Criminal Justice in the '80's: A Time of Challenge and Change
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The Empire Club of Canada Addresses (Toronto, Canada), 9 Oct 1986, p. 38-50
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Scott, The Hon. Ian, Speaker
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Text
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Speeches
Description
The dangers, inherent in the speaker's position as Attorney-General of Ontario, of getting swamped with day-to-day issues and neglecting the important role of the administration of the criminal justice system. The main issues of concern are: "the criminal justice system is undergoing a major crisis of public confidence which threatens its integrity as a major institution of the civilized state; the crisis arises because public expectations of the system are not being met; the root of the public's lack of confidence rests on an ambivalence, or at least an uncertainty, about what the criminal courts should be doing." A proposal for the contemporary reformulation of the role of the criminal courts in our society, and suggestions as to how this reformulation can lead to a restoration of public confidence. A detailed discussion of this issue, with proposals and suggestions, follows, couched in terms of challenges and how to meet them. The issue is first placed in an historical context, followed by a description of a new vision of criminal justice and how it can be achieved. The beginning of an adoption of a more complex and pluralistic conception of criminal justice, which has led to an increase of stress and strain on the system. An outline, review, and examination of current problems and questions facing the challenge of change. Preserving the value of the Rule of Law itself.
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9 Oct 1986
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English
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The speeches are free of charge but please note that the Empire Club of Canada retains copyright. Neither the speeches themselves nor any part of their content may be used for any purpose other than personal interest or research without the explicit permission of the Empire Club of Canada.
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Full Text
"CRIMINAL JUSTICE IN THE '80's: A TIME OF CHALLENGE AND CHANGE"
The Hon. Ian Scott Attorney General of Ontario
Chairman: Nona Macdonald President

Introduction:

Where law ends, tyranny begins. So said William Pitt in 1770. The tradition of British law is one of the inheritances we cherish. It is fitting then to have among The Empire Club's first speakers of the season the Attorney General of the Province of Ontario. Ian Gilmour Scott is well-fitted for this onerous responsibility. His childhood was spent in Ottawa in a family of lawyers, indeed, four generations of them.

He went to Ashbury School, then graduated from Osgoode Hall and the University of Toronto and was called to the Bar in 1959. He articled to William Howland, our Chief Justice. Civil litigation, labour relations and administrative law have been his main interests, providing an ideal background for his current position.

Like his lawyer brother David, he has served as counsel on many public inquiries: The Grange Commission on the Hospital for Sick Children, the Berger Commission on the MacKenzie Valley Pipeline, the Kingston Penetentiary Riot Inquiry and the Attorney General's Task Force on Legal Aid.

In addition he taught at U of T, Queen's and Osgoode Hall. He is a fellow of both the American College of Trial Lawyers and the International Academy of Trial Lawyers.

Ian Scott's community work includes leadership roles in the John Howard Society of Toronto, the United Way, the Canadian Civil Liberties

Association and the Canadian Environmental Law Foundation. He is active in the Board of Trade, the Canadian Bar Association and the Medico Legal Society.

In 1985, he was elected in the midtown Toronto Riding of St. David and a month later became Attorney General as well as Minister responsible both for Women's Issues and for Native Affairs.

Ladies and gentlemen, for a newcomer to government, who says he finds the Question Period in the Legislature a real trial, let us hear what he has to say about Criminal Justice in the 1980s: A Time of Challenge and Change, Ontario's Attorney General Ian Scott.

Ian Scott

It is now sixteen months since 1 left the private practice of my profession, the law, and was sworn in as the Attorney General of Ontario. The challenge of this new life has been exhilarating. Inevitably as you would expect, much time is spent simply trying to cope with the daily crises which seem to arise continuously in the life of an Attorney General. The crisis-oriented nature of the job is, of course, one of its great attractions-every day presents a new set of challenges to be faced and, if possible, overcome.

But a crisis-management agenda has its drawbacks as well as its attractions. Any Attorney General soon fears that he may fall into the trap of focussing exclusively on the countless discrete problems, many of some difficulty, which cross the desk each day and thus lose sight of the larger issues. One such larger issue arises from the fact that the Attorney General has an important part to play in the administration of the criminal justice system. Indeed, there can be little doubt that it is his most important state responsibility.

As a result I am grateful to the Trustees of The Empire Club for their kind invitation today. It provides an opportunity to step back from the day-today issues which occupy an Attorney General's time and to reflect with you on the challenges which confront the criminal justice system in the late 1980s. It is a profoundly important question on the public agenda and 1 beg your indulgence to speak seriously about it.

The thesis I intend to present and develop can be summarized: 1)the criminal justice system is undergoing a major crisis of public confidence which threatens its integrity as a major institution of the civilized state: 2) the crisis arises because public expectations of the system are not being met; 3) the root of the public's lack of confidence rests on an ambivalence, or at least an uncertainty, about what the criminal courts should be doing.

I then propose with your permission to propose a contemporary reformulation of the role of the criminal courts in our society and suggest briefly how this reformulation can lead to a restoration of public confidence.

We begin by acknowledging the obvious: this province, and indeed this country, has long enjoyed one of the finest systems for the administration of criminal justice in the world. That system of independent and impartial criminal justice has been one of the basic pillars of our democratic tradition.

It has served us well for several generations. Yet, in assessing where we stand today, I think it must be conceded that there are unprecedented challenges facing us. Those challenges go to the very root of the system, namely, the public's faith in the system's ability to deliver justice fairly and expeditiously.

If the man in the street were asked to describe the criminal justice system and how it works, l think his description would be something like the following: The State through its Parliament or Legislature makes a list of morally repugnant acts which citizens, in the interests of order, are not permitted to commit.

That is the law. The police investigate an allegation that such act has been committed, a trial is conducted to determine if the allegation has been made out; if it has, a sentence of fine or imprisonment is imposed. Sentence is imposed not only as a punishment to signal the revulsion of the community but as a deterrent to others who may be disposed to do the same thing. That is the vindication of the law by which civil order is maintained.

Increasingly the average citizen has begun to believe that the present system fails in its ability to perform those functions in a satisfactory way. Many believe police investigations to be lengthy, unproductive and sometimes oppressive. Others believe the trial process to be long, too expensive and unfairly delayed; the result too often dictated by strict adherence to technical rules. In addition, some now assert that the system does not either punish or deter. There is thus an increasing sense among the public that persons accused, either with or without the assistance of lawyers, are thumbing their nose at the system.

The causes of these current challenges are complex and difficult to identify. However, in essence, I see our current problems as related to a subtle but fundamental shift in our notions of the purposes which the criminal justice system is designed to serve. We have failed to recognize and come to terms with this shift in our perceptions and with the strains and the costs associated with it.

There are at least three sets of challenges that are particularly significant.

The first set of challenges arises because the nature of criminal law, and therefore criminal justice, has altered. Before World War 11, in a relatively homogeneous society, there was a shared moral perception, a shared community value, that enabled us to define impermissible conduct. There was then, and happily still is, no doubt that murder, robbery, theft and a host of others were properly defined as criminal. Because the public accepted to a high degree the very definition of crimes, the police and the Crown were seen as being about the public's good work; and, after the judge's determination of guilt or innocence, there was general respect for the inherent justice of the adjudication process.

But beginning about the time of the Second World War, two things happened. Parliaments and Legislatures, in response to perfectly reasonable public demands, began to radically expand the category of crimes for which fine or imprisonment were appropriate penalties. The list ran all the way from the wilful evasion of income tax to the commercial pollution of rivers and lakes. The laws that the public expected to be enforced by the criminal law increased one hundred fold.

At the same time, an increasingly pluralistic society began to find that the consensus about what was criminal began in many instances to disappear. For example, the Legislature's law about Sunday observance and Parliament's law about abortion, generally acceptable to the community one or two generations ago, became the subject of intense public debate. There is a host of other examples.

The courts thus found themselves being asked to fine or imprison persons in circumstances where there was no or little public consensus about whether the conduct alleged should be defined as a crime at all. The sense of shared values, the very sense of community, upon which the criminal law and the criminal justice process was founded and built began to atrophy.

The second set of challenges arises out of the enactment of the Charter of Rights in 1982. The Charter is perhaps the single most significant legal event of the past fifty years. In little more than four years, the Charter has forced significant and pervasive changes in the criminal justice system and its process. The most significant effect of the Charter has been to increase the power and the visibility of the judiciary.

The courts now have the power to scrutinize in a more rigorous and systematic fashion the manner in which the police investigate and the Crown prosecutes crime.

The courts also have a new responsibility to measure the validity of statutes against the open-ended constitutional guarantees set out in the Charter. Increasingly, then, the judge is seen not as one who simply applies Parliament's law, but as one who by virtue of the Charter brings his own perceptions to the propriety of that law.

As we, as a society, begin to see the practical effects of the Charter on criminal justice, some aspects of the new ground rules that are imposed are becoming controversial.

One question that has been raised by some critics is whether the Charter will have the effect of unnecessarily inhibiting law enforcement. This summer, for example, l had the pleasure of speaking on a panel with the Attorney General of the United States, Edwin Meese.

In Mr. Meese's view, one of the negative consequences of our Charter is that it provides accused persons with an opportunity to escape prosecution by taking advantage of technical mistakes made by the police. Mr. Meese contended that it is improper to attempt to punish the police by allowing individuals who may be guilty of criminal offences to go free.

Another question is whether the Charter will upset delicate legislative balances designed to affect or control important social or economic policy. In a recent Canadian case, a section of the Narcotic Control Act provided that a person demonstrated to be in possession of a narcotic had the burden of persuading a court that he had possession solely for his own use and not for the purposes of trafficking. When our courts declared this section unconstitutional, those who criticized it tended to foous on the judges who made the decision rather than on the Charter which mandated it. There is abroad some sense that we were moving toward a system in which man, not law itself, set the rules.

Another controversial aspect of the Charter is the extended period of time required for the appellate courts to decide constitutional issues. It usually takes two or three years for a constitutional challenge to work its way up to the Supreme Court of Canada. Occasionally otherwise responsible citizens have been led to conclude that, notwithstanding the determination by our highest provincial court that conduct is illegal, they are nonetheless entitled to carry on until the Supreme Court of Canada speaks. While we wait for our highest court to resolve these issues, both the accused and the Crown are thus placed in a kind of "legal limbo" in which neither is certain of its rights and responsibilities. This, in turn, leads to confusion and controvery in the mind of the public.

The third set of challenges facing the criminal justice system in the 1980s is the increasing delays and backlogs in our criminal courts. These delays are largely a product of the growing complexity and length of criminal trials. Cases have also been complicated by the application of the Charter and the rights it guarantees and more recently by other federal legislation such as the Young Offenders Act. And, finally, there are shortages of adequate court facilities with many of our existing buildings more than one hundred years old, outdated, too small and well below current building code standards.

In short, I think it would be fair to say that the criminal justice system in this province is facing challenges that go to the very root and integrity of the system. This is a matter not simply of concern to those directly responsible for administering the system but is a matter that should be and is of concern to all citizens. Public confidence in the justice system and the Rule of Law goes to the heart of our social fabric. The question which naturally arises from this review of these challenges is how, as a society, we ought to respond.

To answer this question, l think it is necessary to return for a moment to first principles and to ask what it is that we hope to accomplish through the criminal process in the first place. Why is it that we value our criminal justice system so highly and what are the background ideals that give substance and value to that system?

It seems to me that, when we state the question in this fundamental way, it becomes apparent that there are basically two quite distinct visions of the criminal justice system which confront us.

The first vision might be termed the traditional or "law enforcement" conception of criminal justice. It is an uncomplicated approach to the criminal law. According to this first vision, the criminal law embodies the fundamental moral principles or beliefs of our society. The criminal justice system exists simply to enforce those publicly declared rules in as rigourous and effective a manner as possible.

This vision has great appeal at the present time to many of our friends and colleagues south of the border; its current vigourous and ingenious advocate is the present United States Attorney General. His guideposts are a court committed to a "strict construction" of the Constitution, a denunciation of judicial activism wherever it may show its head and a return to a system in which the judge in criminal matters merely applies, but does not interpret, the law.

I think it is fair to say that this simple historic conception of the criminal law is now increasingly outdated. The nature of Western civilized society has unalterably changed. The developing pluralism of our community, the debate about the moral values upon which it is based, the absence of shared values, the frequent lack of consensus about what should be prohibited by law, and what should not, has probably put this original conception of the criminal justice system beyond recall. It might for some be a happy and comforting thing to return to an earlier age when the traditional law and its enforcement model had general public acceptance; but it is only the dreamers or the incurably naive who would expect this to occur. The clock cannot be turned back; nor can the tide be ordered to recede.

In fact, the traditional law enforcement model has given way to a second vision of criminal law which is based on and emphasizes the fact that the system serves a variety of competing and often controversial purposes. And this second vision involves, difficult as it may be, abandoning the idea that we all accept the same set of shared values. If shared values means values about particular principles, about what counts as a decent or moral life, about what counts as justice or fairness, we are divided about all that. And many think, rightly I believe, that we should be a poorer community if we were much less divided about those issues than in fact we are.

The rationale for this new model of the criminal justice system and its core value to a pluralistic society is the notion of human dignity and human freedom. Its supporting theory runs something like this: law exists to enhance and deepen ordered liberty and individual autonomy. Law in general, and the criminal law in particular, should be structured and enforced so as to maximize the opportunity for individuals to choose for themselves how they will lead their lives. The pluralistic conception recognizes the reality that modern society's moral values are not fixed and unchanging.

The criminal law, therefore, cannot exist simply to mirror a fixed moral code. Instead, the criminal law is itself an instrument of social policy which can be used to consciously shape and refine moral values, to adapt them to changing circumstances, not simply to reflect them.

The new vision of the criminal justice system represents an attempt to limit, not to enforce, moral absolutism. The pluralistic conception builds on the idea that individuals hold a multitude of conflicting and often irreconcilable moral view points. Law should not be translated into the harsh dialect of a faction. The cornerstone of this system, including its criminal law component, should be the attempt to find common ground between competing viewpoints to assure maximum liberty, rather than to attempt to impose the moral imperatives of one group upon another.

As Professor Ronald Dworkin points out, if we as a pluralistic society are now without "shared values," we must move forward in our criminal justice system to a finer sense of fairness in process, a recognition that, although we differ about objectives and ends, we are nonetheless in the same lifeboat knowing that what we decide for one we decide for all and conscious in the end to leave no wounded behind in our search for justice.

It is no doubt true that our current system of criminal law embodies some of the elements of both of these contrasting visions of our criminal law. However, in general terms, I think we have seen a movement away from the traditional law enforcement vision of criminal law and an increasing acceptance of the values associated with pluralism. We have seen an emphasis in particular on the importance of individual rights and human dignity both domestically and internationally.

In the international arena, while there remains much injustice and oppression, there has at least been a growing awareness of the overriding importance of human rights, reflected in documents such as the Helsinki Accord. Domestically, of course, the language of rights has assumed new importance since the enactment of the Charter. The pervasiveness of the language of rights if reflected by the fact that virtually all interest groups now attempt to frame their arguments in terms of rights.

Coupled with these developments is a growing awareness that the criminal law can be used to shape public attitudes rather than simply reflect them. In Ontario, for example, we have had great success in reducing the association between drinking and driving. The problem has not been eliminated, but it has certainly be reduced significantly. We hope to undertake the same kind of program to deal with another major social disorder, domestic violence.

In short, the traditional law enforcement vision of the criminal law no longer fits present reality. The criminal justice system today serves a wide variety of purposes in addition to those of strict enforcement.

What is the connection between the two themes 1 have been developing thus far-on the one hand, the increasing stress and challenge to the criminal justice system and, on the other, the shift in our underlying vision of the purposes of the system? The connection, of course, is far from simple. But I would suggest that, as we have begun to adopt a more complex and pluralistic conception of criminal justice, this has led to a certain amount of stress and strain on the system.

First, there is the simple problem of resources. The new vision of the criminal justice system cannot possibly be run on the resources assigned to finance the older, simpler historic model. The emerging emphasis on individual rights which the Charter dictates is extremely costly for the justice system. Trials have become longer and are more complex. Police investigations must be more painstaking and exact. The interests not only of the accused whose rights may have been violated but also of victims and witnesses must be taken into account and protected. Our judges must be more highly trained and sensitive to the competing social interests which are increasingly at stake in a criminal trial. Our existing court facilitates must be expanded to handle trials that are the result of this new conception of criminal justice.

Second, there is a whole series of difficult moral and political questions that have been introduced into the system, questions for which there are no easy or simple solutions.

How, for example, are we to balance the rights of accused persons on the one hand against the rights of victims on the other? How can we balance the rights and interests of groups who do not have a shared or common perception about the propriety of criminal law? The interests of those who want to shop on Sunday and those who don't? The interests of those women who seek an abortion and those women who believe any abortion is a crime against nature?

How can we balance the right of society to see a thief punished against the right of a citizen accused of theft to be fairly treated in the investigative and prosecutorial process? Should victims of crime be involved in the criminal process in some way?

How can the criminal justice system cope with the long period of delay and uncertainty as constitutional challenges work their way up through the appellate system to the Supreme Court level?

What all of these questions suggests is that, if we are to meet the challenges facing the criminal justice system, we are going to have to do at least three things:

First, we are going to have to recognize and respect the task that we have assigned to our judges, which is simply to make the difficult adjustments that are required in the application of the law between the rights of the community on the one hand and the rights of the accused on the other. To pursue Dworkin's analogy, the judges are like the captain of a ship deciding which ten passengers may enter the lifeboat.

Justice must recognize that majorities do not always rule. Justice must recognize that arbitrary rules (the ten smartest, the ten oldest, the ten youngest) are not always appropriate. Justice in a rights-oriented society compels our judges to devise a rule which is sympathetic to the rights of the individual and which at the same time takes account of the necessity of public order. When we fully understand the subtle and critical exercise in which our judges in the criminal process are engaged, we will have at least laid a foundation upon which public confidence in the process itself can be restored.

Second, we are going to have to acknowledge that we are willing to allocate a greater proportion of our scarce resources to the criminal justice system, if we are to maintain public confidence in it. This means more and better training for our police forces, as well as raising the sensitivity and the skills of our judges and our lawyers. Otherwise, the long-term result will not be the enhancement of human freedom. Rather, we will see increasing stress placed on the system and the erosion of public confidence in it.

Third, I think we have to resist the temptation to return to our earlier, more simple, conception of criminal justice and to deepen our commitment to the values of pluralism and individual rights. When confronted by moral ambiguity and uncertainty, there is always a certain attraction to apparently simple or black and white solutions to complex moral problems. We are facing precisely this type of moral ambiguity in our court system, as we see intractable problems such as abortion and Sunday closing facing our courts.

As a lawyer and as a politician, the value which must be preserved before any other in such debates is the value of the Rule of Law itself. Regardless of our personal views on any of these particular moral issues, it is absolutely essential that we resolve to act according to law and observing the value of due process. The importance of the Rule of Law, of course, has been referred to on many occasions. However, a particularly eloquent argument in favour of these values is contained in a speech given by the Governor of New York, Mario Cuomo, in a speech he delivered to the Department of Theology at the University of Notre Dame in 1984. Let me leave you with his words:

"I protect my right to be Catholic by preserving your right to believe as a Jew, a Protestant or non-believer, or as anything else you choose.

"We know that the price of seeking to force our beliefs on others is that they might some day force theirs on us.

"This freedom is the fundamental strength of our unique experiment in government. In the complex interplay of forces and considerations that go into the making of our laws and policies, its preservation must be a pervasive and dominant concern."

The appreciation of the meeting was expressed by John Campion, Partner, Faskin and Calvin, and a Director of The Empire Club of Canada.

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Criminal Justice in the '80's: A Time of Challenge and Change


The dangers, inherent in the speaker's position as Attorney-General of Ontario, of getting swamped with day-to-day issues and neglecting the important role of the administration of the criminal justice system. The main issues of concern are: "the criminal justice system is undergoing a major crisis of public confidence which threatens its integrity as a major institution of the civilized state; the crisis arises because public expectations of the system are not being met; the root of the public's lack of confidence rests on an ambivalence, or at least an uncertainty, about what the criminal courts should be doing." A proposal for the contemporary reformulation of the role of the criminal courts in our society, and suggestions as to how this reformulation can lead to a restoration of public confidence. A detailed discussion of this issue, with proposals and suggestions, follows, couched in terms of challenges and how to meet them. The issue is first placed in an historical context, followed by a description of a new vision of criminal justice and how it can be achieved. The beginning of an adoption of a more complex and pluralistic conception of criminal justice, which has led to an increase of stress and strain on the system. An outline, review, and examination of current problems and questions facing the challenge of change. Preserving the value of the Rule of Law itself.