Tuesday, April 05, 2005

An answer of sorts

Babble on.

Yesterday, I wondered aloud how those folks intent on breaching a temporary publication ban could justify their zeal.

From the farthest quarters of the blogosphere, one commentator captained the following school of thought - you'll forgive me for not providing a link, I'm sure:

One of my commenters last night asked why Americans should be so offended by a publication ban, considering that grand jury testimony is often kept secret here. However, grand jury testimony is truly held in camera, meaning closed off to the public. As [the Globe & Mail's Jane] Taber reports, that's hardly the case with the Gomery Inquiry:

His contact could be anyone as the commission hearings are open to the public. Indeed, the Brault testimony is an open secret in political Ottawa. Ask any political staffer or MP and they seem to know some, if not all, of the details of the testimony. The television feed from the commission can be picked up in some Ottawa newsrooms, and other information is being passed through e-mails, transcripts and phone calls.

In other words, every politician has access to the testimony, and even most reporters can get the transcript or at least hear it as the witnesses reveal their secrets. The only people whom the publication ban affects are the Canadian voters who elected these people and whose money got siphoned off. It has no analogy to grand juries whatsoever.

That's a decidedly weak argument. Those who are framing this as suppression of free speech are missing the point: it's about the timing required to nail the bad guys. Justice Gomery is no friend of the Liberal government, nor of the Chretienistas who ran the show before the Martini regicide. In invoking the ban, he is simply trying to dot every i and cross every t to make sure Brault, Guité, and Coffin don't escape justice in their criminal trials due to some legal technicality - like a poisoned jury pool.

Imagine for a moment that Justice Gomery denied the applicants' request for a publication ban and that these creatures were acquitted at trial as a result. Canadian taxpayers would be calling for his head, and rightly so.

And it's not like this incendiary testimony is going to disappear if we don't yell it from the rooftops right this minute. Remember, this is a temporary publication blackout. Justice Gomery has allowed reporters and the public to take in Brault's testimony precisely because they will publish the details freely once the ban is lifted.

I wish that those critical of his decision would take the time to actually read it.

Again I'll ask, since the Canadian voter this fine blogger is trying to protect has no immediate opportunity to turf the greased Liberal eels out of office, what's the rush?

His second point has more merit:

Others have pointed out that Justice Gomery wanted to keep the information private to keep the testimony from souring a jury pool for Jean Brault, Chuck Guité, and Paul Coffin. This sells Canadian citizens short, ethically and intellectually, and unfortunately this attitude exists in courtrooms south of the border as well. Jury selection these days apparently means finding twelve people who never read newspapers, books, or watch the news on television, and then putting someone's life into their hands. It's rubbish. Jurors take the job seriously enough that they can determine the validity of the evidence presented in court -- as opposed to the often-inaccurate information presented in the media -- and render a decision based on meeting a threshold based on reasonable doubt. When lawyers empanel the twelve most ignorant people they can find, we wind up with juries like the OJ Simpson jury: people who get manipulated by lawyers with sing-song slogans ... which is probably exactly what the lawyers on both sides wanted in the first place.

I think his core point here is a good one: juries made up entirely of the most willfully ignorant in our society are a hindrance to true justice. They're not my peers or your peers, and to pretend that they are is a travesty.

Having said that, I find it curious that he has chosen this particular set of circumstances to champion the idea of informed juries.

He freely admits his own country has exactly the same problem. Assuming he can affect Canadian legal procedure - a fantastic stretch, to be sure - it doesn't touch on his local legal environment at all. So why not take a principled stand in his own jurisdiction?

Because if he gets this all wrong, if the law of unintendend consequences rears its unsightly mug once again and the three miscreants with criminal charges hanging over their heads get away with their crimes because of his intransigence, our noble blogger gets to say "Oh, well" and continue on his merry way with a much larger audience than he had before. And the Canadian voter he's ostensibly trying to protect gets stuck with yet another multi-million dollar legal proceeding that ends up letting the prime suspects off the hook.

In other words, he's making a calculated gamble: one where he has much to gain if he succeeds, and nothing to lose if he fails. Much as I appreciate the sentiment, I'd prefer to simply nail the criminals here.

Babble off.


At 1:01 p.m., Blogger Greg said...

God, I hate it when I agree with you, B. It puts me a foul mood all day.

At 1:16 p.m., Blogger Sean McCormick said...

Damian, while Mr. Brault's rights are at stake, so are the rights of 30 million Canadians.

We have some of the opposition parties making noises about bringing down an elected government. If this is to happen, surely the citizens of this country deserve to know WHY?

If a vote of confidence is forced in the House of Commons this afternoon and the government falls, Canadians will have been prevented from knowing why this happened until after the fact.

To hell with Mr. Brault's rights -- there are more extraordinary considerations at the moment.

Besides, if it's possible to find 12 untainted jurors for a freak like Michael Jackson who touts his love of sleeping with kiddies in TV documentaries and who dangles his own son from a balcony for the media, I'm sure Mr. Brault has nothing to worry about.

At 2:20 p.m., Blogger pogge said...

Good post, Damian. If anything it improves my mood.

I understand where Sean's coming from but I'd submit that there are all kinds of things that go on in parliament that we don't find out until after the fact unless we all have time to sit in the commons gallery all day. And whatever is actually said in the House will be in Hansard and thus a matter of public record from that moment on.

At 3:44 p.m., Blogger ferrethouse said...

Personally I don't care if Brault, Guité, and Coffin get off. They were the drugies. The Liberals sold them the drugs.

There will always be crime in Canada. It is when the government commits the crime that we should be concerned. That is when our democracy is threatened. Was Gomery correct in using a publication ban? Perhaps. Were Canadians and Americans justified in trying to expose the information. Absolutely.

At 10:36 p.m., Blogger Paul said...

Where does 486(4.9) refer to the evidence given before the commission? Doesn't it instead hearken back to 486(4.1) dealing with the _identity_ of witnesses, or any evidence given which could identify such a witness? 486(4.9) seems to refer to hearings under 486(4.6) - such hearings as may be held to determine whether a witness' identity should be kept secret under 486(4.1). Am I reading this wrong?

IANAL, but what do our laws mean if they don't mean what they say?

Even if we grant that Justice Gomery has executed the order which many believe he has - that is, to prevent publication of the evidence given by the named witnesses, it would appear that it was the lawyers representing those witnesses who failed to make appropriate representations in support of their request to hold such hearings in-camera. And having failed to justify such a request, there was no reason to hold these sessions in-camera.

Why should the Gomery Commission, or indeed the Canadian public, be held responsible for that failure? That the information is out there may be considered unfortunate by many, but as has been said there have been plenty of cases which received publicity prior to trial: justice can still be fairly dealt.

And that even sets aside the cynicism of many who feel that a just sentence for those who violate the law is not common in Canada. Witness the sentences handed to the likes of Karla Homolka, or the current results in the Air India disaster, or the suspected sex ring around Cornwall Ontario.

At 10:41 p.m., Blogger Snowy said...

>In invoking the ban, he is simply trying to dot every i and cross every t to make sure Brault, Guité, and Coffin don't escape justice in their criminal trials due to some legal technicality - like a poisoned jury pool.

>Imagine for a moment that Justice Gomery denied the applicants' request for a publication ban and that these creatures were acquitted at trial as a result. Canadian taxpayers would be calling for his head, and rightly so.

QUESTION: could the fact that the publication ban "failed" -- in any way help their case? Then the backlash would be against bloggers, wouldn't it?

At 11:23 p.m., Blogger Alan said...

What can I tell you Damian? You're just wrong. Gomery miscalculated. He thought he could effectively ban publication. He shouldn't even have tried. It was the wrong decision. Judges make them from time to time. The interest of the country in hearing what their "government" has been up to is vastly more important than the supposed difficulty in obtaining a fair trial. I don't do criminal law, but can't those fine gents choose a judge only trial if they so desire?

At 8:50 a.m., Blogger Sacamano said...

I think his core point, far from demonstrating why we shouldn't have publication bans, only reinforces the fact that we should.

If you don't want to have the 12 most ignorant, non-news reading people on your jury, then how can you allow publication of details that will taint anyone who does read the paper?

This only makes it impossible to find a group of "average" peers.

Remember, the job of the defense is not to try to change the prejudged minds of jurors. The burden is on the Crown to prove guilt. If jurors come in with preconceived notions of guilt, this reverses the burden and forces the defense to try and prove innocence.

It is interesting to see conservatives and libertarians who normally champion the sanctity of individual rights now come out of the woodwork to say that individual rights should be sacrificed for the "good of the country."

Frankly, it seems more like a need to satisfy a morbid political curiosity in an "on-demand" world, than any real need for the information immediately.

At 9:01 a.m., Blogger Sacamano said...

Interestingly, as is clear from numerous comments, the reason so many conservatives seem willing to sacrifice individual rights in this case is because they have already prejudged the individuals to be guilty. Oh, the irony.


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