It’s sometimes hard to believe that in a free and democratic society with a Charter of Rights that the police can detain you and interrogate you just because. The courts in Canada allow the police to pull you over without even a hint of having committed an offence. People are stopped on the street, detained and asked where they’re coming from, and where they’re going. The police need to do something egregious to justify the intervention of the court and even then, the police are not punished in any way so there is little to discourage the behaviour in the first place or in the future.
Where you find yourself in your own mind regarding what you consider the appropriate level of police intrusion in your life is, in a sense, meaningless. We don’t get to decide about our relationship with the police or government authorities when it comes to finding our way through life in Canadian society. The reality is we live in a society and we, as a society, assign this task to parliament and the courts. Then we live our lives with the result of their decisions.
If you’ve ever been involved in the legislative process, you’re probably disheartened by it.
We’ve presented to parliamentary committees and had a lot of communication with government officials over the years. On each occasion, we found that the legislators lack the background to understand what was happening or they assume we were hyperbolizing. Even if they understand at that minute, it doesn’t matter because they forget what we said 10 minutes later.
This is the process for every law on the books. A lobby group, such as the police or prosecutors, write the law, propose it to the government and, by the time the bill is presented in parliament, it’s a fait accompli. Most legislation passes nearly unchanged from the first version introduced.
Rarely does a piece of legislation get significant public scrutiny and even then, the only scrutiny is to one small part of the proposed law. This opens the door for bad governments to do bad things and even good governments to do poorly considered things.
Then there are the courts that are supposed to protect us from bad government. How well do they do that?
Consider the implications of DNA exonerations. When DNA matching was introduced, it was held out as a fantastic method of identifying those who perpetrated crimes. And now we have a bunch of CSI television programs. However, perhaps more profound for our justice system was the now-routine use of DNA to exonerate people who were falsely accused, falsely convicted, falsely sentenced for crimes they did not commit. It has been a common occurrence over the last 20 years for people to be cleared of crimes for which a court previously convicted them.
What does that tell us? Despite the protections in the process, innocent people still get convicted. Despite the “Beyond a Reasonable Doubt” standard, innocent people still get convicted. Despite our claim of “better so many guilty going free than an innocent person be convicted,” we still convict innocent people.
Knowing so many innocent people were later cleared due to DNA, ask yourself how many innocent people have been convicted where there was not DNA to later clear them. It is 10% of those convicted at trial? 20%? 60%? How is that tenable? How is that a system we as a society can support?
What about Charter Rights?
Take it one step further and remember that the onus is on the accused to prove their rights were violated. This is not the protection of “Beyond a Reasonable Doubt.” Although the onus is on the prosecution to prove the case beyond a reasonable doubt, the onus is on the accused to prove their rights were violated. Moreover, the accused can’t rely on raising a reasonable doubt, the accused must prove on a balance of probabilities that their rights were violated. This is obviously a difficult hurdle when the police and prosecution are the ones who collect the evidence and hold the evidence.
In civil matter, such as lawsuits, cases are decided on a balance of probabilities. If criminal procedure convicts the innocent as we have seen, one must reasonably conclude that civil cases using a much lower standard must be wrongly decided regularly. How many lawsuits, family cases, contract matters, injury cases are wrongly decided?
Where is the advancement?
Everything has changed about the way we live. 300 years ago, you would have no toilet, tooth brush, running water, central heating, medication, fresh food for much of the year, education, paved roads, lights or medication. Everything changed. The courts are almost the same, however.
We use roughly the same method of considering evidence. People testify and they are believed or disbelieved. If you’re emotional, you may be more likely to be believed. If you are emphatic, you may be more likely to be believed. If you look down, you are less likely to be believed. If you recite your evidence clearly, you are more likely to be believed even if you appear practiced. Complex situations are less likely to be believed, even if true. Simple explanations are more likely to be believed, even if they are all lies.
Although courts are supposed to stand between you and the government, in our experience the government generally enjoys a home-team advantage. They have the entire apparatus of the state. They write the laws to assist themselves all the way through the process. In the end, if you challenge a law, the government gets a presumption of regularity.
Impediments only
Circling back to your rights and where we stand vis-à-vis the government, extremely bad laws can be repealed by government if there is enough pushback. Most of the time this doesn’t happen because legislation usually isn’t the reason governments win or lose elections. Courts used to find ways to work around bad laws. Sometimes they would write a test to take away the bad aspects of some piece of legislation. Courts had a toolbox to deal with the application of laws that most people would agree were unfair. It appears to us that now there is a trend underway to disregard certain tools in that toolbox.
Moving backward
When the Charter was introduced, courts were granted specific powers to deal with laws that infringed the delineated rights in the Charter. 40 years later, one disappointing consequence is there no longer seems to be remedies for bad laws that don’t fall under the ambit of the Charter. Something can be wrong – unfair, but if you can’t persuade the court that the Charter applies, then you have no remedy.
The granting of specific powers triggered a movement toward providing no remedy unless a matter fell within those specific powers. By delineating rights in the Charter, we adopted tunnel vision permitting all sorts of smaller harm caused to us by government.
A good example arises in court considerations of the IRP scheme. There is a 7-day limitation period to file an IRP in dispute. What happens if you’re innocent, issued an IRP and end up in a coma for the week?
An example from our area of law
We wondered about that so we appealed a case where our client missed the 7-day window. We tried to argue that the inherent unfairness of such a circumstance called out for a remedy. In the end the court recognized that the Charter wasn’t a consideration because the IRP scheme is governed by administrative law and therefore there was no remedy. Despite everyone recognizing that it was potentially extremely unfair to some people who miss the 7-day window, tough luck because it wasn’t a Charter violation and therefore there wasn’t a remedy.
The funny thing is 18 years earlier our court dealt with the same circumstance in the ADP scheme. Again, there was a 7-day window to apply for a review and the government took the position that if you missed the 7 days, even if it was through no fault of your own, you couldn’t apply for a review even if you had a great defence. In that case, however, the court looked at the unfairness. It wasn’t a Charter violation. It was simply an issue of being contrary to the realities of being a human on the planet. The court went on to find a tool in that toolbox, to develop a test; if you meet a few requirements such as a genuine intention to file for review, missing the date through no fault of your own, then you could apply late, beyond the 7-day limitation period.
What’s the difference between IRPs and ADPs that would justify a late application for review in one type of driving prohibition and not the other? Nothing. Why did the court not offer a remedy when it came time to consider late applications for an IRP? One might conclude the thinking behind it is Charter tunnel vision. Because the unfairness could not be slotted into a Charter right, the court would not provide a remedy for something that is extremely unfair.
This is an example where we see fixed categories of Charter rights permitting harm caused by government with no remedy. The courts provide no protection from something unfair because they can’t say a Charter right is violated. The only tool courts see in their toolbox now is the Charter. If there is not a Charter remedy, chances are the court will not provide remedy.
Is there a lobby group seeking to change the law to make it more fair? No. Will any election turn on it? Not a chance.
A system that evolved to impede progress
We know there is no remedy from the court. As we said off the top, we live in a society and we, as a society, assign the task of making the rules that govern your life to parliament and the courts. Then we live our lives with the result of the decisions made by someone else.
Humans are problem solvers. When we see something wrong, we want to fix it. When you see the mechanism here and the frailties of the mechanisms to protect us from the application of unfair laws and unfair processes, probably you would like to fix it. Before you try you should note, for hundreds of years the justice system has functioned the same way. Thousands of well- meaning people have tried to make change. The courts have never been the beacon of a more progressive and more just society. They function the same way as always, reacting, and offering limited help.
How you feel about your rights doesn’t matter in the end. You just need to live with the ones they give you.