It is known that the Heard About Guy just got out of jail.

The Heard About Guy is the guy who, your client tells you, just finished off a case that was exactly like his. The client heard about this guy from someone reliable. The Heard About Guy was the beneficiary of extreme good fortune, you are advised, in that his case was identical to the one you are struggling with this very moment, with this very client. Not only were the facts of both cases the same, but the Heard About Guy was roughly the same age, had the same background, and generally the same criminal record as this client. An amazingly fortuitous coincidence!

The Heard About Guy received an incredible deal—clearly the product of good lawyering. The stars were aligned for the Heard About Guy, so it seems. Rather than the 90 days jail the prosecutor is asking for your poor client, the Heard About Guy—whose case was identical in all significant respects did not go to jail, not even for a day.

Your challenge, of course, is to match the deal the Heard About Guy got. The devil is in the details, as the saying goes, so you begin an inquiry with your client in the lovely confines of the cell block.

What was the name of the Heard About Guy? Please give me that simple information–we can order a transcript of the proceedings and easily convince the prosecutor of the unreasonableness of her position. A new, revised deal would clearly be in the offing—you’ll be out of here in no time….. What’s that? You are sorry to report you don’t know his name? Egads! The guys on the other range knew him only as Buddy.

This is only a minor setback…pray tell, who was the lawyer for the Heard About Guy? The Windsor bar is small—we’ll find the lawyer and surely he will give us all the information needed to track down this gem of a case. The lawyer will easily remember his great success. Say what? You are not sure of the lawyer’s name. Rats!

Well, there is more than one way to skin a cat. When did the Heard About Guy go to court? Who was the judge? Any scrap of information would help—it will be so easy from there. This cannot be! With regrets, you must advise that this information is not known. You can confirm, however, that it was very recent, and in this jurisdiction.

Things are getting a little desperate…the final approach: Where is the Heard About Guy now? Any address or number will do. I will seek him out! If he is not home, I will leave my card in the door with a note to call me right away! If he frequents a local bar, I will go there personally and buy him a beer! Dang! You have been lead to believe he has left town—“fucked off” in your words, with no forwarding address! A cell number, written on a scrap of paper, was lost. Of all the rotten luck!

Wait—almost forgot! Your reliable source—identify this person and we’ll take it from there. Don’t tell me! He’s gone too! Shipped out, skipped bail, traveling under a false name, avoiding detection. This is madness!

Rest assured, this bizarre dialogue is repeated from lawyer to client the world over, usually ending with a mutual rumination over opportunities lost and cruel ironies.

The Heard About Guy is a bugaboo, a phantom, a figment of the imagination—like the Loch Ness Monster, often spoken about, but rarely spotted. Sadly, I cannot disprove the existence of the Heard About Guy any more than I can disprove the existence of unicorns in the woods of Essex County. Therein lies the rub, although I am reasonably sure my clients don’t think I am so stupid to believe that some anonymous Joe got the deal of a century right in my back yard without me knowing about it.

I doubt strongly that any of my clients actually believe of his existence, although none would admit that our search for this alien being is a charade. The client, I suspect, wants to measure my commitment to him and to his case. The Heard About Guy at least represents a crude form of Hope, not to be dismissed lightly.

I felt sorry for my many friends who live in Toronto, who during the last week of June 2010 had to endure the spectacle of the G-20 Summit Conference in their city, which no doubt caused a massive disruption to their lives and the city’s commerce, aside from costing the taxpayers of Canada over $1 billion in costs associated with security for hosting the event.

Of course wherever our world leaders congregate to do whatever it is they do at these conferences, protestors are right behind them, doing whatever it is they do to draw attention to issues worthy of social change. In the case of the G-20 Summit, some protesters protested quietly, others protested loudly. Some people who may or may not have been protestors smashed windows and set a car on fire. Without determining who was responsible and for what reasons, this behaviour not surprisingly triggered a serious response from the police and resulted in approximately 1,000 arrests, and the virtual suspension of civil rights during this period. Adding fuel to the fire was the Ontario government’s enacting of a regulation pursuant to the Public Works Protection Act, which made a sizeable chunk of downtown Toronto a “no-fly zone” for protestors and public alike.

There continues, to this day, an ongoing debate about the propriety of the police conduct, and whether they overstepped their bounds. However, until proven wrong, the right of the police to maintain the peace as they see it is a power firmly entrenched in both our history and our criminal law.

Canada wasn’t even a legal country until 1867, when our British rulers determined we were mature enough to handle most of our own affairs. Our repatriation from England came under the British North America Act, the title of which could only serve as a constant reminder of our debt to our foreign overlords. In that statute, the Brits essentially told us how to organize a country, and delegated issues related to criminal law to the domain of the federal government. Arising from this was the very first Criminal code of Canada, enacted in 1892. As a literary document, the criminal code has as its core themes the notion of respect for public order and for peace, all underlined by loyalty to The Queen and those who serve her. And to make sure we remember who is (notionally) in charge here, our laws do not become laws until they receive “royal assent” and the blessing of the Queen’s representative in Canada, the Governor General.

So under Canadian criminal law if it alleged you screwed up, it is you against The Queen. Most people would not want those odds. There are many ways that you can piss off the Queen. On the most serious level, you could engage in sedition, piratical acts, mutinies, or you could commit the offence of “alarming” the Queen. On a less serious level, you can unimpress Her Majesty by robbing, assaulting or ripping off her loyal subjects. Serious business, yes, but the one thing Her Majesty wants is what we all want: peace. The notion of “the peace” permeates the criminal code and is one of its core values. Obviously it is a fairly serious criminal wrong to riot in the streets; it is also criminal wrong to simply cause a disturbance, by shouting, singing or swearing in a public place. And although causing a disturbance may be one of the least serious offences in the Criminal Code, an even less serious criminal wrong is committed when a person commits a breach of the peace. In fact, breaching the peace is so incredibly non-serious that it does not even result in a criminal charge—what it does, though, is create in the police a power of arrest and detention. Of the 1,000 arrests at the G-20, over 70% were for breaching the peace, an offence so low on the totem pole of offences it doesn’t even warrant an appearance before a judge.

The constabulary that work for Her Majesty have a special name—you might think their name is the police. Wrong. Their name is “peace officers”. The phrase “police officer” rarely appears in our criminal code, rather the more expansive term “peace officer’ is used. While all cops are peace officers, so are jail guards, customs officers, mayors, reeves and even pilots. Our laws are enforced by peace officers, not police officers. Punch a cop in the head, and you will be charged with “assaulting a peace officer”. Lie to a cop, and you will be charged with “obstructing a peace officer”. It hardly seems surprising that the core job of a peace officer is, well, maintaining the peace, a peace that shines like a beacon from Her Majesty through to the lowliest of her subjects.

Civil unrest is directed at that sovereign peace. A disturbance is created.  Attention is paid.  For some, it may be a badge of honour to be arrested as part of a protest, to cause a servant of Her Majesty to put pen to paper and note, for the record, that all is not well in the kingdom.

On the face of it, the majority of Canadians probably think this is a good idea—drunk drivers who kill and injure others, and themselves, are a menace that a mature society should not tolerate.

Currently, the law in Canada allows for a roadside breath test only if a police officer has “reasonable grounds to suspect a person has alcohol or a drug in their body”, and that the person has recently or is currently operating a vehicle. Fail that test, and the officer is empowered to take you “downtown” for a test using a more scientifically reliable breathalyzer machine. The reasonable grounds for the suspicion typically arise from a combination of alcohol on the breath, fumbling for insurance and ownership cards, mumbling bumbling speech, the driver’s admission of having consumed some booze, and some aberrant driving.

Well all that is likely to change.

The key wording in the law as it now stands is “reasonable grounds”. Reasonableness, in law, contemplates a police officer has both a subjective and objective belief that a person has alcohol in his body. Police officers, being suspicious by nature, typically have the subjective belief; the objective belief, though, is not measured against what they think, it is measured against what a reasonable person would think—a hypothetical reasonable person who is apprised of the same information. So the law creates a standard against which the officer’s opinion is to be measured.

The change contemplated would eliminate that standard.

By now, most Canadians are familiar with the notion of RIDE programs that surface every winter holiday season, where every driver is stopped and given the once over by the men and women in blue.  Our courts have determined that these indescriminate programs–although an exception to the rule–are justified in a free and democratic society.   Most people consider getting stopped to be the bad luck of the draw—whatever your route was, you along with everyone else driving down Main Street is subject to the same scrutiny. Most people accept the randomness of this, which, depending on how you look at it, is at least equally unfair to everyone. The Minister of Justice could be in the car ahead of you, and the Chief of Police could be in the car behind you.  Each of the three of us is going to get checked out. Our odds are the same. That’s fair.

What isn’t fair is calling something “random” when it isn’t random at all.  Randomness is bingo, craps, blackjack. The bingo caller, the croupier and the dealer don’t play favourites. My bad luck is your good luck—but at least going in I know you and I have an equal chance. The opposite of randomness is arbitrariness, and that is what this proposal contemplates. Will the drivers of Lincoln Town Cars on Sunday afternoons be pulled over as often as drivers of Mustangs on Friday evenings? Can we be satisfied that the Minister of Justice and the Chief of Police have the same odds as you and I of being subject to a roadside breath demand? If we can’t say that’s the case, then we should stop trying to fool the Canadian public by calling something “random” when it isn’t random at all.