Friday, August 19, 2011

Herald Editor Needs Hackers

Okay, maybe just some diligent fact-finding would do.

I say this in response to the recent Herald editorial comment entitled "Impaired Judgment" which discusses the impaired driving sentencing decision of Alberta Provincial Court Judge Anne Brown in the case of Dominika Duris.

In a piece clearly and personally aimed at an individual Judge's integrity, the Herald Editor professed with erudite credibility and confidence:

"Clearly [Duris] didn’t learn her lesson. Nor will she, as long as the courts fail to hand an appropriate sentence that reflects the seriousness of the crime. The judge was wrong to ignore Duris’s first driving conviction, which had taken place by the time of sentencing in the second offence. Her circumstances changed, and the judge should have taken that into consideration while sentencing.

That Duris won’t pay the price is a serious travesty of justice, that compounds the tragedy of the death of an innocent young man who had his whole life ahead of him."

First of all, before naming a judge and saying that she was wrong in discharging her sworn duty to uphold the law, you might want to determine the facts and get a legal opinion. This is particularly so because judges are in almost all cases not entitled to publicly respond to such criticisms at risk of losing the appearance of impartiality...and to improperly say a judge was wrong breeds serious and false public contempt for our justice system and for our democratic institutions.

Secondly, to lay the burden of a 'travesty of justice' at the feet of a judge for the consequences of a crime that was not in court before her is not only distasteful but blatantly asinine. Judge Brown was expressly not punishing Ms. Duris for her crime that killed an innocent young man in Ontario - and had she attempted to get a little extra discipline for that crime THEN she most certainly would have been wrong in law.

If the Herald Editor thinks that Duris should have been given a more serious sentence for impaired driving causing death, then he can research the facts of the Ontario case and make a comment about that matter (also after getting a legal opinion so as to not just ignorantly slag that judge).

Thirdly, Judge Brown's sentence was not the minimum sentence for impaired driving - the fine of $2,300.00 (which I rather suspect was a $2000.00 fine plus 15% Victim Fine Surcharge) is significantly more than the $1,000.00 mandatory minimum.

Fourthly, Judge Brown was presented with a joint sentencing submission by Crown and defence - which the Supreme Court of Canada has indicated must only rarely be departed from by a sentencing judge, and only where it can be stated that the proposal would be unjust in law.

Which brings us to the fifth point...the submission of the lawyers and the decision of Judge Brown was not wrong in law. In 1982 in a case called R. v. Skolnick, the Supreme Court of Canada had almost this exact situation before it on an impaired sentencing matter and summarized the law (which is completely binding on Judge Brown whether she or the Herald Editor like it or not) as follows:

(1) The number of convictions per se does not govern in determining whether the Coke rule applies.

(2) The general rule is that before a severer penalty can be imposed for a second or subsequent offence, the second or subsequent offence must have been committed after the first or second conviction, as the case may be, and the second or subsequent conviction must have been made after the first or second conviction, as the case may be.

(3) Where two offences arising out of the same incident are tried together and convictions are entered on both after trial, they are to be treated as one for the purpose of determining whether a severer penalty applies, either because of a previous conviction or because of a subsequent conviction.

(4) The rule operates even where two offences arising out of separate incidents are tried together and convictions are entered at the same time.

The Coke rule was explained by a 1962 ruling cited in Skolnick as follows:

"It may be thought to be anomalous that if a man commits the offence of drunken driving and then repeats the offence before being convicted of the first offence he escapes the increased minimum statutory penalty in respect of his second offence. But Lord Coke, the great 17th Century judicial defender of the rights of the individual, said over three centuries ago that a man may not lawfully be subjected to an increased statutory penalty as for a second offence unless he had deliberately broken the law again after being convicted and receiving punishment for a first breach of it. The law has been taken to be so settled ever since.

This three century old canon of construction of penal provisions of this kind is broadly based on principle and does not depend upon the precise language used in a statute. It ought not to be excluded unless the legislature has plainly said so."

So, in 1962 the law had already said FOR 300 YEARS that what Judge Brown did was right. By my math that says that to do what the Herald Editor's gut feeling tells him is right, Judge Brown would have had to simply ignore 349 (and a half) years of precedent.

A quick review of the legal databases shows that in 2010 and 2011 this principle has been explained, referred to and applied by courts in B.C., Saskatchewan, New Brunswick, Nova Scotia, Ontario and Quebec.


Well, I suppose the problem for the Herald Editor was that he doesn't have access to these legal databases and where could he possibly have looked to get the facts (since using hackers would be wrong)?

I wonder if he could have read his own paper?

In a comprehensive and detailed report of the case, longtime Calgary Herald court reporter Daryl Slade, who likely actually observed the proceedings, did crazy things like interviewing the lawyers and reporting the facts:

After noting that Judge Brown accepted a joint sentencing submission, Slade diligently reported the comments of the prosecutor and a representative of MADD:

"[the prosecutor] said outside the Calgary court following the hearing that he could not treat Duris as a repeat offender, thus subjecting her to at least 30 days in jail.

"At the time of this driving offence, she was not convicted of the prior offence," Hadford explained, "so we can't rely on it as a previous conviction."

Tracy Franklin, president of the Calgary chapter of Mothers Against Drunk Driving, said she understands why such a sentence was meted out, but is frustrated with the message it sends."

Double Huh...

So the Herald court reporter (who practically lives in criminal courtrooms every day) got the Crown to basically articulate the 349 1/2 year old legal principle for the record and had a representative of the most renowned anti-drunk driving organization confirm that she understood the reasoning of Judge Brown's sentence and that led to a personal attack of the integrity of the judge the next day in the Editorial column?

Shame on you Herald Editor.

You should apologize immediately and profusely for an unwarranted attack on one of our system's most diligent, intelligent and committed jurists. And if you are not going to hire any hackers (who ironically, while acting criminally were actually doing so to obtain true facts upon which to base stories) maybe read your own publication's lawfully sourced articles before shooting your mouth off.

Michael Bates
Calgary Criminal Lawyer