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Thursday, February 15, 2007

Is Harper's Justice Review Meddling Forfeiting Our Freedoms?

The Globe and Mail piece today by Kirk Makin outlines an example of what can go wrong when the separation of powers between the judiciary, the police and prosecutors get clouded.

The disturbing reality in the Truscott story is captured in this quotation:

"Defence counsel Phil Campbell told the court that the true nature of the evidence in the case was distorted and concealed for decades. "This kind of case -- where evidence starts to conform to the charge, rather than the charge conforming to the evidence -- is the hallmark of so many wrongful convictions."

"Mr. Campbell said that an honest belief held by Mr. Truscott's trial lawyer, Frank Donnelly -- that police and prosecutors would not mislead him about the exculpatory evidence -- was sadly misplaced. He said that Mr. Donnelly was far too diligent to have ignored evidence that would have bolstered his case."

"He was defending a 14-year-old boy he was attempting to keep from the gallows," Mr. Campbell said. "There is no way he would take it on the chin . . . if he knew there was a body of evidence that he could use to rebut the Crown and turn it to his advantage."

"Mr. Campbell said that, almost 50 years later, a combination of sound science, new witnesses and the unearthing of long-buried witness statements point directly toward Mr. Truscott's innocence. "

Here we have examples of suppressed evidence that might have proven the innocence of a citizen at trial. As a result a potentially innocent life is destroyed by the system. We have to await the decision of the Ontario Court of Appeal on the Truscott case to be conclusive about this.

We have, in the meantime, evidence that in Truscott' s trial prosecutors and police colluded to withhold evidence that did serious harm to a citizen's rights and freedom. That citizen was a 14 year old boy at that. It brings our system of justice into question. Why did they do this in the first place? To win at all costs?

What if the primary success factor of the legal system was measured by how well the police, prosecutors and judges were at "getting hard on crime" as Prime Minister Harper says he wants? Does that mean the system is successful if it gets a "win" by getting a conviction by what ever means it takes? Again at what cost will this be to our legal protections, the rule of law and the professional and independent role of the Bench, the presumption of innocence and due process?

I don’t know if that "win at all costs" attitude was the motivation in the original Truscott trial or the many other wrongful convictions that are now coming to light. But I do know if the test of a “successful” legal system is to get tough on crime and a conviction at all costs, that encourages the suppression of exculpating evidence. Then ask yourself, what kind of a chance will an ordinary citizen have in such a "justice" culture?

Imagine for a moment how vulnerable we all become in the face of such a system. The only real protections we have had so far is a qualified Bar along with independent Bench whose only master is a total dedication to a system based on the rule of law. If there is any equivocation of that dedication because it is fettered in any way by a political agenda of powerful people in the government, then, as Shakespeare said “…the state doth totter.”

Prime Minister Harper's inappropriate meddling in the Judicial Review Committee structure and process is inviting the state to totter. This is not some political posturing prank or a petty minded attack ad silliness. This recent action by the Prime Minister is designed and intended to increase the political influence on judicial recommendations and to disrupt the balance in the judicial review process. By the Harper government's own admission in Question Period on February 13, the existing system was working. (see my post yesterday).

Harper is now able to use his political discretion by accepting or rejecting the judicial appointment recommendations from the current review process. His recent political actions to extend his political influence into the judicial review committee itself are a danger and a threat to the freedoms of every citizen. It must not be tolerated in a free and democratic society.