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| Norman Douglas |
Nope — artificial intelligence is the new oxymoron that people are all excited about.
I think I had my first actual encounter with AI last night in a huge parking lot in Toronto.
As I was about to get into the back seat of my friend’s car, the empty SUV parked beside us suddenly started, backed up and drove away.
Dumbfounded, we watched it drive about 40 metres to its waiting driver — kind of like my dog Casey coming when I call her.
Now, I am not sure whether this had anything to do with AI — maybe just new technology. But I am very suspicious.
My question is: Why and how have we become so enamoured with the “artificial” and so critical of the “authentic”?
I spent nearly 50 years in courtrooms across the province, and I knew all about artificial intelligence. It was called BS.
I tried my best to sift through the intelligent witnesses who were lying and the clever lawyers with their arguments to find the truth.
For a long time, our dockets were jammed up with drinking and driving cases because of what was colloquially called the “two-drink defence.”
Impaired drivers (the wealthy ones) were getting off because they could afford lawyers and “expert” toxicologists to cast doubt on the breathalyzer machines through a court decision in a case called R. v. Carter, [1985] O.J. No. 1390. As a judge, I was obligated to acquit several accused who were obviously guilty. I made it known in my decisions that I was not happy about Carter.
There was a popular movie called Get Carter that I thought about often as I listened to the “artificial intelligence” I was hearing in court. I once did something very dumb and nearly lost my job, but let’s not talk about that — the good news is that our law on drinking drivers went through a welcome overhaul and Carter has been “gotten.”
They say AI will be a good thing for us.
If it improves our health care system, finds ways to deliver better access to education and housing, reduces food costs, aids farmers and frontline workers, cleans up our environment, eases unemployment, addresses mental health and addiction issues … and the price is not destroying us all in the end, then God bless AI (if there is room for God, or does AI become our God?).
Forgive my skepticism — it may be a product of too much BS or nearly being run over by a driverless car — but I think I would be more comfortable if AI meant authentic intelligence.
Then I would be comforted to know that thousands, perhaps millions of workers would not lose their jobs.
And that robots would not be controlling our industries, our media, our professional sports games, our entertainment businesses and our courtrooms.
You see, one of the greatest lessons I learned as I morphed from a young assistant Crown attorney who saw the world in black and white to a judge who judged other people for over a quarter-century is that there is a lot of grey.
That is why minimum sentences, mandatory sentences, no bail for people charged with certain crimes and all those other “tougher” changes to our criminal law that are in vogue right now are dangerous to us all. Once discretion is taken out of the equation, we all lose. Robots are like the Tin Man. They have no heart.
When I speak to Probus clubs, retirement groups and other organizations, I talk about actual cases where I was either the prosecutor or the judge and ask the audience to be the judge. I get volunteers to come to the mic, give them a gavel and tell them the headlines of the case. After their decision (usually the issue is jail or no jail), I give out more details.
Here’s one example:
An OPP officer on a rainy cold night is driving along a country road and comes upon a car trying to back out of a ditch.
The driver is intoxicated. The officer makes an arrest, makes a breath demand, takes the accused to the detachment, and the driver blows 160 (milligrams of alcohol per 100 millilitres of blood), which is twice the limit allowed by law. The driver is charged and released on a promise to appear document (bail) after sobering up a few hours later.
I was known as a judge who was not “soft” on drinking drivers. The minimum penalty for first offenders at the time was a $1,000 fine and an automatic driving prohibition for one year.
My normal ruling — if there was a guilty plea (no trial required), no accident, the breath readings were not too high, no one was injured and there was no prior record — was a $1,500 fine and 12 months driving prohibition. That’s the best they could get. And that was the situation here.
You be the judge.
Most of you would impose the minimum sentence, right?
After her guilty plea, the Crown read in the facts from the police brief. I asked the duty counsel (she could not afford a lawyer) if the accused accepted those facts as true. “She does,” said counsel. I then made the formal finding of “guilty” as charged, and we moved to the sentencing stage.
“Here is the background, your Honour”: She is a single mom of three children. They live in a home in a rural area. There is a very long gravel driveway to the country road. Their mailbox is at the end of that driveway. The three children all rely on their mom to drive them to their various activities. Since they live outside the city, she needs to drive for many other reasons.
The dad left the marriage to reside with a younger woman. He pays no support. She cannot afford a lawyer to fight for support. She is on social assistance. She does not drink much and has no problem with alcohol.
On the night in question, she had no intention of driving anywhere. It was late, her kids were in bed, and she was at the kitchen table, feeling sad and abandoned. She had a glass of wine — then another — then finished most of the bottle. She got up to go to bed when she realized that her welfare cheque was due that day and she hadn’t been to the mailbox. The weather was miserable, and she made the bad decision to drive to the mailbox and drive right back. She drove her car to the end of the driveway and drove right into the ditch.
Two minutes later, the police officer arrived.
“She is very sorry, your Honour, realizes her risky decision, and will never drink and drive again. We ask you to impose the minimum sentence.”
OK judge, what is your decision?
Is even the minimum sentence too harsh in her situation? She cannot pay the fine. The licence suspension for a year penalizes her and the children. She is no threat to society.
Do you see why mandatory sentences, which are meant to take away the discretion of “weak-kneed” judges, can be crippling?
I am tempted to not disclose what I did so you will buy my book to find out. But maybe you will anyway now that you know there are 23 other challenging cases in it where you can be the judge.
I turned to the assistant Crown attorney (who could have exercised her discretion not to proceed with the charge) and asked if she knew the background beforehand. She did not. This was a typically busy guilty plea court where normally 40 to 50 cases are heard, and the prosecutor rarely gets the chance to discuss the case with defence counsel beforehand. It was too late for her to do anything now that the guilty plea and the conviction had been registered.
In law, it was too late for me to do anything either. But I tried.
I struck the plea of guilt, quashed my conviction for impaired driving and found her guilty of “a lesser offence arising out of the same transaction.”
I registered a conviction for “mischief to property” (by damaging the ditch), fined her $50 and gave her a year to pay the fine. I did not order any licence suspension. I knew I was on thin ice, legally, but skating comfortably with my conscience.
The Crown attorney appealed (adhering to the attorney general’s strict policy of zero tolerance for drinking drivers) and I was overturned.
I could tell you about thousands of cases (I completed close to 2,000 per year for nearly 28 years) where compassion drove my thinking and my judgments. Now don’t worry, Mr. Premier, there were also thousands where retribution, protection of the public and deterrence ruled the day.
Here’s my point: Every case must be decided on its own particular facts. And the judge must have the authority to exercise compassion when it is merited. Robots on the bench can never exercise authentic justice — and artificial justice is injustice.
Norman Douglas is a retired criminal court judge with 27.5 years of experience on the bench. His book, You Be the Judge, was published in December 2023.
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