Opening the doors to dialogue on criminal justice

Someone told me Sunday, May 15, was for Christians, the feast of Pentecost.

This, apparently, is the celebration of Jesus appearing to his disciples who were locked in a room afraid that they, too, would suffer the fate of their crucified leader.

In any event, Jesus shows up, they are liberated from their fear, the doors unlocked, and out they go to consult and communicate in the world. The dialogue of Christianity was born.

The doors of dialogue in criminal justice have been locked for many years.

The collaborative efforts of reform, thoughtful conference reports, and pleas for tolerance and consultation fell on deaf ears and were locked away in sealed rooms by rigid government policies.

But criminal justice may be experiencing its own Pentecostal awakening with a government determined to open the doors to consultation. Moreover, recent cases have piqued the public’s interest beyond the fleeting water cooler chats during sensational cases.

The public now wants to understand the impact of mental illness in cases seemingly so easy to otherwise diagnose guilt. From the mental illness of victims such as Sammy Yatim, in the case of James Forcillo, a Toronto police officer found guilty of attempted murder, to the apparent mental illness of Matthew De Grood, a young man from Calgary, perhaps propelled by delusions, who tragically took the lives of five other students, there is a sense we must not rush to judgment. Mental illness affects so many in our society.

We were all likely guilty of rushing to judgment in Senator Mike Duffy’s prosecution. And then his counsel Don Bayne opened the doors for us and laid the groundwork for the remarkable and courageous basic lessons communicated by Justice Charles Vaillancourt in his calm conversational manner.

The opening paragraphs in his judgment are quite wonderful and so vitally important to remember.

“Presumption of innocence“

I would like to relate an interesting encounter that I experienced near the commencement of this trial that demonstrates the difference between the legal presumption of innocence and the application of that presumption by many citizens.“

I was returning to the courthouse after a lunch break when I heard a man who was soliciting funds from passersby say, ‘Sir, sir.’ I stopped and began to check out my monetary situation. However, the stranger did not ask me for a financial contribution. Instead, he asked me if I was connected with the Duffy trial. I advised him that I was. He then inquired whether I was counsel. I advised him that I was not, but I did tell him that I was the judge hearing the case. Without missing a beat, my new found friend enthusiastically stated, ‘Throw him in jail.’

“The aforementioned exchange highlights two important aspects of Senator Duffy’s trial.

“Firstly, the scenario illustrates the public awareness and interest in these proceedings.

“Secondly and more importantly, the exchange draws attention to the overarching touchstone principle of criminal law in Canada, namely, that everyone is presumed innocent until the Crown proves them guilty beyond a reasonable doubt. Although, the stranger drew my attention to the principle, his enthusiastic response highlighted a contrary position to the presumption of innocence. I think it is fair to say that many people may share the belief that once someone is charged with a criminal offence they are guilty. This is not the law of the land.”

I think it would be fair to say that the verdict in Duffy’s trial surprised many who had decided that corruption was rampant in the Senate and Duffy was simply the tip of the iceberg. By following the case, however, the presumptions were stripped away, and the public learned how important the process is in uncovering the bigger picture.

The criminal justice system raised the public’s antenna to the machinations of coverups and a dialogue began that will benefit a more open government, perhaps a more healthy Senate. It may possibly rehabilitate a lonely senator who made mistakes, but certainly not in the context many had presumed.

Jian Ghomeshi’s ordeal sparked sensational, front-page, overbaked, surreal, and prurient headlines where the criminal justice system was resorted to in order to sort out the effects of the undisciplined use of social media.

From Ghomeshi’s public Facebook message, where he pre-emptively suggested that he enjoyed rough sex, to the perhaps long-forgotten cyberdiaries of his victims, the trial was a condemnation of the lack of discipline in cyberspace.

Moreover, just as Justice Vaillancourt reminded us in Duffy, Justice William Horkins set out for us in his judgment in Ghomeshi, the essence of criminal justice.

“Proof Beyond Reasonable Doubt“

Interwoven with the presumption of innocence is the standard of proof required to displace that presumption. To secure a conviction in a criminal case the Crown must establish each essential element of the charge against the accused to a point of ‘proof beyond reasonable doubt.’ This standard of proof is very exacting. It is a standard far beyond the civil threshold of proof on a balance of probabilities.“

The law recognizes a spectrum of degrees of proof. The police lay charges on the basis of ‘reasonable grounds to believe’ that an offence has been committed. Prosecutions only proceed to trial if the case meets the Crown’s screening standard of there being ‘a reasonable prospect of conviction.’ In civil litigation, a plaintiff need only establish their case on a ‘balance of probabilities.’ However to support a conviction in a criminal case, the strength of evidence must go much farther and establish the Crown’s case to a point of proof beyond a reasonable doubt. This is not a standard of absolute or scientific certainty, but it is a standard that certainly approaches that. Anything less entitles an accused to the full benefit of the presumption of innocence and a dismissal of the charge.“

Mr. Ghomeshi did not testify and he called no evidence in defence of the allegations. One of the most important organizing principles in our criminal law is the right of an accused not to be conscripted into building a case against oneself. Every accused facing criminal allegations is entitled to plead not guilty and put the Crown to the strict proof of the charges. An accused has every right to remain silent, call no evidence and seek an acquittal on the basis that the Crown’s case fails to establish his guilt beyond a reasonable doubt. No adverse inference arises from his decision to do so in this case.”

The public was glued to this trial of a giant in Canadian media reduced to a small, lightening rod for violence against women with the ensuing debate about the role, indeed ability, of criminal courts as mediators.

The wave of attention was intense. Many lawyers were accessed by the media to explain the process and weigh in on the issues. In some cases, a fine line was perhaps crossed on the steps of the courthouse, but the benefit of having the public interested in the media and through social media may have been a catalyst for a continuing dialogue. Once the shrillness was removed, it may have led to further opening of the doors on the important role of criminal justice in our society.

I think we may be at a crossroads. Historically, criminal justice was that issue that was ‘not in my backyard’ and whispered about when the unexpected paid a visit to someone we know.

It was society’s silo, to be avoided. I never thought I would ponder this, but perhaps it is time for cameras in the courtroom to enhance and perhaps supplement the tweets.

Indeed, social media and immediate judgment on Twitter and iPhone cameras has brought these issues out of the silos into the stream of public attention.

I think it was very commendable that neither Don Bayne, nor Marie Henein, counsel for Mr. Ghomeshi, fed the daily media scrums but preserved the sanctity of the court process until the trials were over.

They were then free to answer questions, educate, and explain the criminal justice process for an eager public and did so with dignity. This educational component should be promoted and encouraged by the leaders of our profession, the judiciary, and the government.

Indeed, the criminal bar and legal profession as a whole doesn’t need to hide anymore. The doors are open and the public has an appetite to learn, perhaps even be converted to understanding one of the most important institutions in their democracy . . . the criminal justice system!