By Jordan W. Charness

I give dozens of speeches a year and field hundreds of questions. Many of the questions I receive are of the “why don’t we have such a law?” variety. There are many situations that don’t seem to be perfectly covered by an existing legislation or regulation. Nonetheless there seem to be laws dealing with almost every situation.

One thing I can tell you about our legal system is that it is reactive and not proactive. This means that our laws are often running to catch up with existing situations so as to regulate things that we are already doing and theoretically make our actions more in tune with society’s needs and requirements.

Let’s take a look at cell phones as an example. When they first came out, “mobile phones” weighed several kilograms and had to be installed in your car in order to make them mobile. The battery alone was the size of a hardcover book and the original cost was astronomical. At the time, the government considered them as overpriced CB radios. There was no legislation aside from the frequencies that they could use.

The government thought that cell phones might be a fad and waited to see if they would catch on before enacting any specific legislation. As it turned out, cellphone technology yielded smaller handheld affordable units with an exponential growth in the amount of users. Before the government knew what to do, cell phones became a fixture of our modern society. At this point they are so ubiquitous in Canada that any type of legislation that tries to limit its use meets with stiff opposition from the public.

This would explain why the government tends to talk about banning cellphone use while driving but has difficulty doing anything about it. The fact is there are so many studies and counter studies that show that using a cell phone while driving:

A) leads to an accident
B.) is an important safety feature to have in your car
C.) has no effect whatsoever on accident rates
D.) might have an impact if you use a handheld unit but not if you talk on a hands-free.

In other words, there is so much information out there that is conflicting that the government would be hard-pressed to take a definitive stand on something that is guaranteed to annoy a large segment of the population. While there is no doubt that using a cell phone while driving is distracting, whether or not it is sufficiently distracting so as to ban its use is another question entirely.

The government has a hard time legislating away things that people are going to do anyway. The prohibition of alcohol consumption in the United States just drove alcohol consumption underground. Overtaxing cigarettes in Quebec did not lead to a dramatic decrease in smoking. It just led to a dramatic increase in smuggled cigarettes. Even when the government wants to do the right thing sometimes the people just won’t go along with it.

There are, however, other branches of the legal system that impact us every day. The courts, including the judges and lawyers on both sides of a given case must apply existing laws to new situations on a daily basis. Since our legal system is contentious there are often fierce debates as to how to apply the law to an event that happened to a specific individual.

In a clear case of technology being ahead of the legal structure that surrounds it, a Quebec driver was convicted of dangerous driving causing death based in part on evidence gathered from a little-known black box that General Motors had installed in his car which recorded his vehicle’s speed, engine speeds, brake application, and throttle position just before he crashed into another car killing its occupant.

What makes this decision so disturbing is that there were no real eyewitnesses who could testify against the driver and much of the damning testimony was based on information recovered from this black box.

Generally speaking, our judges require live testimony in order to make their decisions. In this way a judge can decide for him or herself whether or not the witness is telling the truth or has a good grasp of the situation and a clear memory of a specific event.

In addition, opposing counsel has the opportunity to cross-examine the witness to see if there were any irregularities in his or her testimony. Even the best-intentioned witness may have forgotten key elements that do not surface until questioned by a skilled cross-examiner. No one can cross-examine a black box.

Next week we will carefully examine the black box that is keeping track of your driving habits. This black box may be more important than you think since someday the information it contains may be used to send you to jail.

Connect with