Criminal justice has a credibility problem — in Canada as well as the U.S.
National Post, 14 August 2022
Decades of police and prosecutorial abuses have demonstrated that it is right for us to be suspicious
The FBI raid on Donald Trump’s Mar-a-Lago home has brought intense focus on America’s criminal justice system. It’s not a pretty sight, and Canadians ought not be complacent.
The U.S. Department of Justice is not in the custom of commenting upon ongoing criminal investigations, but an unusually chatty attorney general, Merrick Garland, held a press conference on the Trump raid, saying that he had asked the court to unseal the search warrant and the record of property seized due to “substantial public interest.”
Law enforcement influenced by public interest, public opinion and inevitably political considerations loses credibility. The Trump-Garland matter will bring American criminal justice into further disrepute, except among those who have been paying close attention over recent decades, for whom further disrepute is not possible.
Long concerned about abuse of police and prosecutorial power, I find myself reading, it seems every year, yet another “exposé” of how the criminal justice system gets it wrong. Not even the naked emperor was as fully and thoroughly exposed.
Consider the conclusion of a recent fine book by prominent American defence attorney David S. Rudolf, American Injustice.
“In light of what we now know regarding wrongful prosecution and conviction rates in this country, we must face the harsh reality that our criminal justice system is not just fallible,” Rudolf writes, with a book’s worth of examples to back up his claim. “It suffers from systemic, inherent faults and abuses of power by police and prosecutors — abuses of power that routinely produce erroneous convictions of innocent people.”
Leave aside this action by the Biden justice department — and for that matter, any number of examples from the Trump and Obama and Bush and Clinton justice departments. When criminal justice loses its credibility — due to a decades-long parade of wrongful convictions and a litany of politically-motivated prosecutions — all that is left is a power struggle between various players. And no player is more powerful than the government.
Canadians are inclined to see the excesses of the American justice system and think we are better off. That’s likely true, but cold comfort. It may be because we just know less about how our system works. No court TV. I advise anyone to spend an afternoon in any public courtroom or regularly visit prisons and come to their own conclusions.
In the U.S., the Innocence Project lawyers are minor celebrities and John Grisham writes books about their exoneration cases. But we have our own institute that aims to level the playing field against prosecutorial excess and error, Innocence Canada. It depends on the goodwill of many volunteers and pro bono legal work to correct injustices.
Remember that for decades Ontario’s prosecution of infant deaths was so corrupt that parents were bullied into confessing to raping and killing their own children. They did not commit those crimes, but the sheer power of the prosecutors and pathology “experts” was sufficient to break them, destroying their lives.
It’s been nearly 15 years since the Goudge Inquiry reported on that travesty. It prompted some important reforms in pediatric forensic pathology, but was otherwise greeted with a collective shrug by the criminal justice establishment.
This is not about the past. Just this week Public Safety Minister Marco Mendicino told a House of Commons committee that the RCMP employs spyware — collecting data from devices, turning on mobile phone microphones or cameras — but it is used sparingly and with judicial approval.
Continue reading at the National Post.