THE LAW ON TRIAL

THE PEOPLE OF CANADA VS. THE CROWN

DOUGLAS MARSHALL October 1 1968
THE LAW ON TRIAL

THE PEOPLE OF CANADA VS. THE CROWN

DOUGLAS MARSHALL October 1 1968

THE PEOPLE OF CANADA VS. THE CROWN

THE LAW ON TRIAL

DOUGLAS MARSHALL

A civilized country either lives by the rule of law or it falls apart. Many of the laws we live under were passed in another age for a now-vanished society. Changes are promised—and will come—but not soon enough. In this issue, Maclean’s examines justice as it operates in Canada today— the people who define and mete out our unequal laws and the victims who sometimes suffer. For when any man suffers injustice, the rest of us are threatened. Our judicial system is one of the best in the world. But there are flaws, serious ones, and there is a case to answer in the matter of

THE CASE OF Petras Misevicius was so incidental that it rated a scant two inches on the back pages of one Toronto newspaper. Misevicius, 43, of no fixed address other than a slum-area bargain-clothing store he sometimes visited, was arrested at 8.55 a.m. last July 10 on a downtown Toronto street. He’d been gulping cheap wine chased with shaving lotion and was charged with being a common drunk. The police say that at 10 a.m. he was still too intoxicated to appear before a magistrate. Be that as it may, Misevicius was sober enough to experience human despair. And an hour later he was clear-headed enough to perform a rather complicated operation. He shredded his shirt into strips, knotted them together, tied one end to his cell bars, fashioned a noose out of the other end and effectively hanged himself — all in the space of the 10 minutes between cell inspections. He was the 11th person in the past 18 months to commit suicide in a Toronto police station.

Misevicius was one of those washed-up clusters of urban seaweed known as winos and consequently no stranger to a police cell. Perhaps that was the reason he lost hope. His previous encounters with Canadian justice were too many to count, stretching back far beyond the hazy alcoholic horizon of his memory. But the pattern of the encounters seldom varied and that he remembered all too well.

j irst there was always the chilling moment of the arrest. For the cops this was simply a casual j 1 bit of street-cleaning, carried out without a warrant. For Misevicius it meant he was once again losing the only thing he possessed that was worth a damn, his freedom. Next came the dry, teethchattering eternity in the drunk tank, with no opportunity to ask for bail and no money to pay it anyway. Finally he would have received his hour in court, with all the majesty and dignity the law commands: a quick trip in a packed paddy-wagon, a shambling march along a dirty underground corridor, the climb through a trapdoor into the crowded wire cage they call a dock, and the inaudible drone of bored men making big reckonings of people’s lives in a small room.

The way justice is seen to be done in Toronto these days, Misevicius would have pleaded guilty and likely been given a $10 fine or five days in jail. Then the duty counsel representing Misevicius under Ontario’s unique system of Legal Aid would have asked for time to pay. This probably would have been refused. They don’t often give time to pay for liquor offenses in Toronto. The spirit of the federal Criminal Code

is that time to pay should be the rule but the matter is left to the magistrate’s discretion. Toronto magistrates are notorious for the way they exercise their discretion.

e minimis non curat lex, runs one of the old Latin tags lawyers like to toss around (usually because the meaning of the maxim is too fuzzy to survive translation). The law is not concerned with trifles. Misevicius was certainly a trifle. His only standing in society

was that he was a member of it. No civil libertarian could passionately plead his case. Nothing that was done to him was, strictly speaking, illegal; it was merely inhuman. Yet what happened to Misevicius should obviously concern us if not the law. As John Diefenbaker, an honored guardian of rights, puts it: “Time to pay should be mandatory. What is done unto the humblest of us could be done unto us all.” The otherwise empty death of Petras Misevicius gains some meaning by raising a basic question: how healthy is a judicial system that mechanically metes out jail terms to drunks until they eventually — if somewhat messily — dispose of the problem by disposing of themselves?

The verdict is unavoidable. Our justice is in pretty poor shape. No one questions that the overall structure is not only sound, it’s better than most. But there are aspects of the law and the way it operates in this country that frankly stink — with the dankness of harsher days, with the sourness of inefficiency and delay, with the rottenness of persistent abuse. There is something fundamentally cruel about the way police misuse their powers of arrest, something clearly discriminatory about the bail system, and something blatantly unjust about the presumption of guilt associated with detention before trial. There is more than a trace of sadism in the punitive mentality that haunts a bench filled mainly with former prosecutors. There are sections of our Criminal Code that should make a civilized nation blush with collective shame. And there is evidence in certain of the practices countenanced in provincial jurisdictions that the law, with a fine contempt for the rest of society, sometimes chugs backward rather than forward.

Anyone doubting this verdict can’t have been listening to the sound of anger in Canada. In the last few years scattered murmurings of doubts about the judiciary have merged into an unprecedented howl. In the first half of 1968 there was hardly a responsible newspaper in the land that didn’t carry one or more editorial articles attacking facets of the legal system. Commissions and committees at all levels of government are currently asking / continued on page 76

conlhmetl from page17

Why an arrest when a summons would serve justice better?

where our law has gone wrong, with Ontario’s massive Inquiry into Civil Rights hy former Chief Justice James McRuer providing the most lucid and comprehensive criticisms yet mounted. Independent experts inside and outside the legal profession present reports almost weekly, questioning everything from the Supreme Court of Canada (the nine judges are divided into liberal and conservative c a m p s and it’s a gamble who you get) to the policing of prostitutes (the courts often promote promiscuity rather than deter it).

The growing sense of outrage is beginning to shift some boulders. Today there is more co-operation and less buck-passing between Ottawa, responsible for defining the letter and procedures of criminal law. and the provinces, responsible for the law's daily administration.

In a move initiated by Prime Minister Trudeau, the Criminal Code is being peppered with scatter-gun reforms, covering everything from homosexuality to cruelty to animals. The distinction between morality and legality is at last sinking into the Canadian consciousness. What started the Liberals down the road to majority government was the electorate's wholehearted agreement with Trudeau’s view that the law “has no business in the nation's bedrooms.”

Ontario plans to improve the overall quality of its magistrates and has introduced a Legal Aid scheme many consider the fairest in the world. Quebec recently streamlined its civilcode procedures. Attorneys-general in most other provinces are committed to promises to peer into this reform or that abuse.

Even so, it would be easier to kill all the lawyers than to speed up changes in the law. The process of reform, no matter what the pressures, proceeds at the petty pace of a life sentence. Justice Minister John Turner expects it will take five years just to push through the amendments to the Criminal Code currently contemplated. Meanwhile, dockets remain pregnant with undecided cases and justice miscarries with unacceptable frequency. In a crowded Toronto court last spring Magistrate Clare Morrison heard a prisoner plead guilty to a theft charge and summarily handed down a four-year sentence — only to learn later that he had snipped four years out of the life of the wrong defendant. That mistake was caught but other victims of the mysterious machinery of justice have

not always been so fortunate (see pages IS and 19). And such ugly tnise-en-scènes as the suicide of Misevicius continue to present themselves for our consideration.

Delays in reforming the law compound the already extensive delays in the carrying out of the law. This is the key weakness in both the civil and criminal systems of justice. In our

overburdened civil courts it can take as long as three years to get a judgment in a simple tort. By that time, says Turner, the aggrieved may almost be beyond redress. The Justice Minister suggests that one way to unclog the channels would be to create a new body to deliberate specifically on automobile cases, which now represent 80 percent of the civil rolls. Aside from that, each province has its own peculiar problems in civil justice. What's needed in most jurisdictions is simply more judges, more buildings

and more money for administration.

But it's the delays in criminal law, the law that should apply evenly to all Canadians, that most clearly offend the layman's sense of fair play and produce the most damaging cases of injustice. There's something repugnant in the spectacle of the Crown, with all the powers and facilities of the state behind it. demanding that an individ-

ual be retained in custody because the prosecution’s case isn't ready or because a court reporter hasn't yet typed out a record. For these and other reasons, it is high time we put the Crown in the dock: the officers of Her Majesty’s courts in Canada have a lot to answer for.

Reform-minded lawyers are agreed that the gravest indictment of the Crown arises out of the injustices that can befall an accused man before his case even comes to trial. In a widely admired 1965 study. Detention Before

Trial, Professor Martin Friedland of the University of Toronto Law School presented a chilling catalogue of the abuses of arrest and bail procedures that had grown up in Toronto. Most of the same abuses can be found in every Canadian city. Friedland concluded that the pretrial practices “operate in an ineffective, inequitable and inconsistent manner” and argued that a complete re-thinking of these procedures is required: “The period before trial is too important to be left to guesswork and caprice. At stake in the process is the value of individual liberty. Custody during the period before trial not only affects the mental, social and physical life of the accused and his family, but may also have a substantial impact on the result of the trial itself.” Just what is the purpose of pretrial procedures? In theory, the one and only object of the exercise is to ensure that the accused person appears in court to answer to the charge against him. During this period, the whole weight of Anglo-Canadian jurisprudence presumes he is innocent. To understand how this theory is perverted in Canadian practice. let's follow the hypothetical case of John Doc. charged with indecent exposure.

The first questionable thing that happened to Doe was the arrest itself. As with a high percentage of these types of offenses, it was made without a warrant in answer to a telephone complaint. Now the police, in what many liberals consider a retrograde step, have been endowed with increasingly wider powers to arrest without a warrant. But it so happens that indecent exposure is not one of the offenses where this is possible — unless the police catch the man in the act. The arrest of Doe. who had zipped up his fly long before the police arrived, or possibly never unzipped it at all, was constitutionally illegal.

Secondly, it's hard to see why Doe should have been arrested even with a warrant. Arrest carries an unavoidable stigma and the law is clear that, except in the most serious offenses, a warrant should never be issued when a summons would be sufficient to compel the appearance of the accused in court. Statistics show that a summons would almost certainly have been obeyed by Doe. In the remote chance it wasn't, it could always have been followed up by a warrant. In England, summonses are the rule and warrants the exception. In Canada, it's the other way around. Friedland found that the accused was arrested rather than summonsed in 92 percent of the 6.000 Toronto cases he studied.

The police penchant for arrests demonstrates a major breakdown in one of the historic safeguards of outcivil rights. To obtain a warrant, police must go before a justice of the peace and show good reason why an arrest rather than a summons is necessary. But because of increasing collaboration between police, JPs and magistrates — sometimes their offices are all in the same building — justice is sacrificed to expediency. The McRuer report notes: “More frequently than not. when the police officer asks for a warrant he gets one without demonstrating the need for it.”

Once arrested and inside a police station, Doe found himself part of a highly punitive; topsy-turvy world that seemed to assume he was already guilty. Conditions in the lockups are far worse than those provided for persons found guilty and sentenced to jail. Intimidation, degradation and discrimination are common elements of a version of pretrial punishment often indulged in by police. “In the eyes of the police,” observes Friedland, “everyone in the lockups tends to be on the level of the common drunk.”

Despite his confusion and bewilderment, Doe may have remembered the axiom learned on his father’s knee that he was allowed one phone call. If the call wasn't completed, he was out of luck. For the record, the one-call-only rule seems to be another example of expedient police practice. The law is cloudy in this area. The right to counsel is guaranteed in the Bill of Rights but nowhere is it clear just when in the pretrial procedure this right can be exercised. The Supreme Court of Canada ruled in one case that police refusal to permit a man to get in touch with his lawyer — he made one call but the number was busy — did not affect the course of justice. Such thinking strikes many a nonlegal mind as nonsense. It should be mandatory, as it now is in the United States, that a man can contact his lawyer immediately on arrival at the police station — whether it takes one phone call or a dozen.

The law requires that Doe appear in court for arraignment as soon as possible, and in urban areas, where courts sit daily except Sunday, cer-

tiiinly within 24 hours. If he was arrested at night or during a weekend, Doe’s chances of being released on bail before his first court hearing were slim. Bail can be set only by a magistrate or a JP. In Toronto there are no night courts (except for traffic offenses) and only one or two JPs making the rounds of 20 police divisions. The situation is similar in other parts of Canada. In Montreal many of the court officers with power to set bail don’t even have their phone numbers listed. As a consequence, Friedland found, only 12 percent of the persons held in custody were bailed from police stations.

I he objection to custody before trial is not merely that it presumes guilt. Custody is also prejudicial to the outcome ol the case. For a variety of reasons, including the psychological effects of detention and highly developed police interrogation methods, persons held in custody are more likely to plead guilty. Friedland’s data bear this out: guilty pleas came from 40.4 percent ol the cases involving custody compared with only 29.8 of the eases where the accused had been summonsed or bailed. Friedland concludes that custody "affects the accused’s ability to engage counsel, hinders his attempt to present a proper defense and increases the likelihood that he will be sentenced to imprisonment if convicted.”

There are several obvious solutions.

Night courts should immediately be established in all urban areas and far more JPs put into circulation around the lockups. In addition, both Friedland and the McRuer report recommend we adopt the English practice of allowing police officers to release the accused on his own recognizance — in effect grant bail — after serving him a notice that he must appear before a justice at a certain time and place. An even more attractive idea comes from Professor Desmond Morton, an expert in criminal law at Toronto s Osgoode Hall Law School. Morton suggests copying the Puerto Rican system ol having a permanent 24-hour court to which all arrested persons must be taken before being removed to a police station. The court can then decide whether to free the accused, bail him or consign him to custody.

Logic on its head

Morton’s proposal is not only good law, it also makes sense to the lay mind. Present Canadian practice seems to stand logic on its head. The police have wide powers to arrest people without a warrant and detain them until a JP says they can be released. Wouldn’t the principles of justice be better served by making it mandatory for police to release all arrested persons unless a JP says they can be detained?

However, such proposals would still fail to correct the most invidious injustice of the whole pretrial procedure — the practice of demanding cash bail in advance. I his practice is both needlessly complex and utterly discriminatory. It makes nonsense of any claim that the poor man and the rich man are equal before the law. For example, look at what happened to poor John Doe. In his first appearance before a magistrate he pleaded not guilty and was consequently remanded in custody until a date could be set for his trial. Bail was set at $300, an amount arrived at not by assessing his ability to pay or the likelihood of his absconding, but because it was the standard level for the offense Doe was charged with. Doe couldn’t raise the cash and, because of arcane legalistic technicalities, couldn’t pledge his own real property as security. That left him with a choice. He could either go to a professional bondsman, whose practices are theoretically illegal in this country but who nonetheless thrives here; or he could go back into custody. If he chose custody, he didn’t lack companions. Friedland found that in 62 percent of the cases he studied, bail could not be raised at the first appearance.

The basic refohn needed in the bail system is to eliminate the demand for security in advance. This is an American concept (bondsmen are legal in the United States) that has somehow

crept into Canadian practice. No security in advance is required in England and none was envisaged in our own Criminal Code. The original concept of bail was simply that the accused or his sureties acknowledge in a recognizance — a promise — that they would owe a designated debt to the Crown if the accused failed to show up for his trial. Says Friedland:

"In Canada we have combined the American practice of requiring security in advance with the English prohibition against professional bondsmen or indemnification in any form. Thus the practice in Canada adopts the most restrictive features of both the English and the American systems . . . By simply reverting to the original concept of bail, many of the ills of the system would be cured.”

Once a case comes to trial, Canadian law in most respects is on much firmer ground. The checks and balances of five centuries of precedents and the scrutiny that comes with open hearings usually ensure that justice is seen to be done. An exception is the conduct of justice in our Juvenile Courts. Many of these are little Star Chambers with no twinkle to them at all. In the interests of protecting the underaged accused, the hearings are usually held in camera and records are seldom kept.

"The result is that anything goes,” says Claude-Armand Sheppard, an aggressive 33-year-old Montreal lawyer who is carving out a shining reputation as the top counsel in civil-rights cases. “In Quebec recently I heard a judge say to a child, ‘Go down on

your knees and apologize to Christ.’ The closest I've ever seen to 1984 this side of the Iron Curtain is what goes on in our Juvenile Courts. Everything is well-intentioned; but then so was Big Brother. The U.S. Supreme Court has ruled that juveniles are entitled to the same rights as adults. We should have that here.”

Not all of those adult rights are as clear-cut as they should be. Although the higher courts generally function smoothly, there are a couple of weaknesses in the system that worry a prominent defense lawyer like Toronto’s Arthur Maloney. One practice Maloney objects to is the Crown's right to cross-examine the defendant on his criminal record. This is permitted in Canada on the grounds that it is a test of the defendant’s truthfulness. But it also creates an overwhelming prejudice in the minds of the jury, no matter how much the judge may caution that the evidence is irrelevant to anything except credibility. In England the Crown has no such right unless the defendant is advancing his good character as a defense.

A more serious problem, says Maloney, is the cloudy question of pretrial confessions and illegally obtained evidence: “It is basic that no man should be allowed to convict himself out of his own mouth. All the present rules are pretty useless. The best solution would be to rule as inadmissible all pretrial statements made by defendants but allow all the evidence that results from these statements to be presented in court. This would result in more efficient police work, just

as many convictions and better justice.”

Sheppard, Maloney’s counterpart in Montreal, disagrees with the proposal. He would allow confessions to be admissible as evidence because confession can help the prisoner He would outlaw all illegally obtained evidence.

Both lawyers, however, are in total accord on the subject of our archaic sentencing methods. They argue that the sentences handed down by most members of the bench are excessively punitive and completely out of tune with modern theories of treatment. Says Sheppard: “The law is the only institution, except perhaps marriage, where people don’t learn from their mistakes. After centuries of failing to control crime with severe sentences — failing in a shocking, disgusting manner — we still administer more of the same. Why don’t we face up to it? Punishment doesn’t work. We have to learn to accept the treatment approach and also the inevitability of some crime.”

Maloney questions what qualifications judges have for passing sentence at all. They are seldom experts in criminology, psychology or sociology. They have been trained to find guilt, not to assess what punishment a convicted man deserves. He suggests we study the idea of California’s Sentencing Board where a panel of social scientists, presided over by a judge, reviews the case and decides on the type or length of sentence most likely to achieve rehabilitation of the prisoner. Since there is no sign that our bench is growing any more enlight-

ened, such a board as Maloney proposes should be set up as soon as possible. Canada has an overall prison population of some 24.000. On a per capita basis, this is twice as high as Britain’s. And there's plenty of proof that our unshakable faith in 19th-century penal theory is sadly misplaced. Of the 7,000 inmates serving terms of two years or more in penitentiaries, 80 percent have been in prison before.

A new vindictiveness

After sentence has been passed, every prisoner has the right to appeal. But even here, where the machinery of justice is supposed to be giving an accused man his last chance to right a wrong, the Crown can’t resist being vindictive. In recent years, presumably to discourage an unseemly rash of appeals, appellant courts have fallen into the habit of increasing some sentences on their own initiative. For example, in Ontario a few years ago a young prisoner, acting on his own, decided to appeal his sentence. He had been given four years and any experienced lawyer could have told him that, for his particular offense, he had gotten off lightly. Certainly the appeal judges thought so. Instead of reducing his sentence, they increased it to six years.

“This is a defect in the law that ought to be eradicate d.” says Arthur Maloney, who happened to be an uninvolved observer of that particular case. “If I had been that young man, I could imagine myself feeling like murdering somebody

The quickest way to cure this and most of the other ills of our criminal law would be to rewrite the Criminal Code from Arrest and Bail through the alphabet to Vice and Writs. Many lawyers feel that Ottawa should provide more direction from the top by conducting a continuing survey of the Code instead of making massive piecemeal revisions every 10 years or so. In spite of those revisions, the present Code is substantially the same in philosophy and language as it was when Britain’s Sir James FitzJames Stephen first drew it up in 1892. (Britain rejected the Sir James version; Canada embraced it.) It still contains such absurdities as the death penalty for piracy and its definition of obscenity remains a perfect model of incomprehensibility.

More important, there are certain areas of the Code that have become repellant to anyone of liberal conscience. The section that makes it possible to impose preventive detention — life imprisonment — on habitual criminals may have seemed a good idea when it was introduced in 1947; but it is now clear the experiment has failed. “A lifetime in a penal institution is cruel.” says Maloney. “There can be nothing worse than to give a prisoner a sentence the duration of which he cannot foresee.” Still worse, the legislation has been systematically abused in practice. Of the 132 persons convicted as habitual criminals since 1947, 50 have come from British Columbia — all since 1963 — as a result of a supposedly justified war

on crime by a particular crown attorney.

Two other sections of the Criminal Code make good lawyers uneasy. The harsh law about having carnal knowledge oí a girl under 16 is ridiculous in a society in which 16-year-olds look like 25. Consent by the girl and ignorance of age should be a defense in these cases. And the provision concerning minimum sentences obviously leads to injustice. For instance, a person convicted of theft from the mails, whether he stole five dollars or $5,000, cannot receive a sentence of less than six months in prison. Magistrates arc deprived of their powers of discretion.

The second major avenue to speedy reform is the need to give some dignity to the external appearance of the law. With few exceptions —Calgary’s well-designed chambers and the new court buildings in St. Boniface, Manitoba, and Burnaby. British Columbia, stand out — magistrates’ courts and offices in this country are incredibly dingy and constantly overcrowded. In one Ontario town the magistrate conducts court in the furnace room of a library. In another city the magistrate's office is also the receiving room for the city morgue. Magistrates’ courts handle more than 90 percent of all criminal charges in Canada. Yet the public’s right to have justice administered in surroundings that convey some respect for the law have been consistently ignored.

The third vehicle for reform, and the one that perhaps overrides all others, should be the introduction of a uniform, federally administered Legal Aid plan. Without it, justice will always remain less than just. “No court should be allowed to try a man without counsel,” says Claude-Armand Sheppard, “even if he refuses one. The accused man shouldn’t be able to reject legal aid any more than the dying man can reject medical aid. And it is imperative that we have, on the defendant’s side, the same facilities and laboratories that are at the service of the Crown.”

Ontario’s comprehensive Legal Aid plan, which is run by lawyers and carries no premium, is acknowledged to be superb. Its effectiveness was proved when the number of acquittals showed a healthy increase in the first year of operation. But the plan’s very success created problems by adding to the judicial disparities that already exist in Canada. It's intolerable that criminal justice should now be better practised in Fort William than it is across the border in Winnipeg. The second drawback of the Ontario plan is the cost — already $6.7 million a year and rising fast. The poorer provinces just don’t have the sort of money available. A national plan could only be worked out by employing some system of federal grants.

Not all legal experts are convinced of the need for Legal Aid. John Diefenbaker, for instance, believes the same ends could be achieved if prominent barristers followed the British tradition of taking on worthwhile defense cases regardless of (he possible fee. But an articulate majority of law-

yers, unlike the doctors with Medicare. are pushing for Legal Aid with the best arguments their precisely trained minds can muster. And a few visionaries, such as Frank Scott, former Dean of the McGill Law School and the hero of the 1950s legal battles against the authoritarianism of Premier Duplessis, see the law developing far beyond the Legal Aid stage.

“The private practice of law has reached the limit of its development,” says Scott. “It is currently being carried to extremes that are too costly. Justice is as important as education. Education could never be universal if it were carried out by private practitioners and private institutions. We’ll have to get rid of the private practice of law in some way and adopt public methods in our legal system comparable with those in education.”

Scott is undoubtedly right. A system of free law for all is as inevitable as the taxes we'll have to fork out to finance it. But nothing much will be gained for the common good if the law itself continues to be symbolized by assembly-line justice in noisy furnace rooms and the creak of suicides swinging on police-cell bars.

On top of the copper dome of Old Bailey, London’s Central Criminal Court, gleams a gilt statue of Justice complete with sword and scales. The only thing missing is the blindfold. This was deliberately left off to indicate that, contrary to popular legend, justice is not blind in England. There is no figure of Justice either outside or inside any of the federal buildings in Ottawa, which could be considered significant in itself. But on the nearby Carleton County Court House there is a blackened metal plaque on which Justice can be dimly perceived. This Justice has her blindfold firmly in place. Perhaps it’s about time she took it off and started looking around. ★