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.


  1. So Ken, what options do we have to stop Harper in his tracks? How about starting a lobby group? Citizens for Judicial Independence?

  2. Hi Ken,

    I found Justice Minister Rob Nicholson's comments as quoted in yesterday's G&M rather disturbing.

    The call for restraining judicial activists who exceeded their powers to create "judge-made law" has long been an important cause for many Conservatives, as well as members of predecessor parties, the Canadian Alliance and the Reform Party. So has naming judges who do not coddle criminals and tie the hands of police.

    How did the "get tough on crime" campaign get morphed into the judicial selection process? Scary !!

    Also, after making such comments, how can one doubt what the objective is - stack the benches?

  3. ken chapman5:52 pm

    I see "judicial activism" occuring in two different circumstances.

    Firstly it is what someone in politics says when they don't like the decision of a Court.

    Secondly it happens when we have poorly thought out laws put on the books. Vague weasel worded statutes that make processes a problem, undermine rights and erode protections, and make intended outcomes unclear are always subject to interpretation.

    Is the glass half empty or is it half full? Or might the glass be twice as big as it has to be? How and who decided when the views and facts are so uncertain?

    That kind of lazy legislator thinking is usually rationalized on the basis of "providing flexibility." It may do that but it also creates uncertainty and that invites interpretation that the breed "judicial activism."

    Judges get a bad wrap in all of this. Judge made law happens but mostly by the use of precedent. It is not by virtue of the judical role subsuming the legislative function.

    Besides if legislators don't like a judicial interpretation of their laws, they can change them and should. How often do you see that happen and why not? Could it be the judges decisions are more often correct?

    Ultra-conservatives and religous fundamentalists are out of alignment with mainstream social values of the Canadian society. They wish to impose their values on that society and have tried to do so by political influence and legislative power. Nothing wrong with that in a democracy that has a free and open society.

    Since their efforts often run afoul of the fundamental value precepts of our society like Charter Rights and Freedoms, the far right feels they get thwarted by the Courts.

    They never seen think they could be wrong. And believe just because they got a "law" passed it ought to be enforced. They don't grasp the concept that their views are often misaligned with the greater social values inherent in a superior law like the Constitution and the Charter of Rights and Freedoms for example.

    So since they can't see they might be wrong, the fault must lie with the judges. They perceive that those judges who have over turned their "laws" and replaced them with "their own." Hence "judge made law and judicial activism."

    I sense their frustration but I am glad I don't feel their "pain."

  4. Tough on crime at a time when crime has been dropping every year since 1990? Last bastion of the idiot.

    Further proof that the Conservatives want to control every aspect of our lives. That old "hidden agenda" meme seems to be true.

    Funny, in all my studies of the law, judges usually strike down laws and toss it back down to legislatures to correct. Occasionally they interpret existing laws in broader or narrower terms, but they do not "make laws".

    You are right Ken, it never occurs to them that they are simply wrong. Notice that progressives didn't call for replacement of judges when the Chaoilli decision came down - a very conservative decision.

    Its stuff like this that convinced me that the government and the state were just not worth it.

  5. Anonymous1:52 am

    As Truscott passed all lie detector tests,so should the Supreme Court in this case.2 QUESTIONS:(1)With all the evidence available 50 years ago and gathered since, should Truscott be exonorated?(2)Do you act for the majority of Canadians or OTHERS???