David Asper, in today's National Post, suggests that we should exclude from court any evidence from someone who has received a benefit for testifying. As a practical matter, such a policy would allow sophisticated criminals to avoid prosecution and is simply not realistic.
In a perfect world criminal trials could be held without the need to hear from witnesses who are themselves criminals. We do not live in a perfect world.
Generally speaking, the people who have the best knowledge of sophisticated crimes are the people involved in the planning and execution of those crimes. Great care is taken to hide the crimes from outsiders and so if a prosecution for a sophisticated crime is to proceed the cooperation of at least one participant in the crime will almost always be needed.
Such cooperation is seldom (if ever) forthcoming because the participant has repented of the crime and wishes to testify and accept full punishment – the only way the cooperation comes is in return for something. That something can range from minor consideration on sentencing all the way to full immunity. And indeed, in a sense, that “something” can be seen as payment for testimony. But without that payment criminal conspiracies would be impossible to crack.
The Canadian compromise, allowing testimony of unsavory witnesses subject to close scrutiny, is not perfect but it allows for prosecution of crime while preserving the accused’s right to point out the dangers of the evidence. Any system excluding such testimony is a gift to criminals.
In Wednesday's National Post, Steven Skurka argued that the cozy deal struck by David Radler in return for his testifying against Conrad Black in a U.S. court was somehow “un-Canadian.” This is wrong. In fact, this sort of practice is alive and well in Canada, and has contributed to a number of wrongful convictions. One of the clearest examples of this comes from the report of the commission of inquiry into the wrongful 1991 conviction of James Driskell, who was falsely accused of the 1990 murder of Perry Harder in Winnipeg.
In that inquiry, Judge Patrick Lesage confronted one of the most egregious cases of witnesses being given favourable consideration for their evidence. The primary evil, however, was not that the deal was struck -- but rather, that the existence of it was hidden from defence counsel, and therefore the court, at the time of Driskell’s trial.
There will be many cases where, in order to conduct a prosecution that is less than a slam-dunk, prosecutors will take extra steps to secure a conviction. In some cases, the public won’t get too upset about this. For instance, would anyone dispute a prosecutor’s decision to give a lighter sentence to a thief whose evidence might properly convict a serial pedophile? Such trade-offs are dealt with on a daily basis by police and crown attorneys across Canada.
Unfortunately, they have problematic consequences. The obvious risk is that criminals who offer their evidence may be prone to lie, using their supposedly incriminatory information as a ticket out of their own path to jail.
Our courts have concluded that rather than excluding any such evidence it should be the subject of full and fair examination in open court -- and, where possible, either directly or circumstantially corroborated by other evidence. In addition, our judges caution themselves and juries about the inherent frailty of accused or convicted persons testifying against one another.
Turning to the case against Conrad Black, the deal made with Mr. Radler was fully disclosed to the defence and, according to all reports, Mr. Radler was mercilessly cross-examined about it. This, along with the rest of Mr. Radler’s evidence, taken together with all of what the other witnesses had to say, allowed the jury, at least in theory, to consider the credibility of Mr. Radler. While some observers may disparage Mr. Radler and the manner in which he turned on Mr. Black, it must be said that the jury had every opportunity to judge his motives and personality in assessing the worth of his testimony.
Such prosecutorial strategies do remain controversial, however. At least two commissions of inquiry in Canada have expressed serious concern for the use of jailhouse informants. Some argue for a complete prohibition, while others take the view that special care can be exercised by prosecutors and judges in dealing with such characters.
But in fact, there is not much difference between a “jailhouse” informant and a non-jailhouse informant criminal witness who gets paid in some way for his or her evidence. Both are bought and paid for, and both present serious dangers to obtaining safe and proper convictions -- and everyone involved in the system knows it.
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