Engaging the Criminal Justice System Through JH v Alberta Health Services (As Originally Edited & Posted on the Ablawg website)

We often assume the contours of the criminal justice system are clearly delineated in law and in fact. For a lawyer, every criminal case is immediately identifiable by its style of cause, the ubiquitous “Regina v”. For the non-lawyer, criminal law is a standout in media reports, providing eye catching headlines and a riveting Saturday morning read. We may not know every criminal offence abounding in Canadian law, even though s 19 of the Criminal Code, RSC 1985, c C-46 – which provides that ignorance of the law is no excuse – suggests we should, but we certainly know crime when we see it. What we are less successful at identifying are those situations where the criminal justice system merely lurks in the background chatter of a decision or when the factual matrix does not involve overtly criminal behaviour. In those less obvious scenarios, the case narratives do not engage our interest so readily. In short, we miss the criminal law-ness of the situation. Yet, in these cases, the criminal justice system is, in fact, fully engaged but we criminal law observers simply miss the connection. By missing this connection, we may not appreciate the impact of the case. Instead, we misfile the decision or, worse yet, dismiss the decision as unimportant or inapplicable. By failing to read between the lines, we are missing out on the richness offered by interdisciplinary case law. The recent Alberta Queen’s Bench decision of Madam Justice Kristine Eidsvik in JH v Alberta Health Services, 2019 ABQB 540, is a good example of a case that transcends the purported area of interest – it is a mental health law decision that engages larger issues borrowed from the criminal justice system. In JH, the criminal justice system is fully engaged and plays a vital role in the outcome.

 Justice Eidsvik’s decision, firmly based in the administrative health law arena, reads, sounds, and acts like a true criminal law case. Admittedly much of this criminal law-ness is suggested by the application of the Charter. But the Charter is acting at the behest of the criminal justice system when Eidsvik J. finds that the involuntary committal regime of the Alberta Mental Health Act, RSA 2000, c M-13 (MHA) violates sections 7, 9, 10(a) and 10(b) of the Charter (at para 140). In striking down these provisions, Eidsvik J. is engaging the full force of the criminal justice system. Through this decision, health law becomes criminal law as legal rights familiar to the criminal justice system – such as arbitrary detention and the right to know the reasons for that detention – become the central issues in the case. In this way, the JH decision identifies as pure criminal law with all of its emotive and authoritative qualities. 

Emotion permeates a criminal file. The factual narrative makes us direct witnesses to the event evoking the shame, pain and sorrow felt by all the people involved. True, the legalistic language attempts to deaden us to those painful circumstances. Nevertheless, an emotional response is acceptable and part of the criminal law-ness. In this same way, the JH decision provokes us. Reading the decision, we are shocked, saddened, indignant or just plain angry. The case makes us want to call out our administrative officials to “do better” and to text our government representatives to fix things quickly. The decision does this in different ways; it offers a purely legalistic view of statutory power, yet it does so by placing a mirror to societal conceptions of how “normal” people must and should act. It is a symbol of the universality of our justice system as pressing and persistent mental health issues span the globe. It is also a muscularCharter decision, requiring swift but thoughtful government action. For all these reasons, the JH decision represents the need to modernize our laws as a response to the marginalization of those individuals in our justice system with perceived differences. It is also an exemplar of the power of the Charter, which is increasingly a tool for change. 

For an excellent overview of the initiating factual and legal underpinnings of this decision, read Professor Lorian Hardcastle’s 2017 ABlawg commentary of the quashing of the mental health certificates in this case. See also, a follow-up ABlawg discussion on the constitutionality of the MHA sections written by then law student Kaye Booth and Alberta Civil Liberties Research Centre Human Rights Educator, Heather Forester. This earlier action was the individualized response to the improper actions that authorized JH’s detention in a mental health facility. The recent decision offers the flip side of the event, wherein the Court considers and applies the Charter to the systemic issues enabled by the MHA legislative framework. The two decisions can be read separately but we must recognize they flow one from the other. It is the human price paid that precipitates the Court-ordered remedial response. 

This decision is framed and filled in by JH, who is represented by initials to protect his privacy and dignity, yet who was stripped of both within the mental health system. Like Joseph K. in the literary fictional world of Kafka, JH could be any one of us and is, in fact, all of us as he finds himself in the hospital as a result of being a victim of a hit and run accident (at para 11). It is his physical well-being which needs treatment but as we know all too well, the physical often collides with the mental as the less tangible mental well-being of JH becomes the centre of medical attention. To be clear, all participants are acting with the best of intentions. Everyone is trying to “help.” However, like The Trial, which resides in the genre of “bureaumancy” where the surreal is found in the mundane, the story of JH unwinds incrementally, frame by frame, compounded by a series of everyday actions. Actions which transform JH’s sojourn in the physical treatment-side of the hospital into a long-term stay in the mental health side of the facility. Actions which lead inexorably to the penultimate decision rendered by Justice Eidsvik (see JH v. Alberta Health Services,2017 ABQB 477 (CanLII)). 

To the medical authorities JH checks all the boxes needed for an involuntary certification: he is homeless; he is cognitively deficient; he is prone to drink; he is uncooperative; he lacks community support; he is unwell. But there is an alternate story here: JH is homeless because hospitalization made him so; he is not cognitively perfect but how many of us are; his propensities are just that – inert possibilities; he does not co-operate because he knows he does not need this kind of treatment; he lacks community support because he does not “mentally” fit the criteria for a community treatment order; he is unwell because he is, against his will, being treated for a mental health issue that does not in fact exist. To end the recitation is the glaring fact that JHis a member of Canada’s First Nations and subject to all of the preconceptions residing within that identification. In short, JH is on the “other” side of society and needs the insiders help. This paternalistic view of JH can be found in many criminal law cases. 

 We have not exhausted JH’s life story or his deep frustration with an imperfect system, but the story now moves from the private to the public. It is time to consider the criminal law stance of this legal story. The first indication of the criminal law-ness of this decision is apparent in the initial 2017 determination by Eidsvik J. on the potential mootness of the Charter application (see 2017 ABQB 477). This is the “why bother” question the Crown raises on the basis that JH is out of custody. But the Court nicely responds to that question by underlining the societal impact of the MHA and the constitutional importance of her gatekeeper function that protects us all from legislative overreach (at paras 27 and 28). In this decision, JH has moved from an individual’s quest for justice to the overall integrity of the justice system. A similar journey occurs in criminal cases. This is the first indication that in the JH decision, the criminal justice system is fully engaged. The parallels are obvious. Unlawful detention and a lack of due process are familiar criminal law themes. In JH we experience the mental health justice system through those criminal law tropes. The veneer of non-criminal law does not matter. It may file the JH case under “health law” or “administrative law” or even “Charter rights” but it is still a case involving legal protections and rights afforded to all individuals when faced with state-like authority.

 Another way this decision parallels the criminal justice system is in the finer details. The decision is reminiscent of the use of the hypothetical offender in s 12 Charter litigation. A sanction or punishment is “cruel and unusual” under s. 12 if it is “grossly disproportionate” to fundamental sentencing principles (see R v Boutilier[2017] 2 SCR 936 at para 52). In this analysis, the hypothetical offender represents the potential reasonable scenarios in which the application of the impugned legislation could breach the Charter. In considering the effect such provisions would have on the hypothetical person, the court moves away from the particulars of the individual before them to test the constitutionality of the legislation in the broader context. Such a litmus test brings the legislation into sharper focus as the overall Charter cogency of the section is at issue. To quote the then Chief Justice McLachlin in R v Nur[2015] 1 SCR 773, hypothetical scenarios are not merely limited to the “bounds of a particular judge’s imagination” but are delineated by the “reasonable reach of the law” to understand the “reasonably foreseeable impact” of that law (at para 61). As in JH, perspective is everything.

 

Even though McLachlin CJC went on to characterize the scenarios as tools of statutory interpretation, the hypothetical offender is much more than simply a compendium of factoids used to illustrate unconstitutionality. Such hypothetical “people” are not the offender before the court, but they do exist. For instance, in striking down the mandatory minimum sentence of six months imprisonment for the possession of marijuana plants, the court in R v Elliott, 2017 BCCA 214(Can LII)(at paras 47, 48, 69 and 70) considers the not so hypothetical offender who attends university, lives in a basement apartment and grows 6 potted marijuana plants for home use. A 6-month jail sentence imposed in those circumstances would be “clearly disproportionate and shocking to the Canadian conscience” (see McLachlin, J in dissent in R v Goltz[1991] 3 SCR 485at 532). 

Similarly, in JH we have no need for the hypothetical person to shock our sense of moral right and wrong, but a real person caught in a shockingly familiar scenario (as suggested by Dr Baillie’s expert opinion evidence and by the evidence-based arguments advanced by the Intervenor, Calgary Legal Guidance at paras 3, 57, 154, 227 and 228). Turning again to the criminal law, in the most recent decision from Ontario, R v Luke2019 ONCJ 514(Can LII), striking down the mandatory minimum sentence for impaired driving, Justice Burstein also has no need to turn to a hypothetical scenario. Ms. Luke is an exemplar of the devastating effects of colonialism and the justice system’s failure to respond to Indigenous heritage as well as a youthful first offender with “strong rehabilitative potential” (at para 45). The same sense of criminal justice permeates the JHdecision. Granted my parallelism argument depends on a s 12 Charter specific analysis but in many ways JH’s treatment is “punishment” for being someone who is perceived as “outside” of the norm. Of course, being labelled and then being contained apart from the rest of society should not and cannot determine the applicability or availability of basic rights.

Further analogies to the criminal justice system can be found in the way the MHA regime parallels with other mental health regimes engaged by the criminal justice system. For example, after an individual is found not criminally responsible (NCR) for an offence, the mental health system takes over with a decidedly criminal law flavour. In that regime, the criminal conduct constantly frames the response. Another parallel can be found in dangerous offender applications, which are decidedly hybrid in nature. In those criminal sentencing hearings, the risk of harm and dangerousness is driven by mental health assessments and treatment potentials. Notably, these regimes, NCR and dangerous offender, have been Charter tested (see R v Swain[1991] 1 SCR 933and R v Lyons, [1987]2 SCR 309respectively). In the case of NCR, the regime was legislatively re-fashioned to ensure compliance with Charterprinciples of fundamental justice including “ensuring the dignity and liberty interests” of an individual in that system (see Mazzei v. British Columbia (Director of Adult Forensic Psychiatric Services),[2006] 1 SCR 326at para 26). 

Even with this constitutional tune-up, there are continuing issues with the Criminal Code’s s 16 mental disorder test and the ensuing NCR label. I have discussed these issues in episode 18 of my podcast series on the Criminal Code. In that podcast, I comment on the historical basis for the NCR defence, which is virtually the same as the original 1843 M’Naughten Rule fashioned by the House of Lords, some say, at the behest of Queen Victoria who did not take kindly to the acquittal of M’Naughten for his delusional killing of the PM’s secretary. A nice recitation of the history of that case and subsequent rule can be found on the CBC website

In my post, I also mention the continual drive to change NCR as a result of public and political influence such as the changes contemplated in the now defunct Bill C-54, which sought to implement stricter conditions on those found NCR as a result of public push back on the Vince Li case. Vince Li, who was suffering from schizophrenic episodes at the time of his killing of a fellow bus traveller, showed excellent signs of recovery after treatment resulting in a loosening of his treatment conditions. Notably, section 8 of the MHA, providing the criteria for involuntary committal, was amended in 2010 in an effort to implement better controls over those suffering from schizophrenia (JH at para 179). Loved ones dealing with the disease found the dangerousness requirement for involuntary admission as a “too little, too late” response preferring the criteria of “harm” to self or others or requiring an even less restrictive finding of “substantial mental or physical deterioration or serious physical impairment.” Ironically, “dangerousness” was originally added to the criteria to provide more protections for those vulnerable to involuntary committal and was touted as “a significant safeguard” by the implementing government (at para 176). This change in statutory criteria from dangerousness was significant and although implemented with all good intentions, resulted in the involuntary detention of JH as someone who could possibly be a harm to himself or deteriorate if he started consuming alcohol. JH’s situation emphasizes the importance of that hypothetical scenario as a yardstick for statutory change. Instead of applying this test after the fact, all legislation should be subject to a reasonable hypothetical test to ensure the legislation’s effects do not capture those who should not be captured or in the JH case, should not be detained at all.

Having engaged the criminal justice system as the contextual template in which this decision arises, the legal analysis is more easily applied. This unhinging of the criteria from dangerousness meant that the grounds for involuntary detention was not anchored in the objective and purpose of the MHA, which, according to Eidsvik J. was for the temporary detention of “acutely mentally ill persons for the purpose of treatment and release back into the community” (at para 189). The purpose was not long-term warehousing as exemplified by JH himself, who was detained for some 9 months. Another statutory authority was available for long-term concerns under the Adult Guardianship and Trustee Act, SA 2008, c A-4.2 (at para 189). There was no grounding of the loss of liberty to a valid and beneficial objective in the legislative criteria. This glaring gap in the legislative criteria was apparent upon review of other provincial mental health statutes. For instance, the Ontario Mental Health ActRSO 1990, c M.7, connects involuntary committal to previous history of mental disorder, previous successful treatment of that disorder and the need to treat that disorder at the time of the application. Importantly, these provisions were placed in the Ontario legislation after the decision in PS v. Ontario,2014 ONCA 900 (Can LII), which found earlier sections unconstitutional. 

The statutory interpretation not only closes the legislative gap in the MHA but also gives closure to the injustice suffered by JH. Criminal law cases often turn on statutory interpretation and the principle of legality, which “affirms the entitlement of every person to know in advance whether their conduct is illegal” (see R v Lohnes[1992] 1 SCR 167 at p 180, McLachlin J) and constrains the power of the state (see R v Levkovic[2013] 2 SCR 204 at paras 32 to 33). Here too, the authority given by the law to public health facilities must be constrained and people subject to that authority must understand how their mental well-being can engage that power.  

Finally, the JH reasons resonate like a criminal justice system decision because of the societal context that runs like a thread in the in-between spaces of this decision. Mental health issues are no longer hidden inside the hospitals but are discussed frankly in public in an effort to destigmatize individuals who may appear to be on the “outside” of society. More public airing of these issues promotes understanding and lessens the fear of “harm” from those struggling with these issues. Systemic institutions must be part of the answer and part of the conversation if we are to move forward to a less aggressive and more supportive response to those members of our community who need our help. The JH decision tells us that those who are at risk of losing their life and liberty need our special attention. It is now up to the government, who has one year in which to remedy the MHA, to provide the leadership towards the fulfillment of this goal. This should not be a difficult task. Justice Eidsvik, in suspending the finding of invalidity to allow the law makers a 12-month grace period in which to revise the MHA and make it Charter compliant, gave detailed directions to the government on exactly how to do it (at para 317). There should be no time spent in considering the next steps – the steps have already been mapped out with care through the careful consideration of the court.

But let’s not forget the personal story. The crux of this story is about JH and how we are conditioned to react to certain people and certain behaviours. Like a children’s fable, the JH story reminds us that the emperor’s new clothes can be created from thin air or a princess can be hidden in plain view until we finally decide to really look. The case also reveals a deeper truth about these fables: that such narratives are often built on a certain view of what the world should look like and how it should be peopled with those who conform to the old tales. But this is real life in 21st century Canada and our commitment or promise to each other, and more importantly to the Indigenous peoples of Canada, must be to treat each other with dignity, respect and understanding. And the law, as the JH decision has shown, has a role to play in accomplishing this.

 

 

Brief Submitted to the House of Commons Standing Committee on Justice and Human Rights Concerning Bill C-75

On September 24, I will be appearing before the Standing Committee on Justice and Human Rights to present my recommendations on revision of the amendments to the Criminal Code in Bill C-75 relating to preliminary inquiries. Here is an excerpt of that Brief:

Introduction

Bill C-75 introduces a number of proposed changes to the Criminal Code. There are 300 pages of amendments covering a broad range of procedural, evidential, and substantive issues. Some of the amendments will significantly change the criminal justice system. None more than the proposed changes to the preliminary inquiry. This Brief will outline the weaknesses inherent in such change and a recommendation for a better, more robust and balanced approach. 

The Proposed Amendment

Bill C-75, in accordance with the summary attached to the Bill, proposes to “restrict the availability of a preliminary inquiry to offences punishable by imprisonment for life and strengthen the justice’s powers to limit the issues explored and witnesses to be heard at the inquiry.” The amendments will abolish the preliminary inquiry for all but those offences attracting a maximum punishment of life imprisonment. Those offences range from murder to criminal negligence causing death. 

For example, a preliminary inquiry may be heard on a break and enter into a dwelling house[1]but not for a break and enter into commercial premises.[2]A preliminary inquiry will also not be permitted for an attempt break and enter into a dwelling house as the maximum punishment is 14 years imprisonment.[3]

Although prior to the proposed amendments, a preliminary inquiry was upon request of the accused or prosecutor, with the new amendments, the judge hearing the inquiry will have broad discretion to regulate the inquiry. Under the proposed changes to s. 537(1)(i), the hearing judge may do so “in any way that appears to the justice to be desirable, including to promote a fair and expeditious inquiry.” Specifically, under s. 537(1.01), the inquiry judge may “limit the scope of the preliminary inquiry to specific issues and limit the witnesses to be heard on these issues.” Through application of the new amendment to s. 540(1)(a), the inquiry judge may also restrict the defence’s cross examination of a witness called to testify by the prosecution. 

Background to the Role of the Preliminary Inquiry in Our Criminal Justice System

For years the efficacy of the preliminary inquiry has been questioned, studied and discussed by lawyers, government officials, and the courts. Despite debate and amendments, the preliminary inquiry, at its core, exists as the legislative “shield” between the accused and the Crown, protecting, as Justice Estey explains in the 1984 majority decision of Skogman v The Queen,[4]“the accused from a needless, and indeed, improper, exposure to public trial where the enforcement agency is not in possession of evidence to warrant the continuation of the process.” Despite this sentiment, both levels of government and the courts have questioned the efficacy of the preliminary inquiry seeing little value in the procedure and only costs to the efficient and effective administration of justice. 

The preliminary inquiry discussion started benignly with the call for the abolition of the grand jury system; an English common law procedure requiring a panel of 24 jurors to evaluate the charges to determine if the case should proceed to an Indictment.[5]Eventually, the grand jury system was abolished by attrition as individual provinces simply stopped using the practice. Ironically, the principle argument advanced in favour of eliminating the grand jury inquiry was the existence of the preliminary inquiry as the true procedural safeguard against the power of the state. 

The main purpose of the preliminary inquiry is the committal function. To determine this, a preliminary inquiry justice considers whether or not there is sufficient evidence to commit the accused to trial pursuant to s. 548 of the Criminal Code.If the evidence is insufficient for committal, the accused will be discharged. 

Although the test requires a fairly low evidential threshold, there are cogent illustrations of the impact of this discharge power. An example is found in the case of Susan Nelles, who was the pediatric nurse on duty when a number of babies died in the cardiac ward of the Hospital for Sick Kids in the early 1980s. She was ultimately charged with first-degree murder of four children by allegedly injecting them with lethal doses of the drug digoxin. The subsequent preliminary inquiry revealed a complete lack of evidence for the charge, resulting not only in her discharge but also in an inquiry into the deaths.[6]In this way, a preliminary inquiry protects an accused from the pernicious power of the state and can also provide a forum safe from the vagaries of public opinion.

Nevertheless, according to Mr. Justice Estey in Skogman, the preliminary inquiry serves an additional purpose, derived through usage, of “a forum where the accused is afforded an opportunity to discover and to appreciate the case to be made against him at trial where the requisite evidence is found to be present.”[7]It is this ancillary purpose, grounded in the right of an accused to make full answer and defence, which garners the most criticism and provides support for abolition. This argument suggests that with the advent of the Charterand the stringent disclosure requirements of Stinchcombe,[8]the preliminary inquiry is no longer a necessary discovery tool.[9]This reassessment did indeed happen. In October of 2001, the then Liberal government proposed, as part of a miscellany of criminal law amendments, significant changes to the preliminary inquiry process in the omnibus Bill C-15. The then Justice Minister Anne McLellan, in her presentation to the House upon second reading of the Bill, described the revisions as criminal procedure reform, spearheaded by the provinces, in an effort to:

simplify trial procedure, modernize the criminal justice system and enhance its efficiency through the increased use of technology, better protect victims and witnesses in criminal trials, and provide speedy trials in accordance with charter requirements. We are trying to bring criminal procedure into the 21st century. This phase reflects our efforts to modernize our procedure without in any way reducing the measure of justice provided by the system.[10]

Madame Justice Deschamps, in her majority decision in Regina vS.J.L.,[11]considered these amendments. According to Justice Deschamps, the ancillary function of the preliminary as a discovery tool “has lost much of its relevance”[12]due to enhanced disclosure requirements. Justice Deschamps pointed to the new procedures as clearly illustrating the trend “toward the adoption of mechanisms that are better adapted to the needs of the parties, not the imposition of more inflexible procedures.”[13]

At the same time as this movement away from the preliminary inquiry as a disclosure mechanism, we see a rise of legal rules requiring the accused person to provide an evidential foundation for certain applications and defences before they can advance these issues at trial.[14]

Why the Amendment Needs Revision

It is this last phrase - “better adapted to the needs of the parties, not the imposition of more inflexible procedures” – that requires further attention. Added to this sentiment is the need to ensure procedures do not impede full answer and defence to the detriment of the presumption of innocence, fair trial concerns, and the overall integrity of the justice system. Without fair and just procedures in place, the potential for miscarriages of justice increase. 

The proposed amendments go further than the previous changes to create an inflexible process, which fails to account for the original reason for the preliminary inquiry as a protective mechanism and fails to respond to the new realities of courtroom evidentiary requirements. This double concern results in amendments that detract from the integrity of the justice system instead of promoting it. 

For instance, the preliminary inquiry can be an indispensable tool to establish the required evidential foundation for threshold issues, such as admissibility of evidence, providing the basis for a legal defence or setting the stage for a Charterapplication.[15]Thus, the notion that the preliminary inquiry lacks utility and interferes with the administration of justice fails to recognize the access to justice issues resulting from the inquiry’s demise. In order for the counsel to “appreciate the case made against” the accused, counsel has to have an opportunity to see it.[16]

The concept that the preliminary inquiry weighs down the system and interferes with trial court efficiency is a misnomer. In fact, statistically, the preliminary inquiry works. In a timely 2013 article entitled Why Re-open the Debate on the Preliminary Inquiry? Some Preliminary Empirical Observations,[17]University of Ottawa criminologist Cheryl Webster, who has done extensive researchon court reform for the federal government, and retired Department of Justice counsel Howard Bebbington, found value in the preliminary inquiry process as, based on an empirical study, it did positively impact scarce court resources. As referenced in the article, a preliminary inquiry can identify weakness in a case, which may assist in resolution of the file or identify and delineate trial issues thereby shortening the process. In the same way, a preliminary inquiry can also assist in the release of an in custody accused as a weaker case can result in a successful bail application. Additionally, the preliminary hearing can assist either the prosecution or the defence in preserving evidence for admission at trial. 

Further, theview that the preliminary inquiry, as a committal and disclosure forum, can be adequately substituted by prosecutorial discretion and full disclosure fails to appreciate the importance of the inquiry as a forum providing the oversight of a fair and impartial member of the judiciary. Such judicial oversight is a cornerstone of our justice system. Moreover, in Regina v Nur,[18]the then Chief Justice McLachlin cautions against substituting prosecutorial discretion for judicial decision making, particularly in the adversarial context. This would, in the words of the Chief Justice in Nur, “create a situation where the exercise of the prosecutor’s discretion is effectively immune from meaningful review.”[19]Additionally, although Stinchcombehas set high disclosure expectations, disclosure is not a static concept but continues throughout the case. Disclosure requests are often informed by the preliminary inquiry process, which can actually result in trial efficiencies. 

Finally, to delineate between offences based on punishment fails to acknowledge the deeply personal impact an indictable charge can have on the dignity and self-worth of an individual, particularly where there may be insufficient evidence for that matter to go to trial. The prosecution office does not have the resources to comb through the many files to determine whether evidential sufficiency nor do they have the appropriate oversight function to do so. 

A more meaningful approach would include a real assessment of the advantages and disadvantages of the inquiry process. We must be open to looking at other ways to retain the safeguards presently built into the preliminary inquiry process. For instance, where committal is not in issue, we may find a useful court alternative in the civil discovery procedures, which permits a less formal and less costly forum for the questioning of parties after full disclosure of documents. With an informed and thoughtful discourse on the issue, a more flexible approach could, and should, be found to save the preliminary inquiry from this premature legislative demise. 

Recommendations

 That the proposed amendments be revised to consider the following:

 1. To retain the preliminary inquiry process for those offences where committal is in issue;

 2. For those cases where committal is not in issue, to utilize a modified civil form of discovery procedures, which would permit questioning to occur outside of the court process in a less costly and more efficient atmosphere.[20]

This proposal will take less judicial resources, less time and relieve courts yet still provide the protection envisioned by the original committal process.

Conclusion

Change can be good and can improve our concept of justice. However, even the smallest change must be calibrated toward a goal we all share: maintaining the fine balance between protection of the public and protection of the individual within that system who is faced with a potential loss of liberty. We must not sacrifice one for the other. Change must be viewed not as a piece of a maze but as a part of a whole through long-term strategic vision. 

Specifically, change within the criminal justice system cannot be done in the name of efficiency only. Efficiency is not what we want from our justice system. That is not what the Jordan[21]and Cody[22]decisions are all about. Cultural change involves a bundle of values not a bundle of paper being efficiently pushed about. The goal should be to enhance the criminal justice system while preserving the protections of those whose liberty is at risk.

[1]See section 348(1)(d) of the Criminal Code.

[2]See section 348(1)(e) of the Criminal Code.

[3]See section 463(a) of the Criminal Code.

[4][1984] 2 SCR 93 at 105 [Skogman].

[5]See Parliament of the Dominion of Canada, Sessional Papers, No 66 (1891)Volume17at 7-69.

[6]See Ontario, Ministry of the Attorney General, Royal Commission of Inquiry into Certain Deaths at the Hospital for Sick Children and Related Matters, Report of the Royal Commission of Inquiry Into Certain Deaths at the Hospital for Sick Children and Related Matters, by the Honourable Mr. Justice Grange, (Toronto, 1983. 

[7]Supranote 4 at105.

[8][1991] 3 SCR 326.

[9]See Re Regina and Arviv(1985), 19 CCC (3d) 395 (ONCA), G A Martin JA at para 31; R v O’Connor, [1995] 4 SCR 411,L'Heureux-Dubé J at paras 170 – 171.

[10]“Criminal Law Amendment Act, 2001”, 2ndreading, House of Commons Debates, 37-1, No 54 (May 3, 2001) at 1620 (Hon Anne McLellan).

[11][2009] 1 SCR 426.

[12]Ibid at para 23.

[13]Ibidat para 24.

[14]See e.g. R v Downey, [1992] 2 SCR 10 as it relates to the evidential burden on the accused to rebut presumptions; R v O’Connor, [1995] 4 SCR 411 as it relates to s. 276 applications; R v Davis, [1999] 3 SCR 759 as it relates to the air of reality test in raising honest but mistaken belief in consent; R v Ruzic, [2001] 1 SCR 68 as it relates to duress; Rv Cinous, [2002] 2 SCR 3 as it relates to self-defence; R v Pappas, [2013] 3 SCR 452 as it relates to provocation; R v Fontaine, [2004] 1 SCR 702 as it relates to mental disorder.

[15]Ibid

[16]Supraat note 4.

[17]Cheryl Marie Webster & Howard H. Bebbington, "Why Re-open the Debate on the Preliminary Inquiry? Some Preliminary Empirical Observations" (2013) 4:55 Can J Corrat 513-532.

[18]2015 SCC 15.

[19]Ibidat para 94.

[20]See e.g. Rule 31 of the Ontario Rules of Civil ProcedureRRO, 1990, Reg 194 and Part 5 of the Alberta Rules of Court, AR 124/2010.

[21]2016 SCC 27.

[22]2017 SCC 31.

Seeing Justice Through the VR Lens

The first few 1L Criminal Law classes are dedicated to the “big picture” wherein we discuss the purpose of criminal law in the context of the criminal justice system. Unlike the other 1L doctrinal courses, criminal law is laden with context without which the doctrinal aspects would be meaningless. The context includes, but is not limited to the following: the roles and responsibilities of the Crown, defence and trial judge; respecting the trial narrative as real life situations impacting the lives of real people; trial strategy, professionalism and ethics; procedural “choices” and most importantly, the principles of fundamental justice, which permeates all of these concepts. I try to give them a sense of urgency – how vital all the pieces are to the healthy functioning of the system.

Although I like to use the puzzle piece metaphor to explain how each concept relates to one another and the incompleteness should one piece fail or be absent, in retrospect, that metaphor is too static. It fails to connect to the modern aspect, embedded as it is in technology and imagery. A conventional puzzle is too flat to express the multifarious dimensions of the justice system and the delicacy of the model we uphold. The more appropriate parallel is an interactive 3D environment that has presence, weight and texture. In such an environment, we can more fully appreciate the impact each micro-concept has on the macro-institution. This is the justice system as seen through virtual reality optics in which all the images meld together into a coherent and cohesive whole. This cohesiveness, I suggest, comes from those principles of fundamental justice as embodied in our Charter such as the presumption of innocence, fair trial, and the “specialness” of the criminal standard of proof. Of course, the Charter also supplies dissonance to the imagery as we struggle to overlay onto this reality other protected rights coming not just from the individual charged before the criminal law but also the individual who appears before it as witness. In this sense, the pursuit of justice in this VR lens takes on complex contours and new pathways.

Admittedly, this VR depiction seems a little too much for an explanation as to why the principles of fundamental justice matter in our criminal courts but visualization or depiction of the law is as important as articulation. In my working paper on “The W(D) Revolution”, I make a case for the case by showing why the essence of W(D) still matters and how it has revolutionized the way the courts view the presumption of innocence and burden of proof. I emphasize the need to strip down our trial discourse to the essentials - that assessment of the evidence must be done through the lens of those principles of fundamental justice which underline our core values as a society. We say we do this, however, the W(D) journey is also a cautionary tale, reminding us that espousing a formulaic mantra is meaningless without a true commitment to the content of W(D) and those principles the case enshrines. Without that commitment, we are not giving meaning to those values nor are we creating an image of the criminal justice system worth pursuing. We need to view the justice system through the lens of virtual reality and experience the texture of justice as we dispense it. This is why W(D) still matters and this is why teaching context is everything.

The Social Costs of Alberta's New Impaired Driving Regime

Premier Redford, as promised, tabled Bill 26 the Traffic Safety Amendment Act, 2011 as the legislative response to government concerns with impaired driving in the Province. The Bill has already passed first and second readings in the legislature. No doubt, with the truncated legislative proceedings, the Bill will be passed into law before the end of the year. I have already, in previous blogs, discussed some issues with this new legislation and the concerns over the foundational reasons for the new amendments, particularly the statistical evidence used to support the new measures. Previous blogs have also mentioned the lack of due process and criminal law protections connected with the new law as it diverts offenders from the justice system in favour of an administratively expedient process controlled by the police and by the transportation ministry.

Another concern, is the immediate and mandatory suspension automatically imposed on the offender who is charged with an impaired/over 80 criminal code offence. Those individuals, by virtue of being charged criminally, are thereafter disqualified from driving a motor vehicle until their criminal case has been disposed in the criminal courts. This administrative driver's licence suspension therefore can continue for an undefined period and is dependent upon the timeliness of the matter being heard in the criminal courts. 

This is a concerning element as it places an unquantifiable burden upon the allocation of public resources in the criminal justice system. Not unlike the Askov case on Charter trial delay, the impact of this suspension, which is wholly dependent on the ability of the court system to hear impaired cases quickly, can potentially generate an impossible burden on the court system. Charter delay cases will once again rule the courts and be the ultimate adjudicator on who will be prosecuted and who will not. Stay applications will be the norm.

Quite possibly, due to the punitive dimensions of such an automatic disqualification, impaired driving trials will need to be heard within 30 days, thereby re-prioritizing cases in the system. The priorities will not be based on the seriousness of the issue but will be controlled by provincial administrative suspensions.

Whether or not this is an appropriate allocation of public resources will add an interesting twist to this new legislation. Whether or not the public will cheer this prioritizing of such cases over more serious cases, such as violent crimes, will be seen. It is clear however that this new amendment will have heavy social costs for all Albertan citizens.

Tomorrow, I will take a deeper look at the legal issues arising out of this proposal.