How Due Process Fell Victim to Good Intentions: A Veteran Court Reporter Looks Back

The essay that follows is adapted from remarks delivered by the author upon receipt of the Justice Centre for Constitutional Freedoms’ George Jonas Freedom Award on June 14 in Toronto.

I find it amusing that we’re here, celebrating freedom, at a time when Canada’s federal justice committee unanimously has agreed to rewrite recent history. In the last week of May, Conservative MP Michael Cooper dared to quote three lines from New Zealand terrorist Brenton Tarrant’s dreary manifesto in response to a bit of a hectoring from a Muslim witness who’d appeared before the committee, which was studying online hate. The witness was Faisal Khan Suri, the president of the Alberta Muslim Public Affairs Council, and among the things he said was this:

We’ve seen a lot of recent tragedies happen across the world. In January 2017, the Quebec City mosque killer, Alexandre Bissonnette, gunned down six Muslim men in execution style when he came into the mosque with two guns and fired more than 800 rounds. The evidence from Bissonnette’s computer showed he repetitively sought content about anti-immigrant, alt-right and conservative commentators, mass murderers, U.S. President Donald Trump and the arrival of Muslim immigrants in Quebec.

Suri then went on, as did many other speakers, to mention the March, 2019, terrorist attack in Christchurch, New Zealand, where 51 Muslims were murdered. After yet another speaker, Cooper told Suri that he took great umbrage with his efforts to link “conservatism with violent and extremist attacks,” and that he should be ashamed.

Then, he read into the record three lines from Tarrant’s 74-page manifesto, in which Tarrant said “conservatism is corporatism in disguise, I want no part of it,” and that the nation whose values most aligned with his own was the People’s Republic of China. To judge by the reaction of his fellow committee members, you’d have thought Cooper had just relieved himself on the desk. I agree he probably had overreacted to a pretty mild comment, but he’s a conservative, and probably takes such matters seriously.

MPs from the left-of-centre Liberals and NDP sputtered with fury, and the committee immediately went in camera. When they emerged, Cooper withdrew his comment that Suri should be ashamed, and the hearing proceeded.

But a week later, the committee adopted a motion condemning Cooper for having been “discriminatory, hurtful and disrespectful” to Suri, noting that he’d read from the Christchurch attacker’s manifesto—though hardly with approval—and resolved to expunge the attacker’s name and the three lines Cooper had quoted.

The Tarrant manifesto is banned in New Zealand. This is ridiculous, I think. How can you know a thing if you’re not allowed to name it? But the manifesto isn’t banned in Canada (yet), though Tarrant’s name and words apparently are verboten in our Parliament.

For voicing his opinion, Conservative leader Andrew Scheer kicked Cooper off the justice committee, and he was also “voluntold,” as soldiers put it, to apologize again. Thus did a committee of the federal government literally rewrite history, just as Winston Smith did for the Ministry of Truth in Orwell’s Nineteen Eighty-Four.

As Smith reminded himself as he went about his work, “Nor was any item of news, or any expression of opinion, which conflicted with the needs of the moment, ever allowed to remain on record. All history was a palimpsest, scraped clean and re-inscribed exactly as often as was necessary.” At another point, he adds: “Your name was removed from the registers, every record of everything you had ever done was wiped out, your one-time existence was denied and then forgotten. You were abolished, annihilated; vaporized was the usual word.” And so perhaps begins that process for Michael Cooper.

I cannot tell you how shocking I find this, even though it’s the logical result of a whole lot of things I’m old enough to have witnessed first-hand as a veteran journalist.

Perhaps the key thing, because it led to the current importance placed upon “feelings,” was the development of the victims-rights movement. Have you noticed how many people now rarely say “I think it rained,” but rather, “I feel like it rained”?

This began, as so many bad things do, with arguably noble intentions. Long ago—and I’ve been covering criminal trials since 1978—it is true that victims and their families were sometimes given short shrift by the Canadian justice system. Prosecutors would forget to tell a homicide victim’s parents about the accused’s court dates; occasionally, relatives wouldn’t be able to get a seat in a crowded courtroom.

But these things didn’t happen routinely, or even often. I was there. Generally speaking, no one is more aware of, and more sensitive to, a victim or a victim’s family than a homicide cop; most of those I know remember the birthdays of all their victims. But in the ’80s there emerged this idea that, as one victims-rights advocate put it at the time, “The politicians long ago recognized the needs of criminals, but they forgot about us. A justice system that doesn’t want fair treatment for both sides is not a fair system.”

The problem is, victims of crime were never meant to be one of the two sides. Justice in this country, as in most Western democracies, isn’t supposed to be a matter between victim and perpetrator, but rather between state and perpetrator. Thus, it’s “State of New York versus Blatchford.” Or, in Canada, “Regina versus Blatchford.” It’s not “Blatchford versus her poor victim.” (And trust me, I have a list of likely candidates.)

Of course, the broader societal interests of public safety and protection incorporate the narrower interests of those who have been hurt or damaged by crime. But, traditionally, that’s where the victim’s role began and ended. That’s as it should be. And that’s what the rule of law, at its simplest, is: We all agree that we will not seek vengeance and take the law into our own hands. If you burn down my house, I will not burn down yours in retaliation and perhaps rape your wife for good measure. Instead, I will call the cops. The cops will investigate, and you may be charged. And at some point, you may go on trial.

But in 1989, the Canadian government passed the Victims Bill of Rights, and over the next decade, this being Canada, the provinces passed their own versions. All these bills really did was provide victims with the right to information—about court appearances, release dates of offenders, and so forth. But before you knew it, there was also something called the “victim impact statement,” which is delivered at sentencing and allows a victim or a victim’s family to talk publicly about their loss. These turned out to be just the first steps.

In May, 1995, came the trial of Ontario serial killer Paul Bernardo. I suppose, if I were truly modern, I wouldn’t name him either. But I’m not, so I will.

I remember that trial like it was yesterday, and could talk about it for days. But for these purposes, let me just say that it turned the notion of victims being an uninvolved third party on its ear.

Bernardo was accused, and convicted, of genuinely terrible crimes. He was a serial rapist who moved on to murder, with his then-wife Karla Homolka at his side. They were co-stars in the deaths of three young women—Homolka’s own younger sister Tammy, and teenagers Leslie Mahaffy and Kristin French. Bernardo was way ahead of his time. Long before Tarrant live-streamed his slaughter in the Christchurch mosque, well before Luka Magnotta posted a video of his 2012 killing of student Jun Lin in Montreal, Bernardo taped his attacks on young girls.

The trial of Homolka, which went first, was closed to the public and to the U.S. press, and was subject to so many publication bans that it was essentially held in secret.

Then, at Bernardo’s trial, the presiding judge, a lovely human being named Patrick LeSage, decided, at the behest of a lawyer representing the Mahaffy and French families, that the public and press wouldn’t be able to see the videotapes that were the single most critical piece of evidence against Bernardo. This was because, the lawyer for the families said, if the tapes were played in public, the families would have to watch them, too, which would violate their daughters’ dignity and privacy rights. The families, through their lawyer Tim Danson, asked for formal intervener status in the trial. Though he said he was doing it “as an indulgence” and not a right, LeSage granted it to them.

But the rights of victims were also expanded in another way at that trial. Because the videotapes originally were missed by the cops in their search of the Bernardo-Homolka home, the government determined it needed Homolka as a witness against her former husband. And fair enough. For a time, they did need her. And she was more than happy to oblige.

Prosecutors duly lined up an array of experts to paint her as a victim of Bernardo herself: She was a battered spouse. She was “the compliant victim of a sexual sadist.” She had PTSD, or traumatic amnesia.

But six months before Bernardo’s trial started, the tapes were belatedly found. And those tapes showed Homolka not as a victim, but as Bernardo’s accomplice, an eager, lip-licking participant in the sexual assaults of those three dead young women and several others. On tape, she seemed as perfectly capable of murder as her husband.

The tapes showed she had, er, forgotten about some of the sexual assaults, or, heaven forbid, lied about them. At least one police chief and one prosecutor wanted to breach her plea deal because of that, but there was no will to do that at the Ontario attorney-general’s office. There, they had all bought in to the vision of Karly Curls, as she called herself, the victim of a very bad man.

In fact, Homolka was a long-time co-participant in Bernardo’s rape and murder spree. Only in the end, and only then for about five minutes, was she his victim. Yet her plea deal—12 years in jail for her involvement in three deaths—survived. And after serving every last day of it, she was freed in 2005. To this day, many people persist in seeing her as a victim—just another sad victim of a toxic male.

One of those people was the lawyer who represented her while she was still in prison, a Quebec woman who really believed in Homolka’s victimhood. Her name is Sylvie Bordelais, and she was a true believer. Years later, I learned that it was Bordelais’ brother, Thierry, who married Homolka in 2007.

The Homolka-as-victim narrative did untold harm to the idea of gender equality in my view. If, no matter what a woman does, no matter how heinous her crimes, we persist in seeing her only as a victim of a man, we infantalize her. We aren’t granting that she is as capable of the full spectrum of human behaviour, good and bad, as are men.

Fast-forward almost a quarter century, and where are we now? For decades now, in each province there has been some sort of assistance office for the victim-witness. These are the soothers. They accompany every victim—but especially in sexual assaults—and guard them like attack dogs. They are always patting shoulders and comforting; they are the handers-out of tissues and the dispensers of hugs. A victim, especially a woman, must always be supported and, of course, believed.

Case in point: The 2016 sexual-assault trial of former CBC radio host Jian Ghomeshi, in which the three main accusers were revealed in cross-examination—by lawyer Marie Henein—to be duplicitous, self-serving complainants with big axes to grind against Ghomeshi. To varying degrees, they all had said that after they were allegedly attacked by Mr. Ghomeshi, they were so traumatized they either had nothing to do with him or made sure to see him only in public places, where they would be “safe.” This is what they told Toronto police officers, who had conducted a sleepy #MeToo-type investigation. It’s also what this trio testified to in court, under oath, in examination-in-chief.

Alas and alack for them, it turns out that after the alleged attacks, all three had variously sent Ghomeshi sexy pictures, or in the case of one, given him a friendly hand job at her house after a dinner out. In the case of Lucy DeCoutere, she actively stalked him for months, wrote him an email in which she said “I want to fuck your brains out,” and sent him flowers, and a six-page handwritten love letter in which she said, “I love your hands”—the same hands that allegedly had slapped and choked her.

Ghomeshi was acquitted, properly and rightly, and not on a “technicality,” and not because his lawyer had played dirty, but because his accusers had revealed themselves as utterly unreliable. They simply couldn’t be believed. And yet, it was as if the verdict didn’t matter, or hadn’t happened.

The same day as the verdict was announced, women marched in at least two Canadian cities, Ottawa and Toronto, in support of their three sisters. On social media and in the mainstream press, people who had never come within a hair of that courtroom confidently raged against the verdict and the rebirth of old “rape myths.” Inspector Joan McKenna, then head of criminal investigations for the Ottawa police force, tweeted a picture of six unidentified women and the line #WeBelieve, #selfcare@OttawaPolice and #EndtheStigma.

That tweet was duly retweeted by the chief of Ottawa Police, Charles Bordeleau. The chief of a major police force apparently is an adherent of believing women, no matter what, even after they have been revealed as untruthful.

Meanwhile, the leader of the federal NDP at the time, Thomas Mulcair, tweeted out: “Today and every day #IBelieveSurvivors.”

Ghomeshi was still being casually called a rapist, and still is to this day. And the complainants themselves carried on as though nothing had happened. They continue to describe themselves as “survivors.” How do you survive a thing that didn’t happen?

Yet Ghomeshi, vilified and unemployable though he remains, was actually one of the lucky ones. The allegations against him went to court, where they were tested, and found woefully lacking. Consider other men, most of whom had no such opportunity to confront their accusers. These include John Furlong, the former boss of the 2010 Vancouver Olympics; former Liberal MPs Massimo Pacetti and Scott Andrews, whose political careers and reputations were ruined by allegations of “serious personal misconduct”; politicians Patrick Brown, Kent Hehr, Tony Clement and Rick Dystra; CTV television reporter Paul Bliss; the brilliant writer Steven Galloway and the impeccable TVO talk-show host Steve Paikin, who was falsely accused of demanding sex by a perennial political candidate named Sarah Thomson. What they all have in common is that none of them had due process. None of them had the chance Jian Ghomeshi had.

The allegations against them were handled by “private” investigations, most of which were kept secret. Some of them never even learned what the allegations were. Erin Weir, for God’s sakes, was exiled from the federal NDP for being, and I’m not making this up, “a close talker,” as they said on Seinfeld.

Yet they were done in—and in some cases had their careers vaporized, as Winston Smith put it. Even one of those who simply gave Ghomeshi a chance to tell his side of the story was fired. That was the fate of Ian Buruma, who was, until he dared publish an essay by Ghomeshi, the editor of The New York Review of Books. It was no longer enough for the mob to denounce Ghomeshi (who, remember, was acquitted). Now, even those who would give him a voice must be mobbed, too.

Of course, a good part of the population—those of you in pants—can’t really say anything about #MeToo that isn’t wholly supportive of the movement. Men have been pretty much silenced on this subject. And if they do want to speak, they first have to check their various privileges—their maleness, their whiteness if they are white, their heterosexuality if they are that, and, of course, the collective entitlements granted them because of the all-pervasive patriarchy.

Honest to God, shoot me now. I’ve worked with men all my life, often wildly outnumbered by them, as when I was one of a half-dozen female sportswriters in North America. And I can honestly never remember ever fretting or thinking about my purported safety.

Anyway, I have a voice because I have breasts. So even though I’ve been deemed a rape apologist for saying what I think, at least I am able to say it.

Ghomeshi is luckier than Patrick Witt, who, as a 22-year-old undergrad at Yale, had an informal complaint filed against him by his ex-girlfriend with the then brand-new university-wide Committee on Sexual Misconduct. We all know, from the Lindsay Sheppard story at Laurier University, what bastions of fairness and freedom universities have become.

First, Witt was summonsed to a sort of mediation. He asked to bring a lawyer, but was told he couldn’t. He asked that fact-finding be done, so he could clear his name, but was told, “There’s nothing to clear your name of.” He demanded a formal complaint be lodged, but was told he couldn’t initiate it, only his accuser could. And guess what? She didn’t want to. And somehow, despite the confidentiality that was supposed to surround this Kafkaesque process, word leaked out. Witt lost his chance at a Rhodes scholarship, after having been announced as a finalist.

He’d been Yale’s starting quarterback and had been invited to the National Football League Scouting Combine, an annual invitation-only showcase for the best college players. Guess what: He was uninvited. And guess what: The New York Times somehow learned of the complaint against him and ran a story.

Four years later, Witt was a student at Harvard Law School, which had just adopted a similar policy to Yale’s. Witt wrote in the Boston Globe: “If considered in the abstract, many might wonder how a policy with such a laudable aim could draw any serious objections. And I might well have been among them, were it not for the fact that such a policy nearly ruined my life.” As he put it:

The complaint launched against me caused me and my family immense grief, and as a simple Google search of my name reveals, its malignant effects have not abated. It cost me my reputation and credibility, the opportunity to become a Rhodes scholar, the full-time job offer I had worked so hard to attain, and the opportunity to achieve my childhood dream of playing in the NFL. I have had to address it with every prospective employer whom I’ve contacted, with every girl I’ve dated since, and even with Harvard Law School during my admission interview.”

He ended the piece with this: “The reader might note that I have yet to even address the question of whether I was innocent of the accusation. I was. But it does not come up at any point above for the same reason that it never came up in any of the actions taken against me—because by the nature of the proceedings that follow from these new policies, it simply doesn’t matter.”

As it turned out, it didn’t matter for Ghomeshi either. The established narrative goes like this: The complaining women had been abused by a callous system; the deck was stacked against them; they hadn’t been colluding, heaven’s no, just merely talking, as chicks do; they were just simple women who had been deeply wronged. For the record, the Ghomeshi accusers were 41, 33 and 32 respectively at the time. DeCoutere was a fairly successful actor and an air force captain. All three had been around the proverbial block a time or two.

And now, we have new amendments to Canada’s Criminal Code that give complainants in sexual-assault trials the automatic right to have counsel and to get standing in arguments about whether they can be questioned about their previous sexual history. That’s a long way from the “indulgence” granted to the victims’ families in the Bernardo trial all those years ago.

Sexual assault trials across the country are on hold for months as these issues involving third parties are worked out. In the trial of former Afghan captive Joshua Boyle, for instance, the trial already has been sidelined for two months so his former wife’s lawyer could appeal the judge’s ruling that she could be asked a few questions about the couple’s previous sexual history.

The estranged wife, by the way, one Caitlan Coleman, testified via video from a different room, the so-called kiddie room, so she could feel safe and supported—a practice that used to be reserved for children of tender years testifying against their parents or abusers. In another case between former spouses, where the defence has launched a constitutional challenge against the new amendments, the wife testified with a support dog with her in the witness box.

We all talk a lot about the erosion of freedoms on campus, the lack of free expression on social media. These are worthy subjects. But the most important rights we have are those we need when we’re charged with a crime and face the ultimate loss of freedom. Those are the right to a fair trial within a reasonable time; to be informed of the charges against you; not to be denied bail without reasonable cause, and the right to be presumed innocent.