FOR THE SAKE OF ARGUMENT

LET'S STOP THE LEGAL SMEAR

“Inquiries" look like real courts, this lawyer says, but they can— and sometimes do—blacken the names of innocent men

Aubrey Golden February 23 1963
FOR THE SAKE OF ARGUMENT

LET'S STOP THE LEGAL SMEAR

“Inquiries" look like real courts, this lawyer says, but they can— and sometimes do—blacken the names of innocent men

Aubrey Golden February 23 1963

LET'S STOP THE LEGAL SMEAR

FOR THE SAKE OF ARGUMENT

“Inquiries" look like real courts, this lawyer says, but they can— and sometimes do—blacken the names of innocent men

Aubrey Golden

AMONG THE THINGS that can legally happen to you under Canadian justice—and have actually happened to a number of people in recent years—are these:

■ You can be smeared by a man you've never met and who knows nothing about you—except what he’s “heard” from someone else.

* Your name can be dragged through the newspapers on charges you have never heard, and before you have been given a chance to answer.

■ You can be summoned without warning to testify on matters you have been given no chance to recall, consider or prepare for.

* You can be forced to reveal scandalous or criminal facts about yourself.

■ You have no absolute guarantee of the right to be represented by legal counsel.

These things do not happen in our courts of law, of course. But the courts, with an impartial judge or magistrate applying careful rules of procedure, are not the only system of investigating wrongdoing used in Canada today. The second system is investigation by “inquiries” and royal commissions, in which there are no set procedures and few or no rules of evidence. The two systems look much the same but arc vastly different, and we should not make the mistake of confusing them.

Court procedures that ensure fairness and equal justice have been evolving for centuries, but commission methods have changed little since William the Conqueror set up the first royal commission to discover what lands and property were available to him for taxation. Every school child knows the title of that first royal commission report: the Domesday Hook. The only significant change has been that the function of the courts is more and more encroached upon by judicial inquiries, parliamentary committees, advisory committees and permanent bodies given judicial powers in special fields — like provincial securities commissions. (There arc now actually more than a hundred federal and provincial statutes that authorize such inquiries.) And the most highly publicized are the royal commissions, initiated by provincial or federal orders-in-council.

The term “royal,” which simply means that an inquiry is being made under direct authority of the crown, may give laymen the impression that such hearings deal only with matters of high-level national concern. Some — usually the best-known — do. But others probe the affairs of individuals or small groups, matters that more properly should be investigated under the safeguards of court procedure. Commissions should never be used as a substitute for the police duty of investigating and prosecuting wrongdoing. But they sometimes are.

Commissions do not administer justice. As Joseph Pomerant, a Toronto criminal lawyer, puts it, they “may investigate whether a crime has been committed, as part of their general terms of reference. But they have no authority to punish crime. Only under the criminal code, with all its inherent safeguards for the individual. can that be done.”

In practice, though, commissions can and do “punish” people severely by ruining their reputations through evidence and procedures that would never stand up in a court of law. At the York Township inquiry in 1959 two prominent officials were accused of taking bribes. The accusations made headline after headline in the newspapers and broadcast reports.

Later both men were tried and acquitted in a criminal court. But the headlines had already done their work. One of the men moved his home and family to the United States, away from the city where he had a successful law practice. Even this man’s partner, who was not in any way involved in the hearing, was likewise forced to move from Toronto.

Another example of punishment-by-inquiry was the Ontario royal commission which investigated charges in connection with the sale of Indian lands to the Ontario Hydro by a private company, Dimensional Investments Ltd. The company was cleared of wrongdoing,

but as a result of daily headline publicity given the hearing, Dimensional was unable to sell the land it had taken options to buy, and forfeited land in which it had invested millions of dollars. The health of the company’s chief shareholder was impaired. In the same investigation, the private business dealings of A. J. B. Gray, a prominent Toronto civic official, were disclosed and publicly criticized, although he had done nothing illegal in acting as consultant to the company.

Of the evidence which made the headlines in the Sarnia inquiry, Mr. Justice McGillivray, the commissioner, later commented: “The course of the inquiry ranged far afield and much of the evidence heard, keeping in mind the terms of reference, has proved to be irrelevant. While much, of the publicity in respect to the inquiry has centred upon such evidence, it has been without value to me as relating to any Hydro officials or employees or to their actions in the purchase under review.”

THE NEXT STEP —GOSSIP IN LIEU OF EVIDENCE

As Mr. Justice McGillivray implied, “terms of reference” tend to be ignored by participants in public inquiries and the proceedings often become a partisan contest — without the safeguards of court rules. The no - holds - barred licence of commission hearings caused Judge Ambrose Shea, after presiding at an inquiry into the affairs of Mimico, a Toronto suburban municipality, to call for reforms. He warned that if rules for inquiry procedure were not laid down the next step would be to accept “rumor, gossip and the like” in lieu of evidence. He asked for rules to govern the admission of evidence and pointed out that hearsay evidence — almost never permitted in court — is allowed at commission hearings.

This was not, of course, the first time a jurist had looked with disfavor on royal commission procedure. Exactly three hundred and fifty years ago Sir Edward Coke, the noted English judge, called for the abolition of royal commissions and warned against the “possibility of unrestrained libel and false accusation.”

I do not go as far as Sir Edward in arguing for abolition of commissions and judicial inquiries. People who support this form of inquiry make the point that often an inquiry is a necessary alternative to police-and-court law enforcement precisely because law enforcement has broken down as a result of police inefficiency, political interference, or even police connivance in lawbreaking. Commissions are necessary when doubt about the efficiency or honesty of law enforcement officials is part of the substance of the inquiry, as in the Ontario “crime commission” hearings and the Caron inquiry into Montreal’s police force.

But if commissions are the only way to get at such situations, what I and many other lawyers argue should be done is to impose half a dozen rules that would remove the worst of the inequities from present inquiries:

■ Establish the right against self-incrimination.

■ Prohibit hearsay evidence.

■ Establish beyond argument the right of witnesses to have counsel.

■ Provide persons likely to be affected with reasonable notice of the identity of witnesses and a summary of the nature of their evidence.

■ Allow at least

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We should be safe from hearsay evidence and self-incrimination

forty-eight hours' notice to persons summoned to testify.

■ Provide for hearing in camera testimony likely to be defamatory and for simultaneous release of the rebuttal. if any. with defamatory testimony.

These may sound like elementary rules of fair play, but they don't exist at present, or exist only at the presiding officer's discretion. Let's look briefly at each of them:

Under common law no person charged with an offense can be forced to testify against himself at his own trial. But this does not apply at inquiries. on the grounds that there are no "accused" and an inquiry affects no man's "purse, person or property.

If he is aware of his rights, a witness at an inquiry can claim the protection of the federal or provincial evidence acts and his evidence cannot be later used against him in court. But how much comfort is this to a person who is hauled before an inquiry and forced to testify to his own conduct, from love affairs to complicity in crime? When his admissions appear in that evening's papers the damage is done.

What's more, not many lawyers will risk invoking the protection of the evidence acts, as limited as this protection might be. for the simple reason that by so doing they allow the implication of the type of guilt associated in U. S. Congressional hearings with "taking the Fifth Amendment." (This, incidentally, gives a witness more real protection than he gets at a Canadian commission hearing.)

Hearsay evidence denies a person the common-law right to face his accuser. Certainly that right is not worth much when a witness can take the stand at an inquiry and testify that he was told by someone else that you were guilt) of a wrongful act. The person you face is the carrier of the accusation. not the accuser.

The witness you face may not even believe the truthfulness of his secondhand accusation. He is simply allowed to relate what he heard. Cross-examination cannot shake such hearsay evidence, and the man who gives it cannot be sued for libel and he may not even he committing perjury. His victim becomes a living if somewhat tarnished example of the dangers of hearsay evidence. This evidence would not be admitted in a courtroom but it is freely admissible at an inquiry. (In rare instances, special kinds of hearsay evidence are accepted in court, but there is no such restriction at an inquiry. )

We take for granted the right of an accused person to be represented by a lawyer, but at inquiries this right is by no means certain. In the recent royal commission on crime in Ontario, counsel for two of the central figures. Vincent Feeley and Joseph McDermott. had to go to the C ourt of Appeal to win the right to counsel.

The right to counsel may he denied

Mr. Justice Roach, the commissioner. ruled that he was not conducting a proceeding "between parties." He therefore refused the request of counsel to address the commission, to call or cross-examine witnesses, or to exercise other rights of a lawyer representing his client.

The C ourt of Appeal, in a split decision. stated "that as a general rule there is no absolute right vested in anyone to appear before a royal commission except persons summoned." The court added, however, that counsel had appeared at previous inquiries, both here and in England, and that the Federal Inquiries Act, while not directly applicable to this commission, provides for the right of counsel to appear. A majority of the court felt that counsel should be allowed the right to appear.

Even the right to counsel given under the federal act may not be sufficient, in light of the report of the royal commission on espionage appointed in 1946 after the revelations of a former Soviet embassy official, Igor Gouzenko.

The commissioners. Justices Taschereau and Kellock. pointed out that if a charge were made against any person at an inquiry, that person was entitled to counsel if he so requested. However, they stated, "in some instances we considered it expedient, in the exercise of the discretion given us by the statute, not to accede immediately to the request of a witness for representation."

In the prosecutions which followed the Taschereau report of this royal commission, when some of .he accused were confronted with statements they had made earlier during the commission hearings, they protested they had not been advised of their right to claim privilege against having their statements used in this way. In one case, an accused pointed out that he was denied the right to counsel when he made his statement.

Since I960, the Bill of Rights has declared that "No law of Canada shall be construed or applied so as to . . . authorize a court, tribunal, commission. board or other authority to compel a person to give evidence if he is denied counsel, protection against sellcrimination or other constitutional safeguards."

Incidentally, the privilege against self-incrimination referred to in the Bill of Rights is no doubt a reference to the already existing privilege under the Canada Evidence Act. which does not prevent the evidence from being heard, hut merely protects the witness from its subsequent use against him.

The right of an accused person to a fair opportunity to prepare for the allegations of his accuser has been established for many years — in the courts. However, in an inquiry it is not only possible but often the practice to withhold the names of witnesses until they take the stand. The witness may make a serious accusation. There is no time to check the facts, establish the qualifications or truthfulness of the witness. His opponents are at his mercy.

Conversely, the officer conducting an inquiry has the power to subpoena witnesses, with no effective limit on the speed with which the witness may be required to appear. Such a witness may be as unprepared for the questions thrown at him as another participant is unprepared tor testimony against him. Neither procedure is fair.

No procedural code would be complete without some safeguard against the irresponsible witness who hurls slanderous charges, safe in the knowledge that he cannot be sued for what he says, or for what is published in the press. Any witness whose evidence is obviously going to be defamatory should be made to testify in camera; when his evidence is released, evidence taken in rebuttal should be made public at the same time.

Counsel and commissioners are required to conduct themselves according to the law as it is. not as they would like it to be. I feel certain that both would welcome these changes in the rules under which they must work.

If "trial by commission" is inevitable. let us at least make sure that a hearing which purports to affect no man's "purse, person or property" cannot damage a citizen even more than a court trial in which these possessions are in jeopardy. ★