Judicial system works very well

Hey there, time traveller!
This article was published 30/03/2016 (3511 days ago), so information in it may no longer be current.

The Free Press editorial board’s take on the Jian Ghomeshi verdict (Time to reform Canada’s legal system, March 26) is simply wrong.

The editorial says the prosecutors were not prepared. In fact, as pointed out by Christie Blatchford of the National Post, the prosecutors were well-prepared. They were torpedoed from the rear by their own witnesses. The three alleged victims simply chose to lie and deceive and withhold critical evidence. Imagine the horror of learning of the existence of 5,000 emails contradicting one of the alleged victim’s evidence.

You say accused persons in similar circumstances should not be allowed to file lawsuits against the employer that fired them. And here I thought we lived in a democracy that permitted anyone to file a lawsuit, even if it is later determined to be baseless. Access to the courts is a major tenet of a free state. Indeed, the Free Press has argued this itself on numerous occasions.

Should judges not be permitted to sit on cases of sexual assault without special training? Frankly, this is political correctness gone mad. Why sexual assault? Is the victim of a home invasion any less traumatized? And if judges are to be mandated to undergo special training for such cases, why not for complex civil cases involving, say construction issues, patent matters, medical negligence? You get the drift. Judges, once appointed, are presumed to be sufficiently educated, impartial and reasonable. To be sure, some are better than others. That is a feature of human reality. It has been said if a judge fails to recogznize the complexities of a case, it is the fault of trial counsel, who simply did not rise to the occasion of putting the explanatory evidence before the judge in a persuasive manner.

The law is an evolving entity. Technology has changed it. Forensic science has changed it. Evolving insights into morality and civil rights have changed it. But the core principles remain pretty much intact. Though it has been a long time since I engaged in criminal defence work, I have massive respect for those who do, both prosecution and defence. But it must always be kept in mind that the prosecution invariably has the upper hand. It has the resources… access to police, access to expert witnesses the defence cannot afford, access to forensic examinations and so forth.

The power of the state is limited only by the constitutional rights of a defendant. It is for that reason an accused person may be convicted of a crime only if proven to be guilty beyond a reasonable doubt. It was written long ago that it is better that 10 guilty persons go free than one innocent person go to jail. Now, in the world of DNA, we have learned of so many people sentenced to lengthy prison sentences only to be proven innocent by DNA results later obtained.

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The editorial board appears to have bought into the notion that accused persons should not be able to challenge the evidence of victims and that it is time to reform the system. There are two substantial problems with this: one of legal reality, one of democracy. The legal problem is that judges must rely on evidence given by witnesses. Some give accurate evidence well, some not so much. Some come to tell the truth, some not so much. Judges must filter out evidence for its truthfulness and its accuracy. These are different concepts. The bank teller misidentifying a robber is telling the truth as seen by him or her, but may be mistaken. Robert A. Heinlein, in his great work of science fiction Stranger in a Strange Land, told of “truth tellers,” a species who were capable of 100 per cent accuracy of observation and incapable of telling anything but the truth. Alas, this was fiction. People are not quite so trustworthy all time.

Critics of the Ghomeshi verdict seem to want a system where the accused can be convicted without challenging the evidence. If convicted, the accused goes to jail; if acquitted, as here, owing to the lies and deceitfulness of the witnesses — the complainants, as they are called — those people leave the courtroom without penalty. The accused, though found not guilty, has suffered the massive expense of defence and the vilification of the public. I am not suggesting the witnesses be punished — that would deter any from ever coming forward. But there is good reason they are called “complainants.” They are not “victims” until the crime has been proven.

But what of democracy? If crimes can be proven without the ability to challenge the evidence, then the public is at the mercy of the prevailing government personnel. We are not living in North Korea, or Mao’s China or Stalin’s Russia. Brown-shirted storm-troopers cannot round up and lock up those who they want to for reasons only they care about.

In the absence of the ability to contest the charges brought, this is what we become.

Robert Tapper is a Winnipeg lawyer.