Crown, lawyers take offence
By Jeremy Ashley
Local News - Saturday, June 25, 2005 @ 10:00
While they normally square off in court, the Crown attorney and local defence
lawyers are unified in objecting to “offensive” comments made by police
brass regarding the prosecution of impaired drivers.
Friday, Crown attorney Lee Burgess and local defence lawyer Ed Kafka voiced
their discontent with the message conveyed by two senior police officers during
and after Thursday’s police service board meeting at city hall.
Police Chief Steve Tanner and Insp. Merle Foster brought forward frustrations
from front-line officers, who say they are aggravated with how impaired drivers
are dealt with when charges are brought before the local courts.
One of the problems, said Tanner, is in some cases where evidence given by
friends or associates of the accused is taken in the same gravity as scientific
evidence presented by alcohol testing completed by police officers.
Charges have been dropped in at least three impaired driving cases with similar
circumstances that have come before courts in Belleville over the past six
months, Tanner claimed.
But talk to Kafka, the head of the Quinte Criminal Lawyers Association about the
issue and how drivers facing alcohol-related offences are dealt with by the
local Crown attorney’s office.
“Relentless, it’s the only word I can think of — our Crown is relentless
when it comes to pursuing impaired driving charges.”
The 23-year veteran defence lawyer said about 90 per cent of those who are
charged with impaired driving plead guilty as a result of the pretrial system in
place in local courts.
The pretrial system allows lawyers for both sides to discuss details of the case
behind closed doors while in front of a judge, resulting in quicker resolution.
“I don’t mean (pleading) to careless driving or a lesser offence ... I
mean to the offence that they’re charged with, either impaired driving or
blowing over” the legal limit of alcohol, he said.
“It’s very rare that the Crown accepts a guilty plea of careless driving
while withdrawing an impaired charge.”
Of the remaining 10 per cent that move on to trial, Kafka said about half result
in guilty convictions.
“So you’re talking about a conviction rate that is probably 95 or 96 per
cent against people who are charged within this jurisdiction.”
Comments made by the officers “creates the wrong impression to the general
public — it makes it sound like everybody who is drunk and is driving a motor
vehicle is being found not guilty by our courts because either the judges
don’t know how to apply the law or the Crowns don’t know what they’re
doing. I can tell you, there is nothing further from the truth.
“We probably have the envy of the judicial complement for Ontario ... these
were all top litigators, they were smart individuals who know the law and know
how to apply the law as it exists.”
The message delivered by the senior officers “is offensive to the Bench and to
the Crown attorney’s office,” he said.
If motorists are being found not guilty on alcohol-related charges, “the vast
majority of it is because of improper procedures are being utilized or Charter
(of Canada) rights are being violated,” Kafka said.
“If people are being found not guilty, it’s because proper procedure is not
being followed by police and evidence gets excluded. They should look more to
their internal procedures and knowledge of the law to find out why they are
losing only about four per cent of their cases.”
Kafka referred to a case that came before the courts this past Wednesday, where
a man was charged with impaired driving and having more than the legal limit of
alcohol in his blood.
“The charges were dismissed ... because the police misplaced the video of the
individual in the breath room at the police station and the key officer’s
notes and statement that covered the key issue of the trial — whether the
person was given the right to counsel or not — was not produced for 14
months.”
“The charges were dismissed because of late disclosure.”
In the comments made by the officers, Kafka said police are saying they’re
“frustrated by the fact they’re catching all of those drunk drivers and all
of them are getting off because they’re bringing in two friends who are saying
they only had two beers and they judge is letting them off.
“I’d say that’s inaccurate ... very inaccurate. The bottom line is that if
you’re charged with impaired driving, there is a 95 per cent chance you’re
going to be found guilty.”
Given the local statistics referred to by Kafka, Crown attorney Lee Burgess said
he was also left scratching his head when police complained publicly about the
outcome of only what he said are barely a handful of cases.
“I don’t know if they’re (front-line officers) advised of the results, but
certainly the vast majority of cases are resolved with a guilty plea and with
very little expense to the public.”
The contention of police that some cases are lost because a justice sides on
with witnesses that are friends or associates of the accused relates to case law
that has been in place since the mid-1980s, he said.
“This is certainly nothing new.”
The case law is meant “to allow for the possibility there may be a problem
with the machine,” Burgess said, adding it is used in “very few cases.
“It’s still used in a minority of cases ... where there tends to be a
relatively low reading on the (alcohol testing) machine.”
Kafka mirrored the observation, saying the defence is used in “very rare,
specific circumstances.”
Meanwhile, Burgess said sometimes he shares the frustration felt by officers.
“But the judge also has to look at all the evidence and come to a conclusion
without a reasonable doubt.”
“I recognize the police have a tough job,” he said, adding the legal
guidelines for officers in collecting evidence and conducting investigations has
tightened in recent years.
An element compounding the problem, Burgess added, is the increased penalties
— both criminally and financially — for those who have an impaired driving
charge on their record.
“There is a trend of more people contesting these charges because of the
overall consequence,” he said, referring to heightened insurance rates as one
example.
“There is more of an onus on officers and a burden on us ... which sometimes
leads defence lawyers to become more creative in some of their legal arguments
and challenges.”
But Burgess said he’s always available to officers who may be troubled by the
outcome of cases.
“I have an open invitation to any officer who are dissatisfied with the
results (of impaired driving cases). My door is always open.”
613-797-3237