Rioting Response: The Social Media Public Shaming Campaign and the Criminal Justice System

Last Wednesday, Vancouver saw an ugly mess of violence, destruction and humiliation.  Hockey fans and community “jeer-leaders” brought the festive atmosphere to a new level – destroying and damaging anything that could be destroyed.  Shop owners found themselves faced with thousands of dollars in damage and losses, public resources were burned (literally), people were hurt and injured and many were put in peril because of the reckless and dangerous actions of a few.  However, in this digital age, cameras and videos were snapping and reeling and soon these “rioters” were being identified to the authorities.

Opinion polls, public shaming blogs, new articles and social media outlets (Facebook and Twitter) have all illustrated the anger and shame that the majority of the public feel about the actions of the rioters who brought shame and humiliation to our city. However, these “rioters” are now on the receiving end of a riot themselves – a lynch mob mentality that may very well see a swell in legal debate over the use to which this social media “evidence” can be used in court to bring these “rioters” to “swift justice,” or how this evidence will effect any sentence imposed by the Court.

The dangers of the social media “evidence” is inherent in its reliability.  We don’t know how pure the image is, whether it was doctored or enhanced, or whether the individual depicted (save and except a few) were actually involved in a criminal act.  Many innocent people caught in the area will be picked up on these images and could suffer adverse consequences.

The principles of sentencing are found in section 718-718.2 of the Criminal Code and outline what a court is to consider when an offender is being sentenced for his or her participation in a criminal act.  Vigilantism and vengeance are not principles of sentencing.  Denunciation, deterrence, rehabilitation, and retribution are.  The goal is to provide a just and fair sentence – commensurate with the degree of moral blameworthiness of the offender and to promote a sense of responsibility in the individual.  When a person is publically shamed and had their own lives and their family threatened  – a court is going to consider this when weighing the appropriate factors.

Young people, as defined by the Youth Criminal Justice Act, will also be dealt with differently and in accordance with the principles of that Act.  Lengthy jail sentences serve no positive purpose for young people who are otherwise of good character.  Perhaps the most troubling aspect of these social media lynchings is the identification of these young offenders who were involved in the rioting.  One example is the case of a high school student from Richmond who’s photograph was plastered over Facebook, blogs, Twitter and national news sources.  The Youth Criminal Justice Act prohibits the identification of young people charged with a crime to protect their identification because we understand that young people are deserving of special protections.  This young person will never be able to shake the stigma of being involved in a terrible mess – no matter what amends he chooses (or is forced) to make. 

Calls for lengthy and severe punishments in the form of jail sentences is not the answer.  Public shaming lynch-mobs are not the answer.   The public shaming campaign is no better than the actions of the rioters themselves.  What we need to do is move forward from our anger, and permit the authorities to carry out their investigations to deal with these issues in a fair and impartial manner. 

We need to understand that a regime of community work service, restitution and probation will go much further than incarcerating these individuals (most of whom I suspect will be first time offenders).  A jail cell is not the answer and I believe most courts, in light of the backlash of the public shaming campaign, will decide the same thing.  This, of course, does not mean jail should always be out of the question, but we need to remember that for the vast majority, a community based sentence that restores the community and the offender will go much further.

Backlog in Provincial Court becoming violation of Charter rights

Recent decisions of the Provincial Court of British Columbia illustrate that the lack of resources is not just inconvenient for judges and lawyers, but is turning into an institutional violation of an accused person’s right to be tried within a reasonable time, as protected by the Canadian Charter of Rights and Freedoms.  Backlogs in Provincial Court criminal cases are seeing matters take as long as two or more years before they come to trial in the Court – a far cry from the 8-10 month guideline set by the Supreme Court of Canada in the 1992 decision of Regina v. Morin; affirmed in the 2009 decision Regina v. Godin.

The recent decision of Regina v. Moskal is particularly illustrative of the dire situation of the Provincial Court.  In Moskal, the impaired driving case took two years and eight months before the trial was finally scheduled to take place.  In finding a violation of Mr. Moskal’s rights, the Court noted:

There are always limitations on institutional resources - such as the number of available courtrooms, court staff, sheriffs and judges.  Provincial governments have many demands on their limited financial resources from health care to education to highway construction, maintenance and safety to fighting forest fires.  Courts cannot be exempt from spending cuts or restrictions which governments must make in response to economic downturns or crises.  But there are limits on how far institutional resources in the justice system can be cut or allowed to deteriorate, without attracting serious consequences.

The Court noted that the number of court days to handle criminal trials has steadily decreased while the number of cases coming before the court has not decreased.  The Court further noted that number of judge days (days where judges are available) in the district have decreased as more judges are retiring and new appointments have not been made to compensate.  The Court also noted reductions in Sheriff staff, registry personnel, and the increased family court docket as factors.  The Court stated:

There are not enough judges, court staff or sheriffs in Surrey.  The shortages are not the result of drastic cuts but the result of attrition from gradual budget reductions. The delay has built up gradually and has had little effect so far.  Now, however, the backlog is so great and the courts so crowded, that in many cases there will be an unreasonable delay should there be even one adjournment on a trial date.  As I have already said, the Provincial Court cannot expect to be immune from necessary budget cuts or spending restrictions in the face of an economic crisis.  But, the Supreme Court of Canada has made it clear that the time will come when the courts can no longer accommodate an explanation for lengthy institutional delay that there is just no money for the court system.  In Surrey, that time has come.

In the last year alone, more than a dozen judgments have been rendered expressing similar sentiments.  Until our system has more resources injected into it, we can expect more decisions like this from the judges of the Provincial Court.