Role of the Courts… con’t.

The second model is the Due Process Model, the purpose of which is to “ensure that the rights of the defendant are protected”. This model achieves this by “limiting and controlling the powers of the police, limiting the discretion and the activities of Crown Prosecutors and Judges so that all accused are treated fairly, and ensuring that the powers of all [government] agencies are controlled.” The outcomes of this model are ostensibly that “it protects citizens from the powers of the state, enhances the legal rights of the accused, and provides fairness, equality, and justice for all."1

Those critical of the Air India outcome and of our Courts and Judges in general are, in essence, advocating for the Crime Control Model, and blaming all our woes on the Due Process Model. And they certainly are correct that the Due Process Model is the one in operation in the criminal justice system in Canada today. The Due Process Model evolved over centuries in British jurisprudence, and is enshrined in our common law, the Canadian Bill of Rights, and the Canadian Charter of Rights and Freedoms.

The Due Process Model is fundamental to our Canadian way of life, and it is the primary function of our Courts and Judges to ensure that it is given effect.

One only needs to look at the course of human history to see how the lives of individuals have been abused by the exercise of state power, ostensibly under the Crime Control Model, to see why we should be grateful that we live in a country that values the rights of individuals above all else within the context of the criminal justice system. But one need not even go to the history books to see this; one only needs to scan the reports from Amnesty International or the mass media to gain a sense of how wide-spread, and horrific, such abuses are today in a significant portion of the world – virtually all arising under regimes that are, in essence, based on the Crime Control Model.

Ironically, when one studies “crime”, and “crime rates” around the world, one finds that there tends to be far more “crime”, and a much higher “crime rate” in those jurisdictions that have adopted the Crime Control Model (or elements of it) than there is in those that have adopted the Due Process Model.

The Crime Control Model does not, in fact, reduce crime; what it does do is criminalize significant segments of the population and terrorize the rest, fill up jails, almost inevitably lead to appalling abuses of the citizenry, and cost far more to operate and administer than does the Due Process Model.

With the deepest respect for the families of the victims, the outcome of the Air India trial is, or should be, a cause for satisfaction with the Canadian criminal justice system, because it clearly demonstrates how one courageous Judge upheld the principals of Due Process, in the face of overwhelming pressure from the state and agents of the state, the public, and the mass media.

photo of a courtroom

1 Goff, Colin, Criminal Justice in Canada, 3d Ed., Thomson-Nelson, Scarborough, 2004, at pages 20 & 21.