We do not have awards ceremonies for the judges who convict the most people, or who send the greatest number of people to jail in a year. There is no such thing as a Bankie Award for the judge who renders the most decisions in favour of banks in civil suits. And this is all very simple — the reason we do not reward outcomes such as this is because it would make the judges a party interested in the outcome of the litigation. The system would be patently unfair. The party making the decision, the judge, would have an obvious bias.
It is for this reason that performance incentives are considered contrary to justice in a justice system. Particularly when the liberties of individuals are at stake, we know from centuries of experience that the people who collect the evidence, who present the evidence and who adjudicate must all approach their work dispassionately, i.e. without favouring an outcome.
With respect to courts, this is sacrosanct. The standards are lower for prosecutors and police officers because of the nature of their work. Nevertheless, these are standards that exist to protect the integrity of the process.
We have talked before about the Peelian Principles and the duty of the police to not attempt to usurp the role of the judiciary, which is what we have with the Immediate Roadside Prohibition (IRP) scheme. Another of the important principles is:
Police seek and preserve public favour not by catering to public opinion but by constantly demonstrating absolute impartial service to the law.
This is a high standard. The police must not cater to public opinion. They need to be impartial and not influenced by favour or award. And the high standard exists for the police in the simple function of gathering evidence and testifying in court.
Of course, this principle was not thought up when the police had the power of a court to punish people. But now they do. So you would think that such a principle, having application when the police have the simple function of collecting evidence, would apply a fortiori when they have the the role and power of the judiciary. Sadly, however, this is not the case in British Columbia. Increasingly we are seeing incentives in the justice system. The police have been given an incentive — they can now win a prize.
As we have learned from the many press releases in the last week, if B.C. police officers ring up at least 12 drunk driving arrests, ADP or IRP driving prohibitions they now win an award. They receive special commendation, sanctioned by their superiors and the Government, if they make their catch.
Sticking with the fishing analogy for a moment, if you are hungry and you catch a fish you may be tempted to keep it even if it is a little undersized. Perhaps you should release it. But if there is an incentive, you may be more likely to do some creative measuring.
If you are a police officer and you know that you can get special recognition for issuing driving prohibitions, you are more likely to do some creative evidence generation. If you know that any review of the matter is in name only, and that there are no repercussions for fudging it, then there is nothing to dissuade you from making up evidence. And of course, because there are rewards, there is competition. And everyone wants to win.
With the IRP and ADP schemes, police officers are decision makers with a judicial role that they should never have. On top of that we now have state-sanctioned incentives that make the individual police officer a party interested in the outcome.
As we have noted before, in review decisions where in almost every case the evidence of the police is preferred, the rhetorical question is in some form or another often posed: “why would the police officer lie?” Because there are incentives in the justice system: they can win a prize.
In our opinion, incentives of any sort are an anathema to the justice system and we should not allow our justice system to be eroded simply because alleged drunk drivers are the fashionable pariahs.