RSS FeedSCC: No Privacy Interest in Things We Throw Out
The Supreme Court of Canada today released its decision in R. v. Patrick, 2009 SCC 17, which concerns privacy interests in garbage and other abandoned items. The Court ruled that a police search of garbage abandoned at the curb does not require a warrant and can be done without violating the Charter.
Calgary police suspected that Mr. Patrick was operating an ecstacy lab in his house. Acting on this suspicion, the police attended at the house on six occaisions to retrieve and search through garbage bags, looking for any evidence of criminal activity.
The garbage bags had been placed inside garbage cans, which in turn had been left outside in a small shed for collection. The shed was on Mr. Patrick’s property, and the police had to reach over the property line to grab the bags.
As a result of these searches, police retrieved numerous incriminating pieces of evidence. The bags contained things like packaging for a digital scale, a receipt for muiatic acid, torn up chemical recipes, etc. Some of the items were contaminated with ecstacy.
Partly on the basis of the evidence collected in this way, the police were able to obtain a warrant to search Mr. Patrick’s home. After forcibly entering his home, they discovered precursor chemicals, scales, a pill press, and 2679 ecstacy pills.
Patrick argued that his section 8 Charter right to be free from unreasonable search and seizure had been violated.
The Court unanimously decided that it had not.
The central issue in the case was whether Patrick, by placing his garbage bags outside to be picked up by municipal garbage collection, had abandoned any interest in those bags.
Thus, the case was was essentially resolved as a property law question.
The majority cited R. v. Dyment, [1988] 2 S.C.R. 417 for the proposition that abandonment of an item automatically disposes of one’s privacy interest in that item:
In R. v. Dyment, [1988] 2 S.C.R. 417, La Forest J. treated abandonment as fatal to a reasonable expectation of privacy. He held that when an accused abandons something, it is “best to put it in Charter terms by saying that he [has] ceased to have a reasonable expectation of privacy with regard to it.”
[Patrick, at para. 22.]
Next, they cited R. v. Stillman, [1997] 1 S.C.R. 607 as standing for the same proposition:
In R. v. Stillman, [1997] 1 S.C.R. 607, McLachlin J., in dissent, but not on this point, stated that “[t]he purpose of s. 8 is to protect the person and property of the individual from unreasonable search and seizure. This purpose is not engaged in the case of property which the accused has discarded.”
[Patrick, at para. 23.]
A finding that an accused person has abandoned an item seems, therefore, to be dispositive of any section 8 claim about that item. That’s a pretty narrow view of privacy.
Ironically, in Stillman, the seizure of a discarded tissue was held to have breached the accused’s section 8 rights. In that case, a young man was in custody at RCMP headquarters for five days. During the course of his detention, Stillman blew his nose into a tissue and tossed it out. The police retrieved the discarded tissue and obtained Stillman’s DNA.
The Supreme Court in Stillman focussed on the fact that the accused was in custody and had no real alternative to giving up his bodily samples:
[W]hen an accused person is in custody, the production of bodily samples is not an unforeseen occurrence. It is simply the inevitable consequence of the normal functioning of the human body. The police are only able to profit from the production of the samples because the accused is continuously under their surveillance. For this reason it is somewhat misleading to speak of “abandonment” in the context of evidence obtained from an accused who is in custody. … In those circumstances, how can the appellant assert his right not to consent to the provision of bodily samples? He would be required to destroy every tissue he used, to hide every spoon he ate from, to keep cigarette butts, chewed gum or any other potentially incriminating evidence on his person at all times in order to prevent the police from “retrieving” this “potentially useful waste”
[Stillman, at paras. 58-59.]
Why is the custody versus out of custody distinction so significant?
The reality of modern urban life is that the only realistic way to dispose of household garbage is through the municipal waste system. The production of household garbage is not an unforseen occurrence. It is simply the “inevitable consequence” of civilization. The garbage has to go somewhere. It is completely impractical (and probably illegal) to have to burn every piece of garbage that you want to keep private. Indeed, in Calgary, where Mr. Patrick lived, by-laws make it illegal to dispose of household garbage in any way other than by placing it in a waste container for collection.
Thus, whether you are in custody or at home, the waste you produce will eventually end up in the hands of the state.
(Incidentally, Calgary also has a by-law making it illegal to scavenge through someone’s garbage. The police violated the by-law, but I doubt whether anybody wrote them a ticket. Isn’t the existence of this by-law indicative of the important privacy concerns that we have in our waste? The majority dismissed the relevance of the by-law [Patrick, at para. 68].)
Despite recognizing the important privacy concerns with respect to the contents of a household garbage bag the Supreme Court simply could not get past the abandoment issue:
Residential waste includes an enormous amount of personal information about what is going on in our homes, including a lot of DNA on household tissues, highly personal records (e.g., love letters, overdue bills and tax returns) and hidden vices (pill bottles, syringes, sexual paraphernalia, etc.). As it was put by counsel for the Canadian Civil Liberties Association, a garbage bag may more accurately be described as a bag of “information” whose contents, viewed in their entirety, paint a fairly accurate and complete picture of the householder’s activities and lifestyle. Many of us may not wish to disclose these things to the public generally or to the police in particular.
…
[A]part from the key issue of abandonment, the circumstances in this case favour the appellant. The police were trying to find out what was “happening inside a private dwelling, the most private of places” (Plant, at p. 302). … The gathering up of the contents of the bags by the police provided them with a window into the appellant’s private life.
[Patrick, at paras. 30, 40; emphasis mine.]
So when exactly does household waste become abandoned such that the police can freely look into that window? The defence argued that the privacy interest in garbage should continue until the garbage becomes anonymous. The Court rejected this view outright:
The idea that s. 8 protects an individuals’s privacy in garbage until the last unpaid bill rots into dust, or the incriminating letters turn into muck and are no longer decipherable, is to my mind too extravagant to contemplate. It would require the entire municipal disposal system to be regarded as an extension, in terms of privacy, of the dwelling-house.
[Patrick, at para. 54.]
Is that actually “too extravagant to contemplate?” Is the defence’s proposal such a bad idea? I certainly think that the personal items I throw in the trash ought to remain private until they cease to exist. I bet a lot of Canadians would agree with me. The municipal garbage system, to me, is like an Orwellian memory hole.
The Court concluded that the moment we toss our garbage bags to the curb, our privacy interest in the contents of the bags is at an end. It doesn’t matter if the garbage bags are on your side of the property line. It doesn’t matter if you take pains to drive your garbage bags all the way to the dump site. The majority held that:
Given the “totality of the circumstances” test, little would be gained by an essay on different variations of garbage disposal. To take a few common examples, however, the rural people who take their garbage to a dump and abandon it to the pickers and the seagulls, the apartment dweller who unloads garbage down a chute to the potential scrutiny of a curious building superintendent, and the householder who takes surreptitious advantage of a conveniently located dumpster to rid himself or herself of the “bag of information” are all acting in a manner inconsistent with the reasonable assertion of a continuing privacy interest, in my view.
…
[T]he appellant had abandoned his privacy interest in the contents of the garbage bags gathered up by the police when he placed them in the garbage alcove open to the laneway ready for collection. The taking by the police did not constitute a search and seizure within the scope of s. 8, and the evidence (as well as the fruits of the search warrant obtained in reliance on such evidence) was properly admissible.
[Patrick, at paras. 64, 73.]
There was a brief concurring opinion by Justice Abella. Though she did not believe that a Charter breach had occurred in this case, her focus was not on the abandonment issue.
Abella J. found that abandonment alone should not automatically leave household waste open to police scrutiny. She was concerned that under the majority’s approach, the police would have unrestricted access “to information most people would never expect to be publicly accessible.” In her view, a person has a diminished, but not extinguished, expectation of privacy in respect of garbage which has been abandoned [Patrick, para. 90].
Given that there was some expectation of privacy, this expectation would have to be balanced against the legitimate interests of the state in investigating crime. Abella J. did not believe that prior judicial authorization in the form of a warrant would strike the appropriate balance. Instead, she felt that police must have a reasonable suspicion. “Reasonable suspicion” was not defined in the judgment, but it usually refers to some articulable grounds for believing that a crime has taken place. It is more than a mere hunch, but something less than reasonable and probable grounds; a fairly low threshold.
“[I]n my view, with respect, the privacy of personal information emanating from the home, which has been transformed into household waste and put out for disposal, is entitled to protection from indiscriminate state intrusion. Such information should not be seen to automatically lose its “private” character simply because it is put outside for garbage disposal. Before the state can rummage through the personal information from this ultimate zone of privacy, there should be, at the very least, a reasonable suspicion that a crime has been or is likely to be committed.”
[Abella J., concurring, in Patrick, at para. 77.]
Certainly when we throw our garbage out we are giving up a proprietary claim to it. But I think that our proprietary claim has to be treated as distinct from our privacy interest. I think it’s an inherent expectation of Canadians that what we throw out will be free from scrutiny by other members of the public, and certainly by the state.
Abella J.’s decision is much more compelling in that it recognizes a legitimate (though diminished) expectation of privacy in things we throw out.
Unfortunately, today’s majority decision significantly abrogates our privacy rights in this country.
Man Not Criminally Responsible for Greyhound Bus Beheading; Victim’s Family Call for Punishment
Justice John Scurfield ruled Thursday that a man accused of beheading and cannibalizing a Greyhound bus passenger is not criminally responsible (“NCR”) due to mental illness.
Vince Li’s trial lasted only two days and heard from two expert witnesses, both psychiatrists, who testified he is mentally ill.
Both the prosecution and the defence argued that Li cannot be held criminally responsible because he was suffering from schizophrenia and believed God wanted him to kill the victim because he was a force of evil.
Li did not know the victim, Tim McLean, before sitting beside him on the bus, nor did he speak with him during several hours before the attack, which Scurfield J. described as ”grotesque”, ”barbaric”, and ”strongly suggestive of a mental disorder.”
A psychiatrist called by the prosecution Wednesday testified that Li cut up McLean’s body because he believed that the victim would come back to life and take revenge.
Having been found NCR, Li will be institutionalized without a criminal record. He will be reassessed every year by a mental health review board to determine if he is fit for release into the community.
McClean’s family are vowing to fight the law that allows those found NCR to be released into the community if they are rehabilitated. The family argues that these people should instead serve a minimum sentence in jail.
Howard Barbaree, Phil Klassen, and Padraig Darby, experts in the areas of law and mental health, have written a terrific commentary on this issue published in the Globe and Mail. In it, they argue that “Canada should be proud that it has developed a thoughtful, balanced and fair treatment system for mentally ill individuals who commit criminal acts.” The commentary is entitled, “The mentally ill who break the law deserve ‘all mercy and humanity’“.
In my own opinion, this proposed punishment, dubbed “Tim’s Law,” would be unconstitutional. It would violate a person’s Section 7 right to liberty under the Canadian Charter of Rights and Freedoms.
A finding of ‘not criminally responsible’, pursuant to Section 16 of the Criminal Code, is just that. A finding that the person is not a criminal.
The proposal by the McClean family is this: once released by a mental health review board, a person becomes capable of meeting the fault requirement for the past act that they commited while suffering from mental illness. The illogic of the proposed punishment is that a person who is now capable of appreciating right from wrong should be punished for what they did when they were not capable.
In common law countries such as Canada, the test of criminal liability is expressed by the Latin phrase, actus non facit reum nisi mens sit rea, which means that “the act does not make a person guilty unless the mind is also guilty”. Not explicitly stated in this this phrase is the requirement that the actus reus (act) and mens rea (guilty mind) must overlap in time.
In the case of Li, if he recovers from schizophrenia and is released by a mental health review board, he will merely have the capability of having mens rea for present actions. This capability of having mens rea will obviously not overlap in time with his past actions. Therefore, the punishment proposed by the McClean family, although perhaps understandble on an emotional level, would be cruel and unconstitutional as it would be inflicted on a person who has committed no crime under law.
Criminal Code, R.S.C. 1985, c. C-46, s. 16:
No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.
Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, s. 7:
Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
40% of Ontario Prosecutions Fail Before Trial
According to the National Post, the criminal justice system in Ontario is an absolute mess.
Ontario has the highest rate of failed prosecutions in Canada.
In this province, approximately 40% of criminal cases are withdrawn, stayed, or dismissed, often before the trial even begins.
To say nothing of the impact on the improperly accused person, the cost to the taxpayer – for wasteful police investigations, fruitless prosecutions, and court costs – is in the hundreds of millions of dollars.
Why?
There are a few reasons which the National Post and others have identified:
- Lack of collaboration between Crown Attorneys and the police. For the vast majority of crimes in Ontario, the police make the decision on whether to lay a charge. The police are not in the best position to decide whether the charge will stick in court; Crowns are. In other provinces, the Crown acts in a screening capacity to decide whether a charge should be laid in the first place.
- Lack of discretion on the part of Crown Attorneys. The Crown policy manual requires Crowns to drop charges where there is no reasonable prospect of conviction or where pursuing the matter would not be in the public interest. Thus, Crowns are required to act in a quasi-judicial role in deciding whether to press the prosecution. Unfortunately, junior Crowns are often unwilling to take initiative and withdraw a charge for fear of making a mistake and drawing the ire of their superiors.
- Lack of ownership of files. Most criminal files are shuffled around from one Crown attorney to the next until the time of trial. This creates a great deal of administrative waste, because all of the Crowns that will come into contact with the file will have to take time to fully familiarize themselves with it. Worse yet, when Crowns feel that they don’t have ownership of a file, they are unwilling to make tough decisions to withdraw a charge. Lacking a comprehensive knowledge of the case and the accused, it’s easier to just do nothing and allow the file to pass to someone else.
Having identified some of the causes, it’s clear that relatively simple changes could be made to the criminal justice system to significantly cut down on the number of failed prosecutions.
The Power of a Guilty Plea
“You mean,” he said, this look of absolute unbelief working across his face, “you mean, if I’m guilty I get out today?”
“Right.”
“And if I’m innocent I stay locked up?”
“You got it, man. So what are you gonna be, guilty or innocent?”
James Mills, One Just Man, Simon and Schuster
Ontario Expands “Justice on Target” Initiative
According to the Ontario Attorney General’s website:
In 1992, it took an average of 4.3 court appearances to bring a charge to completion. By last year, this figure had more than doubled to 9.2 appearances. Over the same period, the average time needed to complete a charge has gone from 115 days to 205 days.
One of AG Chris Bentley’s prime initiatives during his office has been to address these delays in the criminal justice system.
Bentley is the Liberal M.P.P. for my riding of London West. Because of his personal knowledge of our court’s delays, Bentley made London the testing ground for his “Justice on Target” program. The program aims to identify bottlenecks and address them to reduce the number of adjournments and the amount of time it takes for criminal cases to be resolved.
The Ministry of the Attorney General has issued the following (slightly edited) press release today:
—
Accelerating The Pace Of Justice
McGuinty Government Selects Three Courthouses For Next Phase Of Justice On Target Strategy
NEWS
The Ontario Courts of Justice in Newmarket, North York and London have been chosen to begin the province’s intensive, sustained effort to move cases through the justice system faster.
This is the next step in the Justice on Target strategy , to reduce unproductive criminal court delays and appearances by making more effective use of justice resources.
These courthouses have been designated as “action sites” to improve the pace of justice. Teams, led by Regional Senior Justice Bruce Durno and Senior Crown Attorney Ken Anthony, will work to quickly identify, test and implement new ideas.
Successful initiatives will then be rolled out in other courthouses across the province to help achieve the target of a 30 per cent reduction in the provincial average of days and court appearances needed to complete a criminal case. Progress towards the targets in each courthouse will be measured and reported online.
QUOTE
“Our expert teams will be working closely with all justice participants in these three courthouses initially – but the goal is to identify, test and implement approaches that will make criminal justice faster province-wide,” said Attorney General Chris Bentley. “We’re committed to making the justice system more effective for everyone – victims, witnesses, and the public who pay for it.”
QUICK FACT
* With 600,000 charges entering the system every year, saving one minute per charge could save seven years of court time.
—
My personal London criminal justice pet peeve: simple disclosure requests that take six months to fulfill.
Man Busted for Impaired Operation of a Riding Mower
Last month, I discussed the potential criminal liability for the impaired operation of a motorized wheelchair in Canada.
On the topic of drunken care and control of non-traditional motor vehicles, the Grand Rapids Press reports the story of a Michigan man caught operating a riding lawnmower with a blood alcohol level of 0.441 percent. That level is over 5 times the legal limit in Michigan – 0.08. It’s also enough to put most casual drinkers into a coma.
Witnesses told police that Earhart earlier appeared to be slumped over the wheel of the mower as it went in circles in the intersection. He appeared to regain control at one point, but passed out again and was thrown to the ground. The mower continued until it struck a tree and lawn ornament. A witness shut off the engine.
The man has been criminally charged with drunk driving.
While this case may sound pretty funny, it’s obvious that the impaired operation of a riding mower in an intersection could easily have led to serious injury or death.
By the way, the man would have been criminally liable in Canada, too. While many people may like to have a few beers before mowing the lawn on a fine Sunday morning, operating a riding mower while impaired is an offence under section 253 of the Criminal Code of Canada.
Don’t drink and drive, kids!
Problems with New Impaired Driving Legislation
As part of my series on the Tackling Violent Crime Act, I’d like to discuss the new changes to the drunk driving provisions of the Criminal Code.
The need for reform
To begin, the extent of the drunk driving problem is put into perspective when the latest statistics (from 2005) show that there have been over 1,200 impaired-driving related fatalities across Canada. According to Professor Robert Solomon, a law professor at the University of Western Ontario and a representative of MADD Canada, drunk driving is “the No. 1 criminal cause of death in this country.” And that’s to say nothing of non-fatal injuries and property damage caused by people deciding to get behind the wheel when they’ve had too many to drink.
Thus, a significant number of amendments in the new legislation deal with impaired driving. The perception (and indeed, probably the reality) was that a lot of drunk drivers were using legal loopholes to escape convictions. As one defence lawyer, a specialist in impaired driving cases (who shall remain nameless), once told me:
“drunk driving is one of the few offences in the Criminal Code where you really can just throw a lot of money at the problem and have it go away. A good lawyer can nearly always find some screw-up on the part of the cops in order to get their client off.”
Unlike most other crimes, drunk driving prosecutions typically rest on a single piece of evidence: the breathalyzer test results. The tests basically have to be perfect; they are challenged if the machine isn’t correctly calibrated, if the operator wasn’t specifically trained for them, and so on. The slightest irregularity can be fatal to the prosecution. These tests could also be challenged by other evidence tending to suggest that the machine’s results were wrong.
Acquittals were also often the result of Charter breaches on the part of the police. Breath test evidence has been routinely excluded if an accused was not properly informed of the reasons for their detention under section 10(a) of the Charter or their right to counsel under section 10(b), for example.
Paul Moreau, a criminal lawyer in Edmonton, explains that:
“impaired driving is a very technical type of offense. The police are required to do certain things in a certain order within a certain time frame. Certain documents are required and they have to be filled out correctly. Any part of the process that is done incorrectly may provide a defense to the person charged with that crime. So part of my function is to analyze what the police have done and see whether they have done it correctly. If they have not, then the person may very well have a good defense.”
The public perception is that these acquittals are based on trivial technicalities. Others argue that protection of our constitutional rights demands high scrutiny of police action. Recently, the Ontario Court of Appeal has said that:
“Once detained, an individual is at the mercy of state actors. Thus, in circumstances where the informational component of s. 10(a) of the Charter is easy to fulfill – as it was in this case – the breach of the obligation to provide that information cannot be considered a trivial matter. We say this because, as the jurisprudence illustrates, the right against self-incrimination is fundamental to the spirit of s. 10 of the Charter.”
(R. v. Nguyen, 2008 ONCA 49, at para. 21)
The government has the unenviable challenge of balancing the need to protect the public from drunk drivers and the need to defend civil liberties. Consistent with their purpose as the guardian of our rights, Canadian courts have been strictly interpreting our drunk driving legislation in favour of civil liberties, even when it has led to seemingly absurd outcomes.
In a high-profile case last month, the Ontario Court of Appeal upheld Margaret Trudeau’s acquittal on a drunk driving charge. Ms. Trudeau was found to be driving with a blood alcohol level of 0.107. She was acquitted on the grounds that her rights were violated when she was told that no one answered the phone when the police placed a call to her lawyer. Instead, the police should have told her that an answering machine had picked up the call. Ultimately, Trudeau did manage to contact a lawyer, but it was not her first pick.
Trudeau later publicly stated that:
“I shouldn’t have got off. I was over the limit…”
Statements like this have done nothing to allay the public’s concerns about drunk driving in the criminal justice system.
The truth is that there is actually a high conviction rate for impaired driving. Statistics Canada’s numbers for 2005/06 show that of 43,444 decided impaired driving cases, 33,983 resulted in a conviction. That is a 78% conviction rate – the highest rate for any criminal offence category studied by StatsCan. However, the public perception does not accord with these figures. A poll of over 2000 Canadians found that:
“most respondents didn’t think our courts make drunk driving charges stick. One in four thought less than 25 per cent of charges result in convictions. Only one in 10 correctly answered that over 75 per cent of charges result in convictions.”
Regardless of the disparity between the public perception of conviction rates and the actual conviction rate, the reality is that many drivers, exemplified by Margaret Trudeau, who were most definitely drunk behind the wheel have been going free. This was a pressing problem and legal reform was necessary to address it.
I take issue, however, with the extent of those changes. I think the government has gone too far in abrogating civil rights in favour of cracking down on drunk driving. Indeed, I think that many of the new Criminal Code provisions will be successfully challenged under the constitution.
Why bother cautioning the accused?
Take the following example:
“the result of an analysis of a sample of the accused’s breath, blood, urine or other bodily substance – other than a sample taken under subsection 254(3), (3.3) or (3.4) – may be admitted in evidence even if the accused was not warned before they gave the sample that they need not give the sample or that the result of the analysis of the sample might be used in evidence;”
(Criminal Code, s. 258(1)(b), as amended)
Previously, an accused could argue that they were not properly cautioned before taking the breathalyzer test, and thereby have the evidence excluded. The correct solution to this problem was a simple one: train the officers to give a proper caution! Instead, the government seems to have decided that one’s rights are unimportant in the context of drunk driving. Since the police can now get away with not cautioning the accused, we can expect that they’ll simply never give an appropriate warning; why bother?
Expanding the scope of police powers
Another example of the Criminal Code amendments:
“If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle or vessel, operated or assisted in the operation of an aircraft or railway equipment or had the care or control of a motor vehicle, a vessel, an aircraft or railway equipment, whether it was in motion or not, the peace officer may, by demand, require the person to [accompany the officer for sobriety testing and/or breath testing].
(Criminal Code, s. 254(2), as amended)
The addition of the “preceding three hours” requirement now means that a police officer can basically detain you at random and require you to provide a breath sample. All the officer needs is a reasonable suspicion that you’ve sat in the driver’s seat of a car within the past three hours. Forget about whether you’ve actually driven the car. It doesn’t even matter if the engine was ever on.
If an officer believes that you sat in a driver’s seat while under the influence of drugs at any time within the last three hours, he/she now has the power compel you to undergo a breath test, a blood test, a urinalysis, or an oral swab as required to check for the presence of drugs in your system. Regardless of whether the charges would ultimately stand, the police have legal authority to engage in random detainment and drug testing. Whereas before, this power was probably practically limited to the roadside, the three hour requirement now means they can detain and test a suspect just about anywhere.
Mandatory minimums
Additionally, mandatory minimum incarceration periods for impaired driving have been increased (Criminal Code, s. 255(1)(a), as amended). For a second offence, the penalty is a guaranteed 30 days in jail, up from 14 days. For a third offence, it’s a minimum incarceration period of 120 days, up from 90. (Note: I will be discussing mandatory minimum sentences in greater depth at a later date, since I think I could devote an entire post to them.)
The all-knowing machine
As explained above, drunk driving prosecutions rest disproportionately on a single, fallible piece of evidence: a certificate of analysis from a breathalyzer test.
But even assuming the device is being used properly, the machine suffers from many documented problems. For example,
“The Intoxilyzer is designed to produce a breath alcohol result exactly corresponding to a simultaneous blood alcohol sample. The problem is the assumption that the partitioning of alcohol from the blood into the breath is 2100:1. Not all persons partition alcohol from their blood based upon this ratio. Studies show partition ratios as low as 834:1. The Intoxilyzer 5000 will overestimate the alcohol concentration of someone blowing with a partition ratio less than 2100:1.”
Despite having an established error rate of between 10% and 30%, courts have upheld the use of breathalyzers because their results must be considered in light of other evidence:
“In State v. McCarty 434 N.W.2d 67 (S.D. 1988), the court ruled that a statutory declaration that the partition ratio is 2100:1 did not create an unconstitutional irrebuttable presumption. The defendant had a BAC of 0.14% based on a breath test. At the trial, the defendant raised issues concerning the reliability of using a partition ratio of 2100. At trial, the jury was instructed in language identical to statutory construction that BAC shall be based on either alcohol concentration in blood or breath. The court acknowledged that this ratio can vary from 1142 to 1 to 3478 to 1; it even quoted an expert on the artificial rigidity of mandating a partition ratio of 2100 to 1. While admitting that the jury instruction was improper, the court said that it was cured by another instruction which stated that presumptions created by statute are inconclusive, and must be considered a part of the total evidence presented at trial. Therefore, there was no irrebuttable presumption of guilt by the state.”
However, the government has now placed almost total faith in the all-knowing machine, which is hailed as an “objective” measure of an accused’s level of intoxication:
“evidence of the results of the analyses so made is conclusive proof that the concentration of alcohol in the accused’s blood both at the time when the analyses were made and at the time when the offence was alleged to have been committed was … the concentration determined by the analyses.”
(Criminal Code, s. 258(1)(c), as amended. Emphasis added.)
The only challenge to this “conclusive proof” is where the defence can show that the machine was malfunctioning or was operated improperly. Of course, it’s fairly difficult to demonstrate this where the machine is in the possession of the police and cannot be properly inspected.
Previously, defence counsel could bring “evidence to the contrary” to show that the breathalyzer reading must be wrong. For example, a witness could testify that he was at the bar with the accused all night, and that the accused only drank one beer. Now this defence has been severely curtailed by the legislature:
“for greater certainty, evidence tending to show that an approved instrument was malfunctioning or was operated improperly, or that an analysis of a sample of the accused’s blood was performed improperly, does not include evidence of
(i) the amount of alcohol that the accused consumed,
(ii) the rate at which the alcohol that the accused consumed would have been absorbed and eliminated by the accused’s body, or
(iii) a calculation based on that evidence of what the concentration of alcohol in the accused’s blood would have been at the time when the offence was alleged to have been committed;”
(Criminal Code, s. 258(1)(d.1), as amended.)
Professor Solomon has rightly complained that the evidence to the contrary defence has been used “completely inappropriately” by defence counsel. Nevertheless, section 258(1)(d.1) goes too far by completely nullifying the availability of the defence.
Yes, there will be unscrupulous defence lawyers. And yes, there will be witnesses who lie. But it is the role of the judge (or jury) to weigh the evidence and conclude whether it should be considered or not. This is a challenging job, but judges are relied on to do it every single day in this country. It should be up to a judge to decide whether a witness is lying or whether the defence’s argument is sound.
The statutory elimination of the evidence to the contrary defence represents a serious infringement of the presumption of innocence. The “conclusive” nature of breathalyzer evidence means that by the time the accused reaches trial on account of failing the breath test, their fate is predetermined. In essence, the judge in impaired driving cases is being replaced by a machine that is “objectively” deciding who is guilty and who is not. By depriving the accused of the ability to introduce relevant and non-prejudicial evidence at trial, the legislature is seriously curtailing that accused’s fundamental right to make full answer and defence to the charges:
“This common law right has acquired new vigour by virtue of its inclusion in s. 7 of the Canadian Charter of Rights and Freedoms as one of the principles of fundamental justice … The right to make full answer and defence is one of the pillars of criminal justice on which we heavily depend to ensure that the innocent are not convicted.”
(R. v. Stinchcombe, [1991] 3 S.C.R. 326, at p. 336.)
Legitimately innocent people will be caught in this new net. No matter how severe the problem of drunk driving, depriving an accused of the right to make full answer and defence simply cannot be justified.
New “Tougher” Criminal Laws Now In Effect
It appears that law students are going to have to buy an updated Criminal Code for next year.
The Harper Conservatives’ new “get tough on crime” legislation comes into full force today.
The Tackling Violent Crime Act creates a number of amendments to the Criminal Code and associated statutes.
Among the highlights of the changes are:
- stiff mandatory minimum sentences for serious gun crimes.
- stronger Peace Bond (similar to a restraining order) provisions.
- tougher penalties and more police enforcement mechanisms for drunk/high driving
- an increase in the age of consent from 14 to 16 years.
I personally have a lot of problems with this new legislation. Over the next few days, as time permits, I’ll be posting some criticisms of the Tories’ so-called “tough on crime” policies and I’ll be discussing how they create greater injustice in the criminal system.
Chronic Drunk Driver Gets 20 Years, but not Designated a Dangerous Offender
A few months ago while listening to CBC Radio, I heard about the controversial case of a man being tried in Alberta for habitually drunk driving.
The man, Raymond Yellowknee, had already been convicted of drunk driving three times, when in 2006 he decided to drink and get behind the wheel yet again.
According to police, Yellowknee had a blood alcohol level of 0.22 (about three times the legal limit), and was driving a stolen pickup truck. Police pursued the vehicle, but Yellowknee refused to stop and instead provoked a high speed chase.
Just minutes later, Yellowknee lost control of the truck and crossed the center divider. He collided head-on with a passing car.
Inside the car were a mother, who was nearly finished her training to become a teacher, and her three young daughters. All were killed.
I became interested in the case when the radio broadcast reported that the Crown would be seeking a dangerous offender designation for Yellowknee under s. 753 of the Criminal Code. The designation allows the convicted offender to be sentenced to an indeterminate prison term.
The dangerous offender provisions are usually reserved for the most serious violent offenders that a court believes cannot be rehabilitated. This would have been the first time that the designation would be used for a habitual drunk driver.
A judge would have to acknowledge that drinking and driving is a serious personal injury offence: one which carries a sentence of ten years or more, and involves “conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person” (CC s. 752).
The Canadian Press reports that yesterday judge Ernie Walter of the Alberta Provincial Court decided not to name Yellowknee a dangerous offender. I should point out that Yellowknee, 35, had by this point:
… amassed a total of 71 offences and has been out of jail for only one year since he was 18.
Instead, judge Walter felt (for whatever reason) that there was a chance for rehabilitation. The court sentenced Yellowknee to 20 years (less time already served) under the “long-term offender” provision.
Section 753.1 of the Criminal Code defines a long-term offender as one posing a substantial risk of re-offending but also one where “there is a reasonable possibility of eventual control of the risk in the community.”
Robert Solomon, Professor of Law at the University of Western Ontario, provided us with his opinion of yesterday’s decision:
The Crown had sought a dangerous offender designation, which carries an indeterminate sentence and lifetime parole. Instead, the judge held Mr.Yellowknee to be a long-term offender, which means that he will be supervised in the community for 10 years after his release from prison. Yellowknee was sentenced to 20.5 years imprisonment reduced to 16 years to reflect his pre-trial detention. In my view, several elements of the Yellowknee decision are gratifying. First, the judge clearly stated that Mr. Yellowknee’s long history of impaired driving offences, coupled with his horrific conduct on the day in question, met the criteria for being designated a dangerous offender. Although it is long overdue, this is the first case in which a Canadian court has acknowledged that repeat impaired driving offenders who pose ongoing risks can justifiably be labelled dangerous offenders. Second, Mr.Yellowknee’s long-term offender designation and lengthy sentence will protect the public for almost as long as a dangerous offender designation.
Without reading the decision [it seems to be unreported as yet], it is difficult to understand why the judge exercised his discretion not to label Mr. Yellowknee a dangerous offender. The facts are as close to a worst case scenario as one can imagine and a dangerous offender designation was clearly justified. However, the Supreme Court of Canada has previously indicated that the dangerous offender designation should not be used if a less onerous sentence would adequately protect the public. Perhaps the judge was concerned that a decision to label Mr. Yellowknee a dangerous offender would be overturned on appeal. Clearly, finding Mr. Yellowknee to be a long-term offender is less controversial than finding him to be a dangerous offender. Moreover, defence counsel had indicated that they would accept a long-term offender designation. The choice between the designations would not have made a great difference in this case, given the 16 year prison sentence.
Regardless of the ultimate designation handed down for Mr. Yellowknee, yesterday’s decision should set a precedent (admittedly, non-binding) for dealing with habitual drunk drivers and the substantial risk of harm that they pose to the community.
Mob Boss Plots to Kill His Judge, Now Worried Judge Can’t Be Impartial
The New York Sun (via AP) reports that the alleged mob boss known as Vinny “Gorgeous” Basciano asked an appellate court yesterday to order the judge in his upcoming trial to step aside.
The reason? Basciano apparently made credible death threats against the judge, and is now worried that the judge cannot be impartial.
Ironically, Basciano is on trial for making death threats against a prosecutor. A key piece of evidence in that case is purportedly a hit list which names not only the prosecutor in question, but two informants, and indeed, judge Nicholas Garaufis, who is hearing the case.
The U.S. Attorney is arguing that the mob boss put the judge on the hit list expressly for the purpose of having the judge removed. Basciano’s counsel countered by saying that there simply was never any such plot to kill the judge. It is not clear if she meant that the list was not legitimate or that the list was not intended seriously.
Basciano is already serving a life sentence for racketeering, murder, and attempted murder.
SCC constitutionalizes diminished criminal responsibility for youths
If I have a theme for this week, I guess it would be “implied constitutional principles.” Following up on the California gay marriage ruling, I have another post today, this time from much closer to home.
The Supreme Court of Canada this morning issued a landmark decision on sentencing under the Youth Criminal Justice Act (YCJA). Before I get into the constitutional (and political) implications of SCC’s decision in R. v. D.B., 2008 SCC 25, I’ll start with a bit of background.
The Harper government campaigned on a promise of amending the YCJA to impose tougher sentences on youth. In particular, the Conservatives seem to have taken issue with the Supreme Court’s decision in R. v. B.W.P.; R. v. B.V.N., 2006 SCC 27 that deterrence and denunciation are not goals of sentencing applicable to youth.
Instead, the court ruled that youth sentences must be aimed at “rehabilitating and reintegrating young persons into society … by holding young persons accountable through the imposition of meaningful sanctions related to the harm done” (para 4).
Beyond the government’s desire to make deterrence a principle of youth sentencing, the Conservatives have also been trying to implement automatic adult sentences for youth convicted of violent crimes or repeat offences.
Today’s ruling in R. v. D.B. will throw a monkey wrench into Harper’s plans. Allow me to explain.
When sentencing youth under the YCJA for so-called “presumptive offences” (e.g. manslaughter), the onus was on the youth to prove why they shouldn’t be treated as an adult. D.B. was charged with manslaughter, and he brought a Charter application claiming that these reverse onus provisions of the YCJA were unconstitutional and should be struck down. The Supreme Court, by a narrow 5-4 margin agreed with him.
So the reverse onus provisions are now unconstitutional. It sounds like a rather unimportant decision that will not have a particularly large practical impact on youth criminal justice in general.
But here’s where it gets interesting.
In coming to its decision, the Supreme Court recognized a new principle of fundamental justice: an implied constitutional principle.
According to Abella J., who wrote for the majority, it is a “principle of fundamental justice that young people are entitled to a presumption of diminished moral culpability” (para 70).
Justice Abella also wrote (at para 68) that:
… a broad consensus reflecting society’s values and interests exists, namely that the principle of a presumption of diminished moral culpability in young persons is fundamental to our notions of how a fair legal system ought to operate.”
Since a new principle of fundamental justice has been implied into our constitution, the courts are now empowered to strike down legislation that violates it. Whatever attempts the government makes to amend the YCJA, they will now have to be consistent with the notion that young people have diminished moral culpability.
Conservative criticism of the decision has been swift and harsh. Check out Colby Cosh’s comments in the National Post Blog, where he says that the Supreme Court:
“… gave a command performance in the role … [of] a gang of aggressive fanatics determined to push the pace of social “progress” to a sprint, thwart the parliamentary balancing of public interests, and permanently enshrine every liberal legislative mistake of the past.”
Snappy!
