Pubdate: Mon, 15 Mar 2010
Source: Law Times (Canada)
Copyright: 2010 Canadian Lawyer Magazine Inc.
Author: Glenn Kauth


As political commentators were putting it last week, the withdrawal of
serious criminal charges against former federal Conservative MP Rahim
Jaffer was an issue that would certainly have the Tim Hortons crowd

Of course, a common refrain was that Jaffer got off lightly due to his
political connections, a claim bolstered by Justice Douglas Maund's
now-famous comment to the ex-MP: "I'm sure you can recognize a break
when you see one."

Opposition politicians were clamouring for answers all week. In many
cases, the comments were misguided, in particular those attacking the
federal government. Given that it was the province that led the
prosecution, it was the Ontario Ministry of the Attorney General that
people should be going to for answers.

Provincial officials did eventually weigh in, with Attorney General
Chris Bentley saying calls for a more complete explanation had merit.

But even one of the most vocal critics, NDP MP Joe Comartin,
acknowledged it was unlikely Jaffer got favourable treatment. It's the
Liberals, of course, who run the province, so it's difficult to see
how they'd interfere on behalf of a Tory such as Jaffer.

The issue is tricky, however. On the one hand, while people are
talking about treating everyone, including politicians, equally, it's
routine for Crown prosecutors to offer little explanation when they
withdraw charges beyond the boilerplate and often unsatisfactory line
about not having a reasonable prospect of conviction.

That's exactly what the Crown said in Jaffer's case when it withdrew
impaired driving and cocaine possession charges against him. So given
the importance of equal treatment, shouldn't that convention apply to
him as well?

Already, the Toronto Star has quoted sources saying a police officer
made an error during a strip search of Jaffer at the time of the Sept.
11 incident. But there's an important issue at stake here.

The Ministry of the Attorney General says the presumption of innocence
and fairness considerations limit how much prosecutors can say in
these cases, regardless of who the accused person is.

But at the same time, law professor Alan Young says that while the
Crown has no obligation to justify its exercise of discretion in a
case unless there's some evidence of a misdeed, there's nothing
preventing it from doing so.

That being said, the reality is that prosecutors know that the more
they talk about their decisions, the greater the potential for trouble
later on. But in many ways, the province is in a catch-22. By offering
an explanation for how it treated Jaffer equally, it will have failed
to do so in other ways.

The case also demonstrates the competition between transparency in the
justice system and maintaining the presumption of innocence.

It's a delicate balance, but in this instance, there is one fact that
pushes the issue in favour of transparency: Maund's comments about a
"break." As a result, the Crown should exercise its discretion to say
why it dropped the criminal charges against Jaffer. 
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