Blog Interruption: Being Charitable

Philanthropy seems to be the buzz word for today. Both the Calgary Herald and the Globe and Mail are featuring the world of philanthropy with articles and editorials urging people to connect with their community through "giving." Some of the articles feature major donors who sustain large research projects or cultural institutions through their donations. Other articles feature community workers who give their time and energy to build a better future for those less advantaged then themselves. All of these people, in their own way are "givers." 

Today, my family and I volunteered at the local Catholic Church, St. Mary's, at their Feed The Hungry program. Every week, the Catholic diocese sponsors a hot meal for people who would not otherwise have such a luxury. They also provide needy families with food baskets to tide them over for the week. We volunteered as part of a "Mitzvah" or "good works" project sponsored by a friend's daughter, who was becoming a Bat Mitzvah, a coming of age ritual in the Jewish religion. We spent the morning washing, cutting, setting, and bagging. It was a meaningful way to celebrate a happy occasion and a meaningful act of kindness. 

The other day, I read an article, a wake up call to the community, that the Harper's Government will no longer be awarding as much funding to non-profit organizations as they have in the past. Instead, the Canadian Government will be introducing legislation to encourage citizens to give, to fill the gap left by reduced government spending, and thus to preserve our community safety net.

I do not know if a shift from government hand-outs to community caring will be sustainable. I do not know if such a shift , in terms of public/government responsibility is a good or even right idea. All I know is that to encourage enhanced community caring is a good thing. We should be encourage to spend an hour or two a week helping others. We should want our children to be part of that process as well. In the age of "I need," it is nice to say "I give."

For the lawyers reading this post, there are a number of "legal" ways to give, such as taking cases on a pro bono basis through Pro Bono Law Alberta or through Legal Aid Alberta (where I volunteer). Alternatively, consider sitting on a Board of a non-profit organization (I have done this many times - very rewarding). Or even consider becoming a section member of the Charities Law group through the Canadian Bar Association. What do you do to "give" back?

Impaired Driving: A Little Diversion

Yesterday, I blogged about the importance of education as the ultimate deterrence of impaired drivers. Today, as foreshadowed by yesterday's editorial cartoon in the Calgary Herald, I will comment on Premier Redford's interest in changing the Alberta Traffic Safety Act to impose tougher consequences on impaired drivers.

These changes are to reflect the recent amendments of Part 4 of the British Columbia Motor Vehicle Act, which imposes, at the roadside, automatic driving prohibitions from 24 hours up to 90 days, depending on your BAC (blood alcohol concentration) as shown on an approved roadside screening device. But the repercussions do not stop there: the car may be impounded at the roadside, if the police officer feels it is "necessary" to prevent the offender from driving. Of course, why it would be deemed necessary, considering the police officer just took the offender's licence, is a different matter. Additionally, a monetary penalty will be assessed at the roadside and must be paid within thirty days.

In other words, a lot of quasi-judicial punishment is being meted out at the roadside on the basis of a police officer's opinion. The repercussions are even tougher should the driver receive a warn on the roadside screening device and even tougher still should the driver fail. All done at the roadside, without judicial intervention, without due process, and all mandated by provincial legislation. 

So what if it lacks due process, as long as it works and deters people from drinking and driving? Well, let's look at the actual affect this kind of legislation has on impaired driving. According to BC Premier Clark, the new legislation cut in half deaths caused by impaired drivers. Indeed, the legislation was first introduced by the BC Solicitor-General in April of 2010 on the basis that tougher measures were needed to combat the increasing numbers of impaired drivers. Although, I was unable to find any statistics or reports supporting Clark's bravado, I did find recent statistics debunking the Solicitor-General's comments. In the crime statistics released by Statistics Canada on July 21, 2011, the rate of impaired driving in Canada dropped 6% in 2010, consistent with a general decline of the offence since 1981. Furthermore, the rate decreased, from 2009 to 2010, by 8% in British Columbia and by a whopping 14% in Alberta.

The reality may be that tougher sanctions will not deter people and certainly will not stop innocent teenagers from dying in horrific circumstances. Instead, other ways, which have a proven track record at reducing the offence, such as the use of the ignition interlock program, should be considered. Additionally, enhanced funding and expansion of educational programs targeting the youthful driver should be employed.

Education does work to change attitudes. In the end, roadside justice is a mere diversion from the real issue and the real problem. 

A Lesson On How To Get Tough On Impaired Driving

Two weeks ago, I invited a guest lecturer to speak to my criminal procedure and evidence class about defending impaired/over 80 offences. The lecturer, a lawyer, did an exceptional job of walking the students pictorially through a typical impaired/over 80 case by using photographs of the Alert or roadside screening device, of the "Breath Bus" or Checkstop bus, and of the breathalyzer machine (actually, the experts insist on referring to them as "instruments" per the Criminal Code).

It became very clear to the class that impaired/over 80 cases are complex, highly technical cases involving difficult evidentiary and legal issues such as expert evidence from the breathalyzer technician, Charter challenges, and the use of the legal presumptions under s. 258 of the Criminal Code. 

Another message was equally clear: do not drink and drive. Although drinking and driving cases are technical in nature and open to a myriad of legal arguments, if the Crown and police have all the legal requirements properly in place, a conviction will result. This was "scared straight" in legalese.

Now two weeks later there is much political talk of making the impaired driving laws tougher in Alberta. How tough? Well, BC tough. In tomorrow's blog, I will expand on what "getting BC tough" really means and the possible repercussions. But, in the end, will "getting tough" deter impaired drivers? Will the carnage on the highways, which we sadly read about on a weekly basis, lessen? Will these new laws make our roads safer?

It is difficult to determine if tougher laws do, in fact, deter and change behavior, despite Premier Clark's insistence that statistics prove her tougher laws work. I, for one, prefer the old fashioned route - education. My son and, recently, my daughter attended the P.A.R.T.Y or Prevent Alcohol and Risk-Related Trauma in Youth Program offered across Canada through the local health services. At this workshop, the 14 to 15 year olds meet people who have made the wrong choice to drink and drive. Although some are in wheel-chairs and some are not, they all are scarred, either physically or emotionally, by their actions. The students listen to their stories, they hear the terrible consequences of poor choices, and they decide not to make the same decision. To me, this is the best form of prevention.

For some foreshadowing of tomorrow's blog entitled, Impaired Driving Legislation: A Little Diversion, read today's Calgary Herald editorial cartoon.

There is No Road To Redemption?

Yesterday, I made a connection between fictionalized (or as in the example yesterday musicalized) revenge, redemption, and retribution and our real-life sentencing principles. These concepts of punishment are particularly relevant as the Canadian Criminal Code has gone through many changes in sentencing. We will, of course, be seeing even more changes when the Federal government passes, what we call the "omnibus crime bill" or  Bill C-10. I have discussed certain aspects of this Bill in a previous blog that can be found here.

To shed light on the issue, I referred to the UK's effort to reform sentencing in the consultation paper and in the Government's Response, which was tabled in June of 2011, with recommendations on sentencing reform. I ended the blog rather ominously, asking if redemption was, in fact, dead.

Why? The UK Government response is telling: most of the recommendations flow from the Government's first recommendation or promise to make punishment "demanding, robust, and credible." Indeed, the UK will accomplish this goal by transforming "prisons into places of hard work." Suddenly, we are transported to Dickensian England with penal work houses or even to the American dirty thirties with the ubiquitous chain gangs. 

But the road to no redemption does not end there. Another goal is to make offenders pay back to the victim. This is not a concept of restorative justice. No, this is retribution, as those same prisoners who will be put to "hard work" will have those earnings partially estreated in favour of victim services programs. This is much different than the victim surcharge program we have in our Criminal Code under s.737 or the restitution orders available under s.738.

There are more examples of how this reformation has gone retro; taking us back to the old theories of Herbert Packer's crime and control model and the notion of the "stick is better than the carrot" at deterring crime. Will this "reform" work? Only time will tell. In a country like the UK, where riots turn particularly nasty (although who are we to judge in light of Vancouver's riots), there is immense public pressure to "get tough on crime."

In the end, however, whichever road is taken will not provide the real answer to how a society can minimize crime without compromising the principles of fundamental justice. In the end, only time will tell.

The UK tabled, on June 22,2011, new sentencing legislation to reflect the proposed reforms. According, to a UK blog found here, the reforms are not as "ambitious" as first proposed.

On The Road To the Supreme Court of Canada?

Which case should be heard by the Supreme Court of Canada? Just ask the parents at the Sturgeon Heights school in Morinville, Alberta.

A controversy over religious instruction in the public school has caused much community friction and a decision to redraft the local school board policy. What is at issue is religious instruction in the public schools and, in this case, the recitation of the Lord's Prayer over the loud-speaker.

Although, there are exemptions to students, it is difficult to conceive how a student is supposed to opt-out from loud-speaker instruction. Even with the opt-out, the student is left in an uncomfortable position; not being part of a class or group is highly noticeable in a school environment. The stigma of being singled out as the "non-believer" is a very real possibility.

In fact, it was the potential for stigma which lead the Ontario Court of Appeal in the 1988 Zylberberg case to find such public school religious instruction to be contrary to the freedom of religion and conscience provided under s. 2(a) of the Charter. Freedom of religion encompasses the freedom to practice your own religious or spiritual beliefs without being coerced into practicing another's. More importantly in the Morinville situation, it includes the freedom to be free of religion. Such is the case in the Sturgeon Heights school, where the parent claiming a Charter breach is an atheist and does not want his children to be subjected to any religious instruction, no matter how innocuous. Indeed, since coming forward with his complaint, the family has been treated in a less than friendly manner by other families. It appears the mere claim has caused the stigma the Court in Zylberberg feared.

This issue has not been heard by the Supreme Court of Canada and it is an issue which requires clarification. The Alberta situation is mired in inconsistent school policy throughout the province. As an added issue is the constitutional quagmire caused by Alberta's admittance into the Dominion of Canada in 1905. One of the prerequisites of that admittance was the protection, through the Constitution Act, of the Province's school ordinance legislation. The very school ordinance which permits religious instruction. The Northwest Territories Court of Appeal (constituted by Appellate Justices from our Alberta Court of Appeal) in a 2008 case found the school ordinance was not constitutionally entrenched.

With this added twist, the Sturgeon Heights case calls out for clarification from our highest Court. There should be consistent policies throughout Canada on public school prayer and religious instruction. Considering the Supreme Court of Canada's comments on the importance of a secular school education in the Adler case and the importance of protecting Charter values inherent in a multicultural society as enshrined in s.27 of the Charter, the Zylberberg case may yet provide a road map for the Court.

Thus, the road not yet taken by the SCC may very well be the road to Morinville, Alberta.