be comprehensively codified in statutes, as much as within common law systems (such as the Canadian system), where the law may exist as much in precedent and tradition as in legislation. However, at least one of the above justifications could be relied upon in almost any jurisdiction as providing a theoretical basis for appeals.

   In reality, a right of appeal by an individual who has been convicted of a criminal offence exists in most democratic legal traditions, and elsewhere throughout the world. The universality of this right of appeal is both reflected in, and reinforced by, Article 14(5) of the International Covenant on Civil and Political Rights: "[E]veryone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law." (15) In recognition of the fact that appeals are widely permitted within criminal justice systems, then, it is perhaps more productive to assess whether appeals are permitted according to different conditions in various jurisdictions, and, if so, why?

3. THE LAW OF CRIMINAL APPEALS IN CANADA AND FRANCE

   In the sub-sections of this paper that follow, I will describe the essential characteristics of Canadian and French criminal appeal systems, including who can appeal, on what grounds, to what court, composed of what judges, on what type of evidence, and in accordance with what standard of review. An understanding of this information is important not only so...