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Raymond J. de Souza: Criminal justice has a credibility problem — in Canada as well as the U.S.

Decades of police and prosecutorial abuses have demonstrated that it is right for us to be suspicious

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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.”

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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.

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.”

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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.

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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.

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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.

Why would anyone believe him? The minister was spectacularly wrong when he claimed that the police had asked for the Emergencies Act to be invoked, suspending basic civil liberties and invading personal privacy. He was either Mendacious Marco or Misunderstood Mendicino, but in either case he was not telling the truth.

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Why then should Canadians accept his assurances about the RCMP snooping through their digital lives?

Why then should Canadians accept his assurances about the RCMP?

The RCMP, for its part, was quick to assure that all uses of its spyware are specific, targeted, precise and approved by a scrupulous judge.

If the RCMP was truly desirous of protecting Canadian liberties, it may have run its spyware by the privacy commissioner first, not leaving him to read about the program in the papers.

“It would be preferable, far preferable, that privacy impact assessment be done at the front end, that my office be consulted and that this can be conveyed somehow to Canadians so that they are reassured,” Privacy Commissioner Philippe Dufresne told MPs.

We have recently watched the spectacle of the RCMP commissioner, Brenda Lucki, insisting that she “did not interfere in the ongoing investigations into the largest mass shooting in Canadian history.” Her own subordinates claim she did just that to advance the political agenda of the Liberal government.

It’s possible that Merrick Garland is not telling the truth about the Trump raid, which he may have ordered for political purposes. It is certainly plausible that Donald Trump is not telling the truth. And we see the consequences.

Our situation is also dire. Many — including me — do not believe the denials of our public safety minister and Canada’s top cop that politics was not decisive in criminal justice matters of the most grave importance. We do not believe them because their claims are simply not believable.

And because decades of police and prosecutorial abuses have demonstrated that it is right to be suspicious.

National Post

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