February 18, 2002
Regan a victim of matriarchal justiceGEORGE JONAS
Now that political show trials have gone out of fashion in Moscow, Ottawa has stepped into the breach. In a 5-4 split decision, the Supreme Court of Canada ruled last Thursday that the Crown may proceed against former Nova Scotia premier Gerald Regan on seven counts of alleged sexual offences.
The case against the former premier has a convoluted and troubling history. No woman ever came forward to accuse him. In July, 1993, a political opponent, relying on some information obtained from a CBC-TV show that never aired, filed a complaint with the RCMP. In October the same year, before any charges were laid, the RCMP publicly revealed that Mr. Regan was being investigated for sexual assault.
Revealing such information before laying a charge is against RCMP policy and practice. This became the first of many irregularities in the subsequent investigation and prosecution of the ex-premier. They included a Crown attorney named Susan Potts contemplating "judge shopping" a practice the Supreme Court later called "offensive" and "unacceptable." It also included the prosecution team "homogenizing" its functions with the police and conducting a series of pre-charge interviews with complainants. A Nova Scotia Supreme Court trial judge, Mr. Justice Michael Macdonald, eventually found that at least some of these interviews were designed "to have reluctant complainants change their minds and come forward to lay charges." Even though Ms. Potts was no longer on the Crown's team by the time the Crown preferred an indictment against Mr. Regan, the trial judge felt the prosecution had become tainted. In April, 1998, he employed a Charter remedy for abuse of process to stay nine of 18 charges against the ex-premier. Mr. Regan went on trial on the remaining nine counts. Defended by the criminal lawyer Eddie Greenspan and his associate Marie Henein, he was acquitted of all charges by a jury on Dec 18.
The Crown appealed Mr. Justice Macdonald's decision to stay nine charges against Mr. Regan. The judge called the charges minor, which they no doubt were, not just compared to charges of rape, attempted rape, and forcible confinement of which the jury had acquitted the ex-premier, but in absolute terms They consisted of allegations of Dr. Regan -- a 60s-style Liberal politician -- stealing a kiss or "copping a feel" some 24 to 34 years earlier. At the time they occurred (assuming they did) people would have viewed them as churlish rather than criminal.
Societal attitudes change. The same strong-arm tactics on ice that in the days of a Gordie Howe or Bobby Hull were unremarkable, might draw a criminal charge of assault today. One may regard this as progress (as Greenspan pointed out in court), but it would still be nonsensical to charge Gordie Howe with assault today on the evidence of a 20-year-old hockey video.
The quality of the Crown's evidence was illustrated by one complainant, who first recollected only a stolen kiss in 1969. Later she became "99.9%" sure that Mr. Regan also touched her breast over her clothes. It was such 99.9% certainties that the prosecution was proposing to turn into 100% criminal convictions.
In spite of this, in a split (2 to 1) decision, the Nova Scotia Court of Appeal had reinstated the nine charges. Two of them were subsequently dismissed by the prosecution. What the Supreme Court's majority dismissed last Thursday was Mr. Regan's appeal from the Nova Scotia Court of Appeal's judgment.
There was no disagreement between the majority and the minority of the court that the police and the prosecution had abused the process to a "troubling" extent. The dispute was over how much abuse should the process take in a good cause.
"[S]ociety has a strong interest in having the matter adjudicated," wrote Mr. Justice LeBel for the majority, "in order to convey the message that if such assaults are committed they will not be tolerated, and that young women must be protected from such abuse.
"I conclude that, based on the evidence of judge shopping, pre-charge Crown interviews, the improper police announcement the cumulative effect of these actions, while troubling in some respects, does not rise to the level of abuse of process which would offend the community's sense of decency and fair play."
But the abuse clearly offended the sense of decency and fair play of six Canadian judges. It caused the trial judge to throw out nine charges, and five justices (in two appeal courts) sided with him. For the dissenters, Mr. Justice Binnie wrote: "It was [the trial judge's] view, after an 18-day hearing, that Crown prosecutors had manifested such a lack of objectivity in seeking the conviction of a prominent politician 'at all costs' as to taint the integrity of the administration of justice in Nova Scotia. We ought to defer to his actual conclusions, in my opinion."
The majority insisted that the removal of Ms. Potts from the prosecutions team cured all possible defects. This was puzzling in the face of a well-established legal precept, annunciated (among others) by former Ontario Chief Justice Charles Dubbin, that the "executive is indivisible" -- e.g., removing a cop from a police investigation for tampering with evidence won't cleanse the evidence.
Torn between its distaste for some of Ms. Potts' tactics, and admiration for the same tactics bolstering feminist policy objectives -- the prosecution team under Crown Potts parleyed four charges of sexual misdeeds, as recommended by the initial director of public prosecutions, into 18 charges against a prominent male defendant -- the majority seemed to waver between wanting to see Ms. Potts disbarred and receiving an Order of Canada. This gave the court's reasons for judgment a somewhat split personality.
A SEXUAL ALLEGATION REDUCES ANY MAN TO A TERRORIST SUSPECT
Ultimately there were two differences between the court's majority and minority. The first was that the majority (Chief Justice McLachlin and Justices L'Heureux-Dubé, Gonthier, Bastarache and LeBel) preferred policy to fairness, while the dissenters (Justices Iacobucci, Major, Binnie and Arbour) favoured fairness over policy. Wrote Mr. Justice LeBel: "Victims of sexual assault must be encouraged to trust the system and bring allegations to light." Responded Mr. Justice Binnie: "The appellant [Mr. Regan] was deprived of the institutional protection to which he was, and is, entitled."
The second difference lay in the two factions' understanding of "societal interest." The dissenters felt society itself had an interest in fairness; the majority saw fairness as being of interest only to the accused.
Between the lines of the majority's reasons was the unmistakable message that the matriarchy means business; that a feminist justice system cares mainly about empowering women, and that in Canada's gender wars an allegation of a sexual nature by any woman, no matter how minor, unsupported, or distant in time, reduces any man to a terrorist suspect, an unlawful combatant, to whom the Geneva conventions no longer apply.
The political nature of the judgment has been celebrated by those who support the politics. "The Supreme Court has shown a willingness," crowed a Globe and Mail editorial last week, "to make the legal system more responsive to the victims of sexual assault."
I think the willingness the majority of the court has shown is to achieve a policy objective at the expense of procedural fairness. This also seems to be the view of six out of 13 Canadian judges. But, as the old judicial maxim warns, "policy is an unruly horse." Putting policy ahead of procedure can turn a system of justice into a reign of terror.
We're not quite there, but getting close. The chances of a male accused of a sexual offence receiving a fair trial in Canada's matriarchal justice system is better than the chances of a Jew receiving a fair trial in Nazi Germany, but only just. One crucial difference is that, unlike the Third Reich, Canada is not yet monolithic. We still have some common-sense jurors, spirited defence teams and a few dissenting judges.
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