William A. Macdonald is a corporate lawyer turned consultant with a long history of public service and social engagement.
The great Western achievements of the past six centuries rest on two fundamentals: the rule of law and democratic governance – both under growing stresses. Politics and the rule of law matter to the economy, to a functioning society and to security. If lost, a great deal will be undermined or destroyed.
Canada's fundamental freedom under law was strengthened in two recent celebrity trials – one about political power (Mike Duffy), the other about male sexual behaviour (Jian Ghomeshi). The Duffy verdict withstood the power of the prime minister and his office. The Ghomeshi verdict withstood powerful public opinion about how best to address abusive behaviour against women. A trustworthy criminal justice system is central to freedom and to our liberal democracy. It needs to be understood to survive.
The Duffy and Ghomeshi trials and verdicts generated much media and public interest. Federal politics changed after the Duffy trial. And the Ghomeshi trial started a national conversation about the reporting of sexual assault.
Criminal trials may change the world – but it is never their goal. Most are entirely about what happens to a particular individual. The only issue is proving guilt beyond a reasonable doubt. This confinement is fundamental.
No due process in the Senate
The Duffy case raised big concerns. The Senate suspended three senators without due process – telling Canadians, in effect, that the only place affecting individual rights that does not require due process is Parliament. This absence of due process was not primarily about depriving the dismissed senators of their rights. It was about avoiding unwanted evidence of what the prime minister and his PMO had been up to and the Senate's own lax policies. Due process could have brought a "political show trial" in reverse – hurting the representatives of the state more than the accused.
The power of the state is awesome, even in a free society operating under the rule of law. My wake-up call came from Peter Mansbridge's interview on March 29, 2016, with Marie Henein, the lawyer representing Mr. Ghomeshi.
Ms. Henein was compelling. She passionately conveyed her belief in how fortunate Canadians are to have the protection of the rule of law and how few countries really possess it. She also conveyed how heavy the weight of the state can be on anyone charged with a crime. She said every person who enters her office charged with a crime is changed forever, no matter the outcome. No one is guaranteed a desired outcome – only a fair trial based on tested evidence.
The Duffy and Ghomeshi trials showed that our justice system still works against the raw force of both political power and public opinion – even that of a public with strong and justifiable feelings about the sexual abuse of women.
People can have different views about the alleged behaviour of Mr.Duffy and Mr. Ghomeshi, but only one about a criminal justice system that can deprive accused individuals of their liberty: Convictions must come from credible-beyond-a-reasonable-doubt evidence independent of the accused. This accommodates two great societal purposes: the protection of society from criminal behaviour and the protection of individuals from loss of liberty unless proven guilty.
John Henry Wigmore, the great Northwestern University dean of law who wrote Wigmore on Evidence, made clear that the rule that convictions must be based on independent credible evidence may protect the guilty more than the innocent. But it protects something greater: the kind of society we live in.
Our criminal justice system is not perfect, but no other is better. Ours is not a "truth" or "absolute justice" system. It is a human construct – a system based on the fair and independent assessment of testimony tested by cross-examination.
How far should the criminal law reach?
Every society needs behaviour controls. History has seen a variety of them: the raw force of authoritarian regimes, tribal customs, social norms, religion. In the West today, we have five broad sources of control: the criminal law, the civil law, societal control, mutual accommodation and self-control. We must rely on all of them to achieve our goals. If we can lessen our dependence on enforced legal control and rely more on societal control, mutual accommodation and self-control, the freer and stronger society will be.
Former Supreme Court chief justice Beverley McLachlin, in her Aga Khan Global Centre for Pluralism lecture in Toronto in 2015, said the law should tolerate as much difference as it reasonably can. The stakes in criminal justice are very high, affecting an individual's freedom. What we choose to make criminal is a big issue. It changes over time, as in legalizing marijuana and medical assistance in dying. Our criminal law involves the Charter of Rights and Freedoms and raises issues of effective reach and alternatives. The Charter, Canada's ultimate law, is based on perhaps the biggest mutual accommodation of all: the balance of individual rights and freedoms against the needs of society to govern itself.
Not a system for accusers
Canada's justice system is based on one fundamental idea: The greatest threat to a free and democratic society almost always comes from a too-powerful and self-protective state – authoritarianism in all its guises. Bad individuals are ranked a lesser threat, unless organized crime or general corruption co-opts the state. Our justice system does not encourage accusers – either individuals or the state. Nor does it normally clear the names of the accused.
The Ghomeshi trial did not find out what happened. Nor did it clear him. It found only that he was not guilty beyond a reasonable doubt on the evidence before the court, which the judge found lacked credibility.
The Duffy case was a rare exception. The judge cleared Mr. Duffy of criminal, but not every kind of, wrongdoing. In effect, he found the previous Prime Minister's Office to be wrongful accusers for improper political purposes.
The limits to the criminal law
The widespread disappointment following the Ghomeshi verdict came primarily from wrong expectations about what the criminal justice system can properly deliver. Ms. Henein was castigated as a traitor to women because she took on Mr. Ghomeshi's defence. The heart of the justice system stands against any predetermination that a particular kind of alleged offence should not get the best defence. It is fine for those upset about such alleged offences to stand together. It is not fine to do so in ways that could subvert the justice system itself.
The criticism that complainants were cross-examined on their evidence while the accused was not demonstrated a misunderstanding of the fundamental rule against self-incrimination. Exceptions to this rule would subvert the entire justice system. So, in many situations involving sexual assault or abuse, the criminal law will likely disappoint.
One positive outcome of the Ghomeshi trial would be if Canadians examined the root nature of the relationships and behaviours on the sexual-abuse front and which means of control have the best chance of making things better. The criminal law will always be needed for clear-cut cases. But many troubled sexual situations may require something different.
One could emerge from the groundwork being laid by Ralph Goodale, the Minister of Public Safety, for a national strategy to deal with sexual-assault cases to ensure that police and prosecutors are dealing with victims of sexual assault.
Lessons learned
The Ghomeshi trial revealed that sexual-relationship challenges can go beyond what the criminal law normally handles well. The needed controls for abuse are far more likely to be found in a wide range of self-control and social-control measures.
The Duffy trial showed that, even in Canada, high-ranking individuals can use state power to protect themselves, not society. It was our criminal law system, not our politics, that protected our society.
If we wonder why we need to pay attention to how well our criminal justice system is working, take a look at Turkey; what is happening to the Pakistani bar; the disappearances in China; the President of the United States undermining its justice system by attacking an American judge of Latin American origin by referring to him as a "so-called" judge. All this undermines the rule of law. In a political world where facts seem to matter less, a world of fake news and demonstrably outrageous lies, Canadians must become more alert to the foundations and importance of their criminal justice system.
The criminal justice system must always be able to withstand political power and the pressure of public opinion. The state or public opinion may sometimes be right. But a strong justice system that protects the freedom of the subject must always override that.