Lesson 4: Legal Independence and the Rule of Law

Topic 5: Legal Independence Case Studies

Smith vs. Jones

(Case is based on the actual case of Roncarelli vs. Duplessis).

Facts

Plato Smith owned a popular Vancouver pub called the Philosopher’s Stone. Smith was an environmentalist and belonged to an activist group called the “Green Warriors.” With the proceeds from his pub, he posted bail for fellow Green Warriors who were arrested for various acts including chaining themselves to trees and office doors of forest product companies. Almost 500 charges were laid against the Green Warriors; some of them were charged many times if they refused to pay the $2,500 fine.

Horace Jones was both the Premier and the Attorney General of BC. He was angered by Smith and warned him that he was in danger of losing his liquor licence if he did not stop posting bail for the Green Warriors. In December 2006, the pub’s $20,000 supply of liquor was seized and Smith’s liquor licence was revoked. Smith was forced to sell his business six months later. He sued Jones for damages and hired Marcus Stark to represent him.

Stark, a sole practitioner, realized that he would require assistance in pursuing this case, so he approached other lawyers to act with him. Every lawyer refused, out of fear that Jones might retaliate against him or her. Stark finally enlisted the aid of a UBC law professor, Matt Rule.

Decision

At trial, Smith argued that the cancellation of his liquor licence was an act of reprisal. He was awarded $80,000 in a decision that amazed the legal community. Jones appealed and the case made its way to the Supreme Court of Canada who ruled in favour of Smith.

Judges in Nazi Germany

Facts

In 1934, changes to Germany’s Constitution resulted in Adolf Hitler controlling the entire legal system and becoming the “Supreme Head of the Judiciary.” He introduced the “Fuhrer Principle,” which mandated that judges were Hitler’s surrogates and were expected to adhere to his will which included the systematic elimination of non-Aryans. Anyone failing to follow his orders was subject to removal. The Nazi regime effectively destroyed the independence, autonomy and diversity of both the legal profession and the judiciary, and created a court system that willingly implemented a series of decrees against humanity. This was accomplished through the participation of lawyers and judges in Nazi Germany.

Judge Oswald Rothaug served as the director of the district court in Nuremberg between 1937 and 1943. He presided over several cases where there was miscarriage of justice because the “Fuhrer Principle” was used.

In one case, two Polish teenagers were accused of starting a relatively harmless fire in an armaments plant. Rothaug refused to turn the youth over to a juvenile court. He appointed a defence attorney who was given only two hours to prepare and then conducted a trial that lasted between 30 and 60 minutes in total. The judge dismissed the claim that the defendants’ confessions had been forcefully extracted, convicted them and sentenced them to death. The two youths were executed four days later.

In another case, an accused, Mosul Lopata, a Jewish man, was convicted of sexual assault and sentenced to two years in prison camp for inappropriately touching a German female worker. The Supreme Court overturned the decision and determined the case should have been prosecuted under the Decree Against Public Enemies. The Supreme Court concluded that the defendant was taking advantage of wartime conditions in that there was a shortage of police and that the defendant therefore acted in an impudent and insubordinate manner. Rothaug found that Lopata should not have been convicted of sexual assault, but rather assault against the “purity of the German blood” and “an outrage against the defensive powers of the German people in the emergency of war.” He convicted Lopata under the Decree and sentenced him to death.

After the war, Rothaug was sentenced to life in prison for conspiracy to commit war crimes and crimes against humanity.