Discretion and The Rule of Law

Aristotle once said “the rule of law is better than that of any individual”. With this statement, one can assume that Aristotle is referring to law as a set of rules in which every once must follow. The consequence for breaking these rules is punishment under equal circumstances. There should not be any special treatment, and even the federal government is to be judged as if it was a citizen on trial. This would be a sense of justice that everyone would feel is fair. This is why you would expect a sociologist to assume that law gives a sense of social control. Not only is it social control, limiting the possibility of causing conflict, but it also adds a sense of comfort. A society with a fair legal system can feel assured that justice will always prevail when needed. Therefore any discretion within our legal process is necessary to avoid any forms of discrimination, insolence and corruption. Discretion does indeed challenge the rule of law, however at times it is necessary.

            Discretion in the legal system means that if all the facts of the case are not present, then this requires the court to make the best judgment that they can. The problem with this is that it challenges a person to think very thoroughly about the case before making a decision. The rule of law is that everyone is to be equally judged and punished before the law, including court decisions on private individual rights. This means that everyone is to be judged equally. However equally does not always imply fairly. Where one claims mental psychosis, the court must then decide if the accused did in fact have a guilty mind, or mens rea. If the intention is not there, then the court rules in a different direction. If the court was to decide that it will judge two men, one with a mental disability and one without, the same, then it must consider the factors. Someone that is not mentally fit is given special regards during the court session because discretion allows for a fair trial. Forcing an equal set of circumstances for every individual could result in someone with a legitimate excuse being treated like a convict.

            Dicey sets the foundation for what the idea is for the rule of law. He explains the rule of law means no one is above being punished in the courts, everyone is equal before the law, and the rule of law includes the results of court decisions on private individual rights. Dicey is describing exactly what everyone comes to expect from the legal justice system, a fair trial being available to everyone. However there is some discretion with how the law is implemented. Special treatment is taken under certain circumstances when someone is placed on trial. This is because with the improvement in psychology, we can understand the mens rea behind the actus reus. A clear boundary is placed between those deemed fit for trial, or one that is still guilty, but due to a mental disorder. However, discretion is what keeps the trial fair under the rule of law. Without proper steps taken to ensure a thorough examination of the accused defence, then criminals may end up back on the streets. In the case of Tommy Bouchard-Lebrun v. Her Majesty the Queen[1], Mr.Bouchard-Lebrun claims psychosis, along with intoxication, for the charges of attempted break and enter, break and enter, assault and aggravated assault. The Court of Quebec held that the psychosis was brought upon by intoxication, and not by Mr.Bouchard-Lebruns friend, as he testified. The court acquitted him of the charges for attempted break and enter and break and enter, claiming that intoxication was a valid excuse and he did not know what he was doing. However the court ruled that aggravated assault and assault were not covered by this defence. This is because under s. 33 of the Criminal Code of Canada, sub-section 2 clearly states that someone who is intoxicated is criminally responsible for any and all attempts to harm the physical integrity of another person. This is reinforced under s. 33(3). This is an example of discretion in the court that does not challenge the idea of rule of law because the court specifically creates a difference between intoxication and mental psychosis. This gives an equal trial to someone who legitimately suffers from a mental disability and someone who has caused themselves to be in a state of recklessness with full consent of their actions.