Let's Talk About: The Participants In The Criminal Justice System

Over the next few weeks, I will present a series of periodic blogs on the role of the main participants in the criminal justice system. Although a seemingly simple topic choice, to actually describe, define, and delineate these participants is a challenge.

We can all identify and recognize who they are: trial judge, prosecutor, defence lawyer, police, victim, and accused. But the real challenge comes in explaining what they do and why they do it. Often, the public perception of a participant's raison d'etre differs from the legal construct. It is when this disconnect occurs, when the public's expectations are unfulfilled, that cause public discontent with the criminal justice system.

These blogs will attempt to bridge the gap between society's assumptions and the legal requirements. This does means the discussion may reproduce the prototype of the participant, a general sketch or a likeness, which will not mimic every actual individual participant in the system. But, having a standard for which one can compare, will enhance our understanding of the criminal justice process.

The Charter And The New Alberta Impaired Drivings Laws: Going Beyond Driving Is Privilege

Our discussion of the tabled Alberta impaired driving rules continues with a look at the legal arguments which may be available under the Charter. At first glance, it appears the case law shuts down any Charter argument based on a review of a myriad of cases, across the provinces, upholding similar legislation.

Even the Alberta Court of Appeal, in the 2003 Thomson case, comes down strongly in favour of this kind of provincial legislation. Thomson upholds the legislation, despite division of powers arguments and claims of Charter violations under s.7, s. 11(d), and s.13, on the basis the legislation is valid provincial legislation, which is purely administrative in nature and therefore imposes a civil sanction as opposed to a criminal penalty. Furthermore, driving, as a licensed regime, not essential to a person's liberty interest, is a privilege and not a right under s.7. Finally, there is great public interest in preventing "carnage on the highways" from drinking and driving.

Despite the above authorities, I would suggest there are still valid Charter claims, which can be brought before a Court depending on the facts of a particular case. As touched upon in yesterday's blog, the automatic, immediate, and indefinite suspension of a driver's license of an offender charged with impaired driving under the Criminal Code as a result of the new scheme, could result in heavy burdens on the administration of justice to have impaired/over 80 cases heard in a speedy manner.

Other provincial legislations place a time limit on these roadside provincial suspensions: typically the maximum suspension is 90 days. The Alberta legislation suspends the licence until the criminal matters are disposed, a time period dependent on the timeliness of the trial. Thus, an unreasonable delay argument under s.11(b) of the Charter may result in those cases where the criminal justice system is unable to provide a timely trial. It may be safely argued that considering the escalating time limited suspensions elsewhere, depending on if the matter is a first offence, a trial may be unreasonably delayed if not heard within 7 days, thirty days, sixty days, and in the most serious scenarios, ninety days. 

There are many factors a court must consider in deciding whether a trial has been unreasonably delayed due to the Charter. Certainly, pursuant to the Askov case, systemic delay is a primary consideration. Other factors include Crown delay in preparing the matter ready for trial and prejudice to the accused. A lengthy licence suspension, can be highly prejudicial to an accused who may require the licence for employment or who lives in a rural area, where public transit is unavailable. In certain circumstances, albeit fact dependent, a Charter delay claim may be successful. As suggested in the previous blog, such a claim could cause the government to prioritize impaired driving cases over more serious crimes, resulting in inappropriate allocation of public resources.

Another Charter argument, more difficult to argue, but again, depending on an appropriate fact situation, should be argued, is a violation of s. 7 rights. Although, the weight of the authorities appears to be against rearguing the issue, the Supreme Court of Canada, in recent cases such as in PHS Community, Gosselin, and Khadr, have expanded the definition of right to liberty under s.7.

Indeed, starting as early as a decade ago, in the 2000 Blencoe case, the SCC has, cautiously and incrementally, moved toward a much more expansive definition by not restricting the definition of liberty to "mere freedom from physical restraint." Liberty may be restricted when the government interferes in an individual's right to make "profoundly personal choices" which impact their independence, self-worth, and self-identity as a person.

As stated in Gosselin, such liberty interests are triggered by an individuals' interaction with the justice system in the broadest way, such as any "adjudicative context." This would include the administrative scheme under whose authority the licence is suspended.

It can, therefore, be argued that a driver's licence for an adult in today's world is a rite of passage from adolescence to adulthood and is integral to an individual's identity and self-worth. The independence a licence bestows upon an individual is not about mere movement from place to place, but includes highly personal choices of where one can move and at what time. Consider the great impact a loss of license has upon the cognitive disabled and the elderly and the argument becomes even more cogent.

The legislation is therefore vulnerable to Charter rights. Tomorrow, I will discuss other areas of legal concern, outside of the pure Charter arena.

Julian Barnes, Sherlock Holmes, and A Miscarriage of Justice

Yesterday, the British writer, Julian Barnes, won the 2011 prestigious Man Booker Prize. I have read many of his books, some of which are particularly clever, such as The History of the World in 10 and A Half Chapters, with one chapter dedicated to a discussion of Theodore Gericault's 1819 painting of the aftermath of a shipwreck in The Raft of the Medusa.

Barnes also recently wrote a book simply entitled Arthur & George. This book fictionalizes the real-life relationship between Sir Arthur Conan Doyle, the creator of Sherlock Holmes, and a unassuming solicitor named George Edalji. This semi-fictional account juxtaposes the lives of these two men in the backdrop of one of England's infamous cases of injustice. Edalji, of Indian ethnicity, was wrongly accused and convicted of mutilating cattle and sending poisonous letters in support of the crime. He was sentenced to seven years of hard labour and disbarred until Conan Doyle "took up his case" in a purely Holmesian manner, and managed to clear Edalji's name and restore his law society membership.

This case reminds us that one miscarriage of justice is one too many. In Canada, where such miscarriages have been revealed, not by celebrity writers, but by hard-working individuals, committed lawyers, and dedicated associations, we must be watchful and protective of justice and the repercussions of injustice. 

On September 15, 2011, the Canadian Federal/Provincial/Territorial (FPT) Heads of Prosecutions Committee on the Prevention of Miscarriages of Justice released an update to their 2005 Report. The original Report is large in scope and contains many recommendations. It tackles a broad range of issues, including systemic injustices caused by Crown/Police tunnel vision. This update, entitled The Path to Justice: Preventing Wrongful Convictions, reviews prosecutorial practices and makes further recommendations. Interestingly, the update starts with a quote from another British writer of justice, Charles Dickens, in his book The Mystery of Edwin Drood:

Circumstances may accumulate so strongly even against an innocent man, that directed, sharpened, and pointed, they may slay him.

Barnes, Conan Doyle, and Dickens reminds us, in a literary and engaging way, of the importance of justice in our legal system. It is up to us, however, to translate these works into reality.This requires, as stated in the FPT Update, "continued vigilance."