Don't go naked in your own home--you might get arrested.

[Ideologue]

Not sure I get the point behind your retort. Are you trying to say that you guys are attempting to walk the middle ground between Western democracies and oppressive islamist theocracies?

If that's the case, then I guess you are on the right track. Otherwise, you make little sense.

Everybody is a critic and they all give us shit for our supposed sex issues.  I suspect it more has to do with their own sex issues being projected on us.

If one group is not going out of their way to stereotype 300 million+ people for being puritans another is going out of their way casting us as perverts.  It  is all just standard bullshit anti-Americanism.

No, the vast majority of Americans are great big Goddamn crybaby bitches about sexual issues.  We speak in whispers and euphemisms, even regarding the most ordinary fucks.

We are a nation of 300 million with zillions of tiny jurisdictions where stupid things are done many times on a daily basis.  Taking once incident and acting like it is somehow says something about the entire country is ridiculous.

Besides in this very thread there is a freaking Canadian Supreme Court Case about this very subject.  Why don't you give Canadians shit?  Is it because they are: not Americans?  I think so.

If it makes you feel better, I think it's absolute asstarded that the man had to appeal to the CSC when he was already acquitted at trial, or that the appellate court even has the power of hearing a criminal case de novo at the request of the State.  Correct me if I'm wrong guys, but as I understood it, those appeals weren't from a dismissal, but a verdict.  Are you Scythians truly so barbaric in your practices?

[Barrister]

If it makes you feel better, I think it's absolute asstarded that the man had to appeal to the CSC when he was already acquitted at trial, or that the appellate court even has the power of hearing a criminal case de novo at the request of the State.  Correct me if I'm wrong guys, but as I understood it, those appeals weren't from a dismissal, but a verdict.  Are you Scythians truly so barbaric in your practices?

I don't even know where to begin.

1.  In R v Clark the accused was convicted at first instance.
2.  There's no trial de novo, the appellate court only reviews for errors of law.
3.  Appeals of a dismissal vs appeals of a verdict is terminology that he no meaning in Canadian law.
4.  What the fuck is wrong with the Crown appealing an acquittal?  I've had to do it.  Sometimes the judge just gets it wrong.

[Ideologue]

If it makes you feel better, I think it's absolute asstarded that the man had to appeal to the CSC when he was already acquitted at trial, or that the appellate court even has the power of hearing a criminal case de novo at the request of the State.  Correct me if I'm wrong guys, but as I understood it, those appeals weren't from a dismissal, but a verdict.  Are you Scythians truly so barbaric in your practices?

I don't even know where to begin.

1.  In R v Clark the accused was convicted at first instance.
2.  There's no trial de novo, the appellate court only reviews for errors of law.
3.  Appeals of a dismissal vs appeals of a verdict is terminology that he no meaning in Canadian law.
4.  What the fuck is wrong with the Crown appealing an acquittal?  I've had to do it.  Sometimes the judge just gets it wrong.

Ok, thanks for explaining--I misread it. Sorry.

So he was acquitted under 173(1)(b) due to lack of intent but convicted under subsection (a) of that law.  Probably a more accurate analogue in American law would be a prosecutor appealing after a JNOV setting aside a guilty verdict.  It seems kind of weird that he didn't have a jury trial.

But I thought we discussed this once before--that the Crown can actually appeal an actual final judgment or verdict, even in favor of the defendant.  And that the CoA can substitute a conviction for an acquittal.  I'm relatively positive the first isn't permitted in the US except under exceptions where jeopardy has not attached--like when the trial has been tainted by substantial fraud.  I'm pretty sure the second requires the trial judge to have granted a JNOV in favor of the defendant--I don't believe any CoA is competent to substitute its judgment for anyone's in a criminal case, only to reinstate a jury's verdict.

To make sure I've got this clear, if the case was as I misunderstood it--with Clark being acquitted--the Crown could still appeal and be granted a new trial, right?

As a side question, I didn't get the wilfulness in Clark's actions.  I thought wilfull meant intentional (looking up the definition isn't much help there though really).  Does it mean merely reckless or grossly negligent in Canada?

[Barrister]

Ok, thanks for explaining--I misread it. Sorry.

So he was acquitted under 173(1)(b) due to lack of intent but convicted under subsection (a) of that law.  Probably a more accurate analogue in American law would be a prosecutor appealing after a JNOV setting aside a guilty verdict.  It seems kind of weird that he didn't have a jury trial.

But I thought we discussed this once before--that the Crown can actually appeal an actual final judgment or verdict, even in favor of the defendant.  And that the CoA can substitute a conviction for an acquittal.  I'm relatively positive the first isn't permitted in the US except under exceptions where jeopardy has not attached--like when the trial has been tainted by substantial fraud.  I'm pretty sure the second is totally verboten.

To make sure I've got this clear, if the case was as I misunderstood it--with Clark being acquitted--the Crown could still appeal and be granted a new trial, right?

It's not odd at all - s. 173 is a summary conviction offense, which means no option of a jury trial.

And yes, we can and do appeal from acquittals.  The key however is there has to be an error of law.  It's generally not enough to say 'the judge should not have believed the accused', however if we can show that the judge applied the wrong legal test, or the wrong statute, then why not?  To be blunt if you can't correct a judge's mistakes of law what's to prevent them from deliberately ignoring the law?  As it is I've seen judges deliberately ignore binding precedents that they don't like, essentially daring us to appeal them (which we know we are unlikely to do, since appeals are a lot of work).

So how would the US deal with a situation where the judges ruling is simply contrary to law?

[MadImmortalMan]

So how would the US deal with a situation where the judges ruling is simply contrary to law?

We stuff it and live with bad precedent for decades until another similar case comes up and new precedent is made. Naturally. 

[Ideologue]

Beeb:

I guess "living with it" is pretty much correct--though MiM, only trial judges are at issue here.  CoA judges are overturned all the time.  This has nothing to do with the discussion, but I got to see some 4th Circuit oral argument the other day and they were hilarious.  I wish the first one was on youtube so I could show you guys the man least suited to be an appellate lawyer in the state of South Carolina.  Poor bastard's first time, and he had to do it with, firstly, a weak case, and secondly, in front of 1000 law students laughing inside their heads when he fucked up.  And boy did he fuck up.  He had one of the judges so offended he literally shrieked at him--can't say which, because the judge was stunned enough that his voice went up about four octaves becoming unrecognizably high-pitched.  At first we thought it was one of the (female) clerks.

Anyhow, judges almost never convict anyone of anything.  Regarding a judge's trial conduct, jury charges are appealable as a matter of law in civil matters of course, but after a cursory look I haven't found any cases where the state has appealed a jury charge in a criminal proceeding.  Judges can set aside a guilty verdict, but only if he or she believes that they have reached a conclusion that no reasonable jury could given the evidence, and this is appealable, since there is a verdict in hand and a voiding of the judge's order in this case does not constitute double jeopardy.

I do not believe judges can set aside an acquittal in any normal circumstance, and likewise prosectors cannot appeal from it.  Juries can nullify law, but are kinda-sorta not supposed to, and jury charges to the effect that "There is no such thing as a valid nullification" are apparently okay, and obviously the lack of a jury charge to the effect that nullification is possible is not an error of law.  I am not aware of any JNOV removing the issue from a nullifying jury, nor of an ability for the state to appeal from a jury nullification.  I think they have to choke it down.  I suppose it might be technically permissible for a judge to give the opposite instruction, charging the jury that nullification is okay.  If the jury went ahead and did this, I don't see how the state could do anything about the verdict, though I guess they might be able to do something about the judge (by not reappointing him, impeaching him, etc.).

There are some narrow exceptions--if the trial is shown to be out-and-out fraudulent (e.g., the judge was bribed to throw the trial), such fraud is held to have created a circumstance in which jeopardy of life and limb never attached in the first place, so a new trial can be held, even if the trial was favorable to the defendant.  Afaik, this is the only way to try someone twice for the same offense in the same level of jurisdiction.  Oh, and if the first trial was held in a court without authority (i.e., an illegal township's tribunal of a gunslinger) jeopardy doesn't attach, but this seems more like a separate sovereigns issue to me.  Don't know if you guys have that.

Appeals viz. factual issues, however, can only be made when the trial judge has committed an abuse of discretion, but--so far as I can tell--this is not appealable by the state.  I'm not 100% convinced they couldn't, if the judge's behavior was [tim]absolutely appalling,[/tim] but I haven't seen a case like that in any readings, and some cursory research this afternoon has not uncovered one.  Plenty where the defendant has appealed, tho.

[Barrister]

I guess "living with it" is pretty much correct

Well that's just stupid, and yet another proof of the failings of the US Justice system.

[Ideologue]

Beeb's appellate flow chart:

The accused is:

Convicted----Acquitted
      |                   |
Hooray!      White-----An Indian
      |                  |             |
   Gaol            Oh well    APPEAL
                                      |
                           Upheld------Reversed/Convicted
                                |                 |
                             APPEAL      Hooray!
                                |                 |
  Upheld------Rev'd/Convicted  Gaol
       |                        |
    Remind              Hooray!
   court                     |
   that                     Gaol
  accused is
  a minority
      |
Albertan death squads

[Barrister]

You know that is actually quite personally offensive Ideologue, intended as a joke or not.

[Ed Anger]

I'm offended by the use of "gaol"

[Razgovory]

I'm offended by the used of "gaol"

As am I.

[Ed Anger]

Ide is the sort of weirdo that inserts a "u" into Pearl Harbor.

[Ideologue]

You know that is actually quite personally offensive Ideologue, intended as a joke or not.

Of course I was just kidding around.  I know good and well that isn't you, Beeb.

That said, if you're offended, I apologize.  I didn't think that it would bother you, nor particularly outside the ambit of usual Languish bullshit.  Hell, I figured you'd be more offended by the pleated diaper joke.  Nevertheless, sorry.

[Razgovory]

Ide is the sort of weirdo that inserts a "u" into Pearl Harbor.

Like between the "r' and the "l"?  Man, the South really is fucked up.

[Ed Anger]

Ide is the sort of weirdo that inserts a "u" into Pearl Harbor.

Like between the "r' and the "l"?  Man, the South really is fucked up.

Mew.