In a way, you gotta feel kind of bad for Rhys Mitchell. In a way.
Charged with drive over .08 in early 2009 , he’s now seen his case go through every level of Manitoba’s courts.
The provincial court convicted him. The Court of Queen’s Bench acquitted.
Now, after many months of deliberations, the Court of Appeal has ruled to re-instate his conviction, setting up a potential Supreme Court battle.
His case is one that affects all Manitoba motorists stopped by police who then enter into an impaired driving investigation.
Mitchell’s case focused on whether the RCMP officer who appeared at his window after pulling him over on Roblin Boulevard early one January morning had grounds to form a “reasonable suspicion” Mitchell may be impaired may have alcohol in his body (see below) and request he blow into a roadside testing/screening device [not a breathalyzer, but an ASD].
The overall tension this case presents is clear: On one hand, police can’t, — if they’re to uphold the Charter — just randomly stop and ‘search’ drivers with their ASD test demands.
On the other, they can’t enforce the law and try to keep streets safer if the legal requirements to test people at the roadside are just too onerous.
As Justice Michel Monnin’s 21-page decision to overturn Mitchell’s acquittal shows, the lower courts spent a lot of time fretting over Mitchell’s comments to the officer, namely that he’d had a “couple of beers at a friend’s house” earlier and how that figured into “reasonable suspicion.”
Both those courts also found his Charter rights against unreasonable search and seizure had been breached, but only the QB found the remedy for the breach should be to toss the ASD result.
In the end, Monnin comes to the — in my view — common sense conclusion that it’s the overall circumstances of the stop and totality of the officer’s observations which leads to getting past the “reasonable suspicion” hurdle — that Mitchell’s rights weren’t breached.
From the decision:
I am not prepared to go as far as saying that a simple admission of alcohol consumption by a driver is, in and of itself, sufficient to provide reasonable grounds on which to base an ASD demand, as each case must be considered on its own facts. From a common sense perspective, however, it would be rare, if ever, that there would be an admission of alcohol consumption with nothing else – i.e., evidence as to why the vehicle was stopped, when (especially the time of the day and of the year) and where it was stopped, what was the driver’s condition, how did he or she react to the police, what were the driver’s exact words and how were they spoken, etc. These are all important factors to take into account. It is important to remember that it is the totality of the circumstances known to the officer,viewed together, that must be considered in determining whether there was a reasonable basis for his or her suspicion.
In this case, the trial judge might have found the manner in which the officer conducted his investigation to be wanting, but the facts remain that the accused was driving at night, on a busy thoroughfare, without lights, that there was an odour of alcohol emanating from the car and the accused, inanswer to a legitimate question in the circumstances, acknowledged that hehad consumed alcohol. I find the accused’s answer in this case to be similar to that under consideration by Marceau J. in Kimmel and I find his comments, to which I have previously referred, applicable in this case. Both the trial judge and the appeal judge erred by focussing on the words of the accused’s admission without considering them in the context of all of the evidence known to the officer. In so doing, each misapplied the applicable legal principles, thereby committing an error of law. In my view, after considering all of the evidence known to the officer, he had reasonable grounds to make the ASD demand when he did. It was an error in law by the trial judge to find otherwise.
“Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” Sec. 7 — The Charter of Rights and Freedoms.
For more than 22 years, Richard Scott has headed up Manitoba’s third branch of government in his role of Chief Justice of our Court of Appeal. Effectively, he’s been the highest legal authority in the province. No small task.
But in less than a fortnight, he’ll close his office door a final time and walk away from the Law Courts Complex, having reached the age of mandatory retirement.
Scott’s final appeal sitting was Friday, when his achievements were recognized on the record through an at-times touching “swearing out” session by his appeal court colleagues.
“Manitobans and the justice system have been more than well-served by you, chief,” the court’s second longest-serving justice, Michel Monnin, wrote in a letter read out by Justice Freda Steel.
Monnin noted how when Scott was appointed directly to the chief’s chair in 1990, he inherited a court which was “struggling” but transformed it into a “credible, respected and collegial bench.”
“You have been able to achieve this because of who you are and how you function and deal with people,” wrote Monnin. “You brought to this court a sense of civility which had been lacking and then in due course brought respect from the bar and litigants.”
The in-court ceremony followed a weekend gala in Scott’s honour held on Feb. 8-9.
Among the many guests in attendance were Supreme Court Justices Rosalie Abella and Beverley McLachlin.
It’s pretty evident the Canadian legal community has a great respect for Justice Scott.
But also, his contributions to Manitoba outside the courtroom over the years can’t be ignored. [More detail here]
Put simply: in his decades as a lawyer and judge at the Court of Queen’s Bench and COA levels, he’s sat on many community boards (Heart and Stroke Foundation and Winnipeg Foundation are but two), The Canadian Judicial Council and has taken on roles as a legal educator, locally and internationally.
He says his community service will continue on in his retirement.
On top of all this, Scott is also a family man, being husband to an equally-respected wife and three daughters.
As a guiding rule, Canadian judges speak to society through their decisions.
In Scott’s case, he’s spoken out to the public about 1,600 times through published decisions over the years.
Canadian judges are seldom public figures in terms of media exposure. Mr. Scott has been no exception to this.
However, in the days prior to his retirement as Chief Justice, he opened up his office to a handful of media outlets and reporters. (Articles here and here).
While my own 35 minutes with him covered similar, but not identical ground, I present here most of the verbatim Q and A transcript of our meeting for the record.
Q: Because of the mandatory retirement age (age 75 for federally-appointed judges), do you feel you’re being sent away too early?
Scott: As a matter of fact — and this answer surprises some of my colleagues, I don’t. Do you know the history of the mandatory retirement?
Q: Fill me in.
Scott: Diefenbaker, of course, was Prime Minister from ’57 to ’62. He was probably one of the best trial lawyers, ever, especially before juries. But he didn’t do so good in the court of appeal. And in those days, there was no mandatory retirement and judges, particularly appellate judges, died with their boots on. So, when he became prime minister, he thought it was a good idea to have mandatory retirement for judges. But he picked an age — and remember, life expectancy is probably two or three years greater now than it was then — leaving a lot of elbow room, picked a very high age if I can put it that way, 75. And it got adopted, and it was the last amendment to the old BNA (British North America) Act. And I think on balance it’s not a bad thing.
Fifty years, 100 years ago when you retired from the bench, that was it. You were gone, you retired, you sort of disappeared off into the sunset. Now, it’s different … Some judges are going back to law offices, some judges are involved in communities and community work, some do arbitration work. Martin Freedman, my colleague up until about six months ago is now doing arbitration work. So there are things that people, like Martin, like Charles Huband, who want to stay involved can do which takes advantage of their experience as judges. So, you know, 75 I think, is about right.
Q: In your time as CJ — what are some of the public misapprehensions about the court system you must have noticed over the years?
Scott: I think there are two public misapprehensions that come immediately to mind. The first is, and I don’t think this is as much a problem now as it was maybe a decade ago – there’s some people who think we’re unaccountable. We’re not elected, we’re appointed, we’re not accountable to the people. And of course nothing could be further from the truth.
We do our work in public. Our decisions are public, we’re subject to appeal review. we have a discipline and judicial conduct process. So we are accountable in a very real way. That’s one misapprehension I say I think it’s lessened a bit.
And the other has to do with the public’s view about sentencing in criminal cases. This seems to be the hot-button spot for the public and certain elements of the media. And to me, there’s an interesting contradiction. Whenever, for example, in appellate court — we get a very steady diet of sentence appeals. Some by the Crown, but the Crown’s right to appeal is very limited. So a lot by the defence. And when in our judgement, (we) reduce a sentence or in some instances deny the Crown’s application for an appeal, a lot — no, not a lot — some people take a very negative view: ‘we ought to be tough on crime.’
But the interesting thing is, and I’ve had the opportunity with friends and acquaintances and doing some public speaking engagement to put a scenario to people. I can go into it if you like — taking someone who’s a young person, an adult, but a young adult involved in a serious offence, good background, strong consistent professional advice that this was an aberration, that the person is rehabilitatable — that with proper guidance, the odds are very strong that this person will never be involved in a serious crime again. And when you put it to people in these particular circumstances: ‘do you think that the emphasis should be on deterrent, should be on punishment or should we be looking at rehabilitation? Should we be looking for a balance between rehabilitation and deterrence?’
And virtually without exception, they will say, ‘No, what the court should do is try and strike the right balance.’ I mean, punishment and deterrence are definitely are factors but nonetheless, you want to do something to ensure that this young person doesn’t offend again, and indeed give the young person an opportunity to become useful member of society.
So, sort of, globally many people seem to get upset when the news media reports that we’ve reduced a sentence for example, but when you tunnel into the facts, my sense is that there’s a lot of support out there. And of course, any criminologist that you talk to will say in scenarios like the hypothetical that I just discussed, that anything we can do to rehabilitate the person, keep the person away from the criminal justice system in the future is to the good. So, you have that sort of conflict between the global view and the specific view when you put the actual facts of a case — or a hypothetical case — to members of the public. I think the public have a better understanding of the difficulties and the nuances in criminal sentencing on many occasions than the media do.
Q: That provides a segue into one of the main reasons I wanted to talk to you. Because you’ve been in your role for so many years, you would have been through the Aboriginal Justice Inquiry, you would have seen the outcomes of that. But, in recent years, I’ve had a challenge professionally, and that is trying to explain Gladue and Ipeelee to the public in a way that makes sense to them. Because I think from a legal point of view, you can understand it, but there seems to be a bit of a disconnect and I’m hoping you could take me through your perception of it as it’s been applied or misapplied through the years.
Scott: For the next two weeks, I’m still a sitting judge, so I have to be little cautious but – and if you want a break I’ll get the section in the Code. I think it’s in Section 718 … it’s in the Code [718.2(e)] that specifically says if a person is of aboriginal descent, is a factor to be taken into account, when it’s relevant in a particular sentencing process.
And what the Supreme Court has said, and James, I’m trying to put this in neutral terms — what the Supreme Court has said in Gladue and reemphasized in very strong terms in Ipeelee is: That the court has to be informed, first of all, that the person is an aboriginal person because, as you know, you’ve been around here for a while — that’s not always evident when you’re looking to the person, talking to the person – if it’s a Metis person.
And secondly … what relationship (their aboriginal heritage) had to that offence. Let me give you two hypotheticals. You have an aboriginal person who has grown up and raised in the city, yes, as virtually all aboriginal persons do who are city dwellers, they have a connection with their roots, with their community but they’re a Winnipegger, they’re an urban person and they’re involved in a serious crime. The relationship between their aboriginal background and the crime isn’t – may not be terribly significant. So it may not be as significant a factor it is for someone who grew up in poverty on a reserve and is involved in an offence where the person’s economic disadvantage is a factor in the offence. Shoplifting, even a robbery of a convenience store because they’re desperate, because they’re impoverished, because they have no source of income. And in those circumstances, their aboriginal background is something that the court needs to take into account.
Where it plays out in the balance is up to the individual judge. And sentencing is an art, not a science. And the Supreme Court has emphasized now for some years that as long as the judge adverts to the correct legal principles — and we’re talking about a legal principle now — appellate courts cut some slack to the judge. You know the judge has some elbow room as long as a sentence is in an acceptable range. So it’s something the court needs to be told about. The onus really, is on the lawyers, and that’s one of the things — messages we’ve particularly got from Ipeelee — is we, we courts, we judges have to be more vigilant in making sure that we have this information. So we know what the facts are, we know about the person’s aboriginal background, its impact, its influence on where they are today so that can be taken into account.
What all of this does not mean is that there’s an aboriginal discount. The fact that a person is aboriginal, period, end stop – that simple fact does not influence an offence – sentence at all. It’s what influence the fact that the person … is an aboriginal has had on their life and their background and their life experiences before the offence and it may well have led up to the offence that we take into account. Now that’s a very long-winded explanation. I appreciate that. Because it’s still a complex area, it’s still an area where the law is developing and the law develops incrementally. So we’re feeling our way through this. And the way the common law develops — there will be other cases, there will be another be another Ipeelee five, ten years out where the Supreme Court and the court before that — one or more intermediate appellate courts — will have the opportunity to fine-tune the concepts. So it’s a work in progress.
Q: I just wanted to gauge your response to a recent decision from your court. And a line in it that speaks to Gladue and the court cutting down on a sentence. Because you’ve been such a community involved person and the Chief Judge at the same time — Justice monnin in November wrote that: ‘presently in the province there is either a concerning disregard or systemic impossibility to provide what is required for judges to comply with the dictates of the Supreme Court’ and he’s talking about Ipeelee and Gladue. (Here’s the background)
Scott: James, I’m not going to comment on something one of my collegues wrote. That’s just a no-no for any judge to comment on one of my own decisions, never mind — let me just say I think he’s talking about what I just talked about. Which is — the courts need more information if we’re going to apply Gladue and Ipeelee in accordance with the mandate we now have first of all from the Criminal Code and secondly from Gladue and Ipeelee.
The courts need more information. Without — I want to be very clear — without commenting on my colleague’s statement, I have no doubt that’s what he was talking about.
Q: In the end, in the time you’ve been in your position, do you think our society has become more just, fair … are we a better society today than we were in 1990, or ’85?
Scott: Well, if one did nothing but read the media, one would would say, conclude the answer is ‘no.’ Curiously perhaps, after all these years, I’ve become a little bit of an optimist on human nature and about society. And I think most people are decent, law-abiding citizens who want to do the right thing. Crimes are committed — and we’ve basically been concentrating on criminal law — crimes are committed in a number of circumstances — and I’m thinking of a number of things like dangerous driving, the Criminal Code driving offences — by people who are not criminals in the traditional sense of the word and the perfect illustration of this is that: While the public can be forgiven in thinking we live in an increasingly violent society — the statistics tell us otherwise. Statistics have increasingly — and now in the ‘States, too – consistently reported that incidents of violent crime are slowly, but steadily, diminishing. So I think that’s some support for the view I have. But my own sense is society is not more violent, a more dangerous place to live than it was before.
But, thanks to instant media and the internet and all the rest of it — if a terrible crime takes place in New Brunswick, people in Manitoba are made aware of it hours later. Fifty years ago, we probably wouldn’t have been aware of it and if so it would have been on page 26 of the … newspaper. So yes, I think there’s a greater awareness of these issues, but I don’t think that our society is any less kind than it was 50 years ago.
Q: When you close your office door for the last time, what’s the case you’re going to remember the most?
Scott: Well, there’s two. One was Lavallee (see below) where I was the (QB) trial judge who instructed that the jury on what’s now known as the battered woman defence which was — I was reversed by the Court of Appeal and the Supreme Court agreed with the contents of the charge to the jury and therefore, in turn, reversed the Court of Appeal.
And the other one is the Metis land claim (again, see below), and I can say no more about it. It’s an unbelievably difficult case. I wrote the judgement for the court. It was a year and half of absolutely intense work and the Supreme Court – it’s by far and wide now the longest reserve (decision) the Supreme Court’s had for a long time. It was argued … a little over of 14 months ago — so they’re having a great deal of difficulty with it as well. We’ll see what they do. It’s a very difficult area with some new legal concepts in play and – first of all, I don’t have a clue what they’re going to do, and if I did, I wouldn’t be able to comment on it anyways. But in terms of the intensity of the issues and the work we all put into it — that stands out in my mind.
Q: Is there a legal concept that’s emerged in the last 20 years that’s had a really fundamental effect on the justice system as a whole?
Scott: I would say it’s the jurisprudence that’s come out of Sec. 7 of the Charter. I was appointed in ’85 (to the CoQB). In ’85, the Supreme Court — in ’84 it was Hunter and Southam — that was the first great Supreme Court dealing with Sec. 8, the right to be free from unreasonable search and seizure.
But Sec. 7, which is the right to life, security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice — those who were involved in the gestation and birth of the Charter assumed that that would be a procedural protection — only dealt with process — it didn’t deal with substantive law. The Supreme Court … wrote the decision, said ‘No. This is — deals with substantive law, not just procedural.’ And it is the foundation for so much of the criminal jurisprudence that we now have developed under the Charter. It’s really the building block — yes there are other specific sections, but it’s the common road for virtually all the Charter jurisprudence that’s developed. It was given such a broad remedial interpretation by the court. So that’s, that’s the decision that really set us off on the journey that we’re now only part way through.
Because, the Americans have had 250 odd years to do judicial review and interpretation of their Bill of Rights and we’re still only just over 30. I think we’ve come a long way, but there’s still a lot to do.
Q: Is it a journey that in your mind, has a positive conclusion?
Scott: Yes. Yes I do. I think not withstanding the angst on the part of some people, the Charter has been a very good thing for the country, it’s given people knowledge, really, confirmation of the role that the courts play and I think that’s all to the good.
Q: Are you happy with your work, at the end of the day?
Scott: Happy is, yeah. I feel that I’ve made a contribution to the judiciary and through the judiciary to the community that we serve. And I leave with a sense of accomplishment but at the same time with the sense that there’s still a lot more to be done, particularly with respect to the going concern about access to justice, costs and delay — which is an issue now that’s to the forefront, for example, of the work of the Canadian Judicial Council. There’s a lot of work going on there now and that’s something I’d like to be a part of. But unfortunately, (time flies), in two weeks I’ll be doing something else.
Q: It strikes me that there’s just so much need for the system. On behalf of the public — to solve disputes, to deal with whatever might be …
Q: Any idea why that is?
Scott: Some people would say we’ve become a more litigious society. And we look to the south of the 49th Parallel — and sort of the knee-jerk reaction in many instances seems to be … to run off to your lawyer. There’s a little bit of that, but I think it’s just the society we live in. It’s so complex and it’s bewildering to a lot go pretty intelligent, educated people, not just the society at large, who really need help to understand what their rights are in the sense of ‘what are my options?,’ ‘what are the things that I can do as a result of this situation?’ In the last decade — and now we’re going over to the civil sphere — I don’t think the litigation numbers are up that much …
But I don’t think we’re actually going to court more, it’s that people need legal advice. And that’s just the world we live in.
Q: Is it a situation where the end goal is where you don’t want to see any of that happening? We talk about ‘eradicating crime’ … does the fact that system exists — is that a problem in the first place?
Scott: I would say it’s the solution, not the problem. If you go back 1,000 years, judges were invented as a way to keep people from killing each other when they have a dispute. I put that pretty crudely, but that’s what history tells us. So we’re here to resolve disputes: criminal, civil and family in a fair and impartial way. And as you know — it’s recognized we are a branch of government — the third branch of government — and we’re here as part of the democratic structure. And the need for judges today is as great as it’s ever been. In part, just by being there, people know that if there are disputes that can’t be resolved, there’s this group of women and men called judges who are there to resolve disputes and to try as best as human beings can to be fair and impartial.
And so, I think the importance of the judiciary today — it’s as important as it’s ever been, and as critical to society as it’s ever been.
At the end of Friday’s “swearing out,” The first thing Scott noted for the record was how he’s been a judge for 27.5 years.
The second was to acknowledge what a judicial career actually is: a career as a public servant.
“It has been an honour and a privilege to serve the public,” he told those present.
Manitobans have been lucky to have him at the helm.
‘Pragmatic, Common-sense and forward-thinking:’ *
A sampling of major Scott decisions over the years: