Thursday Thinkpiece: You Be the Judge

Periodically on Thursdays, we present a significant excerpt, usually from a recently published book or journal article. In every case the proper permissions have been obtained. If you are a publisher who would like to participate in this feature, please let us know via the site’s contact form.

You Be the Judge

Author: Norm Douglas
Publisher: Irwin Law Inc.
Imprint: Irwin Law
Publication Date: December 1, 2023
ISBN: Print (Paperback): 9781552216903
ISBN: Digital (PDF): 9781552216910
Page count: 248 pages; 5½” x 8½”

Introduction

Have you ever wanted to be a judge?

Here’s your chance. Sit on the dais beside criminal court judge and author Norm Douglas as he wrestles with difficult decisions that he had to make. This book presents twelve homicide cases and another twelve riveting true-crime cases where you, the reader, are either the judge or the prosecutor.

You Be the Judge provides an interactive legal exercise where the readers engage with the daily dilemmas and considerations faced inside the courtroom and gain behind-the-scenes access to the Canadian justice system. Based on Norm Douglas’s lifetime contributions to bringing the law into Canadian classrooms, the book is a testament to his career and the complexity of arriving at true justice.

Excerpt: “Chapter 3: The Drunk Woman Who Drove into a Ditch “

There are two offences that a drinking driver can commit without causing any injury or damage. The first offence is having a blood alcohol concentration over 80 milligrams per 100 millilitres of blood within two hours of driving. In Canada, you may not have the care and control of a motor vehicle (or other “conveyance”) if your blood alcohol reading level exceeds that level. Many people in Ontario are caught by the Reduce Impaired Driving Everywhere (RIDE) program, a sobriety testing program in which police spot-check drivers to screen them for intoxication. Generally speaking, one drink of alcohol or one beer will amount to approximately 25 milligrams in your blood and will be eliminated from your body at the rate of 15–20 milligrams per hour. Depending on your tolerance level, other than the smell of alcohol on your breath, you may not show any other symptoms of consumption (bloodshot or glassy eyes, slurred speech, or coordination or behavioural issues). Some experienced drinkers can tolerate large consumption without showing any outward signs of impairment.

However, according to many experts, most people show some signs of impairment in other ways once they reach a blood alcohol level of more than 50 milligrams, and there is considerable debate over what level of blood alcohol should be the legal limit for drivers. And inexperienced drinkers can show obvious impairment even after one or two drinks.

That brings us to the second offence—impaired driving.

Regardless of the amount of alcohol in your system, if, while being in care or control of a conveyance, you are showing any signs of impairment—however slight—you are committing the offence of impaired driving. Both of these offences carry an automatic prohibition of driving for at least one year as well as a fine of $1,500. Obviously, the penalties are more severe if there is an accident, injury, or death caused by your driving while impaired or over the 80-milligram limit. And—if you are not a first offender—automatic jail terms and prohibitions, including the possibility of prohibitions for life, are set out in the Criminal Code for repeat drinking drivers. Because of the catastrophic toll on our highways caused by drinking drivers, the prosecutors use little discretion in urging the courts to come down hard on them.

Here Is Your Case

A police officer on patrol in a rural area comes upon a car in a ditch on a cold stormy night. The car is running with its lights on. He discovers a woman behind the wheel, uninjured, but obviously drunk. After he helps her out of the car, he arrests her for impaired care and control (the law does not require anyone to actually witness her driving the car). She is taken to the nearest detachment where she is tested, and her blood-alcohol readings are 140 milligrams. She is lodged in a cell until she is sober and then driven home.

About a month later, she appears in court with the assistance of duty counsel and pleads guilty. The above facts are read in from the police brief and she acknowledges they are accurate, and I register a conviction (officially find her guilty). The assistant Crown suggests the usual fine and one-year driving prohibition, as she is a first-time offender. The duty counsel tells me he met with her earlier that morning and this is her story: She is in her mid-forties. She has three children. Her husband recently left her and is living with a younger woman. He pays no support. She is looking for a job, cannot afford a lawyer. She lives in the small matrimonial home on a country road, but is having difficulty keeping up with expenses, and relies on government assistance. She needs her car to drive her children to all their activities. On the night in question, she was sitting at her kitchen table after the kids were in bed. She was distraught and depressed. She was drinking a bottle of wine, intending to go to bed. She had been waiting for a social assistance cheque and realized she hadn’t gone to the mailbox that day. The mailbox was at the end of a very long driveway leading to the country road. Because of the storm that night, she got into her car to go to check her mail, intending to come right back. As she drove up to the mailbox, she ended up in the ditch. Within one minute, the police car came along. I looked over at the assistant Crown attorney (one of the best lawyers in the Crown system—now a judge) and asked, “Did you know all this?” She did not. I then asked if she would reconsider her position and find some way to avoid the minimum fine and prohibition. She asked for a short recess since she would need the Crown attorney’s permission to change the strict policy of zero tolerance for drinking drivers. When court resumed, she advised that her hands were tied, and she could not change her position.

Here was my dilemma:

I had no discretion, in law, because the minimum sentence is prescribed in the Criminal Code. Yet it seemed so unfair to me to order a fine that she could not pay and take away her licence to drive for a year. Some Legal Issues to Consider On every daily court docket across Canada, drinking drivers make their appearance. No other crime takes or maims a higher number of lives of innocent victims.

(No wonder they call themselves MADD (Mothers Against Drunk Driving).)

I nearly lost my job as a judge when I was called before the Judicial Council over remarks I made on the flimsy “two-drink defence” (known in the trade as the Carter defence) that saw so many drinking drivers found not guilty. Thankfully this defence was taken away by Parliament shortly after my adventure. So, as you consider this case, know that I was a judge not known to be “soft” on drinking drivers. I think that had something to do with Toronto lawyers specializing in these cases wanting me off the bench. You will see that our law does not require proof that the accused was actually driving a vehicle. Police can arrest you, and the Crown can prove its case, if it shows you were “in care and control” even of a parked vehicle.

Now You Be the Judge

* * * * *

My Decision and Reasoning

I agree with programs like RIDE. I salute organizations like MADD. And I have seen more than my share of grieving families who have lost loved ones to drunk drivers. However, I saw this as an exceptional case in the battle against drinking drivers. In this case, I felt the justice system needed to be tempered with some compassion. I decided to do something I had never done and have never done since: I struck her plea and found her guilty of the other offence arising out of the same transaction—namely “mischief: damaging property,” since there was minor damage to her car. “Mischief” does not carry a minimum sentence, and obviously there would be no prohibition on driving. Smart, right? Wrong. The Crown attorney appealed my decision, and the Court of Appeal struck my finding and registered a conviction for the over .80 offence. I freely admit I was wrong in law. I also understand why the Crown felt it had to appeal, and why the court of appeal corrected me. Still, I somehow feel my “creative” sentence was more “just,” if wrong in law, in these particular circumstances.