While Thomas Jefferson may not have said, “eternal vigilance is the price of liberty,” someone did, and it is good advice. In dealing with government lawyers, it is essential to ensure that the government’s servants have scrupulously followed the laws, they are trying to enforce against you, or your clients. It is rarely permissible for the government to break the law, in the guise of enforcing it.
It is in the nature of the human condition that even honest people, on occasion, try to bend the rules. The responsibility for averting injustice, is the job of everyone involved in the process. Whether the legal system remains fair and impartial depends on us all.
The Oxford English Dictionary (“OED”) defines, “justice” to be, “the quality of being fair and reasonable.” While I cannot speak to every case, there are cases, too many cases, in which the Department of Justice (“DOJ”) has been neither fair nor reasonable.
First, let’s establish the policy of the DOJ, what’s supposed to happen. The goal of every criminal trial is truth-seeking.
The DOJ has obligations to the administration of justice that do not burden other litigants; it is to be above notions of winning or losing; it’s duty is to present all of the credible evidence, for and against, an accused.
“Transgressions with respect to the [duty to disclose all relevant evidence]… constitute[s] a very serious breach of legal ethics”: R. v. Stinchcombe,  3 SCR 326 at paragraph 20. This is because a judge relies on the DOJ’s honesty and candor to reach a proper “verdict,” (Latin) for “sayings of the truth.”
Secondly, what does the DOJ have to prove to obtain a conviction? Basically there are three (3) things: 1. the breaking of a law, by the accused; 2. that the accused did the offending “act”; and 3. that he, or she, had a “guilty mind” pertaining to the act.
The admissible evidence must establish each of these things, beyond a reasonable doubt. If there isn’t enough evidence; or, if the accused didn’t do the act; or, her or she acted reasonably to follow the law; then the DOJ has failed to meet its burden and the accused must be acquitted.
The Charter of Rights and Freedoms guarantees that an accused is “to be presumed innocent until proven guilty” in a fair and impartial hearing. Voltaire put it this way, “it is better to risk saving a guilty man than to condemn an innocent one.” Ideally the DOJ will not charge an innocent person where there is no reasonable prospect of obtaining a conviction.
In Canada, Justice is personified in Peter MacKay, as Attorney General. In the words of Harry Truman, the “buck stops” with the Honourable Mr. MacKay.
That is the model – [OED, definition No. 2, the ideal to imitate] – but what really happens? Let’s test the Attorney General’s policy with a case, we’ll call it the John Doe case.
Doe was a tax case. In the end, these taxpayers were deemed by the Criminal Code to have never been charged with an offence – but, their long road through perdition, is a cautionary tale of institutional indifference by the DOJ.
The government and taxpayers are equally bound to follow taxing statutes. The DOJ must first prove that the taxes allegedly evaded were imposed by the Act.
The DOJ failed to do this. Here, the prosecutor had no audit; no final accounting conclusions; and a Defence audit concluded that after the arithmetic errors, phantom numbers and statutory non-compliance were factored out, no taxes were owed. How, did the DOJ Agent respond? He refused to conduct a forensic audit to verify the DOJ’s figures.
The trial judge held that “no allowable deductions… [by officials] intentionally to mislead the issuing Justice as to the amount of the taxes owing.”
Taxpayers may arrange their affairs to avoid taxes, so long as their do so in a permitted manner. The taxpayers in Doe entered into a tax-planned loan agreement that permitted them to legally defer the payment of taxes. The DOJ knew this before the charges, but despite their knowledge that the accuseds did not have the guilty mind needed to convict, they were charged.
Defence counsel, Clay Ruby, opined that it was “impossible” to convict – as proved to be true. How, did the DOJ Agent respond? He refused to meet and to learn why it was a perversion of justice to proceed with the charges.
On the evidence, the DOJ had neither the “act” nor the “guilty mind” it needed to prove; yet, contrary to doctrine it laid charges against innocent people.
What evidence did the DOJ have? During the appeal legal counsel for the Attorney General conceded that the admissible evidence was insufficient to justify the issuance of the search warrants the officials had obtain. The warrants were quashed by the court.
Obtaining search warrants requires a low standard of proof; how could evidence that was conceded to be insufficient to meet a low standard, meet the vastly higher standard need to convict. It couldn’t, it was a perversion of the process.
In summary, the DOJ Agent, could prove none of the elements he needed to convict. Conviction was indeed “impossible” and that impossibility was known, or knowable, from before the charges were laid.
The taxpayers made complaints at each stage of the process trying to get the DOJ to objectively weigh the evidence, or lack of it, and drop the charges.
Clear, cogent and compelling evidence of: intentional fraud; theft of documents under the court’s management; fabrication of documents; and witness intimidation were provided to the DOJ but they refused to investigate – each level of the DOJ up to and including Mr. MacKay’s office failed to take the necessary remedial action to prevent the administration of justice being brought into further disrepute. That is, Mr. MacKay is not accountable.
The taxpayers in Doe had to continue to fight in their defence when they had broken no laws and had taken reasonable care to ensure that their acts were legal. It was the officials of the government who had violated the laws; but, rather than hold their own accountable, as they should, the DOJ chose to turn a blind eye and a deaf ear to a perversion of the justice system by Crown employees and agents. In this they sacrificed justice on the altar of expediency and made themselves into the Department of Injustice.
Millions of taxpayer dollars are needless squandered, in such doomed cases.
If it could happen to John Doe et al., it could happen to anyone. If faced with an improvident prosecution; do as they did, keep fight the good fight. Stand against the abuses of authority by rogue officials, so that such practices don’t spread.
Chief Justice Hewart opined nearly a century ago that, “Not only must Justice be done; it must also be seen to be done.” This is because justice needs to be transparent, to allow the alert to recognize when their rights have been infringed without just cause.