Ottawa Citizen
Thursday 20 April 2000

Trial by media isn't the road to justice

Dave Brown
The Ottawa Citizen

Ontario needs to take a hard look at the way innocent people are being subjected to trials by media. In too many cases criminal charges are dropped or stopped before a charged person gets to a courtroom, but by then their names, faces and reputations have been electronically shot around the world.

Crown Attorney Andrejs Berzins was getting ready for a retirement party yesterday when he offered suggestions that could reduce these trials by media. He said one should look at the methods in place in Quebec, British Columbia and New Brunswick.

The questions to him were: Why is it that the Crown's office often announces it is dropping charges because it sees "no reasonable grounds for a conviction?" If there aren't grounds, why lay the charges in the first place?

"Police lay the charges," said Mr. Berzins.

"I agree totally. A lot of damage is being done. By the time the charges are withdrawn it's too late. The damage has been done."

He said the belief charges are approved by a prosecutor is wrong. It's a hangover from television shows like Law and Order, where such is the case in American jurisdictions. "Only about two per cent of the time do police check with us (Crown's office) before laying charges."

At Ottawa-Carleton Police Headquarters, Insp. Ralph Erfle fielded the questions. When hearing of Mr. Berzins' observations, the inspector said: "Is the Crown's office prepared for the increased workload?" He said in the current system there isn't room for an officer to pick up a telephone and book an appointment with a Crown. He agreed there's a problem. "You (journalists) have to accept some responsibility. You demand the information and when it goes public -- well, it's a trial by press."

It's happening more because of a twisted bit of social engineering that says people in the front lines, police and social workers particularly, can't be trusted to use sound judgment. More and more they are losing their powers of discretion to the battle cry of zero tolerance.

- Last week a sex abuse charge was stopped against a man who took photos of his naked four-year-old. In later stories, he said publicity made it necessary for him to put paper over his windows, and hide in his home.

- Last year, charges under anti-stalking laws (zero tolerance) against the Vatican's second-most powerful delegate in Canada were stopped before he got in front of a judge. Mr. Berzins made the announcement of no reasonable hope for a conviction in that case. By then the man's name and face had been blitzed around the planet.

- In 1995, sex abuse charges laid two years earlier against the capital's top Santa Claus, Don Kelly, made it to court but drew a quick acquittal and a scolding from Justice Hugh Poulin, who said the case shouldn't have been pushed. Defence lawyer Len Shore said police in that case served "simply as a receptacle for information. There's more to the job than that." By then Mr. Kelly's legal costs were near the $60,000 mark. He died three years later at age 63. Some blame strain.

- Also in 1995, Justice Ken Binks had harsh words for the fact a female teacher was in front him, charged with sexual abuse involving a former male student. The judge said she was the victim of "a monstrous fabrication by a tortured young man." By then she had been through a hell of publicity.

- In the early '90s this column tracked the case of a man charged by Nepean's police service with wilfully damaging his own car. By the time he got to a courtroom door he was out $1,500 in legal costs. He gave police the names of witnesses who could clear him, but was told to tell it to a judge. I interviewed those witnesses and they could indeed clear him. Eventually the Nepean police commission apologized to the man, but the police service refused.

- In the early '90s, I tracked the case of a retired upper level federal bureaucrat charged with theft in a dispute over the ownership of some dresses. She was out almost $10,000 in legal fees by the time she got to a courtroom, and the charges were stopped at the door. A prosecutor said he hadn't had a chance until then to look at the file.

These are just a few cases in which citizens were victims of processes that give authorities maximum powers, with minimum accountability.

Mr. Berzins says Ontario last looked in the early '90s at the issue of having criminal charges cleared by prosecutors. He says he's a firm believer it's time to revisit the issue. His last day in office is May 28.

Dave Brown is the Citizen's senior editor. His e-mail address is dbrown@thecitizen.southam.ca .

Read previous Dave Brown columns at www.ottawacitizen.com

Copyright 2000 Ottawa Citizen