It’s time as Canadians that we recognize a particular point in our history when we tossed aside the legal mantra that you are innocent until proven guilty. For generations we enjoyed the expansion of legal rights. We used to intrinsically understand that governments pose the biggest threat to our liberty and so we placed restrictions on their power. Now, however, we’re moving in the other direction. Perhaps we became complacent? Perhaps this generation no longer understands the value of legal rights and the threat posed by the state?
Governments keep trying to outlaw sex in some manner or another with limited success.
Future generations will look back and wonder how we gave up the presumption of innocence. For posterity, we provide our view from the turning point. We happen to be lawyers watching as this unfolds. The presumption of innocence is on the way out. How did that happen?
Manufacture a crisis
Of course we’re speaking of the Immediate Roadside Prohibition drunk driving laws that we’ve had in BC for all but six months since September 20, 2010. The Government’s spin was that drunk driving is a moral crisis. Suddenly, after 100 years of cars, roads and booze, the Government took the position that all previous attempts at regulating the activity had failed and the only option was to take away legal rights. It’s kinda like a government declaring an emergency and suspending civil rights; the BC Government claimed that drunk-driving carnage on the roads in BC could only be stopped by drastic authoritarian measures. There was nothing else less restrictive they could do to deal with the carnage, they claimed.
People in the know were already aware that drunk driving injuries and deaths were already on the decline. Demographics, improved safety measure, societal changes were all contributing to a decline in many regions. But if it was apparent that the decline was underway well before the taking away of legal rights, there would be no chance to claim cause and effect. So they had to act fast to claim credit for things unfolding as they inevitably would in any event.
Call it something different
One of the smart things that the Government did to take away the presumption of innocence was to make it a big change. Instead of relying on high-quality evidence, they’d rely on low quality evidence. Instead of requiring a hearing to prove the case, they’d make the accused apply for a hearing and pay the Government for the chance to make their case. Instead of getting a criminal record, you’d have a driving record which would have much the same effect for future opportunities. Instead of having it in court with all the rules to protect the innocent, they would bring decision-making into an internal Government office. Instead of public hearings, they’d make them private. Instead of cross-examination and an inquiry into the allegation, they’d make it a paper-only system where the police evidence is on pre-printed forms. Instead of calling it a fine, they say you must pay a Monetary Penalty. Instead of having a trial in a court, it would be an Administrative Hearing.
In BC, the gist of the argument in court to justify the Immediate Roadside Prohibition laws was that all of this was justified because of the moral crisis. It was as though there was a new breed of drunk driver, more dangerous than all before them and the only way to deal with it was this so-called “Administrative Process.”
Make it something that’s really immoral to oppose and attack critics
MADD, the police and the Government have been effective in labeling opponents as advocates of drunk driving.
There’s no doubt that driving with enough alcohol in your body that your behaviour is altered does pose a risk to the public. If you get home without hitting something or someone, the claim that this is significantly immoral becomes harder to sustain.
If you have sex, you may be infected with an STD. You may then pass it to another person. Sex poses a risk to the public. Governments keep trying to outlaw sex in some manner or another with limited success. Still, sex is necessary for the procreation of our species, and although booze and cars are often important features in facilitating sex, strictly speaking sex can take place in their absence.
The threat of drunk driving may be understood and condemned as anti-social behaviour. Sex is a necessity. You don’t need to drive drunk to get home. It is particularly selfish to put others at risk to drink to impairment and then get where you want to go by guiding and moving a big steel object.
So we’re settled. Drunk driving is immoral. However, reducing it to a moral panic eliminates the complexity of the issue. Is it somehow so immoral that we shouldn’t be able to criticize the Government for changing the law? Is it so immoral that we shouldn’t be allowed to point out where the Government is wrong on the facts?
The Government would like us to think so. They want to gloss over the complexities of the issues and boil it down to drunk driving is bad and anyone who questions the Government spin should be silenced.
When we give up the presumption of innocence, should we also give up freedom of speech? (We’ve had to conduct a side battle to protect freedom of speech.)
Tell stories about how life without rights is better
Much of this is a means-justifies-the-ends argument. It’s a way of considering moral problems where you balance one wrong against the other. In this case the Government said the wrong of drunk driving was so bad that the wrong of the Immediate Roadside Prohibition scheme was the lesser of two evils. To make this argument enticing, they claimed that the ends were so compelling that we should all ignore the means they employed.
The enticing reward in this case was a massive reduction in deaths which they claimed is directly attributable to their nasty means. This was a carefully played version of the bait and switch with some characteristics of the shell game. And don’t pay attention to the man behind the curtain.
In this case most everyone was distracted by the moral panic and apparent benefits of the ends. The Government maintained all the way that this was a massive reduction in deaths due directly to their law. Never mind that the claim was without merit and unverifiable. Never mind that we were giving up our right to the presumption of innocence in cases of serious punishment dispensed on the spot by the police.
We gave it all up
British Columbians were fooled into believing that there was an imminent expanding existential threat, that being drunk drivers. Such a threat it was made out to be that a moral panic followed where anyone who opposed proposed legal changes were said to be advocates of drunk driving. The government claimed that there was no other option but to take away the presumption of innocence. They claimed that benefit was so huge that it justified taking away legal rights.
Turns out there was no crisis. Turns out it was no cause and effect solution to the problem. The road to hell is paved with good intentions.
The presumption of innocence has been cut down and now we’re down the slippery slope. This is the history of how we gave up the presumption of innocence.
And we gave it all up for nothing.