See if you can figure this out: Court delays are a massive problem in Canada; the most frequent type of criminal case in the country is impaired driving; the federal Liberals have introduced legislation specifically designed to catch, and charge, more people with impaired driving; and yet, the justice department is arguing this new legislation should lead to “efficiencies” in our bogged-down courts.
How can all of these be true simultaneously? Or is it more likely that something here isn’t going to work out as the Liberals anticipate?
In July 2016, the Supreme Court of Canada, in the infamous Jordan decision, set firm limits on how long criminal trials can take. If they take too long, the only option available to a judge is to stay the charges, so the accused doesn’t face justice. One way to reduce delays is simply to have fewer cases in the courts, fining people instead, say, or as in legalizing cannabis, by wiping out some criminal offences entirely.
Justice department spokesman Ian McLeod said many measures in the drunk driving proposal “are expected to contribute to efficiencies in the criminal justice system,” such as changing disclosure rules (the type and amount of information shared between the Crown and defence) and eliminating certain defence tactics that can delay proceedings. At the same time, the bill’s proposal to allow police to randomly breathalyze drivers, without any suspicion an offence is being committed, is meant to nab more people.
The bill would make it an offence not only to be drunk and driving, but to be drunk within two hours of driving. McLeod said this means drivers will no longer be able to claim they were drinking but drove before becoming drunk (called a “bolus drinking defence”); or be able to use the defence of becoming drunk between driving and the police arriving with the breathalyzer. As for disclosure, McLeod said the legislation proposes to limit disclosure to “scientifically relevant material,” which would mean information such as breathalyzer maintenance records wouldn’t need to be given to the defence.
The catch is twofold: Defence lawyers say they rarely use those two time-lapse-type defences. “I probably run more impaired driving trials in British Columbia than any other lawyer right now, and I have never in all my time practising run a bolus drinking defence,” defence lawyer Kyla Lee told the House of Commons justice committee. So, it seems debatable whether or not wiping out those defences would speed up trials.
The second part of the catch is that defence lawyers have to, well, defend their clients. Lawyer Sarah Leamon told the committee they’ll keep fighting for disclosure – and this takes court time. And these records matter: In March 2016, a Brampton judge tossed out impaired charges against a man because of breathalyzer reliability concerns. “An accused person has the right to know the entirety of the case against them,” Leamon said.
Then there’s the issue of new mandatory minimum fines and prison sentences. They’ll cause delays, simple as that. When you’re facing a guaranteed penalty, you might as well fight it out to the bitter end, in hopes of acquittal.
In addition to finding people guilty or not guilty of crimes, courts assess the constitutionality of legislation. No doubt, random breath testing for alcohol will be disputed, but so too will tests for cannabis impairment. And, the justice committee heard there just aren’t reliable tests for pot impairment.
This means that unless something changes, the government plans to saddle people with criminal records based on unreliable testing; this will be fought in court.
“Inevitably, as charges are laid, those charges are going to be challenged,” says Alberta Conservative MP Michael Cooper, “and what that’s going to mean is a lot of court time and a lot of resources that are going to be spent around prosecuting individuals charged for drug impairment under the legislation.”
Already facing the major problem of court delays, the Liberals seem poised to make it much worse, not better.
Tyler Dawson is deputy editorial pages editor of the Ottawa Citizen.
Source (with video): Ottawa Citizen