2.06.2013

Judge Dredd: Coming Soon to a Street Near You?


I try not to be an alarmist, but in my day job as a criminal lawyer, my observation is that there is a slow creep in Canada, the U.S. and Britain away from civil liberties and an erosion of due process. There are already aspects of a police state at play, in my view, and I think this is a reason why the Judge Dredd comic resonates with so many people and especially with me. I just think of one case I'm working on where literally all of the evidence that the Crown intends to use against my client would not have been admissible 20 years ago (and had inadmissible since at least the 17th century). Yet it will probably all be admitted when we get to trial.

As part of a different case I recently argued in Court, reference was made to a particularly disturbing passage from an October 2012 decision of the Canadian Supreme Court, Her Majesty the Queen v. Boudreault, "anyone found inebriated and behind the wheel with a present ability to drive will — and should — almost invariably be convicted." The Crown Attorney certainly asserted that this passage means what it says: any person found drunk in the driver's seat of the car, regardless of his intentions and what he's actually doing there, should be convicted.

The Canadian parliament and courts, at the behest of MADD, have certainly been heading in that direction. In British Columbia, the authorities have taken a different tack, instituting draconian Highway Traffic Act laws that allow police to impound vehicles and suspend licenses on the spot (rather than resorting to Criminal Code) charges when they encounter suspected drunk drivers. Now, while stopping drunk driving is a laudable goal, annihilating due process, is not the way to do it in my opinion. But in any event, it certainly smacks of a precursor to a Judge Dredd-style system where the police act as judge, jury, and executioner, dishing-out on-the-spot "justice" without a trial.

5 comments:

Sophia's Favorite said...

There is no violation of due process involved in taking suspects into custody without charging them, unless you keep them past the allowed limits (which vary from place to place). There's a period you can keep people without charging them, in all common-law jurisdictions, to make sure actual offenders don't leave while you're still figuring out what's going on. Suspending licenses and impounding vehicles comes under a similar heading. (I can't even fathom what you mean by "regardless of his intentions"—intoxicated people do things they don't intend, that's why you take a drunken friend's car keys away from him.)

As for evidence being inadmissable, this is the problem with the Anglo-American justice system, it treats trials as a debating club. No evidence that isn't fake should be inadmissable; if it was acquired by wrongdoing, you charge the people who got it with the relevant crimes and you end their careers, but you damn well don't let guilty people go free. Any state that lets demonstrably guilty offenders loose because of procedural errors is putting its bureaucratic rules ahead of the civic good.

Nicholas D.C. Wansbutter said...

Good sir, you're a decent chap and I like you quite a bit, but you're really talking nonsense here.

No, suspending licenses on the spot and a vehicle forfeiture is a punitive measure. It has nothing to do with the investigative process.

As for the "regardless of intentions" it is a long-established axiom that a man is only to be convicted for what he HAS done, not what he MIGHT do. Please stop and consider how outrageous that comment is: "intoxicated people do things they don't intend" ... by this logic drinking alcohol should be illegal, or you should be arrested for murder when drunk because you MIGHT get into a fight and kill someone when you're drunk (it happens all too frequently).

And the admissibility of evidence has a very real function in defending the innocent. The particular evidence I was writing of is hearsay evidence. The very reason hearsay evidence has been traditionally inadmissible is because it's notoriously unreliable (ever played the telephone game as a kid?). But now, in the name of "don't let guilty people go free" this stuff is routinely admitted absent the "crucible of cross-examination" which -- if you spent time in a courtroom as I do on a daily basis -- you'd see really DOES test the veracity of evidence.

Now allow me to anticipate the rest of our debate:

SOPHIA'S FAVOURITE: So, now you give the Devil the benefit of law!

N. WANSBUTTER: Yes! What would you do? Cut a great road through the law to get after the Devil?

SOPHIA'S FAVOURITE: Yes, I'd cut down every law in England to do that!

N. WANSBUTTER: Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Sophia's Favourite, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!

Sophia's Favorite said...

Just because jail-time is a punitive measure doesn't mean detaining suspects, pending charges, is a punishment that violates due process; the same is true of suspended licenses and impounded vehicles.

And I really can't see any trouble with charging a drunken person in the front seat of a car with DUI. Maybe they should have the sense to stay the hell away from the driver's seat of a car while drunk. They put a drunk person near the control apparatus of dangerous heavy machinery, their "intentions" are irrelevant. Maybe "DUI" is the wrong charge, but how about reckless endangerment? Seems accurate to me.

Your "arrested for what they might do" argument is simply a strawman. DUI and drunk-and-disorderly are separate crimes from vehicular manslaughter and second-degree murder precisely because we need to control the intoxicated, without charging them for what they might do. They have already committed an offense of negligence by placing themselves, while intoxicated, into a dangerous situation.

As for inadmissible evidence, I completely forgot hearsay; the main thing one hears of as being "inadmissible evidence" in America is things learned from non-Mirandaized confessions. And that really is blatant nonsense debating-club talk. But a quick look at Wikipedia reveals that R. v. Starr and R. v. Khan set precedent for admitting hearsay evidence as long as it is "reliable and necessary", which of course can mean almost anything. So on that point I stand corrected—hearsay was not admitted by the Spanish Inquisition, let alone the legitimate ones, and most "common law" protections originated in the ecclesiastical courts.

Nicholas D.C. Wansbutter said...

Khan and Starr were just the beginning -- the thin edge of the wedge, so to speak -- things have gotten worse since then.

There is also the issue of propensity or "prior disreputable conduct" evidence. As recently as 15 years ago Canadian Courts were (rightly, in my view) saying: "Propensity reasoning also imperils the overall fairness of the criminal trial process. It is a fundamental tenet of our criminal justice system that persons are charged and tried based on specific allegations of misconduct. If an accused is to be convicted, it must be because the Crown has proved that allegation beyond a reasonable doubt and not because of the way the accused has lived the rest of his or her life. An accused must be tried for what he or she did and not for what he or she is …" (R. v. Batte, Ont. C.A.)

But, unfortunately, this has been greatly relaxed.

M.R. Zapp said...

Excellent post, comments and movie reference! :) I agree, it is getting entirely out of hand. It is already to the point in the U.S. where those who are suspected of a crime are treated as if though it were already committed. I think, too, in certain cases, because of the media involvement, the verdicts and sentencing are affected by what the public desires and the judge looking to the future of his career.

On a completely separate note (but it does pertain to your blog!) they are making a movie of Ender's Game set to come out in November of this year.

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