David Butt is a Toronto-based criminal lawyer.
The Mike Duffy trial, now adjourned to November, has revealed the inner workings of our highest political office. The trial has unearthed raw material that will be analyzed by political scientists for years to come, making the trial a seminal contributor to the understanding of Canada's democratic institutions.
This inside view of Canadian governance has been aided by five key structural features of our legal system, operating in sync and in high gear.
First and foremost is the independence of our justice machinery – police, Crown prosecutors, defence lawyers, and judge. The Duffy trial has unfolded without even a whiff of political interference that can silence a justice system's professionals. How many other countries could accomplish a similar feat? Precious few. The Duffy trial shows that Canada possesses the virtue of a staunchly independent justice system.
Second is the long, sturdy reach of police search and seizure powers. No stone was left unturned by the Duffy investigators, not even those ensconced in the Prime Minister's Office. The best investigative journalist armed with freedom of information requests could not have obtained the same breadth of documents that generated the headlines from the Duffy trial. Search and seizure powers can be misused, and so must always be closely monitored. But the Duffy trial shows how vigorous search and seizure powers are vital to the quest for truth, especially from high places.
Third, there is what lawyers call the right to disclosure. Simply put, the right to disclosure means all the information and documentation police investigators gather must be given to the defence long before trial. The Duffy proceedings are a master class on the importance of that right. The defence team has been empowered to mount its detailed, sustained, and often devastatingly effective attack on prosecution witnesses largely because of the right to disclosure. Armed with full disclosure of the police file, the defence has pored over those materials for months, diligently rooting out fibs and flaws, and carefully constructing the artfully detailed lines of attack we have watched unfold.
Fourth, there is the right of cross-examination. In talented hands, cross-examination is a scalpel, disemboweling even the cleverest dissembler. Politicians' media talking points, which evade the question being asked, are meekly accepted as answers in far too many public settings outside the courtroom. But talking points are easily cut to ribbons by an adroit cross-examiner and the result, very often, is truth laid bare in all its potential ugliness. We can thank a vigorous right of cross-examination, conducted tenaciously at the Duffy trial, for allowing us to see layers of political spin stripped away from the PR masters. And if the defence chooses to present a case, we can look forward to equally vigorous prosecution cross-examination, exposing and stress testing any shaky foundations the defence might rely on.
Fifth, is what lawyers call the open court principle. All of the justice system's independence, search and seizure powers, disclosure and cross-examination – and everything those mechanisms revealed – would go unnoticed and unappreciated were it not for the open court principle.
The Duffy courtroom is typically packed to the rafters, mostly with journalists acting as eyes and ears for the rest of us. The symbiotic relationship between journalists and courts is the embodiment of the open court principle, which ensures that nothing revealed in court will be missed by the public at large, no matter how unflattering it may be to a person or organization. The open court principle ensures that potential teachable moments in the courtroom become actual teachable moments for the entire community. We care about the lessons from the Duffy trial largely because we know about them – and we know about them through the open court principle.
Our legal system is rife with shortcomings. It is expensive, cumbersome, inaccessible to many, and seems chronically unable to deliver justice to particular constituencies like First Nations and sexual assault survivors. But our justice system has strengths as well, and when they work together – mostly silently and in the background – they are powerful weapons in the hunt for truth.