British Columbia is a Province famous for its natural beauty, multiculturalism, and its expensive real estate. It has also recently become well known for its tough laws on those caught drinking and driving. In September 2010, the new Immediate Roadside Prohibition (IRP) scheme was unveiled. We all remember the controversy surrounding the strict legislation – severe consequences were handed down to those caught driving with a BAC (Blood Alcohol Content) of over .05. The citizens of B.C. were assured that these strict rules would, over time, greatly decrease the number of alcohol related deaths on our roads. What they weren’t told, was that this decrease in alcohol related fatalities, would cause an increase in unjust, unfair, and even fraudulent prohibitions for drivers caught in the crosshairs of the IRP regime. It wasn’t long after these laws were put into effect that British Columbians started to question the fairness of it all. The case of R. v. Sivia would eventually make its way to the Supreme Court of Canada, to be reviewed by The Honourable Mr. Justice Sigurdson. After months of review, Sigurdson agreed that parts of the IRP scheme were in fact unconstitutional. This led to an amendment of the B.C. Motor Vehicle Act. These amendments increased the onus on the police to follow proper procedure, and added an “adequate appeal process” for drivers who had been issued IRP’s. One of the most important amendments to the Motor Vehicle Act is Section 94.3, which relates to the duties of a Peace Officer when issuing an IRP:
94.3 A peace officer who serves a notice of driving prohibition on a
person under section 94.1 must promptly forward to the superintendent
(a) the person’s licence or permit to operate a motor vehicle, if the peace officer took the licence or permit into possession,
(b) a copy of the notice of driving prohibition,
(c) a certificate of service, in the form established by the superintendent, showing that the notice of driving prohibition was personally served on the person subject to the driving prohibition,
(d) a report, in the form established by the superintendent, sworn or solemnly affirmed by the peace officer, and
(e) a copy of any certificate of analysis under section 258 of the Criminal Code with respect to the person.
These amendments at first glance seem to provide relief to the issues previously noted in Sivia. However, continue scrolling through the Motor Vehicle Act, and you will find an absurd and blatant contradiction in regard to 94.3 (d). Section 94.5 of the Act reads as follows:
94.5 (1) In a review of a driving prohibition under section 94.4, the superintendent must consider
(a) any relevant sworn or solemnly affirmed statements and any other relevant information,
(b) the report of the peace officer forwarded under section 94.3 (d),
(c) a copy of any certificate of analysis under section 258 of the Criminal Code with respect to the person served with the notice of driving prohibition,
(c.1) any other relevant documents and information forwarded to the superintendent, including peace officers’ reports that have not been sworn or solemnly affirmed and the copy of the notice of prohibition.
Section 94.3 (d) and Section 94.5 (c.1) are clearly hypocritical of each other. The purpose of amending the Motor Vehicle Act was to provide a remedy to the unconstitutional parts of the IRP scheme. Legislators seem to have either made a careless mistake, or, more likely, they had crafted Section 94.5 (c.1) as a safety net for individuals appealing their IRP under the basis of a technicality, such as not having the officer properly swear or solemnly affirm their Report to Superintendent.
This is an issue that my office recently faced with a client who had received an IRP. In her case, the investigating officer who submitted the Report to Superintendent failed to have the Report properly sworn or affirmed. The Commissioner had mistakenly signed in the area designated to indicate whether the Officer was swearing or solemnly affirming, instead of signing the jurat provided for his or her signature. After reviewing the new sections of the Motor Vehicle Act, it seemed as though this client could have her prohibition overturned on the basis that the report was not in proper form, as per Section 94.3 (d). This was clearly argued in her written submissions done by our office. When the Adjudicator from OSMV (Office of the Superintendent of Motor Vehicles) rendered his decision on her Prohibition, he simply stated that there was “intent” to sign in the correct area; the Commissioner had simply been mistaken. The Adjudicator made no reference to the new legislation, even though it was provided right to him.
In my opinion, the Adjudicator’s ruling was unfair, unreasonable, and sent the message that if the police “intend” to do their jobs properly, they cannot be held responsible for making a procedural mistake. It makes me wonder what the point was of even amending the legislation. It almost seems like in this case, the legislation regarding duties of a peace officer was treated as a guideline to proper police work, rather than what it really is – a law.
The client has now made the decision to take her matter in front of a Supreme Court Judge for the purpose of a Judicial Review. The outcome of that hearing will be posted on our blog in the near future.
This week, British Columbia’s Attorney General, Shirley Bond, announced that the government would abandon the direction it gave to Crown prosecutors to make Applications to televise the legal proceedings of those accused of crimes relating to Vancouver’s Stanley Cup riot. The government appears to have had this change of heart after it’s first Application was dismissed against Mr. Ryan Dickenson – who is the first person being sentenced in in relation to the riot. The judge felt that the Crown did not provide enough information to support the Application – namely the cost associated with televising these legal proceedings.
I really could go on & on about how inappropriate I felt these “RiotTV” applications were in the first place. I am a firm believer that cameras have no purpose in our courtrooms. Of course, there is the reasonable argument of transparency and that having cameras would better educate people on how the justice system functions. But to those people I say walk down to your local courthouse, read case law, order transcripts of court proceedings, if you’re so inclined. The risks of having cameras in courtrooms, in my opinion, far outweigh the benefits. A criminal trial is a ‘truth-seeking’ exercise. Witnesses may be hesitant to give full accounts of their evidence if they know the world is watching them. Lawyers may tailor their questioning of witnesses for the same reasons. Judges may be reluctant to decide a case in a certain way if it is deemed to be unpopular with the public. Prosecutors worry about their personal safety. In fact, all participants in a criminal trial worry about their personal safety. No one wants their face frozen in time on YouTube – and in this day and age, that is what happens. I see what happens on TV in American courtrooms and I do not want Canada’s justice system to go there.
But why did Premier Christy Clark demand that these particular offenders be put on TV? She said something along the lines of “well they committed their crimes on camera, therefore they should have no problem being dealt with by the courts while on camera”.
The logic in that is ridiculous. I have had dozens of clients who’s criminal acts have been captured on CCTV cameras – for murder, break & enter, sexual assault, DUI’s and drug offences. Crimes, which I argue, are far worse than some of my clients who stand charged in relation to Vancouver’s riot.
So why didn’t the government seek to televise these other crimes caught on camera? Because there was nothing to be gained politically from doing so.
The fact of the matter is this: June 15, 2011 was an awful day in Vancouver’s history and the government tried to gain politically from what happened that day. In doing so, they tried to interfere with the justice system’s independence. This ultimately blew up in their face. The BC Liberals are quite out of touch with the ailing state of our justice system – and it is largely due to the financial cutbacks they imposed over the last decade. Legal Aid is seriously reduced for those who need legal representation. We need more judges. We need more sheriffs. The system is in crisis.
RiotTV was nothing more than a political stunt. I accept that being “tough on crime” is attractive to voters – but the manner in which the government tried to appear tough on crime was only intended as a diversion from the real problems our justice system is facing. I think the public saw through the political stunt from the beginning – and the public will remember this when the next provincial election is called.
I’m learning how to blog. Facebook I use mainly for social purposes. My Twitter account focuses on issues relating to my law practice. Nevertheless, social media is ever-expanding and it’s hard to find a person today who isn’t engaged in using social media in one way, or another.
If you follow me on Twitter, you know that yesterday I had a brief, heated dialogue with a media outlet that tweeted something quite untrue relating to the court case of a client of mine. For the record, the reporter who made the honest mistake (and I dobelieve it was an honest mistake) has since retracted the tweet and I’m sure the mistake will not be repeated. But I’m assuming the erroneous tweet was made in a rush to deliver some ‘breaking news’, but the facts were wrong before it was sent out. This is one of the risks associated with Twitter.
I can sympathize with what happened yesterday because I’ve been in that situation myself – I sent out tweets that later regret and wish I could take back (I deleted them asap, but I know many people have likely already seen the tweet). For myself, there was a steep learning curve when I started using Twitter and I learned a couple Golden Rules when using Twitter:
1) Make sure you are certain that what you are saying is true and factually correct, and
2) Don’t tweet when you are overly emotional (ie: pissed off, upset etc.).
Coincidentally, yesterday Chief Justice Beverly McLaughlin of the Supreme Court of Canada gave a speech to some university students about how Canada’s justice system needs to embrace and better understand the reach of social media. Today, reporters want to tweet information from inside courtrooms, jury trials have been jeopardized because jurors have been caught tweeting/googling cases they’re sitting on, and Facebook profiles have been places where evidence for criminal and civil trials have been gathered. These are some of the many issues that Madam Justice McLaughlin likely anticipates that the justice system will have to come to grips with as social media’s relevance expands in our society. I thought it was great that our country’s top judge has taken such a progressive approach to better understanding social media’s impact on our justice system – and I know it will have a trickle-down effect to courtrooms across Canada.
What are your thoughts on social media’s role in our justice system? Should judges tweet about cases they are deciding? What about Crown prosecutors? Would the public gain a better understanding about a particular case if these players were permitted to do so?
I do not know the answers to those questions… but if they do tweet, they should follow my two Golden Rules above.
“Officer, I know my constitutional rights. Firstly, I refuse to speak with you, other than to identify myself. I further refuse to consent for you to search my person, or my residence, or my motor vehicle. I wish to speak to my lawyer immediately. If I am under arrest, please tell me why. If I am not under arrest, I wish to leave.”
Crime and the media go together like peanut butter and jelly. Laugh, but it’s true. It’s almost like they need one another to exist to their fullest potential. The news without a good crime story feels incomplete. On second thought, the media needs to report on crime more than the criminals care to have their cases blasted in the press. Nevertheless, this is a bit of what I have learned about the interesting relationship between the two:
“If it bleeds, it leads”
Open your local newspaper, or regional paper, or even national publication. Actually, you do not even have to open it past the front page on most days to see that the headlines on the front cover usually deal with a crime-related story. Crime stories grab readers attention as they are usually events that are out of the norm and describe the impact on the victims of the alleged criminal act. Getting more readers’ attention usually translates into more sales for the media company. Pretty simple formula.
Personally, I do not too much weight to articles and/or news stories on TV when they report upon a story the day it took place. These stories are often inaccurate and sensationalized due to the chaos or high emotions surrounding the event.
I start to pay attention once the matter gets inside a courtroom.
Once the trial proper begins, this is when and where you can start sifting through what is fact and what is fiction. Here, the witnesses give their sworn testimony and are subject to cross-examination. There are a lot of eyes focused on deciphering what is likely to be truth ie: the judge, 12 members of the jury, crown prosecutors, defence counsel, and of course the friends and/or family of the victims to the alleged crime. It can be a dramatic experience as the trial’s process sifts it’s way to the truth of what occurred many months prior.
Of course, inside that courtroom are likely to be court reporters, too. Sometimes they arrive in your courtroom by chance after scouring the daily courtlists looking for a ‘juicy’ story, or sometimes they have had the start of your client’s trial marked in their calendars for many months, as it was one of those events that “bled and led” months ago.
In my career as a criminal lawyer, I’ve come to know many of Vancouver’s courtroom reporters – and I like most of them. But it wasn’t always that way. When I first started practicing a few years ago and I had a reporter inside my courtroom, I’d too often get all hot & bothered if I didn’t agree with how a reporter wrote about the evidence that was heard in court that day. I’d fire off an email, call into the newsroom, or simply pull the reporter aside the next time I saw him/her and let them know where I thought they went wrong in their writing. However, I found that such an approach was quite exhausting and only added to my already stressful job. In short, I stopped worrying about what courtroom reporters wrote because 1) they are going to write what they want anyways, and 2) they are writing for a newspaper for an objective in mind – selling more newspapers.
What does surprise me, still to this day, is how little formal legal training many courtroom reporters have. Much of it becomes apparent in their writings, as they misinterpret various technical motions, weight of particular witness’s evidence, and various Orders from the judge prior to a verdict. I really do think that a formal legal education, in combination with journalism training, would make the best courtroom reporter. In a perfect world I guess.
The manner and speed in which reporters get their stories out to the public has changed incredibly. Not only are there massive satellite trucks parked outside the courthouse for the ‘major’ trials so that information can be relayed straight to your TV for the noon and six o’clock news, but also more judges are permitting the use of Twitter in the courtroom, which I find to be a very fascinating tool. Yet has Canada’s criminal justice system permitted cameras inside of courtrooms for trial – and I hope it remains that way. If cameras were permitted, it could affect the manner in which a vulnerable witnesses gives evidence, if s/he knows that there are many more eyes watching the trial from the comforts of their living rooms. I also know many reporters have arguments for cameras in courtrooms.
One thing I do know which I have learned in my few years of practice is be careful what you say to the media when you are asked for comment. Sometimes it is not in your client’s best interest, or your own interest to speak to the media prior to the verdict in a criminal matter. I have been misquoted before, and that has reallybothered me.
My practice today is that when I am asked by a reporter for a comment, I often say”email me your questions and I will happily answer them”. This way there is a record of what is said, and it also provides myself with some time for a ‘sober second thought’ before answering. I’ve even engaged in Q&A sessions over Twitter with some reporters, which was a positive experience, too.
The media and criminal justice system are always going to be intertwined. They don’t teach you deal with the press in law school, that’s for sure. These are just some things I’ve learned along the way after a few years of practicing law. And in law school, they don’t teach you how to write blogs. Sorry if there are grammatical errors. 😉
