A National Survey of Crown and Defence Counsel on Impaired Driving

Transcription

1 T2007 Seattle, Washington A National Survey of Crown and Defence Counsel on Impaired Driving Robyn Robertson 1, Ward Vanlaar 1, Paul Boase 2, Herb Simpson 1, and Peter Parsons 1 1 Traffic Injury Research Foundation, 171 Nepean Street, Suite 200, Ottawa, Ontario, Canada. 2 Transport Canada, 330 Sparks Street, Ottawa, Ontario, Canada. Introduction There has been an overall downward trend in impaired driving crashes in Canada for nearly two decades. However, despite the implementation of proven measures to reduce impaired driving (e.g., ignition interlocks) and national initiatives to address this problem (e.g., Strategy to Reduce Impaired Driving), progress has stalled since the late 1990s. In 2004, 815 people were killed in alcohol-related crashes and approximately one-third of fatal crashes continue to be alcoholrelated (Mayhew et al. 2005). As such, impaired driving remains a priority concern and more than 80% of Canadians believe it is a serious problem (Vanlaar et al. 2006). In recent years, concern about the effectiveness of the criminal justice system has grown substantially owing in part to the lack of sustained progress in dealing with the problem and in part to the fact that the system itself has become considerably more complex and cumbersome. In the past decade and a half, many new laws have been passed and new regulations introduced. Many of the new laws have enabled the use of countermeasures (e.g., alcohol ignition interlocks, administrative license suspension, vehicle impoundment), which independent evaluations have demonstrated to be effective in dealing with impaired drivers (e.g., Beck et al., 1999; Beirness, 2001; Beirness et al., 1997; Voas and Tippetts, 1994; Voas et al., 1996, 1999). Paradoxically, in the presence of such measures, it has been expected that continued declines in alcohol-related crashes would be evident. As described above, however, the gains in recent years have been nominal and since the year 2000, increases in alcohol-related crashes have been recorded in both Canada and the United States. This somewhat perplexing situation has led a number of investigators to speculate that a primary problem is not with the countermeasures, laws, and regulations, per se, but rather with how they are applied, or more generally, with the system in which they operate. For example, the professionals handling these cases are typically new to the job and have less experience addressing some of the more technical evidentiary issues, trial delays are increasing, and evidence to the contrary defences allow offenders to avoid conviction. This suggests that there may be issues in the Canadian criminal justice system that can result in offenders avoiding arrest, prosecution, conviction, and sanctioning. Recent studies in the United States have revealed that the legal system for dealing with impaired driving is replete with inconsistencies and loopholes, which compromise its efficiency and effectiveness (e.g., Goldsmith, 1992; Hedlund and McCartt, 2001; Jones et al., 1998; Krause et al., 1998; Meyer and Gray, 1997; Rehm et al., 1993). Many jurisdictions have implemented programs and policies that have been proven effective, yet participation in these programs is frequently low because loopholes essentially permit offenders to opt out and avoid sanctions.

2 The scope of the problems in the U.S. criminal justice system has been extensively documented in a comprehensive study conducted by the Traffic Injury Research Foundation (Robertson and Simpson 2002a, 2002b; 2003a; Simpson and Robertson 2001). This study examined problems in the United States criminal justice system that impedes the effective detection and apprehension of impaired drivers, their prosecution, sanctioning, and monitoring. The findings are anchored in the experiences and perceptions of 2,763 police officers, 390 prosecutors, 900 judges and 890 probation and parole officers from across the United States, gathered by means of focus groups and mail surveys. These front-line professionals provided their perceptions about key problems and practical cost-effective ways to solve them. The parallel between this work and the present study in Canada is obvious. In Canada, concern about the effectiveness of the legal system for dealing with impaired driving cases has also been an issue of historical concern, and research to determine the validity of this concern and identify where problems exist has been undertaken. In 1987, a survey of Crown Attorneys was conducted in Ontario (Vingilis et al., 1990), primarily to understand the strengths and limitations of the process for the adjudication of drinking-drivers to determine whether any changes were feasible that would improve the process and maximize its deterrent effects. This survey of Crown Attorneys in Ontario was followed in 1997 by a nationally representative survey of front-line police officers in Canada (Jonah et al. 1997) to determine their attitudes and perceptions regarding the detection of impaired drivers, the handling of charges, court proceedings, and sanctions. That study showed that police officers encounter a number of problems that contribute to difficulties in enforcing the law. For example, excessive paperwork associated with the documentation of a DWI charge, along with the evidentiary breath test, is time consuming taking an average of 2 hours and 48 minutes per investigation and adversely impacts the number of arrests an officer can make during a shift. As mentioned previously, this parallels the findings from the TIRF study in the United States, where paperwork was cited as the most significant enforcement impediment. In addition to their perceptions about the problems confronting them directly in the detection and arrest of impaired drivers, police officers in the survey were asked about their views of problems at other levels in the system (e.g., prosecution/adjudication and sanctioning). The majority of police officers believed that Crown Prosecutors were not adequately prepared to argue impaired driving cases in court due to significant caseloads and, as a consequence, were losing cases when they should have been won (Jonah et al., 1997, p. 23). They were also concerned about acquittals arising from legal technicalities related to evidence. The survey of police officers provided valuable insights into the problems associated with the detection and arrest of impaired drivers and offered guidance regarding how to fix the problems to make the system more effective and efficient. Today, officers have greater access to videotaping and mobile breath testing as well as some access to automated paperwork systems. At the same time, officers believe that the problems with the system extend beyond the enforcement level into the prosecution and sanctioning of impaired drivers. More research is needed into prosecutorial concerns before other adjustments can be made.

3 Methods The present study is a natural extension of the police survey by Jonah et al. (1997). Its purpose is to survey a nationally representative sample of Crown prosecutors and defence counsel to obtain contemporary information pertaining to the prosecution of impaired driving cases to identify problems that impede effective and efficient prosecution and to determine how these problems can be overcome. This project, funded by Transport Canada and the Canadian Council of Motor Transport Administrators, involves a national mail survey of Crown and defence counsel who have prosecuted or defended impaired drivers in the past two years. The survey was designed to gauge the attitudes, experiences, and perceptions of experienced lawyers with regard to the legal impaired driving system in Canada. However, it was not possible to access the entire population of lawyers who handle such cases, or even a truly representative sample, so generalizations must be made cautiously in some instances. An initial draft of the survey was developed by researchers and a survey house in consultation with experts at Transport Canada and Justice Canada. The survey was pre-tested using focus groups involving Crown and defence counsel in Ottawa and was revised based on their feedback. Once the final survey instruments were completed, hard copies were sent out to practicing professionals across the country using a variety of distribution strategies including provincial Crown Associations, the Attorney-General in each jurisdiction, and defence counsel associations. Lawyers who participated in the project completed the surveys over a 12-month period between the Spring of 2005 and the Spring of The survey period varied by a few months between Crown and Defence counsel as a result of the challenges associated with distributing the surveys. Results A total of 1035 completed surveys were received including 765 from Crown Attorneys and 270 from defence counsel. While responses were received from all jurisdictions, the majority of Crown surveys were from Ontario, Quebec and British Columbia and almost all of the defence surveys were from Ontario, Quebec and Alberta. Slightly more responses were received from men than women; the average age of respondents was early-40s. Three-quarters of Crown respondents and two-thirds of defence respondents were English-speaking. On average, defence counsel had slightly more experience in the criminal law field at 16.5 years, compared to 12.5 years for Crowns. Overall, the findings from the Crown and defence surveys were very consistent with regard to the nature and magnitude of the problems, providing an indication of the accuracy of the results. The vast majority (80%) of impaired driving cases involve charges of over 80 (being in excess of the legal limit of 80mg/100ml) or impaired driving, 15% of cases involve refusal to provide a breath sample, and only 5% of cases involve injury or death. Not surprisingly, the vast majority of impaired driving cases proceed by summary conviction, although in Quebec slightly more cases proceed by indictment. Cases involving injury or death appear to be somewhat more frequent in Saskatchewan and Manitoba; test refusal cases appear to be more prevalent in the Maritimes (Nova Scotia, Prince Edward Island, New Brunswick and Newfoundland/Labrador), perhaps a result of the longer distances to breath testing facilities.

4 Most Crowns and defence counsel agree that the majority of cases they prosecute have a breath alcohol concentration (BAC) of about.12, although both professions acknowledge that some cases are processed in the range. It appears that many of the cases with a BAC in the lower ranges are handled in Quebec. Attorneys on both sides agree that in 40% of cases the defendant will plead not guilty and go to trial. Surprisingly, both Crowns and defence report that simple impaired driving cases are more likely to go to trial as compared to test refusal cases or cases involving injury or death. Approximately 40% of Crowns and 30% of defence counsel report the defendant will plead guilty as charged, and slightly fewer Crowns (16%) than defence counsel (20%) report that cases are resolved by plea agreement. Ontario (49%) and Quebec (41%) report more cases going to trial whereas the Maritimes report the fewest cases going to trial at 28%. Guilty pleas are most common in the Maritimes (83%) and Quebec (66%) and are least common in British Columbia at 26%. Cases are most likely to be pled down to a non-criminal Code offence or a non-alcohol offence in British Columbia. Approximately 70% of attorneys generally agree that the length of time to resolve cases has increased since they first began practicing law. On average it requires close to 6 months to resolve cases involving a plea agreement, 11 months to complete a summary conviction trial, and 14 months to complete an indictable trial. Time frames are slightly shorter in the Maritimes and longer in Ontario and Quebec. Not surprisingly, defence counsel spend two to three times longer preparing cases for trial, although Crowns and defence spend similar amounts of time in court. Crowns require an average of 2-3 hours to prepare for summary conviction cases, hours to prepare for indictable cases without injury, and hours to prepare for cases involving injury or death. On average Crowns report approximately 50% of the cases going to trial result in a conviction; this is slightly lower for defence counsel. The outcomes of trial vary according to jurisdiction with the Martimes reporting a conviction rate of 75%; Prairie provinces (Manitoba and Saskatchewan) report 65% and Quebec reports a conviction rate of 41%. The evidentiary issues identified by counsel also vary according to jurisdiction and include such issues as police relying too heavily on the BAC reading, the quality of police training, the availability of police paperwork, and the testimony provided by police in court proceedings. Of the defences reported as being the most successful in court, it appears that evidence to the contrary challenges, in particular the Carter defence (the defendant claims to have consumed only 2 drinks), pose the greatest problem in Ontario, Quebec and Alberta. The Maritimes and British Columbia report the extent of this problem in their jurisdictions is less than 10%. Also a variety of challenges are raised with regard to particular sections of the Charter of Rights and Freedoms. The section of the Charter appearing to pose the greatest difficulty across jurisdictions is Section 10b that specifies the defendant s right to retain and instruct counsel.

5 The most notable difference between responses from Crown Attorneys and defence counsel is with respect to caseload. Crowns report managing more than four times as many criminal cases (480) in a two-year period than defence counsel who manage an average of 114 cases. However, these professionals agree that approximately 25% of their caseload involves impaired driving cases and approximately 1/3 of their impaired driving cases involve repeat offenders. Practitioners in Ontario, Quebec and British Columbia report a greater percentage of impaired driving cases, ranging from 24-30%, whereas the Maritimes and the Prairies report less than 20%. However, a greater percentage of impaired driving cases involving repeat offenders are found in British Columbia and Alberta with more than 40%. Conclusions The findings from this national survey demonstrate that there are a number of challenges within the justice system that contribute to low conviction rates and slow processing of impaired driving cases. In general, the Martime provinces appear to encounter problems less frequently than other jurisdictions, such as Ontario, Quebec and British Columbia where problems are more prevalent. A closer examination of the variation in policies pertaining to charging, plea negotiations, training, and investigation procedures across jurisdictions suggest that these policies may contribute to the magnitude of the problems. The findings also suggest that the effectiveness and efficiency of the justice system in processing impaired driving cases is being compromised and changes are needed to address this. References Beck, K., Rauch, W., Baker, E., and Williams, A. (1999). Effects of ignition interlock license restrictions on drivers with multiple alcohol offences: a random trial in Maryland. American Journal of Public Health 89: Beirness, D.J. (2001). Best practices for alcohol interlock programs. Ottawa, Ontario: Traffic Injury Research Foundation. Beirness, D.J., Mayhew, D.R., and Simpson, H.M. (1997). DWI Repeat Offenders: A Review and Synthesis of the Literature. Ottawa, Ontario: Minister of Public Works and Government Services. Goldsmith, S.. (1992). Prosecutors and Drunk Driving: Choosing an Effective Role. Alcohol, Drugs and Driving 8(1): Hedlund, J.H., and McCartt, A.T. (2001). Drunk Driving: Seeking Additional Solutions. Washington, D.C.: AAA Foundation for Traffic Safety. Jonah, B., Yuen, L., Au-Yeung, E., Paterson, D., Dawson, N., Thiessen, R., Arora, H., Graham, B., and Pilon, M. (1997). Front-line Police Officers Perceptions and Attitudes About the Enforcement of Impaired Driving Laws in Canada. Ottawa, Ontario: Transport Canada.

6 Jones, R.K., Lacy, J.H., and Wiliszowski, C.H. (1998). Problems and solutions in DWI enforcement systems. National Highway Traffic Safety Administration. Technical Report. U.S. Department of Transportation. Krause, K.R., Howells, G.A., Bair, H.A., Bendick, P.J., and Glover, J.L. (1998). Prosecution and conviction of the injured intoxicated driver. The Journal of Trauma: Injury, Infection, and Critical Care 45(6): Mayhew, D.R., Simpson, H.M., and Beirness, D.J. (2002). Are the declines in drinking driving fatalities in Canada being overestimated? In D.R. Mayhew and C.Dussault, Proceedings of the 16 th International Conference on Alcohol Drugs and Traffic Safety. Montreal, Quebec: Societe de l assuarance automobile du Quebec, pp Mayhew, D.R., Brown, S.W., and Simpson, H.M. (2005). The Alcohol-Crash Problem In Canada : Traffic Injury Research Foundation. Meyer, J.A. and Gray, T. (1997). Drunk drivers in the courts: Legal and extra-legal factors affecting pleas and sentences. Journal of Criminal Justice 25(2): Rehm, C.G., Nelson, J., MacKenzie, D., and Ross, S.E. (1993). Failure of the legal system to enforce drunk driving legislation effectively. Annals of Emergency Medicine 22(8): 66-68, Robertson, R.D., and Simpson, H.M. (2002a). DWI System Improvements for Dealing with Hard Core Drinking Drivers: Prosecution. Ottawa, Ontario: Traffic Injury Research Foundation of Canada. Robertson, R.D., and Simpson, H.M. (2002b). DWI System Improvements for Dealing with Hard Core Drinking Drivers: Adjudication. Ottawa, Ontario: Traffic Injury Research Foundation of Canada. Robertson, R.D., and Simpson, H.M. (2003a). DWI System Improvements for Dealing with Hard Core Drinking Drivers: Monitoring. Ottawa, Ontario: Traffic Injury Research Foundation of Canada. Simpson, H.M., and Robertson, R.D. (2001). DWI System Improvements for Dealing with Hard Core Drinking Drivers: Enforcement. Ottawa, Ontario: Traffic Injury Research Foundation of Canada. Vanlaar, W., Simpson, H.M., Mayhew D. and Robertson, R.D. (2006) The Road Safety Monitor 2006: Drinking and Driving. Traffic Injury Research Foundation. Ottawa, Canada. Vingilis, E., Blefgen, H., Colbourne, D., Culver, P., Farmer, B., Hackett, D., Treleaven, J., Soloman, R. (October 1990). The adjudication of alcohol-related criminal driving cases in Ontario: A survey of Crown Attorneys. Canadian Journal of Criminology

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