Law and Order
| Author | Alan Borovoy |
| Pages | 169-201 |
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chapter nine
Law and Order
Fundamental Safeguards
On a Saturday afternoon late in October 1968, I received a telephone
call from a friend of mine, a woman in her early twenties who was
a PhD candidate in psychology at the University of Toronto. Her call,
from a local police station, was asking for my help. Some time earlier,
she had been arrested at a demonstration against the Vietnam War and
the police were still holding her. She was looking, of course, for the fast-
est and easiest way to secure her release from custody. But, during the
course of our telephone conversation, she made a point of asking me to
arrange for dinner to be fed to her “children.” Knowing that she had no
such children, I soon realized that this request had been made to im-
press the police at the station. Presumably, it was the way she obtained
access to the telephone that was otherwise being denied her.
Within the next half-hour, I showed up at the police station and
asked the officer in charge how I could get my friend out on bail. He
replied that this discretion was reposed in the local justice of the peace.
How, then, I asked, could I make contact with the justice? The officer
replied that this could not happen for a few hours because the justice,
at that time, was attending the opera; I would have to await his return.
When the justice finally did arrive, he ordered the release of my
friend on her promise to pay a particular sum of money if she failed to
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“at the barricades”
show up for her trial. In her case, there was no reason to impose any
additional fetters on her release; she was obviously a respectable person
with no criminal record whatsoever. At her trial several months later,
she was acquitted of the charge that had occasioned her arrest.
When I subsequently reflected on this experience, I became
angry. My friend, an innocent person, had been forced to spend twelve
hours in jail, not because of any misconduct of hers, but because the
system had failed to accommodate her situation. Indeed, the most re-
markable aspect of the experience was the absence of any intention to
punish — or even hurt — my friend. Those in charge treated me and
my friend in a polite fashion; there was no evidence of any rancour or
hostility.
Since this incident arose so soon after I had taken over at CCLA, I
began to see it as a metaphor for the problems of our criminal justice
system. I learned to see the enemy, not as a practitioner of malevolence,
but as the embodiment of indifference. The system was not particu-
larly out to hurt accused people but neither was it particularly poised
to help them. This is not to deny the existence of malevolence or even
sadism in our law enforcement community; it is simply to see the issue
in perspective. Only a minority are intentional wrongdoers; but only a
minority are intentional rightdoers.
Within the next year and a half, CCLA became involved in a major
project that tended to reinforce what I had learned from my friend’s
experience. With a grant from the Ford Foundation we conducted a
cross-country survey of how the Canadian criminal justice system was
working in practice. We interviewed accused persons and examined
court records in Halifax, Montreal, Toronto, Winnipeg, and Vancouver.
In all, we looked at several hundred cases. The time period under re-
view was January 1970. We published our account of this project under
the title: “Due Process Safeguards and Canadian Criminal Justice”.
Since our survey took place prior to the major bail reforms of that
time, we were particularly interested in the initial stages of the accused
persons’ experience. Although police officers then enjoyed a certain
amount of discretion in how they launched the process, we found that
72 percent of the accused people in our survey were arrested rather than
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Chapter Nine: Law and Order
summonsed. An arrest, of course, constitutes a significant intrusion on
a person’s freedom. Perhaps even more significant, a majority of those
arrested endured at least a few days of pre-trial confinement. Indeed, a
majority of the accused spent at least twelve hours in custody before
their bail applications were even processed. Shades of what happened
to my friend!
The Canadian Bill of Rights (the Charter was at least a decade away)
proclaimed the right of arrested people to “retain and instruct counsel
without delay.” Presumably, the idea was to ensure the earliest possible
legal advice to minimize the risk that the arrested people — many of
whom would be in a state of panic (and at least some of whom would
be genuinely innocent), — would irreparably damage themselves. It is
significant, therefore, that most of the accused persons in our survey
said that they made statements to the police; they considered most of
these statements to be self-incriminating; and most of the interroga-
tions reportedly occurred before the accused person had consulted legal
counsel. Indeed, about 30 percent of these arrested people claimed that
they were denied their request to make a telephone call from custody.
Even if those people had sought consultation with a lawyer, the system
apparently rendered them often incapable of fulfilling that wish.
It has always been the case that a large number of accused people
plead guilty. But our survey discovered that, in the case of those people,
the system disposed of them in trials that lasted less than ten minutes.
Remarkably, therefore, those court hearings, on average, totalled less
than three hours. They rarely convened in the afternoons; their average
daily adjournment time was as early as 1:25 p.m.
An exacerbating factor in the system was the nature of the pre-trial
detention facilities. In the overwhelming number of cases, there was
virtually no attempt to provide activities for the prisoners. Essentially,
they just sat and waited. Those who were proven guilty and sentenced
to confinement in penitentiaries usually had recourse to some kind of
recreational facilities. By contrast, those who had not been found guilty
and were simply awaiting trial, were subjected to a regime of oppressive
inactivity.
In its conclusion, our report acknowledged that there were very few
cases “of a sensational character.” Our report did say that “our system can
be characterized by its plethora of cursory trials, defenceless interroga tions,
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