Analysis

Winnipeg Free Press - PRINT EDITION

Public outcries make for bad laws

By: Sid Green

Posted: 03/27/2009 1:00 AM | Comments: 0

2This is a commonly used legal expression. It is employed when the facts of a particular case are so exceptionally charged with emotion that normal, accepted legal standards are abandoned and drastic and unusual remedies are created. "Bad laws" result which would never be resorted to if more considered and sober considerations were applied.

In Perth, Australia, three persons charged with assaulting police officers were found not guilty by a jury. The acquittal was greeted with overwhelming disgust by the police, the public the media and politicians.

The reaction is not at all surprising given the undisputed facts of the case. It started with the usual barroom brawl. The police officers were called in to restore order. A Taser gun was used by one of the police officers. Three men of the McLeod family took on the police. A video of the event showed one of the McLeods running head first into the back of a police officer, inflicting serious injuries. The injured officer was left paralyzed on his left side and attended court in that condition.

The officers were injured in the course of doing their duty in attempting to restore order. The accused trio were among the original troublemakers and were accused of obstruction and assault but got off scot-free.

Public outcry was immediate and widespread. Within hours, in response to the public reaction, the West Australia Parliament was introducing new laws calling for mandatory prison sentences for persons convicted of assaulting police officers. It did not seem to register with these people that such laws would have no effect whatsoever in the case at hand since the law would only apply if the alleged assailants were convicted. In the McLeod case, the accused persons were found not guilty.

To effectively avoid the result of the McLeod case the parliament would have to pass a law stating that anyone accused of assaulting a police officer would automatically receive a mandatory jail sentence. While the existing climate would probably support such a draconian measure, cooler heads would certainly prevail.

A parallel situation occurred here in Manitoba when a police officer, after a night of partying, drove his vehicle into the back of an automobile stopped for a red light, resulting in the death of a young mother. As a result of a plea bargain the officer was not incarcerated. There was a public outcry.

Such reactions are expected, given public sensitivity. But in West Australia the reactions have not been limited to the relatively unsophisticated.

No less a personage than the Honorable Justice Wayne Martin, Chief Justice of the Supreme Court of West Australia has gotten into the act. The chief justice is quoted as making a speech suggesting the following:

1. Judges should retire with juries and assist them with their deliberations;

2. Double jeopardy laws which prevent a second trial of an accused should be inoperative where there is fresh and compelling evidence.

3. Adverse inferences should be drawn against an accused who does not give evidence at his or her trial.

The suggestions of the chief justice are shocking and revolutionary. A detailed analysis is not appropriate here. Suffice it to say that their adoption in whole or in part would go a considerable distance in removing the protection given to the citizen from an all-powerful and potentially oppressive officialdom. This can be confirmed by anyone versed in criminal law jurisprudence.

Fortunately, it is extremely unlikely that any of these suggestions will be implemented despite the current climate.

But then again, "Hard cases make bad laws."

Sidney Green is a Winnipeg lawyer and former NDP cabinet minister.

Republished from the Winnipeg Free Press print edition March 27, 2009 A12

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