Discretion, law, and Rahim Jaffer
When the Crown dropped drunk driving and cocaine charges against Rahim Jaffer, everyone seemed unhappy and suspicious. There was a lot more unity of opinion than when a Canadian woman was stuck in Africa because Canadian officials thought she didn’t look like her passport photo. Both cases involved our trust in government, and in both cases government officials had a lot of discretion in making their decisions. Our law gives Crown prosecutors discretion in laying charges. The only constraint is that they must act in public interest. The popular mindset that justifies giving this leeway to the Crown is crime control. A different philosophy is due process, which emphasizes the rights of the accused, but this approach doesn’t seem very popular politically. The actual system is hopefully something between the two. In the Jaffer case, the public wants some accountability from the Crown but it does not seem ready to swing in the due process direction. Can we hold Crown prosecutors accountable for their discretionary decisions such as laying charges? It is very, very difficult, and the only way is to bind the Crown with more rules reducing their discretion.
A cop pulled over Rahim Jaffer, a Canadian politician, because Jaffer was going 93 km/h in a 50 km/h zone. The officer ended up arresting Jaffer who failed a breathalizer test. Jaffer was charged with drunk driving, speeding, and possession of cocaine. But eventually the Crown dropped the most serious drunk driving and drug charges. The judge famously told Jaffer, “I’m sure you can recognize a break when you see one.” Search Google News for “Rahim Jaffer,” and you’ll see what firestorm this case started in Canada. The public wants accountability from the Crown for dropping the charges against an influential figure. But can it get it?
Accountability means giving reasons for decisions. It’s pretty simple. If you give reasons for your decision, we can have a competent third party review your reasons to see if you made any mistakes in facts or rules. The third party must have the power to reverse your decision or to make you reconsider. With government decisions, the third party is usually the courts. If there are no reasons for a decision, it is very hard to know if the decision is wrong. It must be so obviously wrong that no reasons can justify it. It must pretty much be an absurd decision for a court to quash it without seeing any reasons. So if a decision maker doesn’t have to give reasons, there is very little accountability.
Truly discretionary decisions never require giving of reasons. Discretion means freedom from rules. Broad principles may limit discretion but if you set rules for someone in their decision-making they don’t have discretion any more. For example, the Crown has discretion in laying charges, but they must make decisions in public interest. That’s a broad principle. But there are no rules such as “you must lay a possession charge if the cocaine was found in the car,” or “you must never refuse to lay a charge to protect a politician,” or “you must lay a drunk driving charge even if the police officer broke rules in obtaining evidence.” The Crown’s discretion in laying charges implies it doesn’t have rules like that. Discretion means we trust they will do the right thing because they are experts, or because we are scared, or because it’s the cheapest way. But that means the Crown doesn’t have to explain its decisions or they wouldn’t really have our trust. That’s why the Crown’s discretionary decisions do not require it to give reasons. If you ask, they will say that their decision was in the public interest—and they are legally right. But try to challenge a decision on the basis of a broad principle like that.
If you give someone discretion because you want to be tough on crime, don’t expect them to be accountable. It’s impossible to have your cake and eat it too. When all the law requires is that the state make decisions in the public interest, it will be very hard to prove to the courts that a particular decision is not in the public interest. The broader the standard, the heavier is the burden to prove that it was not followed. How is the Supreme Court to judge the government on what it purports to do for our common good in some secret international circles? So they decided they couldn’t in the Khadr case. And so the courts will decide they can’t interfere in the Crown’s discretion in the Jaffer case if some naive person will try to challenge the decision to drop charges. Once the law gives someone discretion, the courts will generally stay away from poking their nose. So if you want accountability from the government, you should bind it with rules instead of giving it blank checks. That’s the due process attitude, but it lasts only until the next scare when the crime control mindset takes over. Let’s hope the two will be in balance.