Friday, October 26, 2007

Snakes and Ladders and Rights and Freedoms?

The Toronto Star reports on rather astonishing remarks by Mr. Justice David Doherty, the longest serving Justice of the Court of Appeal for Ontario:

When guilty people go free because their constitutional rights have been violated, there's a danger the public will begin to see the Charter of Rights and Freedoms as little more than "a game of snakes and ladders," a judge of the Ontario Court of Appeal says.

The criminal justice system has to face up to this problem or it runs the risk that Canadians will stop embracing the Charter as a statement of national principles and start treating it as a "lawyer's technical manifesto," Justice David Doherty told a legal conference in Toronto Friday.

It seems to me if you get to the point where there's a perception the Charter has, in fact, become a game of snakes and ladders, where criminal trial results depend on things that have nothing to do with the merits of the case, the public perception will be these rights are not really rights that are important to us," he said.

Speaking at the annual conference of the Criminal Lawyers' Association in Toronto, Doherty pointed to the United States as an example.

Despite an astonishing array of legal rights, its citizens are reaching the point where few genuinely believe in those rights and don't expect them to be enforced, he contended.

And when legal rights are seen as "technicalities" that enable criminals to get away with crime, it becomes all too easy to forgive a police officer who fabricates evidence to convict a suspect, Doherty said.

In Canada, courts themselves are to blame for the problem, he said. They have done an inadequate job of explaining the principles underlying decisions to exclude evidence or acquit people on Charter grounds - such as why it's important to restrict how far police can go during their investigations, Doherty suggested.

I'd be interested in the Learned Judge's source of information suggesting the American public has ceased believing in Constitutional rights and no longer expects them to be enforced.

While that sentiment may arguably find some sympathy in the White House and among its 25-30% electoral hardcore, I suspect the balance, and overwhelming majority of Americans, would beg to differ. Loudly.

Public relations should not enter in any judicial equation concerning protection of Charter freedoms. The Courts' job is to apply the law, not to lobby the public or enter into controversial debate.

Judges do critical work in the criminal justice context as the key pillar of our society mandated to limit governmental abuses and to protect constitutionally guaranteed individual rights and freedoms. In Canada, our Courts have historically done so with rational analysis and thorough reasoning - and not with an eye to political fallout.

When judges regrettably frame important discussions about Charter protection with simplistic and limited references to criminals who walk due to so-called technicalities, they invite the remainder of the debate to be limited to those issues.

That contributes to the dumbing down of public discourse.

In the American experience, this has become the problem, rather than a part of the solution.


UPDATE: The Globe and Mail also covers Justice Doherty's remarks - see Uneven abilities led to erratic Charter decisions, judge says:

The early years of the Charter of Rights were marked by erratic decisions rendered by judges with uneven intellectual abilities, the Ontario Court of Appeal's most senior judge said yesterday.

“The Charter had given constitutional jurisdiction to every mutt in the country,” Mr. Justice David Doherty told the Criminal Lawyers Association annual conference. “The first thing that had to be recognized is there was going to be a huge spectrum of intellectual ability addressing these very important questions.

“The results were consequently going to be all over the place,” said Judge Doherty, a senior prosecutor in Ontario's Crown Law Office when the Charter came into being in 1982.

- Garry J. Wise, Toronto

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