We have been discussing the Government’s steps to remove decision making from the courts, i.e. the justice system, and to move it in-house. Our concern is that the Government has decided that justice is not in its interest because it costs money and justice is not as effective at taking people’s money as an in-house tribunal will be. Simply put, with an in-house tribunal the Government has more opportunities to influence the process and consequently dictate the results for political and financial reasons.
We have covered many of the ways that Government can influence the process when shunting cases to a tribunal. It could never get away with this sort of mischief if the matters are in court.
Here are some of the previous posts on this topic:
Tribunalization – Ousting the Courts
Rule of Law
The End of the Charter of Rights in BC
A Secret
Findings of fact to fit a result
Subtle pressure
Sources of inside information
Peer pressure
Recently we discussed how the Government can create seemingly innocuous structures and rules to pressure adjudication at the tribunal level. Today we’re going to discuss the evidence before the tribunal.
In court you can see first hand the source of the evidence.
Before the trial starts all the judge knows is the few lines outlining the section of the legislation, the name of the offence, the name of the accused and the date of the alleged occurrence. When the trial starts the evidence is called, and in the case of a Motor Vehicle Act offence, the court learns from the officer testifying about what he or she observed and did. They may rely on certain material produced as part of the investigation. It is up to the prosecution to make their case.
When a lawyer is prosecuting the case, they may note a flaw in the evidence upon reviewing the paperwork of the officer. This is common. What is also common is that the prosecutor will not attempt to have the officer change their evidence to attempt to secure a conviction. Within very strict bounds of protocol, they may ask for clarification. If, however, there was ever a hint that a prosecutor tried to suggest to an officer to change their evidence to secure a conviction, the prosecutor would need to answer for their behaviour.
There are good reasons for this. Firstly, the evidence is what happened — in most Motor Vehicle Act offence allegations it is the officer’s actual observations and material — not something they were told was their evidence after the fact. Secondly, no one interested in the quest for justice wants to encourage officers to think that it is appropriate to change evidence to make out the facts needed for a conviction. Third, a fair trial is considered a principle of fundamental justice pursuant to section 7 of the Charter. If the prosecutor is instructing the officer on how to change the evidence to secure a conviction, this is clearly a violation of the requirement of ensuring a fair process.
How would you ever know whether this happened in a trial? It will almost always come out as a result of disclosure and cross-examination of the officer. A trial is a transparent process. The court only knows what they hear as evidence in the course of the trial. The lawyer for the accused will have reviewed the police report closely to identify issues that could assist in the defence of their client.
During the course of the trial, if it appears that the officer is changing their evidence the defence lawyer can highlight the two versions for the court, impeach the officer if necessary and ask how it came that he or she changed their story.
Thankfully this is rare because the vast majority of prosecutors in BC are very good at abiding by their obligations. And no one wants a matter to fall apart because they interfered with the evidence.
Which brings us to a tribunal. They way it is conceived in the proposed legislation to move Violation Tickets to a Government in-house tribunal is that the officer will send in their evidence. The tribunal may review it before the hearing, and it is possible that they will contact the officer. You will never know. They may ask the officer to change their evidence. You will never know. The reason you will never know is because there is no chance to cross examine the officer, no similar disclosure requirements and no prosecutor to ensure the fairness of the process.
The simple point is that, without the protection of the process that we have in a trial in open court, with a prosecutor and judge, there is no transparency in the process. And given that the Government has an interest in succeeding in Motor Vehicle Act allegations, there is motive for mischief.
In British Columbia trials in court are transparent, in that the court only hears of the evidence as it is presented and if the officer changes their evidence it will be revealed during cross examination. At the tribunal there is no such transparency, as the Government body may review the evidence beforehand and advise the officer to change their evidence to make out the allegation.
If you think that the Government is fair, you may think we’re identifying an unlikely scenario. In the next post we’ll give a couple of actual examples of how the Government has tried to get away with this.