March 2016

The law can be difficult to understand, particularly for people who have limited encounters with the justice system. In order to ensure citizens are aware of the law, the Government is required to publish the law and make it available for people. You can’t be presumed to know a law that you don’t have access to. And the right to know the law isn’t a privilege that is only due to those who can afford lawyers.

But the law isn’t just what is written in statutes and legislation. The law is also, largely, controlled by the interpretation of those statutes and the rules around the application of legal principles. This is known as the common law. And this is where things become complicated in the Immediate Roadside Prohibition scheme. There have been numerous cases discussing the burden of proof, the assessment of credibility, inference drawing, and the interpretation of the Motor Vehicle Act in IRP cases. The problem is that the majority of those cases aren’t publicly available.

How is this fair? How do people know what the law is, when they can’t see it in action?

In principle, the #IBelieveSurvivors crowd is absolutely correct. And when it comes to accessing victims’ services, counselling, support, and simply being taken as credible amongst friends, family, by the police and by prosecutors — when it comes to all that, there is no reason to discount the #IBelieveSurvivors rhetoric. Since the verdict in Jian Ghomeshi’s highly publicized criminal trial for sexual assault, many people have criticized the justice system for failing to follow the basic premise that survivors of sexual assault will not fabricate their accounts.

But that same rhetoric has no place in a criminal trial. It is contrary to the fundamental principles of justice in this country, and contrary to any fair and just system of criminal law. As difficult as it may be to accept, we have to stop trying to think about a criminal courtroom as a space that either belongs to or should belong to victims of crime. Rather, the criminal courtroom is a space that belongs to society as a whole.

I’d like to take this blog post to write about why it is dangerous to allow that type of thinking in a criminal courtroom.

Both myself and my colleague, Paul Doroshenko, are known for the ways in which we stick our necks out in the interests of justice. Doing so has its benefits, mostly because we know we are sticking up for the little guy and there is great satisfaction that comes from fighting for a cause that you believe is just. I am particularly active in defending Immediate Roadside Prohibition cases, and have advanced numerous complex, technical, and creative legal arguments. I do not always succeed, but I do cause the Superintendent of Motor Vehicles some difficulty.

However, there are also downsides to doing what we do. And if you’ve noticed the silence in my blog as of late, the downsides are part of the explanation.